Order-17.
Date-05/08/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that he received a cheque, as loan for Rs.4 lakh bearing No.395801 dated 16-05-2011 drawn on Oriental Bank of Commerce, Chittaranjan Avenue Branch, Kolkata and the said cheque was deposited to the complainant Bank i.e. R.B.S., Brabourne Road Branch, Kolkata on 16-05-2011 for clearance vide account no.289008 but the Bank Official did not accept that issuing any receipt but directed the employee of the complainant to place that cheque to their cheque drop box and it was their existing norms and the said employee of the complainant on good faith did so.
In course of time complainant ascertained from his said account that the said cheque was not honoured and being suspicious he requested the said payee of the cheque to ascertain whether the said cheque was encashed or not and the said bank i.e. OB.B.C. C.R. Avenue Branch informed that the said cheque was credited in favour of the Account Holder of SBI Beadon Street Branch, Kolkata on 26-05-2011, whereas there was no account of the complainant in the said branch. Complainant rushed to the said SBI Branch, Beadon Street and came to know by the cooperation of some staff that a forged account was opened in the name of the complainant by using forged photograph and documents in the name of the complainant and to facilitate the culprits no general norms for new account were complied with and the said cheque of Rs.4 lakhs was placed, encashed and withdrawn within span of two days from the date of account opening therein. Complainant lodged complaint to the police station at Hare Street P.S. and started a case vide case no.G. Town (DD)/402 dated 24-06-2011, u/s.380/120B/419/420/467/468/ 471 I.P.C. and during investigation, police arrested some miscreants and recovered part of the booties and filed charge sheet and at present it is pending for trial and in course of investigation it was ascertained by police from the C.C.T.V. footage that the cheque was stolen by the said Bank Staff at the time of taking the cheque from the cheques drop box of the said R.B.S. Bank as there was total negligent on the part of the bank as they had started drop box system, but no minimum precaution was taken by the said bank and as such the complainant incurred loss of Rs.4 lakhs.
Complainant sent letters to the R.B.S. Bank authorities, State Bank Authorities and Banking Ombudsman Authorities but till now he did not get any justice regarding the refund of the said amount Rs.4 lakhs and about the fake account which was opened in SBI Beadon Street Branch, Calcutta and withdrawal from that Bank, hurriedly by depositing the said stolen cheque without any proper enquiry or observing the banking norms as per guideline of RBI in the case of New Account.
Having no relief, complainant himself as well as through his Lawyer sent several letters to the Banking Authorities but they did not pay any heed and lastly on 15-09-2014 by their the Ld. Advocate of SBI, Beadon Street Branch, Calcutta denied their responsibilities and in such a process Bank is avoiding their responsibilities and finding no other alternative and for their negligent manner of service complainant compelled to file this case before this Forum praying for relief and redressal.
On the other hand, OP by filing written statement has submitted that the complaint is manufactured, false, fabricated, speculative and harassive and barred by the law of Limitation as because the cause of action has arisen in the year 2011 and complainant has no locus standi to file the complaint against the OP because complainant is neither a customer nor any service was ever rendered by this OP and he is not a consumer under the OP. OP has also stated that as the source of dispute arose out of fraud for that reason the Ld. Forum got no jurisdiction to entertain the complaint and for same cause a criminal case is already pending before Ld. 5th MM Court Kolkata vide Case No.G/DD Case No.402 dated 24-06-2011 u/s.380/401/420/467/468/ 471/12B IPC.
It is specifically stated that on 02-06-2011 OP received a letter from Sri Ram Gopal Mussaddi, the complainant and from the said letter The Branch Manager, SBI, Beadon Street Branch came to know that Rs.4 lakh was credited in the account No.20090301503 in the name of Ram Gopal Mussaddi, which belongs to their branch and from the said letter and documents Branch Manager came to know that the said cheque was stolen from R.B.S. Brabourne Road Branch and encashed through SBI, Beadon Street Branch, on 06-06-2011 OP received another letter from complainant along with photocopy of some documents alleging fraud, cheating and forgery of Rs.4 lakh and from the said documents bank came to know that the complainant made police complaint and after that OP lodged another complaint before Burtolla P.S. in respect of fraudulent encashment of cheque in respect of newly opened account no.20090301503, on 25-06-2011 and Officer in Charge Bank Fraud Section Detective Department, Kolkata Police Head Qr. requested the Branch Manager SBI, Beadon Street Branch to submit some documents and OP did accordingly and on 30-06-2011 OP received another letter from the Police Authority and acted as per their letter. On 28-07-2014 OP SBI received a letter from Ld. Advocate Sri Prabhat Kr. Pal, complainant’s Advocate. On 11-09-2014 OP wrote another letter to the Joint Commissioner of Police (crime) and requested to inform the status of the case and on 15-09-2014 OP informed the complainant the status of the pending case and requested to wait for final adjudication. Therefore, the allegation made herein against the OP is baseless and after thought and there was no negligence on the part of the OP and as the criminal proceedings already started the complaint is liable to be dismissed.
On the other hand, OP2 did not appear and file any written version to contest the case.
Decision with Reasons
On critical appreciation of the complaint and the written version and also considering the documents and further hearing the argument of the Ld. Lawyer of SBI it is clear that complainant is a businessman and had received a cheque of Rs.4 lakhs bearing No.395801 dated 16-05-2011 drawn on Oriental Bank of Commercial (OBC), Chittaranjan Avenue Branch, Kolkata and for encashing the said cheque through clearance the said cheque was deposited to Royal Bank of Scotland (RBS), Brabourne Road Branch, Kolkata on 16-05-2011 vide Account No.289008 but the Bank official did not accept that cheque issuing any receipt but directed the employee of the complainant to place the cheque to their cheque drop box which was under the exclusive custody of the said bank and the said employee of the complainant on good faith did so but subsequently it was found that cheque was not encashed for which he was perplexed and informed to the bank whether the cheque was encashed or not but he was informed that the said cheque was credited in favour of the account holder of SBI Beadon Street Branch, Kolkata on 26-05-2011. After receipt of the information complainant rushed to the said Bank and came to know with the cooperation of some staff of the bank that a forged account was opened in his name by using forged photograph and documents and to facilitate the culprits no general norms for new account were complied with and the said amount was withdrawn within a short span of time from the date of account opening. Admitted position is that complainant lodged a complaint to the police stating all facts and Hare Street Police Station started a case vide case no.G Town(DD)/402 dated 24-06-2011 u/s.IPC and during investigation police arrested some miscreants and recovered part of the booties and filed charge-sheet and at present it is pending for trial.
During investigation it was ascertained from the CCTV footage of OP2 that the cheque was stolen at the time of taking the cheque from the cheque drop box of the said RBS Bank and there was a total negligence on the part of the bank as they had started drop box system but no minimum precaution was taken by the said bank, so, it is proved from the fact that the said cheque was removed from the drop box by the miscreants and it is also proved that a forged account was opened at SBI Beadon Street Branch and it was withdrawn within a short span.
It is undisputed fact that after getting the complaint from the complainant SBI Bank Authorities started Police case reporting the entire facts and Branch Manager, SBI, Beadon Street lodged complaint before Commissioner of Police, Lalbazar on 11-09-2014 and also they lodged an FIR on 08-06-2014 at Burtolla P.S. and OP SBI has admitted that by fraudulent means encashment of cheque No.395801 was made and the cheque was encashed in the name of Ram Gopal Mussadi but account was freshly opened at SBI, Beadon Street Branch, being No.20090301503 and bank has admitted that the entire encashment was made fraudulently by making fraudulent account by some miscreants in the name of the complainant and admitted position is that said police case is pending before Ld. 5th MM Court Kolkata for final adjudication. No doubt OP SBI has submitted that complainant is not a consumer of the SBI Beadon Street Branch so, OP Bank has no liability but after considering the entire fact it is proved that the cheque of the complainant was entertained by the SBI Beadon Street Branch and honoured. SBI by filing written statement submitted that no doubt after enquiry it is found that it is fraudulently made by some miscreant by preparing some fake document and encashed the same. Truth is that during police investigation it was detected that cheque was deposited at the drop box of OP2 Bank and from the CCTV footage collected by the police it is found that the said cheque was removed from the drop box during office hours of the OP Bank. Then under any circumstances, OP SBI cannot deny that the complainant is not the consumer because complainant’s cheque was encashed in the bank of the SBI Beadon Street Branch and SBI honoured the said cheque but by fraudulent means it was withdrawn by some other person and it is admitted by the OP Bank SBI, then invariably it is clear that certainly there are the responsibility on the part of the SBI, OP1 and also RBS, OP2. Truth is that RBS has not filed any written statement but sent a letter to the complainant on 19-07-2011 that they would cooperate with the said investigation, necessary steps have been taken and they asked the complainant to wait for the result of the investigation. But nothing has been stated about the loss of the cheque from the drop box of the RBS but police after investigation has confirmed that from the CCTV that from the drop box that cheque was removed by some miscreants during bank office hours and in this regard there is the hands of the staff of the OPs RBS, so, negligence on the part of the RBS is well proved and from police investigation and charge-sheet it is also proved that they collected the said two CCTV and seized it from Ravi Shankar, officer of the RBS and it is kept in the custody of the OP2, but they did not contest the case because they are well aware of the fact that police already investigated and searched out the truth that the cheque in question or disputed cheques was deposited by the employee of the complainant and that was removed by the miscreant in office hours. Invariably with the help of their staff and that was also reflected in the CCTV for which the OP did not contest the case but anyhow, the Ld. Lawyer for the SBI authority submitted that complainant is not the consumer then our question is why the cheque of the complainant was honoured and amount was credited in the name of the complainant encashed by the SBI and in the present case it is proved that the fellow who appeared himself as Ram Gopal Musaddi managed to oblige the bank employee to open the account by producing certain fake documents and most interesting factor is that the cheque was issued in the name of Ram Gopal Musaddi whereas the account was opened in the name of Ram Gopal Musaddi but ‘Gopal’ is absent in the signature column of the opening application form then how the cheque was entertained and encashed in absence of ‘Gopal’ in signature and in this regard the records were produced by the miscreant or fraudster before the Bank Authority of SBI, Beadon Street were not properly looked into at the time of encashing the cheque it indicates that the staff of the SBI was there behind the fraudster for withdrawing the amount. Not only that it is undisputed fact rather it is admitted by the OP SBI that the account was opened, cheque was deposited, cleared and amount was withdrawn within a short time. Peculiar factor is that in the written version OP suppressed certain mattes and only stated that they came to learn about the fraudulent encashment by the fraudster only on receipt of the letter of the complainant and on enquiry they satisfied that fraudulently cheque was enashed, that means the complainant’s cheque was encashed by the SBI Beadon Street Branch on the basis of fraudulent account opened by some fraudster and invariably it is clear after handling this document tht cheque was in the name of Ram Gopal Musaddi but fraudster signed Ram Musaddi but even then the cheque was cleared by the OP’s bank at Beadon Street Branch that means there were the hands of the staff of SBI Beadon Street Branch who gave all service to fraudster to withdraw the amount but ultimately the said fraudster was arrested, the police out of the withdrawn Rs.4 lakhs, 1 lakh cash and gold ornaments seized from the house of the miscreants and not only that during investigation it was detected that this fellow was arrested not only arrested for this case but also for some other bank fraud case and other Police Cases. Considering the final report of this charge-sheet of the police it is clear that complainant’s employee deposited the cheque in the drop box of the RBS at Brabourne Road Branch and it is also evident from the CCTV footage of the RBS that it was taken by some other person at the time of opening by their staff but RBS Authority OP2 is very much silent. Only they informed the complainant that P.S. Case is pending, they have nothing to say because they are well aware of the fact that with the help of the staff miscreant stole the said cheque from the drop box at the time of opening by their staff. Similarly, from the final investigation report of the police it is clear that invariably from the bank, so called Ram Musaddi withdrew the amount by opening fake account in the name of Ram Gopal Musaddi but in the bank application form signature is Ram Musaddi. At the same time it is proved that that account was never opened by this complainant in the SBI Beadon Street Branch that is admitted.
Most interesting factor is that OPs did not enquire about the misdeed of their staff and only to save their dishonest staff they have stated that the police case is pending so, this Forum has no jurisdiction but that is not the position of the law. Police action is in respect of the criminal act of a person for that reason Civil liability cannot be anyway controlled by the Criminal Act and it is the settled principle of law that for Civil action one may file any case before the Civil Court or Consumer Forum for compensation and for that reason any criminal pending case shall not create any bar to proceed with to give redressal and in this regard already National Commission passed such judgement reported in 2009 (3) CPR 314 NC.
Moreover, after considering the entire materials on record and also the defence of the OP it is clear that when the cheque of the complainant has been passed by the SBI Authority then invariably the complainant is a consumer and fact remains the cheque was encashed in the name of Ram Gopal Musaddi but it was encashed by a fake person Ram Musaddi. Further from the documents collected by the police are part of the record in Xerox form wherefrom it is clear that deficiency is on the part of the RBS Bank and also SBI Bank and from the application form for opening the account for SBI Beadon Street Branch by fraudster it is clear that fraudster signed Ram Musaddi not Ram Gopal Musaddi, cheque was in the name of Ram Gopal Musaddi and that cheque was passed by SBI then it is clear that SBI staff was there and the cheque has been withdrawn by the fraudster. In reality not a single employee of the bank shall have to clear such a cheque when it was in the name of Ram Gopal Musaddi when signature was Ram Musaddi but it is also proved by the police after investigation that all the documents which were submitted by the fraudster exposing himself as Ram Musaddi were all purported document and that means the employees who checked the cheque are engaged to give all sort of shelter to the fraudster to withdraw the same and considering the facts we are convinced that both the banks cannot discharge their liabilities, though the police case is pending when for giving compensation there is no such provision in Criminal procedure so for fraudulent act on the part of the OPs and deficiency and negligence on the part of the OP is well proved at the same time the conduct of the dishonest employee of both the banks are not looked into by the bank authorities because their employees are involved for which OPs to sae their skin has taken a plea that criminal case is pending. Banking authority must be more cautious in respect of such sort of dispute but in the Forum or Civil Court our experience says that banking authority is shouldering their dishonest employees always only on the ground not to give relief to the consumer or the customers or the bank account holders or whose cheque has been tampered or whose cheque has been encashed fraudulently through such bank and in the present case bank staff are involved here and there. In the light of the above observation we are inclined to hold that complainant is entitled to get Rs.4 lakhs including interest at the rate of9 percent p.a. from the date of encashment by fraudster from the bank of the OP1 and in this regard the negligence and deficiency on the part of the OP2 RBS cannot be looked into very lightly but they should be punished at first for their staff who helped the miscreant to bring out or take away the said cheque at the time of opening the drop box by their staff that is reflected in the C.C.TV footage and that is the findings of the police in the final charge-sheet and that CCTV footage are in the custody of Ravi Shankar, the employee of the OP2 and they are well aware of the fact that their staff are involved and they have already realized that they have their deficiency for which they did not appear before this Forum to contest the case.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OP1 with a cost of Rs.10,000/- and same is allowed ex parte against the OP2 with a cost of Rs.5,000/-.
OP1 shall have to pay the entire amount of Rs.4 lakhs which has been fraudulently encashed by the fraudster with the help of the bank employees of the OP1 and same shall be paid along with interest at the rate of9 percent p.a. with effect from the date of encashment and till its full payment to the complainant within one month from the date of this order.
For causing mental pain and sufferings and financial loss and further for negligent and deficient manner of service on the part of the OPs each OP shall have to pay Rs.20,000/- each to the complainant within one month from the date of this order.
OPs shall have to comply the order within one month from the date of this order positively as per spirit of the order failing which for non-compliance and disobeyance of the Forum’s order each OP shall have to pay penal damages at the rate ofRs.200/’- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum, even if it is found that they are reluctant to comply the order in that case penal proceeding u/s.25 read with Section 27 of the C.P. Act shall be started for which further penalty and fine shall be imposed.
