DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.310/2011
Smt. Daya Malik
W/o Sh. R. N. Malik
R/o 1118, Dr. Mukherjee Nagar,
Delhi-10009 ….Complainant
Versus
Canara Bank
Through its
The Senior Manager,
Canara Bank,
South Ext.-I,
New Delhi-110049. ….Opposite Party
Date of Institution : 02.09.2011
Date of Order : 25.08.2018
Coram:
Sh. R. S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
ORDER
Naina Bakshi, Member
Briefly stated, the case of the complainant is that the complainant was having account No. 0267101016394 with the OP bank. On 21.08.2009, complainant visited the OP bank to receive her passbook from the OP and she was surprised to see that some unauthorized debits were made from her account through the following cheques:-
Date Cheque No. Amounts
- 29.07.2009 00646195 Rs.45,000/-
- 29.07.2009 00646196 Rs.29,000/-
- 08.08.2009 00646197 Rs.35,000/-
- 08.08.2009 00646198 Rs.30,000/-
It is submitted that the complainant asked the OP regarding the misappropriation of above cheques. The complainant asked the OP to supply the photocopies of the above cheques and found that her signature on the said cheques were forged by someone in order to withdraw an amount of Rs.1,39,000/- from her account. Complainant immediately sent written requests dated 24.08.2009 and 03.09.2009 to the OP to credit the amount of Rs.1,39,000/- in her account. The OP replied vide letter dated 05.09.2009 and 21.11.2009 but till date nothing has happened and the complainant is still living on the false assurance of the OP. It is submitted that perusal of the cheques in question clearly shows that someone had forged the signature of the complainant on the said cheques and as such the OP is liable to pay the amount. Complainant sent a legal notice dated 09.07.2011 to the OP. OP replied the same vide letter dated 18.07.2011 wherein once again the OP advised her to bear with them till something is heard from their higher authorities but nothing has been done by the OP till date. Hence, pleading deficiency in service on the part of the OP, complainant has filed the present complaint for issuing directions to the OP to credit the amount of Rs. Rs.1,39,000/- in the account of the complainant with interest @ 12 % per annum w.e.f. August, 2009 and to pay a sum of Rs.50,000/- for causing undue mental harassment and agony and also cost of litigation to the complainant.
OP in the reply has inter-alia stated that there has been no deficiency in rendering service, of any sort, to the complainant on the part of the OP. In fact the OP cannot be said to be negligent in honoring the cheques upon presentation for the reason that on the basis of visual scrutiny the instruments did not appear to be forged one and at the time of presentation sufficient amount to honor the cheques was laying the account of the complainant. The payment was made in due course i.e., in good faith in accordance with the apparent tenor of the instrument. It is submitted that there was no occasion for the OP bank to have any sort of doubt upon the genuineness of the instruments so as to warrant returning of the same to the presenter of the said instruments. In this case, the OP had taken all the possible care expected of a reasonable and prudent person, before clearing the said cheques for payment. It is submitted that after receiving the complaint regarding fraudulent withdrawal from complainant’s account OP sought opinion of handwriting expert and accordingly sent the relevant documents to the Government examination of questioned documents, Shimla. The expert report dated 15.03.2010 while coming to the conclusion that the signature as appearing on the disputed cheques were not genuine categorically observed that scientific examination and inter-se comparison of the questioned signatures in different light arrangements such as incident light, oblique light, transmitted light, UV and IR using various instruments like angle poise lamps, microscope and VSC 2000 HR etc., revealed too close similarities in their physical dimensions such as design, size and relative location of various strokes to the extent of superimposition. In fact a bare perusal of the opinion of the expert makes it evident that forgery on the said cheques could only have been detected by using various scientific methods/ instrument. The expert also opined that there are striking similarities in the disputed signatures with the admitted ones. Therefore, the only conclusion that can be drawn from the report of the expert is that upon visual inspection forgery could not have been detected by the OP bank as the same required usage of various scientific methods/ instruments. It is submitted that the OP had also taken up the matter of forgery with the police authorities and accordingly lodged a complaint on 12.10.2009 vide diary No. 52B and also OP took up the matter with the Assistant Commissioner of Police, Defence Colony, New Delhi vide letter dated 18.06.2010 but till date nothing has been heard from the police department. It is submitted that the complainant herself had been negligent by not keeping the said cheques in safe custody and no liability can be fastened upon the bank on account of negligence on the part of the complainant herself more so in the event when bank had taken all the possible care before clearing the cheques for payment. It is submitted that the complainant not entitled for award of a sum of Rs.1,39,000/- along with interest @ 12% per annum w.e.f. August, 2009 and OP cannot be directed to pay a sum of Rs.50,000/- towards alleged mental harassment and agony compensation as there has been no deficiency, shortcoming, imperfection in the nature of service rendered to the complainant by the OP. OP has prayed for dismissal of the complaint.
Complainant has filed rejoinder to the reply of OP. It is stated that the report of the handwriting expert referred to by the OP clearly states that “the signatures under examination are not the genuine signature of the person concerned written in normal course”. The OP is trying to misinterpret the report of the handwriting expert in order to mislead the court as well as to defeat the claim of the complainant knowing fully well that there is no deficiency in service on the part of the OP and under these circumstances the OP is liable to indemnify the complainant.
Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Sh. Rajpal Singh, Senior Manager has been filed in evidence on behalf of OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully and also the following two judgments relied on behalf of the OP:-
- United Commercial Bank Vs. Mahendra Popatlal Vora I(1995) CPJ 83 (NC).
- Bank of Maharashtra Vs. M/s Automotive Engineering Co. (1993) 2 Supreme Court Cases 97.
The complainant has filed the copy of letter dated 24.08.2009 regarding unauthorized debits from her account. We mark it as Mark-C for the purposes of identification.
The only question to be decided in the present complaint is whether the signatures of the complainant on the four cheques in question are genuine or appeared to be genuine so as to give occasion to the official of the OP bank to make the payment in good faith in accordance with apparent tenure of the instrument.
In the case of Bank of Maharashtra vs. M/s Automotive Engineering Co. (supra) it has been held that when a cheque is presented for the payment in the bank and the drawer has sufficient fund in the bank to cover the payment and on visual examination no infirmity in the cheque is found, the bank cannot be held guilty of negligence though later on the signature appearing on the cheque may be found to be forged one. It is held that the bank cannot be held liable on the ground of negligence merely because of its failure to scrutinize the cheque in ultra violet ray lamp.
In United Commercial Bank’s case (supra) it has been held that it is not the duty of the bank to take expert opinion for every cheque about the signature on it. It is held that when a cheque is presented to a bank the bank is expected to carefully scrutinize it in all respects by visual comparison with the specimen signature etc. of the drawer and unless on such scrutiny it finds reason to doubt the genuineness of the signature of the drawer it is bound to honour the instrument and make the payment; that in case of doubt the instrument will be returned to the party presenting with the endorsement made on accompanying slip that the signature does not tally with the specimen signature available with the bank and that the reference to an handwriting expert at the stage of passing the cheque is not practically feasible as the expert is bound to take a considerable amount of time to complete his examination and give his opinion.
Keeping in view the law laid down in these two authorities we now revert to the facts of the present case. The copy of opening form retained by the OP bank has been filed on the record which we mark as Mark AA for the purposes of proper identification. We have tallied the specimen signature with the signatures appearing on the four original cheques and find that if they are compared with naked eyes and even if a cursory look is given to them the same would lead to a conclusion that the signatures on the cheques had been tried to be copied from some instrument. Alphabet ‘D’ in the original cheques is totally different from the alphabet ‘D’ as appearing in the specimen signature. Similarly, alphabet ‘M’ is totally different with the alphabet ‘M’ shown in the specimen signature. Similarly, the modes of writing of the alphabets i.e. ‘Daya Malik of the word ‘Daya Malik’ in the four cheques are different from the corresponding alphabets appearing in the specimen signature. Thus, in our considered opinion, the bank official who had passed the four cheques in question if had given a careful scrutiny to these four cheques presented for encashment and had compared the same with the specimen signature of the complainant he would have certainly come to the conclusion that the signatures appearing on the four cheques were different from the specimen signature of the complainant. Therefore, in our considered opinion, the authorities referred to on behalf of the OP are not applicable to the facts of the present case. Therefore, in our considered opinion, the OP is guilty of deficiency in service so far as the factum of passing of the four cheques is concerned. At the same time, the complainant has not given explanation as to how the four cheques belonging to her had gone missing. Therefore, the complainant was also negligent in retaining the cheques.
In view of the above discussion, we allow the complaint and direct the OP to refund Rs.1,39,000/- to the complainant alongwith interest @ 6% per annum from the date of encashment of the cheques till realization. However, in the facts and circumstances of the case and more so when the complainant herself was negligent in keeping the cheques in question in safe custody we do not award any amount towards compensation or cost of litigation to him.
The order shall be complied within 30 days of receipt of copy of this order failing which OP shall become liable to pay interest @ Rs.9% per annum on the amount of Rs.1,39,000/- from the date of encashment of the cheques till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 25.08.2018.
