ORDER

19.03.2024

Ms. Nipur Chandna, Member

1. In brief facts of the present case are that complainant is running a small shop at A-1/105-106 Rohini, Sector 6, Delhi-110085 for earning his livelihood by means of self employment and having bank account A/c no.20722020000570 with OP1 bank. It is stated that OP2 Sudhir Singh representative of OP1 approached the complainant and asked to take credit card machine and also took some documents alongwith a cheque bearing no.037185 for Rs.300/- as processing fee in the name of Axis Bank on 21.01.2014.
2. Complainant came to know that there is a withdrawal of Rs. 85,000/- on 22.01.2014 against cheque no. 037185 which was given  by the complainant for Rs. 300/- only as a processing fee. Complainant immediately approached all the OPs and enquired about the withdrawl in question but no satisfactory reply was given by OP. It is further stated that on several occasions complainant approached OP to know about withdrawal of Rs.85,000/- from OP4 HDFC Bank, Meera Bagh Branch, Pachim Vihar with the help  of Sh. Sudhir Singh  OP3, but all in vain. Being aggrieved and harassed by OPs the complainant approached this Commission for getting  a sum of Rs.85,000/- which are illegally and fraudulently withdrawn by OPs alongwith interest 18%. It is further stated that he is also entitled to compensation of Rs.4,00,000/- on account of mental agony, physical harassment, conveyance etc. Hence present complaint filed.
3. OP-1 and OP-4 filed joint WS and taken preliminary objection that present complaint is not maintainable as the allegation made are baseless, false and frivolous. It  is further stated that the complainant has alleged that he issued a cheque bearing no.037185 dated 22.01.2014 for an amount of Rs.300/- in the name of Axis Bank to OP3 and thereafter Rs.85,000/- got withdrawn from the said account vide the said cheque.
4. It is stated that bare perusal of the cheque in question would reveal that  the said cheque was signed and issued by the complainant in the name of OP3 for an amount of Rs.85,000/- as against the contentions made by complainant that he issued the cheque in favor of OP2 for an amount of Rs.300/-. It is further stated that after the said cheque was presented at the branch of OP4, it was bonafidely cleared in accordance with prescribed guidelines  for cheque clearance. It is stated that the said cheque bears the signature of complainant and has no alteration which clearly suggest that complainant himself issued  a cheque in favor of OP3 for amount of Rs.85,000/-. It is stated that present complaint is liable to be dismissed.
5. On merit all the allegations are denied and contents of preliminary objections reiterated. It is stated that complainant sent a letter dated 27.01.2014 to Regional Manager of OP2 against OP3 Sh. Sudhir Singh for misusing the said cheque and demanded enquiry against him. It is further stated that said cheque was not “crossed”/made “account payee” by the complainant which is a mandatory requirement in the case the cheque was not issued in favor of the bank as alleged. It is stated that the cheque presented to OPs prima facia did not bear any cutting, cancellation or any overwriting and therefore the cheque was cleared after following the guidelines/procedure and OP1 and 4 discharge their duty in diligent manner in good faith and with bonafide  intentions. It is stated that present complaint is liable to be dismissed.
6. Complainant filed rejoinder to the WS of OP1 to 4 and denied all the allegations made therein and reiterated contents of the complaint.
7. As per record OP2 Axis Bank also served and filed an application under order 7 rule 11 for dismissal of complaint against OP2 stating that there is no privitiy of contract between the parties.
8. As per record OP3 Sudhir Singh served through publication of notice in daily newspaper  Veer Arjun dated 02.03.2018 and proceeded ex parte vide order dated 02.05.2018.
9. Complainant filed evidence by way of affidavit and reiterated contents of the complaint. The complainant relied on statement of account entry showing withdrawal of Rs.85,000/- annexed as annexure A, complaint made to police station Miyawali Nagar, Delhi annexure B1 to B4.
10. The cheque in question during the proceedings examined by expert Sh. Deepak Jain writing and fingerprint expert who provided his expert opinion dated 05.01.2007. Sh. Deepak Jain filed evidence by way of his affidavit and relied upon his expert opinion report.
11. OP1 and 4 filed evidence by way of affidavit of Abhinav Vasisht AR. In the affidavit OP1 and 4 reiterated contents of the WS. OP1 and 4 relied on copy of cheque Ex. A and copy of photo ID of OP3 Ex.B.
12. Written arguments filed on behalf of complainant and OP1 and 4. As per record OP2 Axis Bank also filed written arguments.
13. We have heard the arguments advance at the bar by Ld. Counsel for complainant Sh. D.K. Sinha. Despite opportunity OP-1,2 & 3 failed to address the arguments. We have also gone through the record.
14. Before delving into the merits of the case, on careful perusal of the complaint, it shows that the case involves complicated question of facts on various issues such as:

1. The issue involved in the present complaint is in respect to the cutting/alteration as well as the tempering of the cheque issued by complainant.
2. The photocopy of the cheque placed on the record does not bear any cutting, cancellation, over writing as alleged by the complainant in his complaint, hence, it is very difficult to come to the conclusion that there is a tempering in respect to the cheque in question in this summary proceedings.
3. There is an allegation of misuse of the cheque by OP-3 and fraudulent withdrawn of Rs. 85,000/- from complainant account.

iii       The Complainant alleges that the Opposite Parties engaged in cheating and fraud through these transactions, necessitating detailed evidence and oral examination.

15.     Admittedly, the Consumer Forum deals with the issues in a summary proceeding, where cases involve a great deal of evidence, the same cannot be adjudicated upon by the Forum and for which the party concerned has to approach the civil court where elaborate procedure including recording of evidence is followed.

16.     In the present case the complainant raised the issue which involved highly disputed question of facts or allegations of cheating and forgery, therefore, consumer commission cannot adjudicate the dispute raised by complainant in the garb by stating deficiency of service on the part of OPs. The reliance can be placed on Ravneet Singh Bagga vs. KLM Royal Dutch Airlines and Another (2000) 1 SCC 66, Branch Manager, Indigo Airlines Kolkata and Another Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 and The Chairman and Managing Director, city Union Bank Ltd. & Anr. Vs R. Chandramohan in civil appeal no.7289 of 2009 decided on 27.03.2023 (Supreme Court).

17.    In view of the above discussion, we are of the considered opinion that the present complaint involves complicated questions which require elaborate oral and documentary evidence and the examination of the witnesses for the proper disposal of the matter. The proper forum for adjudication of the present complaint is Civil Court. Consumer Protection Act being the special Act where only summary proceedings are taken up and as such the adjudication of the present complaint is beyond the scope and jurisdiction of this Commission.

18.     We are, therefore inclined to hold that the present Complaint cannot be adjudicated by way of Summary Proceedings. Consequently, the present complaint stands dismissed with liberty to the Complainant to approach the Civil Court as per law.

19. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  19.03.2024.

SANJAY KUMAR                     NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER