DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.12/2009
Sh. Rajesh Kumar Goyal
R/o 809, Sector 37,
Faridabad, Haryana ….Complainant
Versus
1. The Chairman and Managing Director
ICICI Bank Ltd.
“Land Mark”
Race Course Circle,
Vadodara-390007
2. The Branch Manager
ICICI Bank Ltd.
New Friends Colony Branch,
New Delhi ……Opposite Parties
Date of Institution : 23.12.08 Date of Order : 04.11.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Complainant’s case, in brief, is that while taking personal loan of Rs.1,50,000/- from OP No.2 in December, 2005 OP No.2 had taken 8 blank signed cheques bearing No.087826, 087827, 087828, 087829, 087830, 087831, 087832 & 087833 as security for the loan from him and after clearance of the amount only first 6 cheques were returned to him by the OPs which fact came to the notice of the Complainant only when one of the balance cheque, namely, cheque No.087832 was misused to illegally withdraw the money. He received a SMS from the OPs on 29.08.08 at 5:48 p.m. to the following effect:
“You’re a/c xxxxxx021016 is debited INR33,000.00 on 29.08.2008. Info: TRFR TO: RAJIV KUMAR. Total avbl. Bal. is INR 266.54”
Thereafter the Complainant contacted the OP No.2 and told that no such cheque had been given by him to any Rajiv Kumar but, however, the OPs did not pay any heed. On the other hand, the Branch Manager of the OP No.2 instructed the Manager Operation to look into the matter who tried to contact the said Rajiv Kumar on his telephone number which was available with the OP No.2 and the said Rajiv Kumar told OP No.2 that this was his brother’s account number; that when the bank after obtaining his brother’s mobile number called on the same the said person claimed that he did not have the said account. The Complainant was directed by the OPs to register an FIR and to inform the OPs and he made a complaint at P.S. New Friends Colony on 30.08.10 but all in vain. It is stated that despite sending notices and making personal visits to the OPs, the OPs who were in collusion with the said Rajiv Kumar did not respond which caused financial loss, mental torture and physical agony to him. Hence, pleading negligence on the part of the OPs, the Complainant has filed the present complaint for directing the OPs to refund Rs.33,000/- towards the money illegally withdrawn from the Complainant’s account, to pay Rs.20,000/- towards compensation and Rs.5000/- towards litigation charges to him.
OPs in their reply have inter-alia pleaded that the Complainant has not filed any proof/receipt to show that he had given eight cheques and not six cheques as security for the loan. It is submitted that the Complainant’s loan had been paid out by March 2008 and the security cheques were returned to the Complainant around the same time. It is stated that admittedly, the cheque 087832, allegedly given by the Complainant as a security for the loan, had been encashed on 29.08.08 but the Complainant has not given any explanation for not corresponding with the OPs between March 2008 and August 2008 for a period of almost 6 months for the return of cheque No. 087832 and, hence, the complaint prima-facie is suspicious. It is stated that only six cheques had been taken from the Complainant and were retuned to the Complainant after full repayment of the loan. It is denied that the OPs did not return cheque No.087832 and 087833 as alleged or at all as the said cheques had not been collected by the OPs in the first place. The fact that the cheque No.087832 had been enchased in the account of one Rajiv Kumar has not been specifically denied by the OPs. However, it is denied for want of proof that the Complainant had not issued any cheque to any Rajiv Kumar. It is also not denied that the said Rajiv Kumar did not have any bank account with the OP No.2 bank. However, it is submitted that the OP No.2 bank has already referred the account of Rajiv Kumar for a debit freeze and has further issued instructions to the staff for apprehending the said person on his visit to the branch. It is prayed that the complaint be dismissed.
Complainant has field a rejoinder wherein he has inter-alia stated that as a bank the OPs must be maintaining the records of cheques taken by them as security from the borrower but the OP bank has failed to produce on record any such document which clearly shows that the OPs bank had taken eight cheques from him out of which six cheques were returned.
Complainant has filed his own affidavit in evidence and has relied on documents Ex. CW-1/1 to CW-1/3. On the other hand, affidavit of Sh. Sanju Kumar, Manager (legal) has been filed in evidence on behalf of the OPs who has relied on the document Ex. RW-1/1 (Colly). However, we must say at once that the OPs have not filed any such document on the record.
Written arguments have been filed on behalf of the parties.
We have heard the Counsel for parties and have also carefully gone through the record.
As stated hereinabove, from the pleadings of the OPs and the affidavit of the OPs’s witness it becomes crystal clear that one Rajiv Kumar had a bank account with the OP No.2 and cheque bearing No. 087832 for an amount of Rs.33,000/- had been encashed in his account on 29.08.08. There is also evidence on the record to prove that the Complainant had lodged a police report regarding misuse of the said cheque given by him to the OP (copy of police report is Ex.CW1/2). There is also evidence on the record to prove that the OP bank did not initiate any enquiry into the matter and allowed the said Rajiv Kumar to go scot free for the reasons best known to their officers/officials. The copy of statement of account of Complainant is Ex. CW-1/1 from a perusal of which it transpires that the cheque No.87832 for an amount of Rs.33,000/- had been transferred to the account of one Rajiv Kumar from the account of the Complainant on 29.08.08. The said transaction inquiry /statement of account is for the period 03.1.08 to 11.12.08. The said document clearly reflects that apart from cheque No. 87832 all the other cheques issued by the Complainant during the said period were altogether of different serial number. Therefore, there is every reason to believe that it were the OPs who had infact collected eight bank signed cheques from the Complainant while giving personal loan of Rs.1,50,000/- to him in December, 2005. The said cheque bearing No.87832 must be in possession of OP No.2. Therefore, OP No. 2 could have very easily produced the said cheque for the inspection of this Forum which could throw light on the fact, whether the said cheque had been issued by the Complainant as is tried to be said by the OPs’s witness in his affidavit (para No.7) wherein it is stated that “I state and submit that the Complainant has himself given the cheque as alleged in favour of Mr. Rajiv Kumar and unnecessarily tried to harass the Respondent Bank by filing this frivolous complaint. I further state and submit that the Respondent has not perpetuated any fraud upon the Complainant in collusion with Mr. Rajiv Kumar.” Therefore, the production of the said cheque had become more necessary on behalf of the OPs to show their bonafide. However, they have withheld the said cheque from this Forum from which we draw adverse inference against the OPs
From the above discussion, we reach to an irresistible conclusion that the cheque No.087832 had infact been transferred from the account of the Complainant to the account of said Rajiv Kumar in collusion with the officials of OP No.2 bank. Therefore, we hold the OPs guilty of unfair trade practice and deficiency in service.
In view of the above discussion, we allow the complaint and direct the OPs jointly and severally to pay Rs.33,000/- towards the amount transferred from the bank account of the Complainant in the account of said Rajiv Kumar alongwith interest @ 6% p.a. from the date of filing of the complaint i.e. 23.12.2008 till realization, Rs.10,000 towards compensation for mental pain and agony and cost of litigation to the Complainant within 30 days of receipt of copy of this order failing which OPs shall jointly and severally become liable to pay the said amount of Rs.33,000/- along with interest @ Rs.8% per annum from 23.12.2008 till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 04.11.16.
