| Final Order / Judgement | Date of filing:15.12.2017 Date of Disposal:22.05.2023 BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 22nd Day of May 2023 PRESENT Mr. K B SANGANNANAVAR: JUDICIAL MEMBER Mrs.M.DIVYASHREE : LADY MEMBER APPEAL NO. 2569/2017 ORDER BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER - This is an appeal filed by OP1 in CC/1921/2015 on the file of III Additional Bangalore Urban District Consumer Disputes Redressal Forum, Bengaluru aggrieved by the order dated 25.09.2017. (The parties in this appeal will be referred to their rank assigned by the Forum below).
- We examined grounds of appeal, impugned order, appeal papers and heard learned counsels. In view of rival contentions putforth before the Commission, points that arise for consideration would be whether appellant/OP1 has made out grounds to interfere in the impugned order passed by the Forum below dated 25.09.2017?
- The complaint came to be filed under Section 12 of Consumer Protection Act, 1986 on 02.12.2015 praying to direct OP Nos.1 and 2 to pay compensation of Rs.11,71,000/- along with interest @ 18% p.a. on the ground that OPs rendered deficiency in service on their part, since they appears to have paid a sum of Rs.11,71,000/- on the basis of manipulated cheque and paid without exercising due diligence, though the cheque was issued by him was paid for Rs.1,000/- to one Mr.Ramesh Mehta was manipulated in-connivance with the bankers and paid Rs.11,71,000/- to one Mr.Subhasis Samantha. This complaint was contested by OP Nos.1 and 2 contending that they had acted in good faith by accepting the cheque crossed as payable to account payee, since they are interested in safeguarding esteemed customers and are not liable to pay compensation as claimed by complainant as complainant has already filed a criminal case in Criminal Case No.0342/2014 pending before VIII Additional CMM and this complaint could not be entertained before the Forum as not maintainable. In view of rival contentions of the respective parties the Forum below held an enquiry, received evidence of complainant, evidence of OP Nos.1 and 2 along with Ex.C1 to C11, R1 and R2 for OP1, R3 and R4 for OP2, thereby held OP Nos.1 and 2 rendered deficiency in service are liable to pay Rs.11,71,000/- with interest @ 12% p.a. from 12.11.2014 till the date of order and directed OP Nos.1 and 2 to pay cost of Rs.5,000/-. It is this order being assailed in this appeal contending that the Forum below failed to give clear findings on negligence on the part of OP1/appellant as the collecting banker has taken all precautions in collecting the cheque in question and therefore impugned order is liable to be set aside.
- Learned counsel submits that OP1/appellant bank as collecting bank under Section 131 of the Negotiable Instrument Act, 1881 is protected, since complainant failed to point out any negligence on the part of OP1 banker. Let use examine the enquiry file, where from could see as document marked as No.5 a cheque dated 10.06.2014 issued in the name of Mr.Subhasis Samantha for Rs.11,71,000/- the cheque leaf issued by OP2 banker relates to A/c No.01621600000099 and its No.435190, belongs to complainant issued for Perfect Riders by its Proprietor. It is not that complainant had denied his signature on this cheque leaf but his case would be, as it was issued in the name of Mr.Ramesh Mehta for Rs.1,000/- on 10.06.2014, was manipulated and get it en-cashed by one Mr.Subhasis Samantha for Rs.11,71,000/-. If this could be acceptable as it is, could be said as complainant had failed to produce its original image namely either xerox copy or otherwise true copy to substantiate that a cheque for Rs.1,000/- was issued as against the cancellation of booking in the name of Mr.Ramesh Mehta on 10.08.2014 could have been believed, since he had approached the forum alleging such cheque for such amount alone was issued in the name of one Mr.Ramesh Mehta as against cancellation of the vehicle booking order, but herein from the enquiry could see about production of carbon copy from which viewed from any angle cannot make out was issued in the name of Mr.Ramesh Mehta for Rs.1,000/- and not in the name of Mr.Subhasis Samantha, which was honored crediting amount covered such cheque to such person holding an account and debiting the account of the complainant and this vital aspect or nicety was not at all examined by the Forum below and on the contrary shifted burden on the opposite party for not producing the original cheque. Even if original cheque was not produced by Ops Forum at least could have called upon the complainant to rebut the carbon copy where from nothing could be seen and in our view such copy could be produced even now which has no relevance to prove that a cheque was issued in the name of Mr.Ramesh Mehata and it was for Rs.1000/- only.
- We have to bear in mind in so far as contents of cheque leaf is admitted by complainant but he alleged that a cheque issued in the name of Mr.Ramesh Mehta for Rs.1,000/- as against his cancellation of vehicle booking order and to substantiate could have also impleaded not only Mr.Ramesh Mehta but Mr.Subhasis Samantha in his complaint to get redress his grievances, to convince that he had no other dealings between Mr.Subhasis Samantha, who could alone able to rebut the said cheque as he got enchased through his account only, since cheque was an account payee cheque.
- According to complainant as against the cancellation of vehicle booking order a cheque was issued on 10.06.2014 for Rs.1,000/- drawn on Punjab & Sind Bank and had stated fraud was revealed to him only on 21.11.2014 through his internal auditing and since then he kept mum for almost 05 months without reporting OP2 banker about the alleged fraud. In such circumstances, in our view from this episode, besides complainant one Mr.Ramesh Mehta and another Mr.Subhasis Samantha are also rolling out were not been made parties to the complaint and since as we are enquiring under Consumer Protection Act in a summary way it would be very difficult to conclude definitely that it was a rendering service by Ops and they were at fault or deficient or negligent. In so far as commission of cognizable offences is concerned to be investigated by the Police and the crimes have to be dealt in a comprehensive manner by the Criminal Law Courts and not by the Consumer Commissions in a summary way. It is also found from enquiry that a Criminal Case filed in Cr.No.0342/2014 before the VIII Additional ACMM, Bengaluru City against Mr.Ramesh Mehta and OP Nos.1 and 2 is still pending, yet the Forum below entertained the complaint only on the ground that as OP Nos.1and 2 have not chosen to produce the original cheque bearing no.435190 alleged to have issued by complainant for a sum of Rs.1,000/- in favour of Mr.Ramesh Mehta. If it so even on similar principles complainant having been approached the Forum could have produced the true image of the said cheque for consideration was not appreciated by the Forum below. In such circumstances, acceptance of issuance of cheque for a sum of Rs.1,000/- said to have been issued in favour of Mr.Ramesh Mehta could be said disputable, since for almost complainant had kept mum. In other words, as OP Nos.1 and 2 accepted the cheque bearing no.43590 and honored from account to account payee for Rs.11,71,000/-. It is said by the appellant/Ops cheque in question issued for Perfect Rider, signed by Proprietor and issued in the name of Mr.Subhasis Samantha and as the original image of the said cheque was not placed before the Forum below and from mere carbon copy we could find nothing as such it would just and proper to leave the dispute to the Criminal Law or the Civil Law Courts.
- If the cheque issued for such a small amount was manipulated converting it in the name of Mr.Subhasis Samantha for Rs.11,71,000/-, could be found from enquiry, then the matter would have been very serious and it is very difficult for us to believe that such huge amount encashed by such person was revealed only after 05 months during his internal auditing of accounts. Anyhow, the crime case has been registered pursuant to his complaint not only against Mr.Ramesh Mehta but OP Nos.1 and 2 and the said case is still pending and in such circumstances, in our view, entertaining compliant under Consumer Law is nothing but a futile exercise which would not take the matter to the logical end. In other word it is improper for the Consumer Forum to entertain such complaint. In such view of the matter, we hold the Forum below failed to appreciate materials placed by parties in right perception resulting thereby recorded wrong finding resulting miscarriage of justice. If complaint is made alleging fraud, forgery and other cognizable offences, alleged to have been committed not only by Mr.Ramesh Mehta but OP bankers and one Mr.Subhasis Samantha, who could able to encash the said cheque for Rs.11,71,000/- through his Syndicate Bank. Forum below could have leaf the matter to the Criminal Law Court instead passing impugned order. The true copy of the application opening of S/B account in respect of Mr.Subhasis Samantha discloses his full details and the banker had obtained Pan Card, Aadhar Card and Ration Card etc. It was opened on 05.04.2014. It is therefore, either for the police or for the complainant or the banker it may not be difficult to act upon to investigate as to the relationship between Mr.Ramesh Mehta and Mr.Subhasis Samantha and also to investigate the relationship between complainant and Mr.Subhasis Samantha or vice-versa as the case may be. In other words, police has to enquire and investigate from all angle, since complainant alleged commission of fraud, forgery, manipulation and connivance of OPs to defraud him and these are serious matters to deal in a comprehensive manner. In other words, police and police alone have to take the matter to the logical end to punish the culprits whether Mr.Ramesh Mehta or Mr.Subhasis Samantha or to find out any connivance of Ops, either by their support of Mr.Ramesh Mehta or Mr.Subhasis Samantha or to find out the relationship between complainant and Mr.Subhasis Samantha vice-versa. In other words, only on allegation of negligence or deficiency in service on the part of OPs on given facts could not be entertained under Consumer Laws, since matter requires a full-fledged trial with the aid of police.
- In view of the discussion made above and in the circumstances of the case as are complicated cannot be entertained by the Forum below under Consumer Protection Act, 1986, merely on the ground of allegation of deficiency of service either on the part of OP1 or OP2, as they are required to be proved and decide in a comprehensive manner only before Civil Court and Criminal Law Courts as the case may be and in such conclusion, we proceed to allow the appeal. Consequently set aside the order dated 25.09.2017 passed by III Additional Bangalore District Consumer Disputes Redressal Forum, Bengaluru in CC/921/2015 and in the result dismissed the complaint with no order as to cost. Liberty is given to the complainant to approach proper Forum subject to time limitation and benefit provided under Limitation Act.
- The Amount in deposit is directed to be returned to the appellant with proper identification by its advocate.
- Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH* | |
