PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)     This is the complaint under Section 12(1) of the Consumer Protection Act, 1986, for the relief of reimbursement of Rs.14,81,181/- with interest, compensation for mental agony and cost of the complaint.

2)      Initially the complaint was filed before the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra at Mumbai.  The Hon’ble State Commission held that the amount claimed by the Complainant is less than the pecuniary jurisdiction of the State Commission.  The Hon’ble State Commission by the order dtd.20/01/2005 returned the complaint to the Complainant for filing it in the Forum having jurisdiction.  The Complainant has filed the complaint before this Forum within four weeks as per the directions of the Hon’ble State Commission. The Opposite Party by filing written version comes with the case that the complaint is barred by limitation. On hearing to both the parties this Forum had held that the complaint is not filed within the period of limitation and hence, the complaint was dismissed on 30/03/2012. The Complainant had challenged the said order before the Hon’ble State Commission by filing First Appeal No.A/12/737.  On 29/11/2013 the Hon’ble State Commission in the said appeal held that complaint is filed within limitation and set aside the order of this Forum of dismissal of complaint dtd.30/03/2012. Hence, this complaint is for the decision before this Forum.

3)     The case of the Complainant in short is that, the Complainant is the Company registered under the Companies Act, 1956.  On or about 01/07/1995 the Complainant was provided with an over draft facility through A/c. No.O/D527 by the Opposite Party.  The Opposite Party has made wrongful payment of Rs.14,81,181/- through 11 cheques.  On 03/03/1995 the Complainant had appointed one Mr. Ramavtar Soni, as the Accounts Manager for Complainant’s Group Companies.

4)      In April, 2001, the Complainant noticed some discrepancy in the Bank account to the tune of Rs.14,81,181/-.  The Complainant filed complaint against its employees Mr. Asawa & Mr. Soni with Cuff Parade Police Station.  Opposite Party assured to cooperate and take action against its staff and persuaded that they should not be made a party for breach of trust. The Police arrested Asawa & Soni in view of investigation in the police complaint filed against them.  Mr. Asawa subsequently confessed that he had forged the signature of Mr. Anoop Bhimrajka, one of the director of the Complainant and deposited the amount in his own account.  During the investigation it is revealed that Mr. Asawa & Soni had opened their accounts in the same branch of the Opposite Party.  According to the Complainant, the signatures on the forged cheques were conspicuously noticeable but still these forged cheques were cleared by the Opposite Party. The Opposite Party acted negligently and allowed the encashment of 11 forged cheques between 14/10/98 to 28/03/2000 from the O/D Account No.527.  The forged cheques were referred to an Handwriting Expert Mr. Mahesh Wagh who examined the signatures and reported that the signatures on the cheques do not appear to be of authorized signatory. On 18/09/2001 the Complainant issued letter to the Opposite Party and brought to the notice of Opposite Party the involvement of some of the bank employees and negligence of the Opposite Party and also called upon Opposite Party to make good the loss caused to the Complainant.  But the Opposite Party did not reply the said letter. 

5)    The further case of the Complainant is that by the letter dtd.29/01/02, Complainant once again reminded the Opposite Party for reimbursement of the amount of Rs.14,81,181/-.  The Opposite Party then vide its letter dtd.28/08/2002 denied any payment to the Complainant. According to the Complainant, the Bank cannot take such plea to avoid liability and reimbursement of amount of forged cheques. It was also pointed out by the Complainant that it is the Opposite Party ought to have checked every instrument for its correctness and tally the signatures with specimen card. In case of doubts it was required to check the signature of authorized signatory and only after verification, it could disburse the amount.  Thereafter, also the Complainant made correspondence with the Opposite Party for reimbursement of the amount of forged cheques but the Opposite Party denied its liability. Hence, this complaint for the reliefs mentioned in above para no.1.

6)     Opposite Party has resisted the claim by filing written version.  The contention of Opposite Party is that, the dispute in respect of 11 cheques relating to an Over Draft Account No.527 is purely a commercial transaction which falls beyond the scope of enquiry contemplated under the provision of the Consumer Protection Act, 1986.  The said over draft facility was granted for commercial purpose therefore, this Forum has no jurisdiction to entertain and try the complaint.  The two employee namely Soni and Asawa of the Complainant who have encashed the cheques in question are necessary parties to the complaint.  The Complainant has not made them parties therefore, complaint is bad for non joinder of necessary parties.  In the absence of above two persons the complaint cannot be effectively adjudicated and decided.

7)        The further contention of the Opposite Party is that, the complaint is based on the allegation of the purported forgery of the alleged cheques cannot be decided by the summary procedure.  Opposite Party cleared the amount covered under the alleged cheques in accordance with the apparent of the said cheques in good faith and without negligence.  The said cheques were cleared in usual and ordinary course of banking business.  The Opposite Party has taken proper care by way of scrutiny of the said cheques, the line quality, base lines, placing of dots, pen lifts and pictorial effects of the signature.       

8)        The further contention of the Opposite Party is that, Complainant has committed breach of duty by neglect of usual and proper precaution in keeping cheque book safely under lock and key.  The Complainant has not verified the number of cheques unused from the previous cheque books.  It was mandatory on the part of the Complainant to monthly reconcile bank’s statement which were furnished to them in usual and ordinary course of business.  The Complainant was bound to exercise reasonable care in operating the account.  The Complainant had provided complete access to their employee.  Opposite Party did not receive any complaint from the Complainant in respect of alleged cheques for a period of more than three years.

9)        The further contentions of the Opposite Party is that, Opposite Party has obtained opinion of Handwriting Expert Mr. Haresh D. Guajjar, having office at Examiner Press Building, 35, Dalamal Street, Fort, Mumbai – 400 001 in regard to the 11 cheques in question.  The said Handwriting Expert after going through 11 disputed and undisputed cheques of the Complainant and with the aid of various optical,  instruments and following various scientific methods to compare the signatures have given opinion that there is no significant difference between the letters on the alleged disputed cheques on one hand and undisputed cheques on other hand.  Opposite Party has denied that there was any forgery in regards to disputed 11 cheques. Opposite Party has denied that there was collusion of the staff of the Opposite Party as alleged by the Complainant. Opposite Party has denied all rival contentions of the Complainant and prayed for dismissal of the complaint with cost.

10)      The Complainant has submitted affidavit of evidence of Mr. Anoop Bhimrajka a Director. Opposite Party has submitted affidavit of evidence of Mr. Metta Prahaladha Sastry, Senior Manager.  Both the parties have submitted their respective written notes of arguments.  We have perused the documents placed on record by the parties. We heard oral arguments of Shri. Vidhur Dhavan, Ld.Advocate for the Complainant and Shri. Gaurang Nallawala, Ld.Advocate for the Opposite Party. 

11)      Shri. Gaurang Nallawala, Ld.Advocate for the Opposite Party has argued that the complaint is not within the pecuniary jurisdiction of this Forum.  The advocate for Opposite Party has relied on the judgment delivered by the Hon’ble National Commission in First Appeal No.887 of 2013 M/s. Omaxe Ltd. V/s. Ms. Iqbal Begum & Anr., decided on 16/05/2014. In the present complaint the Hon’ble State Commission has already decided the issue of pecuniary jurisdiction therefore, the said issue can not be raised again.   Hence, the citation relied  by the Opposite Party cannot be considered in the present complaint.

12)      Shri. Gaurang Nallawala, Ld.Advocate for the Opposite Party has further argued that, the Complainant had obtained over draft facility from the Opposite Party for commercial purpose and hence, Complainant is not the consumer therefore, complaint is not maintainable. The advocate for Opposite Party has relied on the judgment delivered by our the Hon’ble State Commission in First Appeal No.A/10/1079, Ganger Opticians Pvt. Ltd. V/s. HDFC Bank Ltd. & Ors., decided on 27/06/2011 and the judgment delivered by the Hon’ble National Commission in Revision Petition No.3685 of 2011 Ganger Opticians Pvt. Ltd. V/s. HDFC Bank Ltd. decided on 13/08/2012.  The Hon’ble National Commission in the above Revision Petition upheld the judgment and order passed the Hon’ble State Commission in First Appeal No.A/10/1079, dtd.27/06/2011. In the said case the contention of the Complainant was that, Opposite Party committed deficiency in service by charging fee to renew the overdraft facility contrary to the agreement between the parties in that respect.  In the present complaint the Complainant is not claiming any relief in respect of service of overdraft.  There is no allegation of Complainant regarding deficiency in service about overdraft facility.  In the present case the Complainant is claiming the amount of cheques on the allegations that Opposite Party has cleared those cheques without prior verification of the signatures of account holder.  The reliefs and facts of the present case are different than the above cited case hence, the said citation does not support the case of the Opposite Party.   

13)      The Complainant has claimed the re-imbursement of amount of 11 forged cheques from the Opposite Party Bank on the grounds that Opposite Party Bank encashed the said cheques without verifying signatures thereon with the specimen signatures of the account holder.  The Complainant got examined the signatures of disputed 11 forged cheques from Mr. Mahesh Wagh, Handwriting Expert who has given his opinion in writing to the Complainant on 08/09/2001. The Complainant has produced alongwith the complaint the said opinion at Exh.‘C’. Mr. Mahesh Wagh has mentioned in his opinion that the signatures of disputed 11 forged cheques are not of the account holder. The Complainant had requested Opposite Party for re-imbursement of the amount of disputed 11 forged cheques, by issuing letter dtd.18/09/2001. The Complainant had also informed to the Opposite Party the fact of appointment of Mr. Mahesh Wagh, Handwriting Expert and examination of the signatures of disputed 11 cheques by Mr. Mahesh Wagh and his opinion by the letter dtd.18/09/2001.

14)      Opposite Party has also obtained opinion of Mr. Haresh T. Gajjar, Handwring Expert in respect of signatures of the disputed 11 forged cheques.  Mr. Heresh T. Gajjar, Handwriting Expert has given his opinion in writing to the Opposite Party on 05/10/2001. On 01/06/2005 Opposite Party has submitted alongwith written version the said opinion at Exh.3 (page No.22). As per the opinion of Mr. Haresh Gajjar, Handwriting Expert there is no significant difference between the signatures of disputed and undisputed cheques.

15)      There are contrary opinion of two handwriting experts in respect of signatures of disputed 11 cheques.  Mr. Mahesh Wagh has mentioned in his opinion Exh.C that he examined the documents with the aids of magnifiers, illuminated magnifiers and transmitted light.  Mr. Haresh T. Gajjar has also mentioned in his opinion Exh.3 that he compared the signatures of disputed cheques with undisputed signatures with the aid of ultra – lens, magni-rays, optic binocular visor, stereoscopic binocular microscope, various types of magnifying glasses and test plates, ultra – violet rays, transmitted light, oblique rays, white days light fluorescent tube and direct sun-rays.  The above evidence shows that both handwriting experts have verified the signatures of disputed cheques with the admitted signature with the aid of various instruments and scientific methods. On 07/07/2006 Opposite Party had moved an application for referring disputed 11 cheques to third independent handwriting expert for opinion. On 15/03/2012 Opposite Party has not pressed the said application.  For deciding the dispute of the parties it is necessary to see which of the opinion of handwriting expert is more reliable and for that purpose examination and cross-examination in detail of both the handwriting experts is necessary. Furthermore, it is also necessary to consider whether the oral evidence of two employees of the Complainant Mr. Asawa & Soni is required to be taken into consideration for the reliefs claimed in the complaint.  In our view for consideration of all these aspects the summary proceeding laid down under the Consumer Protection Act, 1986 would not be proper and legal.

16)      The Hon’ble National Commission in the judgments delivered in First Appeal No.63 of 1994 Lala Samachar Newspaper V/s. General Manager, Telecom Department, Ludhiana & Ors., decided on 18/03/1997, (reported in 1998 – (006)- CTJ-0336-NCDRC), First Appeal No.230 of 1991.  N. Shivaji Rao V/s. M/s. Daman Motor Co. & Ors., decided on 02/11/1992 (reported in 1993-001-CTJ-0107-NCRDC), Original Petition No.141 of 1994 Reliance Industries Ltd. V/s. United India Insurance Co. Ltd., decided on 30/05/1997 (reported in 1997-005-CTJ-0688-NCDRC) observed that, cases of detailed inquiry involving forged and fabricated false documents can be investigated by regular Civil Suit.  The Hon’ble Uttarakhand State Consumer Disputes Redressal Commission, Dehradun in First Appeal No. 77 of 2014, Yogendra Mahoan Shukla V/s. State Bank & Ors. decided on 03/11/2014 (reported in I (2015) CPJ 62 (utta) observed that, the complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by the Consumer Fora.  In view of the above observations of the Hon’ble National Commission and the Hon’ble Uttarakhand State Commission, we hold that the present complaint can not be entertained and decided by this Consumer Forum.

17)      Shri. Vidhur Dhavan, Ld.Advocate for the Complainant in support of his argument relied on the judgement reported in I (2006) CPJ 132 (NC), N. Venkanna V/s. Andhra Bank decided on 11/01/2005.  In the said case the amount was withdrawn by using withdrawal form and the contention of the Complainant was that he has not withdrawn the said amount. The District Forum had obtained the signatures of the Complainant and had referred disputed and undisputed signatures for the opinion of expert. The Ld.Advocate for the Complainant has also relied on the Judgment reported in 2003-(003)-CPJ-0020-NCDRC Abdul Razak & Ors. V/s. South Indian Bank Ltd., decided on 20/11/2002. In the said case cheque book was issued by the bank on written request made by an imposter and had encashed the cheques of different amount signed by an imposter.  The Hon’ble National Commission on bare look of the signatures on account opening from of the Complainant and cheque requisition application and the cheques without aid from any handwriting expert found that the bank failed to verify and compare correctly the signatures of the Complainant at the time of issuing cheque book and en-cashing the cheques. In the present complaint contrary opinions of two handwriting experts are on record.  The point involved in the above two cited cases relied by the Complainant is different than the point involved in the present complaint therefore, these citations do not support the case of the Complainant.  Shri. Vidur Dhavan, Ld.Advocate for the Complainant has also relied on the judgment reported in 1995 AIR 1368 (SC) Bank of Maharashtra V/s. Rice Shipping & Transport Co. Pvt. Ltd.  In the said case the Bank had challenged the interim order passed by the Hon’ble High Court in the writ Petition in which allegation of forgery of cheque was made by the Rice Shipping Co. and the main write Petition was pending before the Hon’ble High Court for adjudication of the maintainability of the writ petition. Shri. Vidur Dhavan, Ld.Advocate for the Complainant has also relied on the judgment reported in IV (2004) CPJ 33 (NC) Union Bearings (India) Ltd. V/s. State Bank of India. The facts of the cases cited above are totally different than the fact of present complaint hence, these citation do not support the case of the Complainant.  In view of discussion made in para Nos.15 & 16 we find that the issues involved in the complaint are complicated questions of fraud and cheating and the same cannot be entertained and decided in the present complaint by this Forum.  However, the Complainant is at liberty to seek the reliefs from the competent Civil Court or any other independent proceedings as may be open to it in Law. 

        In the result complaint deserves to be dismissed as it needs elaborate inquiry and evidence.  Considering the nature of the complaint both parties have to bear their own cost.  We therefore, pass the following order -    

O R D E R

                   i.       Complaint No.32/2005 is dismissed.

           ii.       The Complainant is at liberty to seek the reliefs from the competent Civil Court or any other independent proceeding as

                      may be open to it in Law.  

                 iii.       Both parties shall bear their own cost.

                 vi.       Certified copies of this order be furnished to the parties.