Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.415/dated 16.11.2016
Rekha Gupta d/o Late K.C.Gupta,
H. No. WZ-477, First Floor, Gali No. 25,
Shiv Nagar, New Delhi-110058 ...Complainant
Versus
OP. The Manager,
Central Bank of India, Vikas Minar,
ITO, New Delhi-110002.
Also at: Managing Director,
Central Bank of India,
Corporate Office: Chander Mukhi,
Nariman Point, Mumbai,
Maharashtra ...Opposite Party
Order Reserved on: 06.02.2023
Date of Order: 10 04.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Introduction to case of parties) : Complainant Rekha Gupta’s father Shri K.C. Gupta was robbed and murdered, some cheque leaves were also torn from his cheque books his different bankers, out of them two cheques no. 045440 and 045441 were pertaining to his saving bank account no. 00000001075864514 and the said two cheques were forged by his signature etc. and his banker/OP/ Central Bank of India cleared those two cheques which were bearing forged signature, when complainant approached the Central Bank of India/OP, her grievances were not looked into and addressed. There is negligence as well as deficiency of service on the part of OP in making clear those two cheques.
1.2: On the other side, OP opposed the complaint that neither there was any negligence or deficiency in services, the bank acted upon in the norms of banking business, in the day to day working of clearance of cheque, original cheques are not being forwarded to the payee Bank/OP but scan image of cheque are forwarded, the OP acted under good faith and cleared the said two cheques after verifying particulars from the scan copy of cheques. Otherwise, the complainant is at her fault, complainant’s father Shri K.C. Gupta had died on 06.04.2015 but the OP/Bank was informed on 27.05.2015.
1.3: The complainant filed various documents, initially with the complaint and then at late stage of the case. The complainant was unsuccessful in obtaining the bank account record of his father, under RTI and then in appeal. However, there was an FIR no. 1101/2015 registered u/ss 302/201/397/120B/34 IPC P.S. Ashok Nagar and the complainant obtained certified record on different dates from the court in Karkarduma [which includes copy of cheque, FSL result by Document Division (in respect of cheque no. 045440, other record of PNB, since it was discovered by police in investigation), which are at the page no. 37, 40-54 of the paper-book].
Moreover, on the basis of record received, the complainant also got examined cheque no. 045440 & cheque no. 045441 from an expert Forensic Services India for ascertaining signatures on cheques, that report was also filed by the complainant. Then, opportunity was given to the OP to file objections, if any, to such report, however, despite repeatedly opportunities including last and final opportunity at the request of OP but objections were not filed to the Examiner's report dated 12.04.2021.
2.1 (Case of complainant): The Complainant's father Sh. K.C.Gupta was customer of OP's Bank branch at Vikas Minar New Delhi-110002, he was having his Saving Bank A/C No. 00000001075864514. The complainant is a nominee in account of her father. Sh. K.C.Gupta was brutally murdered on 06.04.2015 (herein after referred as 'deceased') by his tenant Salim Ansari and his son Bajid Ali Ansari, an FIR no. 1101/2015, u/ss 302/201/397/120B/34 IPC was registered in PS Ashok Nagar District East New Delhi. Both Salim Ansari and Bajid Ali Ansari are lodged in the Tihar Jail Delhi. Soon after Police Officers checked the valuables at the residence of deceased and during investigation the police found that some of the cheques were found torn off from the cheque books of accounts maintained by deceased with his banks namely (i) Central Bank of India (Vikas Minar Branch New Delhi), (ii) Bank of Maharashtra (Mayur Vihar Phase-IlI, Delhi 1100906) and (iii) Punjab National Bank (DDA Market Mayur Vihar Phase-IlI Delhi-96) and there was no corresponding entries of such torn off cheques in the counterfoils. It was discovered in investigation that two cheques viz. (a) no.
045440 dated 25.03.2015 for Rs. 90,000/- in favour of Sh. Surender Kumar Dave and (b) no. 045441 dated 25.03.2015 for Rs. 2,25,000/- in favour of Rasikbhai Muljibhai Lalakiya were cleared by OP Branch on 20.04.2015 and 27.04.2015 respectively after the death of deceased. Whereas, said two persons, shown as payees, had no concern in any manner with deceased and his family members either at social, commercial or any other business level.
2.2 During the investigation, it was also revealed that the signature of the deceased on cheque no. 045440 was found forged by the Forensic Science Laboratory Sector-14, Rohini Delhi 110085 (briefly 'FSL'). The complaint, her other family members and the Police tried their level best and contacted concerned drawee bank branch for other cheque
no. 045441 of Rs. 2,25,000/- but this original cheque was not found in that branch and the same could not be sent to the
FSL for proper examination. Since Bank is the custodian of all the documents, valuables and money lying in the branch, it is the duty of the bank to take every care for the safety of all the valuables and documents etc. lying in its branch but for want of making availability of cheque proves a great deficiency in the services. This second cheque (no. 045441) was misplaced by bank , it is poor service rendered by the concerned bank.
2.3 It is sheer negligence on part of OP/Bank and its employees, who cleared the two cheques, without verifying of the signatures of deceased for permitting encashment of cheques. Moreover, despite repeated requests and demands of complainant and her other family members, OP/Bank did not take any action against the wrong-doers, which caused great mental pain, agony and harassment to complainant and her other family members. It was also revealed in investigation that accused Salim Ansari and his son Bajid Ali Ansari had
misused not only these two cheques but also other cheques of accounts in other banks, apart from they had also taken away many documents of properties of the deceased.
OP has not only caused great mental agony and physical pain to the complainant but also harassed the complainant with the indifferent attitude of agent/officer OP/ bank, whereas the complainant, being a lady, was to be behaved with sympathy and kindness. There is poor services and deficiency of the service on part
of OP/Bank Branch, it has miserably failed to give proper services as per the Banking Standards, while clearing the two cheques without matching the signatures of deceased on record and OP itself has made liable for the financial loss caused to the complainant, being the nominee of deceased. The complainant suffered heavy financial loss and burden, she has been surviving at the mercy of her close
relatives, having meager source of income. The Complainant is at the verge of starvation. Since she suffered a lot, it cannot be expressed in words and she is constraint to take legal
action against the OP/Bank, it is liable for costs and other consequences. The complainant has suffered a lot, which cannot be compensated in terms of money, however, under the circumstances the complainant is making claim of cheques amount of Rs. 3,15,000/-, on
account of poor services and deficiency in service of the OP by clearing the two cheques, besides Rs.50,000/-for the harassment, mental pain and agony and Rs. 11,000/- as litigation , which comes to total of sum of Rs. 3,76,000/- from the OP.
2.4. The complaint is accompanying many documents like statement of account of deceased, e-mails to the OP, legal notice, copies of certified copy of nomination form, bank opening account form, customer master form, PAN card, Electricity bill, cheques, and FSL Report dt 23-06-2016 with No. FSL 2016/D-1921/7787 by documents
Division containing opinion about the signature of Shri K.C. Gupta. The other circumstances of record filed had already been detailed in para no. 1.3 above.
3.1 (Case of OP) : The OP had filed written statement. The OP is being represented by its duly constituted attorney, Shri A.K. Narang, Chief Manager, Central Bank of India having office at DDA Building, Ground Floor, Vikas Minar, New Delhi - 110002. However, written statement has not been signed and verified by anyone but there is signature of counsel vis-à-vis the place and date of written statement is New Delhi & 07.04.2017 but in the verification date and place is mentioned of 06.04.2017 at Mumbai. Whereas as law of pleading is that pleading and verification shall be signed by the person making it and also by counsel, if any, apart from the place at which it was signed. Similarly, the written version/statement ought to have been signed by the OP through its Officer appointed. Thus, there is non-compliance of the requirement of law to this effect by the OP. Despite it, it is appropriate refer the case of OP.
3.2. The OP is a leading public sector Bank. At the outset, it is stated that the name of Managing Director of OP
Bank has been unnecessary mentioned in the complaint since allegations of deficiency of service are against OP-Bank having Branch office at Vikas Minar, ITO, New Delhi.
3.3. The consumer complaint is not maintainable either on facts or in law, it is abuse of the process of law, especially the complaint does not make
out a prima facie case of deficiency in service or unfair trade
practice. The OP denies and disputes all the facts (except the specifically admitted). The OP Bank admits that Shri K.C. Gupta had a Savings Account No.
1075864514 in its Branch and complainant Ms. Rekha Gupta is the nominee
of Shri K.C. Gupta for savings account. On 27.5.2015 the complainant informed the death of Shri K.C. Gupta and requested to close his account and she
further requested to make full and final payment of his balance in his account to her. The OP further states that after verification of claim lodged by the complainant, the
OP/ Bank made payment of credit balance Rs.10,386/- to the
complainant.
3.4. The complaint
was filed with sole motive of extracting money from OP by abusing the process of law. It involves complicated question of facts, which need
a detailed trial by leading evidence. Complainant should be directed to file an appropriate suit before the competent civil court. It is a matter of record that the alleged cause of action to file this complaint arose on commission of a grave criminal offence, police has already filed a FIR no. 1101/15 u/s 302/201/120-B/397/34 of IPC, P.S. New Ashok Nagar and the accused are stated to be behind the bars and trial is under process.
3.5. The complaint is liable to
be rejected for non-joinder of necessary and proper party, since the two instruments (Cheque nos. 045440 and 045441) were admittedly credited in the account of two different persons, The cheque no. 045441 was credited in the
account (of Shri Rasikbhai Muljibhai Lalakiya), with ICICI Bank Ltd. The second cheque no.
045540 was credited in the account (of Shri Surendra Kumar
Dave) with IDBI Bank. Thus, the ICICI Bank and the IDBI Bank are necessary
party, as only they can provide the KYC details of the beneficiaries of the two cheques, besides only these Banks can confirm, if any amount was recovered
from them [It is appropriate to mention that, subsequently a separate application was to implead the Banks as parties to complaint, it was dismissed by order dated 29.11.2016]..
3.6. The complaint rest upon FSL Report in FIR No. 1101/15 u/s 302/201/120-B/397 /34 of IPC, P.S.- New Ashok Nagar. However, FSL, Rohini had not taken the original account opening form of deceased from OP/Bank to compare his specimen signatures for forensic examination and conclusion.
The FSL report cannot be held as relevant or binding for the present complaint. FSL, Rohini used the account
opening form of Punjab National Bank [PNB] to conduct their forensic
examination and they have expressed their opinion
3.7. The complaint also suffers from delay and latches since Shri K.C. Gupta had died on 6.4.2015 but the complainant informed the OP/Bank on 27.5.2015 after about two months. The complainant failed to give prompt information to OP/Bank of demise of account-holder. Moreover, cheques are of 25.03.2015 (before death Shri K C Gupta) but till the date of its clearance, no information of his given to OP/Bank. After about four months of demise of Shri K.C.Gupta, the complainant informed the OP/Bank about
two cheques were misused by
some unknown person as well as signatures on cheques
bearing No. 045440 and 045441 were forged. However, no facts were mentioned on what basis the two cheques were forged. Whereas as per process of cheque clearance only a scan image of the cheque is forwarded to payee bank and OP/ Bank acted in good faith and cleared the two cheques after verifying all particulars from the scan copy of the cheques. It is also in banking practice that the original cheques are not sent by the beneficiary bank to the payee bank, instead a scan copy of cheques are sent to the payee bank for verification. OP/Bank written letter dated 06.04.2017 to ICICI Bank Limited and to IDBI Bank requesting them to forward KYC details of accounts held by two beneficiaries [of fraudulent cheques namely
Mr. Surendra Kumar Dave and Mr. Rasikbhai Mulibhai
Lalkhiva]. OP/Bank has also requested these banks [ICICI Bank and IDBI Bank] to mark debit freeze on their accounts and
debit the respective amount of Rs 2,25,000/- and Rs. 90,000/-, so
that payments can be made to complainant, if it is so directed
by this Forum.
3.8. The complainant also failed to file copy of charge sheet of FIR No. 1101/15 P.S. New Ashok Nagar, New Delhi. In such a circumstance, by way of summary consumer proceedings, it cannot be held, whether there was any deficiency in the process of clearance of cheque. OP also denies that it acted by negligence or two cheques were cleared,
without any verification of signatures or complainant suffered
any loss due to poor service of the OP or deficiency of service of OP or complainant has suffered due to
indifferent attitude of the officer of the OP/Bank or OP/Bank failed to give
proper service to the complainant. The OP/Bank acted in
good faith and always provided best of services to the
complainant and her late father and OP Bank has all
sympathy with the complainant. It is denied that the OP Bank has rendered
poor and deficient service to the Complainant and not provided proper service to the complainant as per Indian Banking Standards and norms. The bifurcation of claim amount as presented by the complainant is baseless and OP Bank is not liable to pay any amount to the
complainant.
The written statement is also accompanying with copies of record of power of
attorney in favour of Shri A.K. Narang, Chief Manager, Central
Bank of India, intimation letter dated 27.5.2015 of death of Shri K.C. Gupta, death certificate of Shri K.C. Gupta and receipt of Rs.10,386/- signed by the complainant.
4.1 (Evidence) : The complainant filed her affidavit of evidence, it is detailed affidavit on the line of complaint coupled with the documentary records.
4.2: On the other side, OP filed affidavit of Shri A. K. Narang, Chief Manager, his affidavit refers the same documents, which were referred in unsigned written statement.
5.1 (Final hearing) : At the stage of final hearing Shri Rajbir Bansal, Advocate for complainant and Shri Girish Bhardwaj, Advocate for OP made the final submissions. Their contentions are based on the documentary record coupled with their contentions in the pleading and evidence.
The complainant also relies upon FSL result furnished u/s 293 CrPC and also on the handwriting expert opinion, both of them have been opposed by the OP (although objections in writing were not filed to the handwriting expert opinion furnished). Report u/s 293 CrPC pertains to the State case and the police had not collected record of specimen signature from the OP, it was based on the record furnished by Punjab National Bank. The handwriting expert had furnished the report without looking at the original record, the report cannot be considered.
The complainant counters both the submissions of OP, firstly it would not make a difference, since the basic instincts of writing would remain the same and there is nothing in the report of expert that material available with him was not sufficient to render the opinion. On both count, the cheques were not bearing signatures of K.C. Gupta, which were cleared by the OP Branch.
5.2 Ld. Counsel for complainant requests that since it is established and circumstances are also speaking that both the cheques were not signed by K.C. Gupta but because of negligence of the OP as well as for want of rendering proper services as a banker, both the cheques were cleared by it without verifying with signature on bank record. It also amounts to deficiency in services. The OP is liable to return the cheque amount which was cleared by it for no fault of complainant or her father. Complainant fortifies the contentions while relying upon N. Venkanna vs Andhra Bank ( RP No. 1990 of 1999), wherein it was held that Banks cannot escape liability by making out a case of contributory negligence on the part of customer. Banks have a duty to meticulously to cross-check the signatures on a cheque or a withdrawal slip and failure to do so it constitutes negligence. Further reliance is also placed on Canara Bank vs Canara Sales Corporation & others (1987) 2 SSC 666, when a cheque, which is presented for encashment, contains a forged signature, the Bank has no authority to make payment against such a cheque.
5.3: On the other side, OP has reservations firstly, the cheques were presented through scan image, the record was verified and then amount was released. The OP Bank had also written letter to ICICI Bank Ltd. and IDBI Bank to provide KYC of the beneficiary accounts, since the amount went to the account holder maintaining accounts with the respective Banks. Otherwise, there was already registration of FIR and matter is already under investigation/trial. The complainant was at fault that information of death of K.C. Gupta was given much after his death, had there been advance information the cheque would not have been encashed. The complainant is liable to be dismissed.
5.4: Ld. Counsel for complainant has counter submissions that these contentions of OP are not tenable as there are RBI guidelines, which requires the Banks to be cautious for fraud cases as well as to protect the account holders from presenting fake cheque etc., the OP failed to discharge its duties as per banking norms and guidelines.
6.1 (Findings) : The contentions of both the sides are considered. Many facts are not disputed like the complainant is daughter/ nominee of Shri K.C. Gupta (since deceased), he was maintaining saving bank account with the OP/ Bank, apart from other accounts in other Banks. There is also no dispute that two cheques bearing no. 045440 (for Rs. 90,000/-) and no. 045441(for Rs. 2,25,000/-) were discounted after demise of Shri K.C. Gupta. The FSL report u/s 293 was furnished in case FIR no. 1101/2015 since the police had got examined the documents from the document division of FSL, one of the documents is cheque no. 045440 and signature thereon was compared with the other admitted documents obtained from Punjab National Bank, PAN card, electricity bill issued by BSES, then the opinion was rendered.
6.2: At this stage one more allied issue is to be settled. While going through the record, it was discovered that in the documents filed by complainant, one set of document pertains to seeking information under RTI Act and in that set of documents, there is copy of 'surviving member certificate', which mentions names of survivor members of wife, two sons and three daughters of deceased K.C. Gupta, however, the present complaint was filed by complainant Ms. Rekha Gupta exclusively under the provision of the Consumer Protection Act 1986. A question arises, whether one of the legal heirs can exclusively file complaint under the Act 1986?.
To avoid technical objections at any point of time, it needs to resolve here. Section 2(b) defines 'complaint' [its sub-clause (v)] includes “in case of death of a consumer, his legal heir or representative who or which makes a complaint”. It is undisputed fact that the complainant Ms. Rekha Gupta is also nominee in the saving bank account of OP, she was also released the credit balance amount in the account. Under these circumstances, the complainant Rekha Gupta is competent to file the complaint, being one of the legal heirs and also nominee of deceased K.C. Gupta [ to be read with Section 45ZA of the Banking Regulation Act 1949 - Nomination for payment of depositors' money].
6.3: However, the dispute has been raised by the OP to the case of complainant on many counts, they are to be dealt with. At the outset, the prime issue is pertaining to encashment of two cheques and it is but natural the encashment of the cheque is to be allowed as per norms, rules and regulations. Therefore, it would not mitigate the circumstances that the OP was informed death of complainant after about 50 days of death, police had registered the FIR and then investigation/trial was pending, letter was written to ICICI Bank Ltd and IDBI Bank for their KYC etc. The OP is taking inconsistent plea as on one side it emphasized that police registered formal FIR and case is pending but on the other side, it takes plea to direct the complaint to file civil suit. OP cannot do hot and cold together. Can a criminal trial court or police determine consumer dispute? The answer is 'no'. What is/are complication question(s) of law to be determined by civil court, they are not mentioned by OP. Then, how case need adjudication by civil court? Another irrelevant plea of OP is that complainant had not furnished charge-sheet of FIR no.1101/2015, firstly the Code of Criminal Procedure 1973, does not provide for making available copy of charge-sheet to legal heirs of deceased; other-wise for what relevancy the OP had needed copy of charge-sheet, it is not specified. The irrelevant, inconsistent and contradictory pleas of OP are just for the sake of objections having no merits at all, otherwise this Commission/Forum can decide the dispute on the basis of material on record. Actually, the issue is whether the two cheques were permitted and cleared by OP after or without verifying the record?
6.4: It is an admitted fact of OP, that both the cheques were on the basis of scan images, which is being termed as 'bona fide of complainant' to clear the cheques without production of physical/ original of the cheques. In case the cheques are being dealt on scan image basis, it would not relax or mitigate the process of clearance but all precautions, cross-check, matching of signatures with record and other verification is to be done before making their clearance. When physical cheque is not available but scan image, then it become for onerous task to match and verify the signatures before clearing of cheque.
In the FSL report u/s 293 CrPC, the Document Division of FSL had taken cognizance not only of admitted signature of K.C. Gupta on the record of Punjab National Bank but also signatures on other record of electricity bill BSES, PAN card, then opinion was rendered in respect of cheques, one of them is cheque no. 045440. The FSL opined that signature on cheque no. 045440 is not of K.C. Gupta while comparing with admitted signatures on various documents. Thus, OP will no derive any benefit that specimen signature card of OP Bank was not taken by FSL. Moreover, FSL had also considered K.C. Gupta's specimen/admitted signatures available on PAN card & electricity Bill of BSES, then report was rendered. It is never the case of OP that specimen signatures of K.C.Gupta on specimen card [in the record of OP] are different from the signature on other record analyzed & examined by FSL.
Moreover, he handwriting expert Shri Syed Faisal Huda and Shri Syed Faizal Huda of Forensic Services India have given their opinion with reasons that signatures on cheque no. 045441 (of Rs. 2,25,000/-) and cheque no. 045440 (of Rs. 90,000/-) are forged signatures and they were not signed/written by Shri K.C. Gupta. The OP has not filed any objections to opinion nor there is any other material against such opinions of forged signatures of Shri K.C. Gupta. It is a settled law that the report u/s 293 CrPC per se admissible, subject to its rebuttal. Similarly, the other handwriting scientific forensic expert report is also an opinion, it can be rebutted by the other side with appropriate evidence. However, there is no evidence brought on record to rebut this scientific forensic evidence of complainant.
The facts and circumstances proved are leaning towards the complainant that the two cheques were not bearing signature of K.C. Gupta and the amount was released by OP by clearing the cheques without verifying the signatures of K.C.Gupta on record of OP/Bank. The other features are also prone that while handling the cheques on the basis of scan images, it were cleared by the OP, whereas two cheques was not bearing signature of account holder. It appears to be clearing the cheque in a very routine way, without proper verification, thus it proves the case of negligence as well as deficiency of services on the part of OP. Thus, the complainant has established her case against the OP and being nominee of deceased K.C. Gupta she is entitled for return of the cheques amount of Rs. 3,15,000/- (i.e. Rs. 2,25,000/- + Rs. 90,000/-) from OP.
6.5: The complainant claims amount of Rs. 50,000/- on account of harassment, mental agony and Rs. 11,000/- under the head of litigation and other charges. At glance, it is apparent that the complainant has been perusing her case from the stage of obtaining information under RTI but on decline of her request for papers of specimen signature card, application form etc. of account holder K.C. Gupta, and then she had to file an appeal under RTI, which remained unsuccessful. However, she obtained such record, which happened to have been collected by the police in investigation of FIR no. 1101/2015, and then she filed the complaint, she also obtained hand writing expert opinion. Since she ran from pillar to post, she deserves appropriate compensation for harassment and mental agony suffered by her, it is quantified as Rs. 30,000/- in her favour and against OP. The litigation expenses of Rs. 10,000/- are allowed in her favour and against OP.
7. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay two cheques amount of of Rs. 3,15,000/-, apart from damages of Rs.30,000/- & costs Rs.10,000/- payable within 30 days from the date of receipt of this order.
In case the OP does not pay the amount within 30 days from the receipt of this Order, then OP will be liable to pay simple interest at the rate of 7% pa on amount of Rs.3,15,000/-, from the date of filing of the complaint till realization of the amount.
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
9. Announced on this 10th April, 2023 [चैत्र 20 , साका 1945].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
