STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Complaint No.21 of 2010) Date of Institution:19.03.2010 Date of Decision : 04.03.2011 1. Sh. Sameer Jain son of Sh. Sudarshan Kumar Jain, Proprietor, Net Solutions, First Floor, Tower-C, DLF Infocity, Rajiv Gandhi Chandigarh Tecnology Park, Chandigarh. 2. Net Solutions, First Floor, Tower-C, Infocity, Rajiv Gandhi Chandigarh Technology Park, Chandigarh through its Proprietor Sameer Jain son of Sh. Sudarshan Kumar Jain. ……Complainants. V e r s u s1. I.D.B.I Bank, Head Office, I.D.B.I. Tower, WTC Complex, Cuffe Parade, Colaba, Mumbai through its Chairman. 2. The Branch Manager, I.D.B.I Bank, SCO Nos.55-56-57, Madhya Marg Road, Sector 8-C, Chandigarh. 3. Kotak Mahindra Bank Ltd., 36-37A, Nariman Bhawan, Mumabi-400021 through its Chief Executive. 4. The Branch Manager, Kotak Mahindra Bank, SCO No.826, NAC, Manimajra, Chandigarh. ....Opposite Parties. BEFORE: MRS. NEENA SANDHU, PRESIDING MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Rajinder Goyal, Advocate for the complainant. Sh. Manish Jain, Advocate for OPs No.1 and 2. Sh. Birender Singh, Advocate for OPs No.3 and 4. PER JAGROOP SINGH MAHAL, MEMBER. 1. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 seeking directions to the OPs to refund a sum of Rs.42,80,000/- along with interest @18% per annum from the date of debit in his account till the same is deposited back in the account and to further pay a sum of Rs.50 Lacs as damages and compensation due to deficiency on the part of OPs. 2. Briefly stated the case of the complainant is that he is the Proprietor of Net Solutions; is having a Business Gold Account with OP No.2 bearing No.003102000013262. It is averred that on 24.4.2008, an amount of Rs.42,80,000/- was debited to the account of Net Solutions and the information regarding this transfer was sent through an SMS only stating the name of the drawee as “Spectra Computer”. Unfortunately, the complainant could not read this SMS as he was to leave for U.S.A/U.K on business tour on 26.4.2008. As per the complainant, on 25.4.2008, he checked his account through Internet facility before leaving the country and found that an amount of Rs.42,80,000/- was paid to “Spectra Computer”, an old vendor of Net Solutions, against cheque bearing No.516670. The complainant immediately checked up with Spectra Computech who told that no such cheque was issued to them. The complainant immediately contacted Ms. Meenakshi Arora, Senior Executive of IDBI Bank and told her about the transfer of his funds when he had not issued any cheque for Net Solutions in favour of Spectra Computer for an amount of Rs.42,80,000/-. He also asked for to fax him the copy of the said cheque and Ms. Meenakshi Arora showed him the said cheque bearing No.516670. The complainant vide letter dated 25.4.2008 (C-8) informed OP No.2 that the amount had been fraudulently withdrawn from his account through a forged cheque. It is averred that at no point of time, the complainant had any dealing with Spectra Computech nor any such company was ever known to the complainant. As per the complainant, the cheque in question did not bear his signature and the said cheque was negligently and carelessly passed by the officials of IDBI Bank without tallying his signatures, which is gross negligence and deficiency in service on their part. The complainant also made a complaint vide letter dated 25.4.2008 (Annexure C-9) with the office of Economic Offence Wing and lodged an FIR dated 30.4.2008 (Annexure C-10) with Police Station, Manimajra. The complainant also requested OP No.2 to supply him photocopies of the alleged cheque, his specimen signatures, which were duly supplied to him vide Annexures C-11 and C-13. The complainant served a notice dated 5.5.2008 (Annexure C-14) upon OPs No.1 and 2 which was duly replied vide letter dated 20.5.2008 (Annexure C-15) stating that the matter was already under investigation. It is averred that as per the observations made by Forensic expert vide their report dated 22.12.2008 (Annexure C-17), the bank officials were totally negligent in dealing with the cheque in question. Since, the complainant was suffering huge loss as a result of negligence and deficiency in service on the part of OPs, he served a legal notice dated 28.7.2009 (Annexure C-18) upon the OPs calling upon them to refund the amount of Rs.42,80,000/- along with interest @18% per annum and the said legal notice was duly replied to by the OPs vide Annexures C-19 and C-20. Alleging this act of OPs as negligence and deficiency in service on their part, the complainant has filed the present complaint seeking directions to the OPs to refund the amount of Rs.42,80,000/- along with interest @18% per annum from the date of debit in his account and to further pay a sum of Rs.50 Lacs as damages and compensation. 3. OPs No.1 and 2 opposed the complaint and filed joint written statement taking some preliminary objections as regards the complaint involving complex question of fact, which require detailed evidence and the Fora not competent to adjudicate upon the matter, which involve a criminal trial. On merits, OPs No.1 and 2 admitted the opening of the account by complainant No.2. It is pleaded that as per the instructions while opening the account, intimation with regard to transaction in the said account were sent by SMS to the number as provided by the Account Holder and the said number happened to be that of the Proprietor of complainant No.2 i.e. Mr. Sameer Jain. It is further asserted that in case the recipient chooses not to read the SMS, the Bank cannot be held responsible for the same. These OPs have also admitted the debiting of Rs.42.80 Lacs from the account of complainant No.2. It is further admitted that the remittance had been made to “Spectra Computech”. It is next asserted that a legitimate cheque was presented for clearing. It is also admitted that Mr. Sameer Jain spoke to Ms. Meenakshi Arora of the OP Bank. It is pleaded that as per banking procedure, it is not possible to fax the copy of any cleared cheque. As per these OPs, the signatures on the said cheque were similar to the specimen signatures as available in their record. Any kind of negligence on the part of official who cleared the cheque has been denied. As per OPs, they also provided no less than ten cheques signed by the complainant No.1 to the police authorities and in all the said instruments, there is a difference in signatures. However, the complainant never objected to clearance of the said cheques. As regards the allegations with regard to the discharge of duties by the officials of the Bank, it is asserted that on coming to know of the occurrence, the matter was reported by the retail Branch to the Head of Customer Care. As per these OPs, they also requested the Kotak Mahindra Bank in its capacity to freeze the account where the cheque has been collected and refund the amount to IDBI Bank for crediting the same to the account of complainant No.2 since the transaction was fraudulent and the account holder was not the holder in due course. These OPs on their part also requested Kotak Mahindra Bank to provide complete account details of their account holder M/s Spectra Computech vide letter (Annexure OP-2/1). Subsequently vide letter dated 16.5.2008 (Annexure OP-2/3), OPs requested KOTAK MAHINDRA BANK to refund the amount, which was followed by detailed reply dated 20.5.2008 by OPs to complainant No.2 vide Annexure OP-2/4. Vide letter dated 7.8.2008 (Annexure OP-2/5), Reserve Bank of India also advised the complainant that the matter had been explained to it by IDBI Bank. In the meantime, KOTAK MAHINDRA BANK vide its reply dated 22.5.2008 (Annexure OP-2/6) refused to refund the amount. It is next pleaded that subsequent to this refusal, OPs lodged a complaint with the concerned police station on 20.8.2008 vide complaint (Annexure OP-2/7). Pleading no deficiency in service or any negligence of its officials, these OPs prayed for dismissal of the complaint. 4. In their separate joint reply, OPs No.3 and 4 stated that the cheque was drawn in favour of Spectra CompuTech when it was deposited for collection with Mani Majra Branch of Kotak Mahindra Bank Ltd. and the same was forwarded to IDBI Bank after prima facie verification that no material alternation or tampering had been done on the instrument. It is further stated that as clear funds were received from IDBI Bank (OP No.2), the amount was credited by OP No.4 in to the account of the beneficiary as per banking procedure. These OPs have denied the allegation of any connivance between their officials and the officials of OP No.2 Bank. It is pleaded that the account had been opened in the name of Spectra CompuPech as opposed to Spectra CompuTech as the request for account opening was received by OP No.4 in the name of Spectra CompuPech. It is further asserted that all Know Your Account (KYC) documents, which were furnished to OP No.4, were in the name of Spectra CompuPech and not Spectra CompuTech and “Spectra CompuTech” was got erroneously mentioned at certain places in the internal documents of OP No.4. As per these OPs, the complainant’s attempt to draw similarity between the two names is pointless as the cheque which has been cleared by OP No.1 was drawn in favour of Spectra CompuPech. Pleading no deficiency in service on their part, these OPs also prayed for dismissal of the complaint. 5. The parties produced evidence in support of their contentions. 6. We have heard the learned counsel for the parties and have perused the record. 7. The learned counsel for the complainant has argued that the cheque in question was not signed by him, that his specimen signatures existed with the OP Bank but they did not conduct comparison before allowing the same, that the cheque was allowed to be encashed though the same had not been issued by the complainant and therefore, it amounts to deficiency in service on the part of Bank/OPs No.1 and 2. He referred to the report of Directorate of Forensic Sciences, Ministry of Home Affairs, Government of India who after examining the admitted and the disputed handwriting submitted his opinion on 17.11.2008 to the effect that the person who wrote the signatures on A7 to A15 (admitted signatures) did not write the signatures on Q1 (signatures on the disputed cheque). He also opined that the writings on other cheques mentioned in Para No.3 of the report dated 17.11.2008 had been written by one and the same person. On the other hand, OPs No.1 and 2 have not led any evidence worth the name to suggest if the signatures on the cheque tallied with the specimen signatures. When the learned counsel for the OPs No.1 and 2 was at the time of arguments confronted with this situation, his only plea was that even the other signatures on the cheques submitted by the complainant, which had been encashed earlier, do not bear the signatures similar to that of the complainant, there being variation every time a person signs and therefore, the contention of OPs No.1 and 2 Bank should be given a weight in this respect. We do not find any merit in this argument. It is now proved on file not only from the affidavit of the complainant but from the report of the handwriting expert that the disputed cheque was not signed by the complainant Sh. Sameer Jain. The complainant, therefore, gave no authorization to OPs No.1 and 2 Bank to pay the amount of Rs.42,80,000/- to the holder of the said cheque. If they paid the amount, it would amount to deficiency in service on their part because OPs No.1 and 2 Bank are required to compare the signatures on the cheque with the specimen signatures in their record, which they failed to do. As regards the variance in the signatures on other cheques, the report of Forensic Expert says that those signatures have been appended by the same man i.e. the complainant. It, therefore, cannot be said that if there was any such variance in the signatures of the complainant on the other cheques due to which the disputed cheque, which did not at all bear his signatures, should be allowed to be encashed. 8. The learned counsel for the complainant has argued that in fact, an SMS was given to the complainant on his telephone about the receipt of the cheque for Rs.42,80,000/- and when he did not respond to the same, it was presumed that he had issued the cheque. The complainant has given sufficient reasons as to why he could not respond to the same. His contention is that he was to go out of India on the next day and was busy for his departure. He has produced the ticket (Annexure C-2) in this respect and had even booked the hotels regarding which he has produced Annexures C-3 to C-5. Even the name of payee had been wrongly mentioned in the SMS. If under these circumstances, no response was given by the complainant, that did not authorize OPs No.1 and 2 to pass the cheque, which had not been signed by him. 9. It is also argued by the learned counsel for the OPs that a criminal case has been got registered and the police is investigating the case and therefore, in view of the authority R. K. Floriculture (P) Limited Vs. Punjab and Sind Bank, New Tangra Branch, 2000 (2) CPC 440, the proceedings before the Consumer Fora cannot sustain. We do not find any merit in this argument. It was held in the case Punjab National Bank V/s K B Shetty – II (1991) CPJ 639 by the Hon’ble National Commission that that the registration of a criminal case or the investigation thereof does not operate as a bar to the proceedings under the Consumer Protection Act, 1986. Reference is also made to a case Uma Shankar Bhatt Vs. Chairman-cum-Managing Director, Punjab and Sind Bank, 2008 (5) AKAR 877 (NC) = 2008 (1) ALJ 590, (Original Petition No.98 of 2002) decided by the Hon’ble National Commission vide its order dated 11.12.2007 wherein the Hon’ble National Commission held the consumer complaint fit for admission under the provisions of Consumer Protection Act, 1986 when there was also a criminal case/proceedings pending against the Bank officials for fradulently transferring the funds of the complainant to the account of some other stranger/person. 10. The learned counsel for OPs No.1 and 2 has also argued that the cheque, which is alleged to have been forged, was issued to the complainant and it was his duty to keep the same in proper custody. If there was negligence on the part of the complainant due to which the cheque reached the hands of a wrong person who forged the signatures of the complainant and got it encashed, it would be due to the negligence of the complainant and the OP Bank, therefore, cannot be penalized for that. We do not find any merit in this argument. It was held in the case Citizen Cooperative Bank Ltd. Vs. Ritesh Mittal, AIR 2003 J K 67 that if the signatures on the cheque were genuine, there was a mandate by the customer to pay and then the banker has no obligation but to discharge the liability. However, if the signatures on the cheque were not genuine, then there was no mandate on the part of the bank to pay and there would be no question of any negligence on the part of the customer such as leaving the cheque book carelessly so that a third party could easily get hold of it, would afford no defence to the Bank. This argument of the learned counsel for OPs No.1 and 2, therefore, cannot succeed. 11. In view of the above discussion, it is clear that the complainant has been put to loss to the extent of Rs.42,80,000/- due to the sheer negligence on the part of OPs No.1 and 2. They are, therefore, liable to indemnify the loss. The present complaint, therefore, succeeds and the same is accordingly allowed. OPs No.1 and 2 are directed to pay to the complainant an amount of Rs.42,80,000/- along with interest @6% per annum since the date of withdrawal till the amount is paid to the complainant. OPs No.1 and 2 would also jointly and severally pay Rs.10,000/- to the complainant as costs of litigation. OPs No.1 and 2 are directed to comply with the order within a period of 30 days from the date of receipt of copy of the order. 12. Since there is no deficiency in service on the part of OPs No.3 and 4 towards the complainant nor were they liable to render any service to him, the complaint against them is dismissed. 13. Copies of this order be sent to the parties free of charge. Pronounced. 4th March 2011. Sd/- [NEENA SANDHU] PRESIDING MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER Ad/-
STATE COMMISSION(Complaint No.21 of 2010) Argued by: Sh. Rajinder Goyal, Advocate for the complainant. Sh. Manish Jain, Advocate for OPs No.1 and 2. Sh. Birender Singh, Advocate for OPs No.3 and 4. Dated the 4th day of March, 2011. ORDER Vide our detailed order of even date recorded separately, this complaint has been allowed. (JAGROOP SINGH MAHAL) (NEENA SANDHU) MEMBER PRESIDING MEMBER
| HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | |