Date of filing:20.10.2016

                                                                                                Date of Disposal:07.08.2024

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED:07^th DAY OF AUGUST 2024

PRESENT

Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO.2851/2016

O R D E R

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

1. This is an appeal filed by OP Nos.1 and 2 in CC/883/2015 on the file of III Additional DCDRF, Bengaluru, aggrieved by the order dated 21.09.2016. (The parties to this appeal will be referred as to their rank assigned to them by the District Forum)

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsel for appellant.

3. Now, the points that arise for consideration of this Commission would be whether impugned order dated 21.09.2016 does call for an interference of this Commission for the grounds set out in the appeal memo?

4. The Complainant/The Gold Finch College of Nursing, represented through its Management Co-ordinator Mr.Nandeesh C.A, has raised a Consumer Complaint, alleging rendering deficiency in service on the part of OP Nos.1, 2 and 3 Banks that they are jointly and severally are liable to pay cheque amount of Rs.99,549/- along with interest @ 18% p.a. since their cheque bearing no.236448 dated 12.11.2014 was for Rs.2,549/- drawn on Vijaya Bank, was manipulated with Rs.99,549/- in place of Rs.2,549/- favouring SBI, E.S.I.C. A/c No.01.  According to complainant, OP Banks have neglected and failed to hold an enquiry or to give complaint and to feed back the said cheque amount into the account of the complainant.  Even by naked eyes clearly appears that there was overwriting on the said cheque and also there was a spelling mistake, yet honoured manipulated cheque by debiting account of the complainant for Rs.99,549/- all though it was given for Rs.2,549/- in favour of SBI, E.S.I.C. A/c No.01.  The Complainant alleges OP Banks have colluded with each other and they are equally liable to pay compensation to them for having honoured the manipulated cheque in favour of one Mr.Suresh Kantilal Patel.  According to complainant, Mr.Suresh Kantital Patel is totally a stranger and the complainant had never issued any cheque to him.  It is to be noted from contentions of complainant that one Mr.Suresh Kantital Patel is totally stranger to him and complainant had not issued any of the cheques.  However, he alleges that the said cheque has been forged and collected through OP3 Bank namely Union Bank of India.  It is the specific defence of OP Nos.1 and 2 that cheque leaf issued to the account of complainant is tallied with the signature with the account holder and as sufficient balance was available in the account, OP Nos.1 and 2 having no reasons to doubt the said cheque have honoured the same following the procedure to be followed under the Negotiable Instrument Act.  The most important fact which would be borne from the defence version of OP Nos.1 and 2 would be the disputed cheque were drawn on Vijaya Bank, since complainant holding an account with Ganganagar Branch and this cheque leaf was dropped at SBI Rajajinagar Ramandir Branch, came to be honourned by OP1 Bank by receiving the image of cheque leaf from the collecting bank to the clearing bank and these OP Nos.1 and 2 have no occasion to verify the physical copy of the cheque leaf, has some considerable force for simple reasons that from the enquiry it is found that the manipulated cheque was dropped at SBI Rajajinagar Ramandir Branch and its image was sent to OP1 Bank and they honoured the said cheque since sufficient fund available to honour Rs.99,549/- in favour of Mr.Suresh Kantilal Patel.  It is not that Mr.Suresh Kantital Patel had received the cash from OP1 but such amount was transferred to his account  with Union Bank of India, Jayanagar Branch bearing account No.346402010024231 suffice to act upon not only by OP Nos.1 to 3, SBI Rajajinagar Ramandir Branch and the Police concerned since, Complainant had lodged a complaint before Inspector of Police, Magadi Road Police Station, which came to be  registered in Cr.No.0094/2015 not only to fix the liability but to initiate the criminal action against Mr.Suresh Kantilal Patel, yet District Forum has failed to examine all these niceties of the case raised by complainant and committed grave error in dismissing the complaint against OP3 and wrongly fixed  the liability of OP Nos.1 and 2 to pay Rs.99,549/- along with interest @ 12% p.a without examining the role of OP3 and the role of SBI Rajajinagar Ramandir Branch,  besides examining  the criminal role of Mr.Suresh Kantilal Patel, who alleged to have played  role and  had  manipulated the cheque is now caught free is nothing but miscarriage of justice which would give wrong message not only to the parties to the complaint but also the society at large. Learned counsel for appellant placed a reliance reported in 3 (2206) CPJ 218 (NC) in RP/1105/2006 in the case between Prempreet Textitles Industries Ltd. v. Bank of Baroda and others wherein in para-03 in the end held –

“It was the duty of the above Director to have ensured that the cheque book was kept under locked key at a safe place.In this backdrop, there was hardly any occasion for the respondent Bank to have doubted the genuineness of the signatures on the cheque in question.If any embezzlement was made by the employee of company the respondent Bank cannot be held responsible for it.”

Further relied on a decision in RP/02 to 08/2011 of Hon'ble NCDRC in the case between Bharpur Singh and others v. Axis Bank Ltd., and others wherein held in para-04 –

“According to petitioner, he never issued the said cheque allowing the said withdrawal.Therefore, payment was made by respondent-bank without properly verifying his signatures on the cheque.Petitioner made representation to the Bank and when no action was taken, he filed consumer complaint seeking refund of Rs.11,83,000/- and compensation of Rs.02 Lakhs on account of mental harassment besides cost of litigation.”

Further in para-19 held –

“Thus, as per petitioner’s own case it was Gurwinder Singh who was the beneficiary of the sum of Rs.11,93,304/-. Under such circumstances, Gurwinder Singh was a necessary party in this case.Respondent in its written statement had categorically taken a preliminary objection to this effect and has stated that sum of Rs.11,83,000/- had been transferred to the account of Gurwnder Singh, who is also their customer.”

In para-20 held –

“……..for the reasons best known to him, has chosen not to implead Gurwinder singh, who was the only beneficiary of the cheque amount.”

Thus, the above two decisions could be said directly bearing on the point in dispute arisen in the case in this appeal.In our view the beneficiary Mr.Suresh Kantilal Patel who had an account with Union Bank of India namely OP3 was not only necessary party but also the SBI, Ramamandir branch. In other words, without their participation clear finding could not be recorded in the complaint raised by complainant. In our view, it may not be difficult for the Union Bank of India to recover Rs.99,549/- and similarly it may also not be difficult for the Magadi Road Police Station to recover such amount from such fraudsters and fix criminal liability and give wide publicity to the public at large to be aware of such fraudsters and to be very cautious while issuing cheques.Further to be observe herein, it may not be difficult for the complainant to ascertain the address of Mr.Suresh Kantilal Patel, since disputed amount is credited to his account with Union Bank of India and the said bank has to co-operate the complainant in providing his address.

5. The District Forum even without impleading SBI Rajajinagar Ramandir Branch, Mr.Suresh Kantilal Patel, held OP Nos.1 and 2  have rendered  deficiency in service and wrongly held they are liable to pay Rs.99,549/- which in our view is not sustainable.  In such conclusion, it would be just and proper to remand back the matter to District Forum with a direction to re-admit the complaint and allow complainant to implead Mr.Suresh Kantilal Patel and SBI Rajajinagar Ramandir Branch as   parties to the complaint. Further, directed to afford opportunity to both parties and decide the case as early as possible not later than three months from the date of order.

6. Send a copy of this Order to the District Commission and parties to the appeal for their information.

        Lady Member                                  Judicial Member             

*GGH*