Punjab

Rupnagar

CC/18/100

Rekha Kumari Sharma - Complainant(s)

Versus

Harish Kumar - Opp.Party(s)

07 Feb 2019

ORDER

THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No.  100 of 23.10.2018

                                 Date of decision                    :    07.02.2019

 

Rekha Kumari Sharma, wife of Sh. J.P. Sharma, resident of House No.175/1A, Shivalik Avenue, Naya Nanga, Tehsil Nangal, District Rupnagar.  

                                                                 ......Complainant

                                             Versus

1. Harish Kumar son of Sh. Ram Asra, resident of Raj Nagar, Nangal, Tehsil Nangal, District Rupnagar, Punjab, through its Post Master.
2. Department of Post, Post Office, Sector 1 Naya Nangal, Tehsil Nangal, District Rupnagar, Punjab through its Post Master. 

 

           ....Opposite Parties

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

                        SH. KARNAIL SINGH AHHI, PRESIDENT

                        CAPT. YUVINDER SINGH MATTA, MEMBER

 

ARGUED BY

 

Sh. J.P. Sharma, Authorized representative of complainant 

Sh. Vivek Kumar Soni, Adv. counsel for O.Ps. No.1

Smt. Kamla Sharma, Sub Post Master, of O.P. No.2

 

                                           ORDER

              SH. KARNAIL SINGH AHHI, PRESIDENT

1. Smt. Rekha Kumari Sharma, wife of Sh. J.P. Sharma, resident of House No.175/1A, Shivalik Avenue, Naya Nangal, Tehsil Nangal, District Rupnagar, Punjab, through her authorized representative  has filed the present complaint seeking directions to the opposite parties No. 1 & 2 to refund Rs.3,20,000/- for two F.D.Rs. of Rs.1,60,000/- each along with interest @ 12% per annum from due date till realization; to pay Rs.1,00,000/- on account of mental agony, harassment and emotional distress suffered by the complainant; the litigation expenses, which this Hon’ble Forum deems just and proper for filing and perusing the present complaint against the O.Ps. may also be awarded to the complainant. 
2. Brief facts made out from the complaint are that on the allurement of O.Ps. No.1 & 2, complainant had opened saving account bearing No.2052702/5367397381 and invested Rs.3,20,000/- in the shape of two FDRs bearing No.5367507672 dated 13.12.2014  and bearing No.5367507701  dated 13.12.2014 with the O.P. No.2 through O.P. No.1. The invested amount is hard earned money of the complainant, the same was received by the O.P. No.1 for being depositing with O.P. No.2 being their authorized agent in the office of O.P. No.2. The FDR/Passbooks after making the FDR were handed over to the complainant. The FDR/Passbook issued by the O.P. No.2 clearly depicted the deposited amount with O.P. No.2. The police was also registered a case against O.P. No.1 on a complaint filed by some person regarding similar matter i.e. misappropriation of funds and deficiency of service of O.P. No.1 and 2 after the registration of this FIR, the complainant have a doubt about the irregularity of her accounts, so she seek information under RTI received by the O.P. No.2 about her accounts. When the RTI information was received by the complainant then she came to know that invested amount was wrongly mentioned as Rs.6000/- each in both FDRs. Complainant invested Rs.3,20,000/- in both the FDRs i.e. Rs.1,60,000/- each as per FDR/Passbooks entries. Thereafter, the complainant had approached O.Ps. many times but the O.Ps. avoided the matter on one pretext or other and till today nothing has been done by the O.Ps. Hence, this complaint.    
3. On notice, O.P. No.1 Sh. Harish Kumar son of Sh. Ram Asra, appeared through counsel and filed written reply taking preliminary objections; that the present complaint was not maintainable; that the complainant is not a consumer; that the allegations alleged in the complaint are false, forged and concocted one; that this Hon’ble Forum has no jurisdiction to entertain and try the present complaint; that the complainant has not approached in this Hon’ble Forum with clean hands; that the complainant has no locus standi to file the present complaint; that the complainant has filed this complaint just to harass and humiliate the O.P. No.1; that the complaint is hopelessly time barred. On merits, the O.P. No.1 pleads that the complainant had opened the FDR of Rs.8000/- only and she has received the matured amount with interest and now the above said FDR had been closed being fully satisfied. Rest of the allegations made in the written reply has been denied and prayed for dismissal the complaint against O.P. No.1. 
4.  On notice, the O.P. No.2 appeared through Smt. Kamla Sharma, Sub Post Master, and filed written reply stating therein that O.P. No.1 held agency under Standardized Agency System issued by the District Savings Officer under number F-0284996. Saving account No.5367397381 is a joint account opened in the name of Sh. J.P.Sharma and Smt. Rekha Sharma standing at FF Nangal Post Office and J.P. Sharma has not been made party in this complaint. Agents are authorized to accept a cash from a depositor upto a maximum limit of Rs.20,000/- only. Agents under Standardized Agency System have receipt books from which a receipt is issued to the depositor for the amount received for investment in Post Office. The same receipt is signed by the investor also and passbook is handed over to the investor by the agent. Since the maximum cash limit to accept cash for investment in post office is Rs.20,000/- and transaction exceeding Rs.20,000/- are only accepted by cheque or demand draft in favour of department, therefore, the alleged amount of Rs.3,20,000/- seems to be concocted story as the complainant has not annexed any cheque details or receipt of like amount. O.P. No.2 is not responsible for the transactions taken place between the complainant and O.Ps. No.1 as such transactions are totally a personal matter of both the parties till the time, same is received and matured by the answering O.P. In the present case, the liability of alleged amount (if any), received by the O.P. No.1 from the complainant and not deposited with the answering O.P, is totally a matter of cheating on the part of O.P. No.1 and O.P. No.2 has no role to play in the same.  Rest of allegations made in the complaint have been denied and prayer has been made for dismissal of the complaint.
5. Replication filed by the complainant to the reply filed by the O.P. No.2 by stating that the O.Ps. cannot be allowed to take benefit of their own wrong. The passbooks issued by the relying O.P. clearly depicted the amount as pleaded by the complainant and there is no cutting and overwriting and this cannot be possible, either by acting in such a way by O.P. No.1 at the instance of O.P. No.2 or the present reply and record is manipulated after words and in the both cases the liability to pay is on O.P. No.2 on the theory of master servant relation. on the  Rest of the averments made in the written reply by the O.Ps. have been denied and prayer has been made for allowing the complaint.
6.  Complainant Rekha Kumari Sharma, supported by her husband made prayer orally as well as in writing in accordance to the facts mentioned in the complaint. She pointed out that her account was opened with the Post Office through its agent Harish Kumar i.e. O.P. No.1. Complainant deposited Rs.3,20,000/- in the shape of FDRs.   When the FIR was registered upon the O.P. No.1 then she sought RTI information from the O.P. No.2 and on receipt of RTI information, the complainant came to know that invested amount was wrongly mentioned as Rs.6000/- each in both the FDRs as invested. She made the prayer that O.P. No.2 i.e. Post Office is the most reliable department, nobody can believe fraud either from the Post Office or from their agents. But the complainant was surprised when she came to know that the FDRs of only Rs.6000/- each instead of Rs.1,60,0000/- was opened in her name. Lastly prayed to allow the complaint against the O.Ps.
7. Smt. Kamla Sharma, appeared on behalf of Post Office i.e. O.P. No.2 made the prayer that for the purpose of determining the true facts qua the FDRs or opening of the account, the proposal form/original applications are to be appreciated. To meet out the arguments, she had shown the original requests signed by Rekha Kumari Sharma, complainant, vide which the deposit was of Rs.6000/- each. By referring the documentary evidence, she prayed to dismiss the complaint as no deficiency was made out against O.P. No.2. She also prayed that O.P. No.1 has committed fraud with various customers of the Post Office and that amount is near to about 1.5 Crore . Qua the said fraud, one FIR No.146 dated 24.9.2017 at PS Nangal was registered. O.P. No.1 remained in jail for a considerable period and now the criminal proceedings are pending. The complaint is not maintainable because it requires a thorough probe and complicated question of law and facts are involved, the dispute is not disposable through summary proceedings.  She also prayed that matter relates to the year 2013 and complaint has been filed in the month of October 2018, hence complaint is time barred and prayed to dismiss the complaint.
8. Sh. V.K.Soni, counsel for O.Ps. No.1 argued that complainant filled up the applications/performa for the deposit with specific recital qua amount and then signed the papers. Accordingly, the deposit was made and it was converted into FDRs. It is a matter of evidence, which is to be enquired by the Civil Court only, whether the deposit was made as pleaded by the Post Office or deposit as was pleaded by the complainant. Moreso, O.P. No.1 is facing criminal trial and it is yet to be proved whether he had committed any fraud or not. So till the disposal of the criminal case, no relief can be granted in favour of the complainant against the O.P. No.1.
9.  Complainant is resident of Tehsil Nangal, District Ropar and all the O.Ps. are also of the same district. Complainant pleaded qua the deposit of certain amount which is not denied by the O.P. No.2. O.P. No.1 has not denied working as agent with the O.P. No.2. Complainant pleaded deposit of Rs.1,60,000/-, whereas O.P.NO.2 admitted only Rs.6000/-. The complainant seeks withdrawal of the amount of Rs.1,60,000/- each in two FDRs. So it is a consumer dispute, but the complicated questions of fact and law are involved in the present complaint as appreciation of evidence required.
10.  Complainant has taken the stand of deposit through account No.5367507672 dated 13.12.2014 then account No.5367507701 dated 13.12.2014 of Rs.1,60,000/- each total Rs.3,20,000/-. Then in para No.6 of the complaint pleaded wrongly mentioned the figure Rs.6000/- in both the FDRs.
11. Then in para No.6 of the complaint pleaded that her invested money was wrongly mentioned by the O.P. No.2 as Rs.6000/- each whereas she had invested Rs.1,60,000/- each by way of FDRs.  She also relied upon notice dated 25.6.2018. Further in para No.15 given the detail of relief Rs.3,20,000/- as principal amount along with interest @ 12% per annum.
12.  O.P. No.1 firstly pleaded that FIR has been registered against him under Section 406, 420, 467, 468, 471, 409 IPC and when there is criminal case registered then this forum has no jurisdiction to entertain and try the complaint. It needs detailed examination. On merit, O.P. No.1 has taken a stand that the complainant invested Rs.12,000/- only and not of Rs.3,20,000/-.  
13.  O.P. No.2 has also taken the stand denying all the averments. O.P. No.2 has taken the stand as already incorporated in earlier part of the order. Complainant placed on file Ex.C2 which is FDR issued by the O.P. No.2 and deposits are made from time to time. Then Ex.C3 which is again a FDR showing deposit since December 2014. In this way all the passbooks/correspondence qua deposits is relating to the period 2013 to 2015. Though the legal notice is of 2018. O.P. No.2 has also brought the required papers qua the opening of the account, deposits pertaining to the year 2016. Further Ex.OP2/4 is account opening form and FIR Ex.OP2/7 bearing No.146 dated 24.09.2017. There is one another FIR No.168 dated 10.11.2017, PS Nangal, which is also against the O.P. No.1
14.  After going through the facts of the complaint, evidence led by the Rekha Kumari Sharma, reply of O.Ps. No.1 & 2 then appreciating the documentary evidence including the registration of two different FIRs against the O.P. No.1 qua the fraud, the forum seeks support from the following judgments/order vide which the law is laid down as under:-

1995(1) (AP) 307, K.P. Leela Vs. Aneja Finance Consultancy” It has been held by the Hon’ble Andhra Pradesh Commission, that where complicated questions, regarding cheating is involved the jurisdiction of the Consumer Forum is ousted.

1994 (1) CLT NC 195, S.S Marthandam Vs. New India Assurance Co. Limited, it has been held by the Hon’ble National Commission that it may not be possible, for this commission to satisfactorily undertake, a detailed investigation, into complicated question of fact and law arising for determination in this case, having regard, to

the time frame specified by the Act, for the disposal of cases by Consumer Forums.

15.  After appreciating the authorities referred above and as discussed in earlier part of the order, the forum is of the considered opinion that

to reach at a correct conclusion and for its proper adjudication this forum is not competent to decided the complaint summarily because the proceedings before the forum are summary in nature. Whereas, the controversy between the parties requires thorough investigation by way of leading voluminous evidence i.e. originally what application was moved by the complainant under her signatures for the deposit of amount. Who filled up the form then who issued the passbooks. Upper portion of the passbook leads qua deposit of Rs.6000/- but with the bare reading it is Rs.1,60,000/- each. Underneath the said digit of Rs.1,60,000/- there is writing in word one lac sixty thousand. Further as per the plea of the Post Office, complainant invested Rs.6000/-. O.P. No.1 is involved in criminal case as per the stand of O.Ps. O.P. No.2 pleaded the fraud of 1.5 Crore with the different customers of the Post Office. So, the complicated question of fact and law, arising for determination in this case. However, this forum deals with cases which are summary in nature.

16.  In view of the above discussion, we dispose of the complaint, with liberty to the complainant to avail remedy before the appropriate court or any other appropriate forum.   
17.  The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.   

 

                     ANNOUNCED                                    (KARNAIL SINGH AHHI)

                     Dated.07.02.2019                           PRESIDENT
 

 

 

                                               (CAPT. YUVINDER SINGH MATTA)

                                                                   MEMBER