PRESIDENT 

1)        By this complaint the Complainants have prayed that the Opposite Party be directed to pay the Complainant an amount of Rs.6,76,850/- for the financial loss suffered by the Complainants with interest thereon @ 12% p.a. from the retrospective dates when the cheques in question were debited in Complainants Account No.110648 till the realization of said payment. The Complainants have further prayed compensation of Rs.2 Lacs for tremendous worries and anxieties caused to the Complainant No.1 who is about 90 yrs. old and cost of Rs.1 Lac towards this proceeding.   

2)        According to the Complainant No.1 he is senior citizen and the Opposite Party is a Bank.  It is submitted that the Complainants are consumer of the Opposite Party Bank as provided u/s.2(1)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  The Complainants have engaged the banking services for the Opposite Party against the valuable consideration. It is submitted that being dissatisfied by the unfair trade practices and deficient act of the Opposite Party as contemplated u/s.2(1)(g) and Sec.2(1)(r) of the Act the Complainants are seeking reliefs by filing the present complaint u/s.12 of the Act.

3)        According to the Complainants, they are having Current Account No.110648 with the Opposite Party for more than 40 years.  Said account was initially opened in the sole name of the Complainant No.1 and he was operating the same.  It is submitted that due to consistent ill health and old age the Complainant No.1 he joined his son, Complainant No.2 as joint account holder on 07/11/03.  The Opposite Party at the relevant time obtained specimen signatures of both the Complainants on specimen signature cards.  The xerox copy of it is marked as Exh.‘A’. 

4)        According to the Complainants, as the Complainant No.1 is of about 90 years old and was suffering from serious health problems the Complainant No.1 could not operate and did not attend to bank accounts nor he could keep track of deposits, withdrawals, etc. for about 4 years from early 2004.  The copies of medical documents of Complainant No.1 are marked as Annexure ‘B’ colly.  It is submitted that during the illness of the Complainant No.1 his son i.e. Complainant No.2 and daughter-in-law looked after him and the whole family was busy in solving medical problems of Complainant No.1.  It is submitted that the Complainant No.1’s and his son’s bank accounts for the period from 01/04/02 to 31/03/03 and 01/04/03 to 31/03/04 were pending to be written.  The Complainant No.1 appointed one Shri. B.M. Zatakia as accounts clerk for writing account for the period of 2 years by letter dtd.08/03/04.  The copy of the said appointment letter is at Exh.‘C’. The said account clerk appointed for writing account of 4 entries – (1) C.L. Dudhia Individual (2) C.L. Dudhia H.U.F.  (3) N.C. Dudhia Individual  (4) N.C. Dudhia H.U.F. and relevant documents for writing said accounts were handed over to Shri. Zatakia.  It is submitted that after about 3 years Shri. Zatakia returned the documents and no list was prepared of the documents given to him and also returned by him.

5)        It is alleged that from about beginning of January, 2008 the health of Complainant N.1 started improving and by chance he happed to look at the bank statement dtd.05/04/08 in respect of the aforesaid joint account for the period 06/12/07 to 31/12/07 and found two debit entries in the names of Shri. A.S. Dsouza of Rs.45,000/- dtd.13/12/07 against Cheque No.341029 and of Rs.17,000/- dtd.28/12/07 clearing Cheque No.341032 in favour of Satish.  It is submitted that both the said persons and Cheque Nos. were not known to the Complainant No.1.  The Complainant No.1 therefore enquired to the Complainant No.2 about the said entries and names of the parties, who informed to the Complainant No.1 that he did not know anything about such transactions.  It is alleged that the Complainant and his son immediately addressed letter to the Opposite Party dtd.11/01/08 regarding the said entries and approached to the Opposite Party Bank and met Sr. Manager – Shri. Sakarkar and enquired about the details mentioned in the said letter and also asked him to make enquiry about the said transactions.  It is submitted that Shri. Sakarkar promised that he will enquire into the complaint and also advised the Complainant to freeze the aforesaid account.  Accordingly, in the letter dtd.11/01/08 the Complainant No.2 added the last line in his hand writing. The copy of the said letter dtd.11/01/08 is marked as Exh.‘D’.  It is alleged that to avoid the stress of such improper transactions the Complainant No.1 went to Ahmedabad for rest and change of place.  He stayed there till second week of April, 2008 and then retuned to Mumbai.  Thereafter the Complainant No.2 informed the Complainant No.1 that he had issued two letters to the Opposite Party dtd.22/01/08 and 17/03/08 to the Opposite Party about debiting of more cheques to the Account No.110648 under which the Opposite Party was requested to give details as mentioned in the said letters.  The copies of the said letters are marked as Annexure ‘E’ colly. Then on 09/04/08 the letter was written to the Opposite Party requesting to supply xerox copies of cheques mentioned in the letter dtd.22/01/08.  The copy of the said letter dtd.09/04/08 is marked as Annexure ‘F’.

6)        It is submitted then again on 17/04/08, the letter was issued to the Opposite Party to search old records and the Complainant No.1 found that one saving bank account bearing No.SB/GEL183464 was newly opened on 15/07/02 in the name of Complainant No.1 to deposit the amount of maturity of LIC Policy No.1910081 in the name of H.U.F. Account.  It is submitted that after depositing the said amount the said account was closed on 04/10/02 as per letter dtd.04/10/04.  In the letter dtd.17/04/08 issued to the Opposite Party the Complainant No.1 made reference of the said HUF account.  The copy of the said letter is marked as Annexure ‘G’. 

7)        It is submitted that on 15/04/08 the Complainant received letter dtd.09/04/08 from the Opposite Party alongwith xerox copies of listed cheques.  Having signature on the said cheques materially different not tallying with signature of the Complainant No.1 on the specimen signature card with the Opposite Party bank.  It is alleged that on the said cheques there was no signatures of the Complainant No.1 and he did not receive the amounts mentioned on the said cheque. It is alleged that the alleged signature on the account payee cheques were bearing rubber stamp for “C.L. Dudhia (H.U.F.) Karta” and the same were also not tallying with the signature of the Complainant No.1 in the specimen signature card which was with the Opposite Party.  It is alleged that the Opposite Party passed said cheques through clearing and debited the amount to the Complainant’s account No.110648.  According to the Complainants, the said cheques were from series 535426 – 535450 for which the cheque book was never issued to the Complainants.  It is alleged that the said cheques in question were forged and illegally and unauthorizedly debited to account no.110648.  It is submitted that because of debiting the amounts under the said cheques the Complainants were put to great financial loss.  The grievances regarding the said cheques were referred to the Opposite Party by the Complainants by their letter dtd.17/04/08.  The copy of the said letter is marked as Annexure ‘H’.  

8)        It is alleged that the Complainant No.1 wrote a letter dtd.20/05/08 and requested the Opposite Party to supply xerox copies of cheques No.341029, 341031 and 341032.   He had also requested for xerox copies of cheque book applications for new cheque books during the period January, 2005 till 20/05/08.  The Complainant No.1 also asked the Opposite Party to provide the bank statement from January, 2001 to April, 2008.  The copy of the said letter is marked as Annexure ‘I’.

9)        The Opposite Party in reply dtd.23/03/08 to the Complainant’s letter dtd.20/05/08 provided the xerox copy of cheque no.341029 of Rs.45,000/- issued in favour of Mr. D’souza. It also issued the xerox copy of Cheque No.341031 of Rs.26,000/- favouring Sampa which was returned to Syndicate Bank, Vashi Branch and the said amount was credited back to the Complainants’ Account No.110648.  It is alleged that the Opposite Party did not give any information about the third Cheque No.341032, dtd.08/12/07 of Rs.17,000/- issued in favour of Satish and in clearing the amount was paid to the said party.  The copy of the reply issued by the Opposite Party dtd.23/05/08 is Annexure ‘J’.  According to the Complainants, by letter dtd.27/05/08, the Complainant No.1 again informed his queries. The copy of the said letter is marked as Annexure ‘K’.  In the said letter the Complainant No.1 informed that on both Cheque Nos.341032 & 341029 there are no signatures of Complainant No.1 and the same signatures are forged.  The Complainant No.1 again wrote letter dtd.09/06/08 giving details of disputed cheques, etc. The copy of the said letter is marked as Annexure ‘L’.  According to the Complainants, in all there were 35 disputed cheques those were as under –

            1)  8 cheques in Table A series 406276 – 406300.

            2)  22 cheques in Table B series 535426 – 535450.

            3)  2 cheques at serial no.24 & 25 in Table D series 384546 – 384550 and the aforesaid 3 cheques bearing No.341029, 341031 & 341032. According to the Complainants, out of 35 disputed cheques mentioned above 22 cheques were encashed/self bearer cheques and of 13 cheques amounts were paid to third parties in clearing. 

10)      According to the Complainants alleged signatures on the aforesaid cheques are not of the Complainant No.1, they do not tally with the signature of the Complainant No.1 in the specimen signature card (Annexure ‘A’) maintained by the Opposite Party.  It is alleged that there were no dealings with those parties and the Complainant No.1 had not authorized any of them to present the said cheques for clearing or for withdrawal across the counter.  It is submitted that the signatures on the disputed cheques were not tallied or verified by the concerned officers of the Opposite Parties.  The Complainant also wrote letter to MRA Marg Police Station.  The copy of the said letter is marked as Annexure ‘S’.  It is alleged that the Opposite Party initiated on their own FIR proceedings with the aforesaid police station in the name of the Complainants in January, 2008.  The copy of it is marked as Annexure ‘T’.  The said police station called upon the Complainants vide letter dtd.02/05/08 to approach Shri. Bidkar, Investigation Officer for recording statement.  The copy of the said letter is Annexure ‘U’.  It is submitted that the Complainants met Shri. Bidkar with all papers and documents at MRA Marg Police Station and had discussion with him regarding the same complaint from time to time. On 06/05/09, Shri Bidkar recorded the statement of Complainant No.1 in Marathi and gave copy of the same to the Complainant No.1 which is marked as Annexure ‘V’.  The Complainant thereafter made further correspondence with the concerned police authorities which are marked as Annexure ‘W’ & ‘X’.  It is alleged that the fraud forgery criminal breach of truest, etc. in respect of the disputed cheque, cheque book, requisition slip, withdrawals of money from the Complainants account could not have happened without negligence of the Opposite Party and its concerned officers.  It is submitted that the Opposite Party is responsible and liable for deficiency in service and required to pay back the money with interest thereon and compensation for tremendous mental worries and anxieties caused to the Complainants. The Complainants have alleged that the financial loss caused to the Complainants due to encashment of forged cheques was to the tune of Rs.6,76,850/-.  The Complainants have therefore, prayed interest on the said amount from the respective dates when the said cheques were debited to the Complainants Account No.110648 @ 12% p.a.  The Complainants have also prayed the reliefs as mentioned in para 1 of this order against the Opposite Party.

11)      The Opposite Party contested the Complainant by filing written statement.  It is contended that the complaint is false & frivolous and the same is filed with malafied intention to cause wrongful loss to the Opposite Party and for the wrongful gain to the Complainants.  It is contended that the complaint which is based on the cheques, which are time barred under the provisions of limitation Act and on that ground the complaint filed by the Complainants be dismissed with cost.  It is contended that if any loss/harm is caused to the Complainants the same can be attributed to the negligence of the Complainants as they have not kept the cheque book issued to them properly and handed over to third person to their own perils for which the Opposite Party cannot be held responsible.  It is denied that the Opposite Party had wrongly debited 35 cheques as alleged by the Complainants.  It is contended that it is the duty of the Account Holder to maintain his account and know the person who signs the cheque.  It is contended that the officers of the Opposite Party had properly verified the signatures of the account holder i.e. Complainant on requisition slip book and issued the cheque books to the person authorized by the Complainant.  According to the Opposite Party, the Complainants cannot take the benefit of their negligence to the detriment of the Opposite Party. It is contended that all the particulars are given by the Complainants are false and bogus to demand illegal amount from the Opposite Party.  It is denied that the cause of action for fling the complaint arose on 11/01/08 when the Complainant No.1 happened to look at the Bank statement dtd.05/01/08 for the period 06/12/07 to 31/12/08.  It is thus prayed that the complaint be dismissed with cost. 

 12)      The Complainant has filed affidavit of Complainant No.1.  The Opposite Party has filed affidavit of Karni Singh Rathore, Asst. General Manager of the Opposite Party.  Both the parties have filed their written arguments. We heard the oral arguments of the Advocate for the Complainant Smt. Bindu Jain and Shri. Anup Khatain for the Opposite Party.

13)      The controversy raised in this case, by the Complainant is of 35 disputed cheques. It is alleged that without tallying, verifying and cross checking the signatures of the Complainant No.1 the same were passed and debited to the account of the Complainants by the Opposite Party.  It is the case of the Complainants that out of those cheques in all 22 cheques were self/cash bearer cheques and the signature on the back of the said cheques were illegible and yet the same were passed and debited to the Complainants Account No.110648. According to the Complainants the handwriting in respect of the date, amount in words and figures and the address on the said cheques, etc. is in different handwriting and not in the handwriting of the Complainant No.1. According to the Complainants, because of the deficiency of services on the part of the Opposite Party the Complainants sustained financial loss to the tune of Rs.6,76,850/-.  According to the Complainants the Opposite Party in the written statement as well in affidavit has not stated that they tallied the signatures of the Complainants on the specimen signature card maintained by the bank with the signature of the disputed cheques as well as the requisition slips.  The advocate of the Complainants relying on pleadings and documents has submitted that the Opposite Party and their officials were negligent and thus, provided deficient service to the Complainants by passing cheques without tallying signature with specimen signature card. The Ld.Advocate for the Complainant has relied the observations in the following cases – 1) HDFC Bank Ltd. V/s. Goloke Dutt I (2013) CPJ 608 (NC).  2) Abdul Razaque V/s South Indian Bank Ltd., III (2003) CPJ 20 (NC).  3)  Allahabad Bank V/s. Pratima Pal, II (2009) CPJ 42 (West Bengal State Commission).  4) State Bank of India V/s. Gowri Ramakrishnan, I (2007) CPJ 131 (Tamilnadu State Commission).  5) Karnataka Bank Ltd. V/s. Sachia Travelers Pvt. Ltd., IV (2005) CPJ 42 (Rajasthan State Commission).  6) Citizen Cooperative Bank Ltd. V/s. Ritesh Mittal, I (2004) CPJ 33 (J & K High Court) and submitted that the prayer made in the complaint needs to be allowed in favour of the Complainants.  The advocate for the Opposite Party Shri. Anup Khaitan made submission that the claim made on the basis of the cheques mentioned in the complaint is time barred as per the provisions of the limitation Act. The Complainants themselves were negligent in not keeping the cheque book issued to them and handed over cheques to a third party to their own peril for which the Opposite Party cannot be held responsible.  He made submission that the Complainants themselves alleged that the Complainant No.1 was under heavy medication and therefore, there might be every reason that due to heavy medication the signatures could be different than the original.  He also submitted that as alleged in the complaint the disputed cheques have not been passed for a small span of time but for a longer period of four years, therefore, by no means can there be fraud in respect the Complainants account and particularly the Complainant No.2 Nitin was also drawing the cheques during the period of 3-4 years.  He further submitted that the Manager of the Bank had specifically denied that the officials did not verify the signatures.  He also pointed out that in the affidavit of the Manager he has specifically stated that at the time of passing the cheques, issuance of cheque book specimen signatures are verified from image of specimen card.  He thus, submitted that the case made out by the Complainants that 35 disputed cheques were passed without tallying and verifying and cross checking signatures have been denied by the Manager- Rathore and as such there is no deficiency of service on the part of Opposite Party. 

14)      In view of the above facts and the controversy between the parties it is necessary to be seen that the nature of the proceeding before the commission are essentially in summary nature.  The factual position is required to be established by the documents.  The complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.  The Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd. V/s. Munimahesh Patel, reported in 2006 CTJ (1073) (SC) (CP) has observed –

“13.  The nature of the proceeding before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed fats it would exercise the jurisdiction.  The State Commission was right in its view that the complex factual position requires that the matter should be examined by the appropriate Court of Law and not by the Commission. 

14.  Above being the position the Commission was not justified to deal with the matter in the manner as was done.  In our view, the directions of the State Commission were more appropriate keeping in ling with the nature of dispute.  Accordingly, the appeal is allowed but with no order as to costs.”

15)      Considering the aforesaid observations of the Hon’ble Supreme Court and as the Complainant has come out with the case that the fraud and forgery has been committed upon the Complainants due to deficiency of service on the part of the Opposite Party and that criminal case or complaint has been registered we are of the view that for the purpose of seeking redressal of Complainants grievances the Civil Court or Criminal Court would be the proper Forum.  On the question of jurisdiction of Consumer Fora to entertain and deal with complaints where it contain allegations of fraud, cheating, forgery, etc. and where the complicated question of fact and law are involved as also where Complainant seeks huge damages for the alleged deficiency the Hon’ble Supreme Court in the case of Synco Industries V/s. State Bank of Bikanare, Jaipur and Ors. 2002 CTJ 169 (SC) (CP) has taken a view that the Complainant should seek his remedy in a Civil Court because the matter involved determination of detailed facts which would not be established except on detailed evidence, both oral and documentary, as to whether any fraud, forgery, etc. were played by the Opposite Parties. Another reason given was that this was a time consuming process and it was not possible to dispose off the matter in a summary fashion within the limited time specified by the Consumer Protection Act, 1986.  The Hon’ble National Commission also in the case of Sagar Polymers V/s. State Bank of India 2003 CTJ 1006 (CP) (NCDRC) in similar type of case has observed as under -

         “We have also gone through the complaint alongwith the various annexures filed with the complaint.  In our opinion the matter involves determination of detailed facts which cannot be established except on detailed evidence, both oral and documentary, as to where any fraud, forgery, etc. were played by the Opposite Parties.  This is a time consuming process and it is not a case to be dispose off in summary fashion within the limited time specified by the Consumer Protection Act, 1986.”

 16)      The cases relied by the Complainants Advocate (cited supra) are not applicable to the facts alleged in the present complaint.  In the case of HDFC Bank Ltd. V/s. Golake Dutt (Cited Supra).  The Hon’ble National Commission held that there is no dispute that the signature of Sh Golake Dutt were forged and the report of Handwriting Expert was placed on record and one Somnath Mitra, the employee of the Complainant in that case was arrested and was confined to police and jail custody for a considerable period and charge-sheet against him was filed u/s. 408, 467, 468, 474 & 477A of IPC.  The Hon’ble National Commission therefore, upheld the decision taken the Foras below.  In the present case such are not the facts.  No handwriting expert opinion is placed on record. The Complainants though filed application for seeking the opinion of Handwriting Expert, however, later on did not press the said application.  The Complainants have also not placed on record the result of the criminal action sought by them regarding the disputed 35 cheques. We therefore, hold that the observations in the aforesaid case relied by the Complainants advocate are not applicable to the fact of this case.  The other three cases relied by the advocate for the Complainants 1) III (2003) CPJ 20 (NC),  2) II (2009) CPJ 42,  3) I (2007) CPJ 131 (Cited Supra) and other cases are also not applicable to the facts of this case as the Hon’ble National Commission in the case of United Commercial Bank V/s. Mahendra Popatlal Vora, 1995 CTJ 151 (CP) has also held in respect of the maters of forgery of signatures on a cheque cannot be decided by the Consumer Forum. The officials of Bank are not Handwriting and signature Experts.  They simply compare the signatures on the cheques and after satisfying themselves, make the payment.  We therefore, hold that in view of the peculiar facts of this case and the decisions of the Hon’ble Supreme Court and National Commission referred above the submissions made the by the Ld.Advocate for the Complainants regarding the jurisdiction of this Forum to entertain this complaint and grant the reliefs as claimed in favour of the Complainants cannot be entertained and considered.  In the light of the above in our view the Complainants should seek their remedy for damages and compensation in a Civil Court and for a criminal action in a Criminal Court.

17)      On the point of limitation it will be open to the Complainants to move to the Civil Court u/s.14 of the limitation Act, 1963 for exclusion of time spent in the present proceedings.  In this connection the observation of the Hon’ble Supreme Court in the case of Laxmi Engineering Works V/s. PSG Industrial Institute 1995 CTJ 289 (SC) (CP) are required to be taken into consideration which are as under –

“If the Appellant chooses to file a suit for the relief claimed in this proceeding, he can do so according to law and in such a case he can claim the benefit of Sec.14 of the Limitation Act, to exclude the period spent in prosecuting the proceeding under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit.”                      

            In the light of what is observed hereinabove this complaint is dismissed without prejudice to the Complainants right to approach Civil Court or any other appropriate Forum. In the result the following order is passed –

                                                                                     O R D E R

i.            Complaint No.285/2010 is dismissed being not maintainable under the Consumer Protection Act, 1986  with no order as to cost. 

ii.         The Complainants are however, at liberty to approach Civil Court or any other appropriate Forum for their redressal in the present complaint.          

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