Delhi

North East

CC/211/2011

Ravindra Singh - Complainant(s)

Versus

ICICI Bank - Opp.Party(s)

23 Jun 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  211/11

 

In the matter of:

	Ravindra Singh R/o:- E-44/9, Okhla Industrial Area Phase II, New Delhi-110020	Complainant
	Versus
1.                 2.	ICICI Bank E-5/19, Krishna Nagar New Delhi-110051 Also at: ICICI Bank Ltd. NBCC Tower Bhishm Pitamah Marg New Delhi   HDFC Bank Ltd. Shop no. 2,3,4,5, Charmwood Bazar Charmwood village, Surajkund Road Faridabad-121009, Haryana	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

04.07.2011 23.06.2020 23.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the present complaint are recapitulated as that the complainant is a consumer of OP2 by virtue of holding an HUF saving account bearing no. 03961000026239 at OP2’s Faridabad (Haryana) Branch. In the third week of June 2009, a person named Vishal, representing himself as Direct Selling Associate (DSA) of Banks called up the complainant and offered him a housing loan to be arranged from bank. The complainant who was in need of a housing loan at that time asked the said DSA to contact the complainant’s accountant Mahipal in this regard and both DSA and complainant’s accountant were in constant touch and complainant’s accountant handed over financial documents, bank statement etc., required for processing of loan to the DSA on 24.06.2009 on which date, on demand of DSA, complainant handed over a cheque no. 421634 from his cheque book of account held with OP2 which was filled by DSA using his own pen and the DSA inscribed the words “A/c SBI Bank Ltd.” crossing the cheque diagonally with two parallel lines and in between them wrote the words canceld and “only for scurty”. The DSA also obtained signature of the complainant on the said cheque on pretext of verification purpose and then left complainant’s office. The DSA could not be contacted afterwards when the complainant’s accountant tried to contact him on his mobile on 03.07.2009 which came as switched off. On 04.07.2009, when the complainant checked his bank account through internet banking, he was surprised to find a debit entry of Rs. 2,50,000/- dated 30.06.2009 withdrawn by one Sree Ram Sah through the same cheque in question bearing no. 421634 from the account of complainant maintained with OP2. When the complainant downloaded the bank statement, he found that first there was a debit entry of Rs. 2,50,000/- on 27.06.2009 through the cheque in question which account was credited back in his account the same day with instruction “Present with Document” which indicated clearly that OP2 suspected foul play with respect to the said cheque but despite suspicion, made no enquiry on the matter nor verified the transaction with the complainant. The said cheque was presented for the second time on 30.06.2009 when the account of the complainant was debited with Rs. 2,50,000/- in favour of Sree Ram Sah. On complainant’s demand made to OP2 in writing on 04.07.2009 for copy of the cheque in question, OP2 furnished a scanned copy of the same as the original cheque was at its central office at Connaught Place, New Delhi. On receiving the scanned copy of the said cheque complainant found that the cheque was drawn in favour of Sree Ram Sah with an account no. 000701562445 under the stamp of OP1 a fixed on it which clearly showed that OP1 and OP2 jointly acted in conspiracy / connivance with Sree Ram Sah who had fraudulently succeeded in withdrawing Rs. 2,50,000/- from complainant’s account against a cancelled cheque and complainant alleged negligence, deficiency of service and cheating on the part of the OPs to extort Rs. 2,50,000 from him in the name of a person who was not only unknown to the complainant but also with whom the complainant had never engaged in any transaction whatsoever in the past. The complainant alleged tampering of the cheque in question which was presented to OP1 for clearance and which bears an encashment verification stamp dated 30.06.2009 of OP2 which a fixed by OP2 without undertaking any verification / enquiry from the complainant. The complainant has alleged the tampering of the said instrument as here under.

1. Tampering at the extreme left side corner i.e. “A/c Payee”
2. Payee “SBI Bank Ltd.” has been substituted for “Sree Ram Sah A/c 000701562445”
3. Letter “S” of SBI has been over written as “Sree Ram Sah”
4. “only for scurty” has been erased
5. “canceld” has been erased
6. Two parallel lines used for cancelling the cheque across it have been erased

The complainant vide letter dated 05.07.2009 to OP2 brought the above mentioned tampering of the instrument to the knowledge of the OP2 and demanded refund of the amount of Rs. 2,50,000/- and initiation of legal investigation in the case with a copy of the said letter marked to OP1. OP2 vide reply dated 08.07.2009 justified the clearing of the said cheque on pretext of its Apparent Tenor found to be in order with no sign of tampering or removal of contents from the cheque and denied any negligence on its part in honoring the said instrument. OP2 also informed the complainant that on approaching OP1 in this regard verbal intimation was given by OP1 that the proceeds of the cheque in question had been withdrawn by its account holder (i.e. Sree Ram Sah) and advised the complainant to approach the Banking Ombudsman for further resolution of his grievance. The complainant and OP2 were in constant communication with each other vide emails in the month of July 2009 for resolution action in to the matter at the earliest and the complainant escalated the case to the Managing Director of OP2 but no action was taken by OP2 till end of July 2009. The complainant lodged a complaint with Banking Ombudsman vide complaint no. 200910014001326 on 26.08.2009 received / registered on 03.09.2009 and vide email dated 18.12.2009 from the office of Banking Ombudsman to the complainant, a meeting was scheduled to be convened on 29.12.2009 in Banking Ombudsman office RBI New Delhi and in which meeting, OP1 failed to prove the verification form and no resolution came forth. Therefore as a last resort, the complainant alleging deficiency of service, negligence, frauds / forgery on the part of OPs to have allowed fraudulent encashment of a cancelled cheque in act of failure to exercise reasonable degree of intelligence fled the present complaint praying for issuance of direction against OPs to refund Rs. 2,50,000/- alongwith compensation of Rs. 50,000/- and Rs. 50,000/- towards cost of litigation.

2. Complainant has attached copy of bank statements highlighting debit-credit-debit of Rs. 2,50,000/- between 27.06.2009 and 03.06.2009 against cheque no. 421634 by Sree Ram Sah, copy of cancelled cheque no. 421634 as originally given by complainant in favour of SBI Bank Ltd. under his signature, copy of tampered cheque no. 421634 dated 26.06.2009 in favour of Sree Ram Sah account holder of OP1 cleared by OP2, copy of letter dated 04.07.2009 from complainant to OP2 requesting to the copy of the cheque, copy of letter dated 05.07.2009 by complainant to OP2 about the nature of the tampering of the cheque in question, copy of reply dated 08.07.2009 by OP2 to complainant justifying its clearance, copy of emails exchanged between complainant and OP2 for the period of July 2009, copy of complaint acknowledgment dated 03.09.2009 by office of Banking Ombudsman and copy of email dated 18.12.2009 exchanged between complainant and Banking Ombudsman office pertaining to convening meeting and confirmation of participation given by complainant.
3. Notice was issued to the OPs on 15.07.2011. OPs entered appearance and filed their respective written statement taking a common preliminary objection of non maintainability of complaint on grounds of it pertaining to allegation of fraud and cheating involving complicated question of facts and law requiring evidence and detailed trial and therefore not possible in summary proceedings before this Forum as the case would entail leading evidence and cross examination by way of proper trial and investigation by investigation agency and therefore OPs prayed for dismissal of the complaint on this ground amongst other which are on the merits of the case which we shall not go into at this point. The complainant too in the rejoinder filed by him in rebuttal to the defence taken by OPs admitted that it is a case of fraud, forgery, conspiracy / connivance and tampering on the part of OPs in allowing encashment of a cancelled cheque forged for encashment and proceeds of Rs. 2,50,000/- withdrawn by Sree Ram Sah, thereby alleging negligence and deficiency of service causing loss to the complainant and giving rise to the present complaint. Evidence by way of affidavit and written arguments were filed by all parties and pleadings were completed and arguments were heard and the case was reserved for order by erstwhile bench on 02.07.2012. The matter was relisted on the change of President of this Forum on 17.06.2013 when it was again reserved for order after hearing arguments on 03.02.2015 but no order was pronounced. In hearing held on 09.02.2015, the erstwhile bench observed that the complainant had not filed the scanned copy of the cheque in question on record despite having received it from OP2 on 04.07.2009. Therefore directions were issued to file the same and also for complaint to satisfy this Forum, this being a case pertaining to forgery and fraud that this Forum has jurisdiction to try and dispose of the same effective without calling for expert evidence. However, the said order was not complied with by the complainant who failed to appear March 2015 onwards and the complaint was therefore dismissed in default vide order dated 01.11.2016. However, the said order was set aside by the Hon’ble SCDRC vide order dated 25.10.2017 in FA. No. 211/2017 and the matter was posted for further proceedings before the present bench on 08.01.2018 for oral arguments and all parties filed their respective compilation of judgment relied upon them to buttress their stands. In hearing held on 13.08.2018, directions were issued to the complainant in furtherance to earlier order dated 09.02.2015 to place on record original cheque in question since the same was not part of record and the complainant submitted that he subject cheque was with the office of DCP South East Delhi in FIR no. 292/2009 lodged with PS Okhla Industrial Area, New Delhi for investigation in the present case. Appropriate order was issued to the office concerned by this Forum u/s 13(4)(ii) of the CPA for production of the said cheque so that the same could be sent for seeking Forensic Science Laboratory (FSL) investigation report as mandatory requirements u/s 13(1)(c) of the Act read with Section 2(1)(a) of the Act to be sent to “appropriate laboratory”. The subject cheque was produced and filed before this Forum on 30.10.2018 after which it was sent to FSL, Rohini Delhi for investigation report which report dated 31.01.2019 from Assistant Director (Documents) FSL with Laboratory Examination Observations was received and taken on record on 27.03.2019. Vide the obstructions in para I to VI of the said report, conclusion of tampering of the cheque in question was made with original / existing writing and remarks different from the once on the presented cheque in favour of Sree Ram Sah and the said report carried a foot note of report being admissible u/s 293 Cr. PC and “scientific expert (witness) shall be available for cross examination if required”. In hearing held on 05.11.2019 before this Forum, this Forum directed all parties to address arguments on maintainability since as per the settled law of the Hon'ble Supreme Court in Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot in CA No. 7107/2003 decided on 16.02.2004, the Hon'ble Supreme Court held that issue of maintainability has to be decided before admitting or hearing the matter on merit and in judgment of Hon’ble NCDRC in Koshy Varghese Vs HDFC Bank Ltd. III (2017) CPJ 52 (NC) wherein Hon’ble National Commission held that question in which law point is involved can be decided at any stage of the proceedings. Therefore, without going into the merits of the case, this Forum vide order dated 05.11.2019 directed all parties to satisfy this Forum on the maintainability aspect and therefore subsequent to outcome of this aspect only shall, if at all, the complaint shall proceed on merits and KYC documents etc., of the alleged beneficiary is an afterwards stage if at all the matter remands so.  We shall adjudicate the admissibility / non-admissibility of the present complaint. The complainant relied upon judgment of Hon'ble National Commission in S.K. Abdul Sukur Vs State of Orissa II (1991) CPJ 202 (NC) in which Hon'ble National Commission had observed that mere pretext of witness to be examined or cross examined cannot be a valid ground for declining adjudication of dispute by the Redressal Forum constituted under the Act as it would defeat the very objective / purpose of statute enactment which is to provide a cheap and speedy remedy to aggrieved consumer and this ratio was followed by Hon’ble NCDRC in Sharda Ben Vs Gujarat Gas Supplier I (1992) CPJ 225 (NC) in which Hon'ble National Commission observed that if the various Forums constituted under the Act declined to exercise jurisdiction in complaints only on ground that disputed question of law and facts are involved and evidence has to be recorded, the provision of above act would be rendered nugatory and a poor consumer would be deprived to take benefit of the benevolent provision of the Act due to erroneous abdication by Forums. Per contra, OP1 relied upon judgment of Hon'ble National Commission in Vishamber Sunderdas Badlani & Anr Vs Indian Bank & 3 Ors. I (2008) CPJ 76 (NC) pertaining to dispute of forged FCNR and dispute involving recording of voluminous evidence relating to forgery and conspiracy relegated to civil court by Hon’ble NCDRC. OP2 relied upon judgment of Hon'ble Supreme Court in Synco Industries Vs. State Bank of Bikaner and Jaipur Air 2002 SC 568 and judgment of Hon’ble NCDRC in Bright Transport Co. Vs Sangli Sahaakari Bank Ltd. II (2012) CPJ 151 (NC) pertaining to encashment of cheque against forged signature and fraud in which Hon’ble NCDRC relying upon the Synco (Supra) Judgment and Badlani judgment, dismiss the complaint as misuse of jurisdiction of commission to save on court fee.
4. We have heard the rival contentions of all parties and carefully consideration the arguments advanced by each one of them and examined the material on record. It is to be examined at this stage whether the complaint is maintainable before this Forum or not and therefore we are not inclined to go into the questions of merits except one question relating to whether this complaint should be adjudicated by this Forum or should it be relegated to civil court. The present complaint pertains to a cancelled cheque bearing no. 421634 in favour of SBI given by complainant from his HUF account held with OP2 to a DSA namely Vishal which instrument was allegedly tampered in act of fraud and forgery and was wrongfully encashed by an unknown person who was a customer of OP1 by filling an amount of Rs. 2,50,000/- on the said cheque                           on 30.06.2009 and withdrawn the said amount from complainant’s account held with OP2 and therefore the complainant has admittedly alleged connivance / conspiracy between the OPs to have allowed encashment of a forged cheque by an unknown person who was not intended to be a beneficiary thereof, the same having been made in favour of SBI Bank Ltd. and cancelled by complainant under his signature. For the said allegation of cheating, fraud, forgery, conspiracy, negligence and deficiency of service the complainant has filed the present complaint against OPs for relief.
5. The Hon'ble National Commission in The Tax Publisher Vs Chairman and Managing Director, UCO Bank & Ors. in FA no. 106/2014 decided on 31.08.2017 in a similar case of fraudulent cheque withdrawal observe inter alia that the decisive test is not the complicated the nature of the questions of facts and law arising for decision- the anvil on which entertainability of a complainant by a Forum under the Act is to be determined is whether the questions though complicated as they may be, are capable of being determined by summary enquiry i.e. by doing with the need of detail and complicated method of recording evidence. The Hon'ble National Commission in land mark judgment of Vishamber Sunderdas Badlani Vs Indian Bank I (2008) CPJ 76 (NC) observed that the question of relegating the matter and the parties to Civil Court arises only where voluminous evidence is required to be recorded. The Hon'ble National Commission in catena of judgments viz NEPA Ltd. Vs Madhya Pradesh Electricity Board I (2003) CPJ 138 (NC), RD Papers Ltd. Vs New India Assurance Co. Ltd. & Ors I (2004) CPJ 101 (NC), held that the cases involved complicated questions of fact which could not be decided in summary jurisdiction even though the case may be few lakhs but would require enormous evidence to be led in respect of allegation of forgery etc. in Deccan Enterprise Pvt. Ltd. Vs National Insurance Co. ltd. III (2002) CPJ 68 (NC)  & Bombay Dyeing and Mfg. Co. Ltd. Vs Union Bank of India I (2001)  CPJ 1 (NC), the Hon'ble National Commission observed in cases involving complicated questions of law and facts, Civil Court would be the right place to decide involve in such cases and referred to another problem of clogging of wheels of justice in Consumer Court observing that why moneybags should abandon the remedy by the civil court and seek justice from the consumers court bypassing civil courts. In Sagar Polymers Vs SBI in OP no. 244/2002 decided on 05.12.2002 (emphasis supplied) which had identical facts of tampering and forging of cheque as the present case in hand where the words written on the cheque “Dena Bank” were replaced by the accused with “self” or ‘’Yash Enterprises’’ and forged signature, the Hon'ble National Commission dismissed the complaint following observations made by Hon'ble Supreme Court in Synco Industries Vs SBBJ in Civil Appeal no. 6453/2000 decided on 15.01.2000 in which the Hon'ble Supreme Court held that it was not an appropriate case to be heard and disposed of in a summary fashion where detailed evidence would have to be led. In Lalco Enterprises Vs Union Bank of India III (2003) CPJ 42 (NC) pertaining to encashment of forged cheques, the Hon'ble National Commission observed that it was difficult to go into question of forgery without getting report from Hand Writing Expert.
6. But, we are not deciding the question of complicated nature at the initial stage in as much as all parties before us have completed their pleadings and placed on record documentary evidence and supporting judgments to reinforce / justify their respective stands. So, following the principle laid down by Hon'ble National Commission in Vishamber (Supra) case, we are not passing the order at the very initial stage as was also held by Hon'ble Supreme Court in CCI Chamber Cooperative Housing Society Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC) judgment and are deciding the question of maintainability which can be decided after pleadings were filed that whether the matter is complicated enough to be adjudicated upon by this Forum at this stage only once the pleadings for all parties were available on record to enable us to form and opinion as to the nature and scope of enquiry i.e. whether the question arising for decision in the light of pleadings of the parties required a detailed and complicated investigation into the fact which was incapable of being undertaken in a summary and speedy manner. The Hon'ble National Commission in Vishamber (supra) has guided us in this regard in which the Hon’ble Apex observed that only on completion of pleadings and documentary evidence on record can the forum justifiably form an opinion on the need of driving away the complainant to the Civil court and not merely complicated nature facts and laws meaning thereby that the issue in the present complaint could not have been decided by this Forum on the date of admission but only at this stage. The Hon'ble National Commission in Mahesh Kumar Vs MG motors I (2016) CPJ 110 (NC) upheld the decision of the foras below in dismissing in a complaint regarding fraudulent treachery on grounds that elaborate evidence is required to decide the complaint which cannot be decided summarily and advised the party to approach Civil Court in such a case where any fraud has been played upon the complainant. The Hon'ble National Commission in Mittal Education Society Vs Indian Overseas Bank I (2018) CPJ 394 (NC) and Devraj Kishore Das Vs Reliance Life Insurance Co. Ltd. III (2018) CPJ 518 (NC) reiterated the stand taken by the Hon’ble Commission consistently that cases relating to fraud, cheating and forgery cannot be decided in the Consumer Forum as the proceedings in Consumer Forum are summary in nature and adjudication of issues which involved disputed factual question should not be adjudicated by Consumer Fora as was previously held in its M/s Singhal Swaroop Ispat Ltd. Vs United Commercial Bank III (1992) CPJ 50 (NC), Reliance Industries Ltd. Vs United India Insurance Co. Ltd. I (1998) CPJ 13 (NC), Bright Transport Co. Vs Sangli Sahakari Bank Ltd. II (2012) CPJ 151 (NC) and P.N. Khanna Vs Bank of India II (2015) CPJ 54 (NC), judgments placing reliance upon the judgments of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs Munimahesh Patel IV (2006) CPJ 1 (SC) and TRAI Foods Ltd. Vs National Insurance Co. Ltd. III (2012) CPJ 17 (SC). The Hon'ble National Commission held in Mittal (supra) case involving cheque fraud that such question of facts and laws are not determinable in summary proceeding under CPA and held the complaint non maintainable as it involved enormous evidence to be led in case of fraud and forgery which are even otherwise beyond the scope of proceedings under CPA. The Hon'ble National Commission in the latest judgment in Umarpur Rice Mills (P) Ltd. Vs New India Assurance Co. Ltd. I (2020) CPJ 138 (NC) decided on 17.12.2019 held in case where the insurance company had alleged fraud on the part of complainant that such a  complaint cannot be decided in summary procedure as it would require voluminous evidence by both sides and held that proper Forum for adjudication of such complaint is only Civil Court having proper jurisdiction and The Hon’ble Delhi SCDRC in Satish Mehra Vs Vysya Bank Ltd. in Appeal no. 417 of 1996 in case of fraudulent encashment of FCNR through a forged Reinvestment Form held that such cases cannot be decided before the Consumer Forum giving liberty to the complainant to seek his remedy before a Civil Court. The Hon’ble SCDRC in Ashok Kumar Goel Vs ICICI Bank IV (2016) CPJ 142 (Del) held that complaint containing allegation of fraud, forgery cannot be decided in summary proceeding under CPA as the same requires detailed evidence and granted liberty to the complainant to file civil suit by recovery of damage. In the present complaint, the complainant has leveled allegations of fraud, forgery, connivance / conspiracy and tampering of the cheque in question by one Sree Ram Sah, customer of OP1 who had tampered with the said cheque and drew it in his favour unlawfully withdrawing a sum of Rs. 2,50,000/- from complainant’s account held with OP2. In this regard the FSL report has also been placed on record and would required to be considered in as much as the expert are required to be examined and cross examined at length by all parties. Further, if during investigation, it is found that officers of OPs also colluded with the named accused, they can also be charge-sheeted or produced before the court for recording of the statement. But we have observed that the complainant has not made Sree Ram Sah a party in the present case against which accusation of fraudulent withdrawal has been made through cheque in question despite the said person being a necessary party. Thus the complaint also suffered from non-joinder of parties.
7. Thus having exhaustively dealt with the settled preposition of law as laid down in the judgments of Hon'ble Supreme Court, Hon'ble National Commission and Hon’ble SCDRC, Delhi in the light of the facts of the present complaint, it is evident that not only complicated question of law but disputed questions of fact related to unauthorized withdrawal relating to forgery, fraud and conspiracy are involved requiring recording of voluminous evidence etc, which is beyond the scope of proceedings under the CPA. We are therefore of the considered view on keen scrutiny of pleadings and documents filed by all parties that a satisfactory adjudication of the present case cannot be conducted by this Forum in proceedings under the Act because of exceptionally complicated nature of factual and legal issues involved. Moreover, the complaint also suffers from the defect of non-joinder of necessary parties and therefore on these grounds, it would be desirable that the matter should not be dealt with by this Forum and the competent court for adjudication of the same would be the civil court. The complaint is dismissed accordingly and complainant is granted liberty to approach the civil court and he may be entitled to the benefit of observation of Hon'ble Supreme Court in Laxmi Engineering Works VS P.S.G. Industrial Institute II (1995) CPJ 1 (SC) for the purpose of exclusion of time spent before this Forum. No order as to cost.
8. Let the copy of this order be sent to all parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
9.   File be consigned to record room.
10.   Announced on  23.06.2020

(N.K. Sharma)     President

(Sonica Mehrotra)  Member