AT HYDERABAD.

FA  337  of 2010   against C.C.  659/2007, Dist. Forum-II, Hyderabad

Between:

M/s. Sreekara Textiles Pvt. Ltd.

21-1-821/UGF, 24 & 25 Ground R. J. Market, Rikabgunj

Hyderabad-500 002.

Rep. by its Director A. Prashanth.               ***                         Appellant/

                                                                                                 Complainant

And

1)  HDFC Bank Ltd.

Opp. A.P. High Court Charimnar Branch

21/1/516 to 518

Rikabgunj

Hyderabad-500 002.

Rep. by its Branch Manager

2)  HDFC Bank Ltd.

HDFC Bank House,

Senapathi Bapat Marg

Lower Parel, Mumbai-13.                            ***                         Respondents/

                                                                                                Opposite Parties  

Counsel for the Appellants:                         M/s. V. Srihari

Counsel for the Resp:                                 M/s.  V. S. Raju

CORAM:

                    HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT 

&

                                   SMT. M. SHREESHA, MEMBER

MONDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND TWELVE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          ***

1)                 Appellant is un-successful complainant.

2)                The case of the complainant in brief is that he opened an S.B. account with the respondent bank.  While so on  6.6.2007 he noticed in the computer generated account  that a sum of Rs. 98,000/- was withdrawn  through cheque No. 699798 and then he had noticed that his accountant  Mr. Dhondiram Kabra  had stolen three cheques,  one of which was above cheque  and forged and withdrawn the amount.   Then he complained to the bank and later reported the matter to the  who registered  it  as a case in Crime

No. 105/2007 u/s 408, 468 and 420 IPC.   The accused had vacated his house and absconding since then.    Opining that honouring the forged cheque amounts to deficiency in service filed the complaint for realization of Rs. 98,000/- together with interest, compensation and costs. 

3)                 The respondent bank resisted the case by stating that Mr. Kabra against whom allegation of forgery, theft etc. were made was not impleaded as a party.  In fact the complainant was having loan account and it was operated by its directors Mr. Venkatesharlu and the complainant independently.    The complainant has been withdrawing the amounts through his employees and on representation that two cheques were missing they have stopped payment of amounts under the said cheques.   The customers have to keep the cheque books in a safe place.  Whenever they have lost, they have to notify the bank immediately.  It had never received any representation that the cheque was missing.   The signature on verification appears to have been that of the complainant.    

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A9 marked while the bank filed the affidavit evidence of its Branch Manager and got Exs. B1 to B4 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that the complainant was guilty of not informing the loss of cheque and the contention that it was forged was neither  nor substantiated and therefore dismissed the complaint.

6)                Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.  It ought to have seen that the investigation as well as enquiry against the accused was pending.  It ought to have drawn an adverse inference against the respondent for not producing the specimen signatures in order to prove that signature was forged and therefore prayed that the appeal be allowed.   

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the complainant is a company and its accounts are being run by two directors’ viz., the complainant, and  A. Venkateshwarlu.   The complaint is that three cheques from the office were stolen by their accountant and one of the cheques bearing No. 699798 for Rs. 98,000/ was forged  and  the amount was withdrawn.  Had the bank been vigilant it  have easily found  out  from verification of specimen signature  that the disputed signature is forged. 

9)                At the outset, we may state that Ex. B2 disputed cheque filed before the Dist. Forum.   was drawn on ‘RAM’ or bearer to pay a sum of Rs. 98,000/- .  The  was withdrawn on 7.6.2007.  It has also filed Ex. B3, account opening form  signatures of the complainant  and that of  A. Venkateshwarlu,   Managing Director/Director of the company.     Exs. B1 to B3 the complainant did not   steps to get the signatures compared with an  handwriting expert (to get  opinion that it was forged).  It is for the complainant to explain as to how the said cheque which ought to have been in his safe custody had been lost.    The complainant asserts that he gave a report to the police basing on which a case in Crime No. 105/2007 was   u/s 408, 468 and 420 IPC.    The complainant did not file any material as to what happened to the case and the outcome   investigation of the police.    

10)              It is evident from the documents filed by the bank Exs. B2 & B3  the alleged cheque as well as specimen signatures on the account opening form  the police did not even seize nor sent it for verification with an handwriting expert.    When the bank has   the disputed cheque, the complainant did not take any action  which we have already stated.  The complainant could not

establish that the signature did  not pertain to him.    He did not even implead the person who said to have forged his signature,   simply by stating   he was absconding.   The complainant had failed to establish that the employee has been absconding. The complainant did not take any steps pursuant to the complaint made by him to the police.  When the complainant could not   that Ex. B2  was forged nor explained the circumstances under which he parted the cheque,   which  allowed a third party to receive the amount,  it cannot be  said that the bank was guilty of any negligence.  It cannot be termed as deficiency in service.    The complainant  to collect the amount from the bank,  which he could not have otherwise collected from  their accountant.    We do not see any merits in the appeal.

11)              In the result the appeal is dismissed.  No costs.  

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

                                                                                      19/03/2012

*pnr

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