1. The present complaint has been filed on behalf of the complainant society by its Secretary, Mr. Ved Mittal, who has been duly authorized by the complainant society to file the present consumer complaint. The complainant society is a registered society running a duly recognized school, namely, Queen Mary’s School.

2. The complainant society had been maintaining the following accounts with the OP’s branch at Prashant Vihar, New Delhi, from sometime around 2005:- 

The complainant society had authorized its Secretary, Mr. Ved Mittal, and Treasurer, Mrs. Sunita Mittal, to operate the above mentioned bank accounts.

3.  It is the case of the complainant that the daughter of Mr. Ved Mittal, Ms. Kavya Mittal Goyal, discovered that one Mr. Gaurav Aggarwal, a former CA/minor partner in the Chartered Accountancy Firm of Mr. Ved Mittal , had systematically diverted fund by forging signatures by misusing the cheque booklets lying in the Office.

4.  Upon learning that Mr. Aggarwal had been systematically diverting funds by forging signatures and by misusing the cheque books lying in the office of the complainant’s Secretary, Mr. Ved Mittal, Mr. Aggarwal was asked to hand over the records of Mr. Ved Mittal’s CA Firm, however, he delayed handing over the same on one pretext or the other. Thereafter, Mr. Aggarwal stopped coming to work citing health reasons. It is the case of the complainant that when Mr. Ved Mittal, being suspicious of Mr. Aggarwal’s evasiveness, checked his personal bank statements and bank statements of Mrs. Sunita Mittal, and other accounts, he discovered that Mr. Aggarwal had withdrawn amounts using various cheques of Mr. Ved Mittal in his personal capacity; Manager of the Queen Mary’s School, Rohini; Secretary of Mittal Education Society and Queens Kindergarten, Ved Mittal Associates and also as Director of Kavya Finance Private Limited,  by forging signatures. In this regard, it is mentioned that apart from the complainant herein, Mr. Ved Mittal and his family members have initiated separate legal proceedings against Mr. Aggaral and his accomplices and the matter is being investigated by the Economic Offences Wing, New Delhi. It has been further stated that charge sheet has been filed in the Court of Chief Metropolitan Magistrate, Rohini Courts, Delhi and Mr. Aggarwal has been in the judicial custody.             

5.      It has been alleged that Mr. Aggarwal had forged the cheques and misappropriated the amounts with the active connivance of the individuals to whom the accounts were transferred on the basis of the forged instruments and also due to callousness and negligence on the part of the bank and its officials thereby causing huge loss to the complainant. It has been also alleged that the collusion of the bank officials is evident from the fact that the forged instruments were cleared from Prashant Vihar Branch of the OP Bank and accounts of Pitampura Branch were effected by Mr. Aggarwal from the Prashant Vihar Branch of the OP Bank. According to the complainant, Mr. Gaurav Aggarwal was able to divert funds from the bank accounts of the complainant despite lack of pictorial identity between the signatures on the forged instruments with the specimen signatures, which clearly establishes the collusion between Mr. Aggarwal and the bank officials. In this regard, the complainant has placed reliance on the report of an expert banker, engaged by Mr. Ved Mittal, wherein it has been broadly stated that (a) the authorization mandate has not been met for any RTGS form and (b) on a large number of cheques and/or RTGS forms, the stamp variation was such that the same should not have been cleared.

6.      It is also the case of the complainant that the OP Bank failed to exercise due diligence and miserably failed to discharge its legal duty by deliberately overlooking that even the mobile number as provided in the forged RTGS forms was not the one as stated in the records. In short, the OP Bank made no enquiry to check the veracity and genuineness of the signatures, which amounts to dereliction of statutory obligation contemplated under the provisions of the Negotiable Instruments Act.

7.      The complainant through its Secretary had also sent representations dated 18.11.2015, 19.11.2015, 16.06.2016 and 05.10.2016 to the OP Bank seeking payment of the amount lost on account of clearance of the forged cheques and forged NEFT/RTGS forms along with 18% interest, however, the representations/claims of the complainant were declined vide letters dated 18.01.2016 and 12.09.2016 respectively. 

8.      Aggrieved by the acts and omissions on the part of the OP Bank, the complainant filed a complaint with the Banking Ombudsman, however, no action has been  taken by the Banking Ombudsman against the OP.

9.      Alleging deficiency in service, the complainant has now filed the consumer complaint before this Commission. It is the case of the complainant that the OP Bank has miserably failed to discharge its duty towards the customer and there has been deficiency in services by the OP Bank on account of which the complainant has sustained a loss of Rs. 9,09,42,934/- involving more than 100 forged cheques/transactions.  Hence, the present complaint has been filed seeking direction to the OP to pay Rs. 9,09,42,934/- along with 18% p.a. interest apart from the cost of litigation.

10.    Heard the learned counsel for the complainant at length at the admission stage and thoroughly perused the records.

11.    The learned counsel for the complainant stated that the complainant society is an educational society registered under the Societies Registration Act, of 1860.  There has been a secret and regular activity of withdrawal of money by the CA Mr. Gaurav Aggarwal of the CA firm owned by Secretary of the Society Mr. Ved Mittal.  A criminal case is already proceeding against Mr. Gaurav Aggarwal and chargesheet has already been filed against him.  Mr. Gaurav Aggarwal has withdrawn Rs.9,09,42,934/- by way of more than 100 cheques with forged signature of mostly the wife of the Secretary of the Society, Ms. Sunita Mittal who is also the treasurer of the Society between the period from May, 2013 to September, 2015.  He referred to the judgment of Punjab University Vs. Unit Trust of India, (2015) 2 SCC 699, to substantiate his argument that the complainant is a consumer.  The Apex court has observed as follows:-

“In the present case the services of UTI were availed by the complainant for the betterment of their employees, that such an investment was made, and it is to be made clear that no benefit by way of profit was to accrue to the complainant, improving its balance-sheet, in view of the definition of the word `commerce' given above, under no circumstances, the appellant could be said to be indulging in any `commercial' activity, thus excluding him from the definition of `consumer' as enshrined in the Act. The intent of the Universities in the present dispute is not profiteering and the same is for benevolent interest and there is no intention whatsoever that the investment is made for any commercial purpose or gain and therefore we find that the complainant Universities fall within the definition of "consumer" under the Act and the complaints are maintainable before the National Commission”.

12.    The learned counsel further argued that an account holder with a bank is definitely a Consumer as held by this Commission in State Bank of India Vs. Pushapakala, R.P. No. 2343 of 2013, decided on 11.11.2016, wherein following has been observed:-

 “11.    The first point that requires consideration in the matter is whether the complainants fall under the definition of ‘consumer’ as per section 2(d) of the Consumer Protection Act, 1986.  The petitioner Bank have taken the plea that being applicants for the allotment of shares of a Company, the complainants did not come under the definition of ‘consumer’, as stated in the judgments relied upon by them and as brought out in the order passed by the District Forum.  In the present case, the complainants are maintaining a regular savings bank account with the OP Bank since 2005, and the said fact has not been denied by them.  It is clear, therefore, that they have been availing themselves of the services provided by the Bank and hence, they are consumers vis-a-vis the Bank.  The present case involves the dishonour of a cheque on the ground that the signatures on the said cheque did not tally with the signatures maintained by the Bank.  In this kind of situation, it is evident that the purpose for which the cheque was issued, does not carry any relevance, rather the main issue is whether the cheque was dishonoured in a rightful manner or not.  An account holder having a savings bank account may issue a cheque for any purpose, whether commercial or non-commercial.  It would not be fair to conclude that if the cheque was issued for a non-commercial purpose, the savings bank account holder will be branded as a consumer, but if the cheque is for commercial purpose, he will not come under the category of consumer.  This will obviously be quite an absurd situation.  It is held, therefore, that since the complainants were joint holders of a savings bank account with the Bank, they are definitely covered under the definition of consumer vis-a-vis the Bank”.

13.    It was further pointed out by the learned counsel that this Commission has been admitting the cases where the banks have been found to be deficient. In this regard, learned counsel cited the following cases:- 

“(a) Maharashtra Tourism Development Corporation Vs. Dena Bank, III (2016) CPJ 615 (NC);

(b) N. Venkanna Vs. Andhra Bank, 2006(2) UC102;

(c) United Commercial Bank Vs. Mahendra Popatlal, 1(1995) CPJ 83(NC)”

14.    Therefore, against the OP bank, the complaint is maintainable and this Commission has the jurisdiction to decide such complaints. Particularly the learned counsel referred to case of N. Venkanna Vs. Andhra Bank, 2006(2) UC102, wherein this Commission observed as follows:-

“9. The question is: Does it absolve a banker from making payment to a wrong person by rushing to clear the payment on the basis of a forged withdrawal form? It is no more in dispute that the withdrawal form was not signed by the complainant in terms of the report of the Director, Forensic Science Laboratory. The fact that the petitioner had not kept his passbook in a safe custody might have contributed to the deficiency in service on the part of the Bank official in not meticulously comparing with the signatures of the complainant. One would also not be oblivious about minor changes in signatures which do occur time and again between the signatures of the same person made at different times and the specimen signatures, signature on the withdrawal form and the cheque. It may also be true that to a limited extent the Bank could not be held to be guilty of negligence simply because an ultraviolet ray lamp was not kept in the branch and the cheque in question could not be subjected under the ultraviolet ray lamp. Despite this, we feel that the Bank official must not rush to clear the payment just on seeing the pass book and, therefore, the District Forum was absolutely right in holding the Bank responsible in view of precedents in this regard.

10. In Bhagwan Das v. Creet (1903) 31 Cal, 249. It was held: "The banker's obligation is to honour his customer's cheque. To that end he is bound to know his customer's handwriting. If in any way he is deceived without the instrumentality of his customer, he must himself abide by the loss." In the case of L. Pirbhu Dayal v. Jwala Bank , the money was paid by the Bank on presentation of a forged cheque (withdrawal form as is the case in the present matter), the Bank was held liable to pay for the loss suffered.

11. In Dawood v. Firm Pereinan Chetty AIR 1924 Rang. 264, it was held that the money paid by Bank under a forged cheque could not be debited to the customer merely on the ground that the customer was negligent to this extent that he allowed his cheque book to remain unlocked.”

15.    Relying on the above judgment, the learned counsel argued that this Commission has power and jurisdiction to deal with cases where the payment has been released to a wrong person presenting a forged cheque.

16.    Specifically mentioning the judgment of Maharashtra Tourism Development Corporation Vs. Dena Bank, (supra)  the learned counsel emphasised that even the cases relating to fraud or forgery of cheques can be decided by the consumer forum  as would be evident from the following portion of the judgment:-.

“6. If a Corporation or an Undertaking of the Government has surplus funds available with it for a short period, it would not like to keep such funds idle and would like to invest them, in such a manner that it is able to get adequate return on such investment. Earning interest by temporary deployment the surplus funds in a bank is altogether different from business activities such as manufacturing, trading or rendering services. The complainant in Consumer Complaint No. 259 of 2014 namely Maharashtra Tourism Development Corporation is engaged primarily in development of tourism in Maharashtra, whereas Mumbai Metropolitan Region Development Authority, complainant in Consumer Complaint No. 947 of 2015 is an Authority, constituted under the provisions of the MMRDA Act, 1875 and focuses primarily on infrastructure development of the Mumbai Metropolitan Region. The main source of income of MMRDA is the sale of land for development. Neither of these complainants is a finance company or otherwise engaged in the business of the collecting and deploying funds. Therefore, it cannot be said that the surplus funds were invested by them with the bank as a part of their respective business activities or to promote, advance or facilitate such activities. Therefore, it would be difficult to say that the said deployment of funds was made for a commercial purpose”.

Concerning the question of the negligence by the bank officials, it was observed as follows

17.    Learned counsel further pointed out that the complaint is within limitation as the complaint has been filed within 2 years from the date of knowledge of the fraud.

18.    I have carefully considered the arguments advanced by the learned counsel for the complainant and examined the material on record.  It is to be examined at this stage whether the complaint is maintainable in this Commission or not.  Coming first to the question of “consumer”, it is seen that this Commission has already held in “State Bank of India Vs. Pushapakala, (supra) that an account holder with a bank is a consumer vis-à-vis the Bank.  Hence this question is not being further dwelled upon.

19.    This Commission has taken a consistent view that the cases related to fraud and forgery cannot be decided by the consumer forum as the proceedings in consumer forum are summary in nature.  The learned counsel cited the judgment of  Maharashtra Tourism Development Corporation Vs. Dena Bank (supra) in this regard.  This order of the Commission is under challenge in CA No.7121/2016 before Hon’ble Supreme Court and hence the order of this Commission is not a final order.  Moreover, this Commission has held in the following case that the matter relating to fraud and forgery cannot be decided under the proceedings under the Consumer Protection Act, 1986.

 “P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC).  It has been held that:

“6.  Learned State Commission rightly observed as under:-

In Bright Transport Company  Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC), it was held by the National Commission that the complaints which are based on the allegations of fraud, forgery, etc. and trial of which would require the leading of voluminous evidence and consideration thereof cannot be entertained by the Consumer Fora.  In Oriental Insurance Company Ltd.  Vs. Munimahesh Patel 2006 (2) CPC 668 (SC), decided by the Hon’ble Apex Court; Reliance Industries Ltd.  Vs. United India Insurance Co. Ltd., I (1998) CPJ 13, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and M/s. Singhal Swaroop Ispat Ltd.  Vs. United Commercial Bank III (1992) CPJ 50,  a case decided by a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided, by a Consumer Fora, proceedings before which, are summary in nature.” 

20.    Even the Hon’ble Supreme Court in the matter of Oriental Insurance Company Ltd. Vs. Munimahesh Patel, IV (2006) CPJ 1 (SC) has observed that matter relating to forgery and fraud cannot be decided in the proceedings under the Consumer Protection Act, which are summary in nature.  Hon’ble Supreme Court has observed as follows:-

“10.  Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.

12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.”

21.    Similarly, Hon’ble Supreme Court in TRAI Foods Ltd. Vs. National Insurance Company & Ors., III (2012) CPJ 17 (SC),  has observed:

“6.  The only question to be decided is, when should this jurisdiction be exercised by the Commission.  In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted bot in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter out to be decided by the Civil Courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy.  The Consumer Forums have been given the responsibility of achieving this object.  They were not meant to duplicate the Civil Court, and subject the litigants to delays which have become endemic in the Civil Courts.

7.  Although the reason given in the impugned order of the Commission for referring the present matter to the Civil Court is cryptic, we have been through the records filed before us and are satisfied that the Commission’s decision was correct.  There is no doubt having regard to the nature of the claim, the large amount of damages claimed, and the extensive inquiry into the evidence which would be necessary in order to resolve the disputes between the parties that this is not a matter to be decided summarily at all”

22.    It is important to note that in the present case more than 100 cheques are involved, which are stated to have been forged and payment received.  The criminal case has already been filed by the complainant society and the chargesheet has been filed against the accused Mr.Gaurav Aggarwal and chargesheet is likely to be filed against some more accused.  This Commission in   Bright Transport Co. Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC) has observed the following:-

 “3. Yet another reason why we would discourage the complainant from approaching this Commission is that as per the complainants there are several acts of forgery for which a criminal trial is pending. The said case is yet to be decided and the decision of the criminal cases may have a bearing on the claims made by the complainants in these complaints. This Commission has consistently taken the view in the past that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by this Commission.”

23.    The above observations of this Commission are equally applicable to the facts and circumstances of the present case.  This Commission in Bright Transport Co. Vs. Sangli Sahakari  Bank Ltd. (supra) has further observed the following:-

“7.  It also appears to us that filing of present complaints before this Commission are nothing but an attempt to misuse the jurisdiction of this Commission only with a view to save on the Court fee payable in a suit before the Civil Court.”

24.    It is also astonishing to note that most of the cheques have been drawn allegedly by making signatures of Ms. Sunita Mittal, who is also the treasurer of the complainant society.  As per the complaint, the cheques have allegedly been drawn by Mr. Gaurav Aggarwal within the period of May, 2013 to September, 2015.  It is not clear that Ms. Sunita Mittal, who was the treasurer and under whose forged signatures the money was withdrawn, could not know the fact of withdrawal of money in the initial months of fraud happening.  It is not easily digestible that she did not have any knowledge about the huge amounts being withdrawn without her knowledge and signatures.  As treasurer she must be finalising the accounts annually, if not monthly.  When the fraud was committed in 2013 itself, the withdrawals would have been reflected in the balance sheet and profit and loss account of the complainant society and the same should have been definitely known to the complainant society at the end of financial year 2013-2014.  If withdrawals were not with their permission, why no action was taken at the start of financial year 2014-2015, rather, the society allowed Mr. Gaurav Aggarwal accused to carry on further fraud and withdrawals through forged cheques.  Similar state of affairs continued till 2015-2016.  As the criminal case is already under progress in the competent court, this Commission would desist from making any further observation in this regard. 

25.    The total amount which has been allegedly taken away through withdrawal of forged cheques or RTGS forms is Rs.9,09,42,934/- as given in the complaint and  many cheques are involved.  Thus, this complaint involves complicated questions of facts and law and voluminous evidence would be required to reach to any conclusion and the same is not possible under the summary proceedings under the Consumer Protection Act, 1986.  In a case of fraudulent cheque withdrawals, this Commission recently in the matter of The Tax Publisher Vs. Chairman & Managing Director, UCO Bank and ors., FA No.106 of 2014, decided on 31.08.2017 (NC)., has although accepted the deficiency on the part of the bank, but has simultaneously observed:-

“12.     In CCI Chambers Coop. Hsg. Society Ltd. (supra) the Hon’ble Supreme Court highlighted the same principle as enunciated in Dr. J.J. Merchant (supra) to determine the question whether adjudication on the issue arising in the Complaint require a detailed and complicated investigation of facts, incapable of being undertaken in a summary and speedy manner. It was observed that the decisive test is not the complicated nature of the questions of fact and law arising for decision – the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of detailed and complicated method of recording evidence.”

26.    From the above, it is clear that when the question of facts and law are not determinable in the summary proceedings under the Consumer Protection Act 1986, the consumer forum may treat complaint as non-maintainable before it.  In the above referred case there were only two cheques involved in the matter.  However, in the present case there are more than 100 cheques involved totalling to Rs.9,09,42,934/-. From the enormity of canvas of the complaint involving huge number of transactions through forged cheque and RTGS forms, this can be easily understood that adjudication of this complaint would involve enormous evidence which would not be possible in the summary proceedings under the Consumer Protection Act, 1986 before this Commission.

27.    It is also observed that the complainant has not made Mr. Gaurav Agrawal the accused a party in the case who was a necessary party.  Thus, the complaint also suffers from non-joinder of necessary parties.

28.    From the above examination, it is quite clear that the matter in the complaint involves fraud and forgery, which are beyond the scope of the proceedings under the Consumer Protection Act, 1986.  Looking at the huge amount involved and the number of transactions being more than 100 including forged cheques and RTGS forms, The examination of this complaint would involve voluminous evidence and the same is not possible under the summary proceedings before this Commission.  The complaint also suffers from the defect of non-joinder of necessary parties. On these three grounds this complaint is not liable to be admitted before this Commission. However, the complainant will be at liberty to move to the civil court having jurisdiction over the matter for redressal of his grievances.  With this liberty, the consumer complaint No.646 of 2017 is dismissed at the admission stage.