KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.330/13
JUDGMENT DATED : 31.07.2014
(Appeal filed against the order in CC.No.96/2011 on the file of CDRF, Ernakulam order dated : 27.08.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
State Bank of India,
Ernakulam Branch,
Marine Drive,
K.T.D.C Buildings,
Shanmugham Road,
Kochi – 682 011 APPELLANT
Rep.by its Branch Manager
(By Adv.Sri.Kollamcode
D.S.Jayachandran, Tvpm)
Vs.
K.S.Menon,
Advocate,
S/o.Nanu Nair, RESPONDENT
‘Prayag’, S.R.M.Road,
Kochi – 6892 018
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
Appellant was the opposite party in CC.No.96/2011 in the CDRF, Ernakulam. The respondent, who was the sole complainant, had a savings bank account with the appellant bank. It is alleged in the complaint that a cheque drawn by him on the opposite party bank to M/s.Sundaram Finance Ltd towards a car loan was dishonoured by the opposite party / appellant and the respondent was so informed by the bank on 16.06.2005. On 17.06.2005 when the respondent approached the opposite party, he was told that the cheque was dishonoured for want of sufficient funds in his account. On verification the respondent came to know that there were two withdrawals of an amount of Rs.45,000/- each on 30.05.2005. On 18.06.2005 the respondent lodged complaint with the Sub Inspector of Police, Town Police Station stating that the signature and the writings on the cheques are different and that the handwriting and signature are that of Mr.Jomon, who was the driver of the respondent / complainant. The police registered crime no.165/2005 and now the matter is pending before the Judicial First Class Magistrate Court, Ernakulam as CC.No.2903/2005. On 21.10.2005 the complainant sent a letter to the appellant demanding payment of the amounts covered by the cheques. The appellant sent reply requesting him to wait till the decision of the court. Since negligence on the part of the appellant is clear, the result of the CC has no relevance. The complainant approached the Banking Ombudsman seeking direction against the appellant to pay the amount covered by the cheques. But he refused to adjudicate the complaint. Hence the complainant approached the Hon'ble High Court. The Hon'ble High Court as per order in writ appeal made it clear that it was open for the complainant to approach the appropriate Forum. Accordingly the complainant approached the District Consumer Forum alleging that banking regulations were violated by the appellant as they failed to verify the signature on the cheques with the specimen signature of the complainant maintained with them. The complainant sought direction to the opp.party / appellant to pay an amount of Rs.88,000/- with interest at the rate of 12% per annum from 30.05.2005 together with compensation and cost.
2. The appellant contended before the consumer forum that they had honoured two cheqeus for Rs.45,000/- and Rs.43,000/- on 30.05.2005 in the ordinary course of business. The allegation that the cheques were forged by Jomon was not within the knowledge of the opposite party or its officers. During investigation by police the Chief Manager of the opposite party identified Mr.Jomon, who was the driver of the complainant and who received the money from the bank. Jomon is a necessary party to the proceedings. There is no negligence on the part of the opposite party. The complainant was bound to keep the cheque book in safe custody out of each from third parties. The complainant alone was liable and responsible for the misdeeds of his driver. It was the usual practice of the complainant to send his driver Mr.Jomon to encash the complainant’s cheques as he was unable to climb the steps to the bank. The allegation that the cheques were forged is an issue under consideration by the judicial First Class Magistrate Court. The bank followed the guidelines in the rules thoroughly and the complaint was liable to be dismissed.
3. Before the Consumer Forum the daughter of the complainant was examined as Pw1 and Exts.A1 to A 11 were marked on the side of the complainant. One witness was examined on behalf of the opposite party. No document was marked on their side. The Consumer Forum relying on two decisions of the Ho'ble Supreme Court held that the bank was liable and accordingly passed the impugned order directing the opposite party to pay the amounts covered by ExtsA1 & A2 cheques with interest. The opposite party / bank is challenging the correctness of the order of the Forum.
4. Admittedly, the appellant bank honoured Exts.A1 & A2 cheques respectively for Rs.45 ,000/- and Rs.43,000/- on 30.05.2005. The dispute is whether these cheques are forged by Jomon the driver of the complainant. It is in evidence that Jomon the driver of the complainant wielded full confidence of the complainant. The main contention raised by the appellant was that it was the primary duty of the complainant to take care of the cheque leaves to prevent the same from reaching third parties. The District Consumer Forum negatived the contention relying on the following two decisions of the Hon'ble Supreme Court of India particularly, the principle quoted with approval in Canara Bank Vs.Canara Sales Corporation AIR 1987 SC 1603 and laid down in Bihta Co-operative Development and Cane Marketing Union Ltd V.Bank of Bihar AIR 1967 SC 389. The Hon'ble Supreme Court held that when a cheque is duly signed and presented by the customer before a bank with whom he has an account there is a mandate on the bank to pay the amount covered by the cheque. However, if the signature on the cheque is not genuine, there is no mandate on the bank to pay. The bank when it makes payment on such a cheque cannot resist the claim of the customer with the defence of negligence on his part such as leaving the cheque book carelessly, so that third parties would easily get hold of it. It is also held that the bank can escape liability only if it can establish knowledge to the customer of the forgery in the cheques.
5. On going through the evidence and the order of the Forum we feel that the error committed by the Consumer Forum is in assuming that the cheque is not genuine without evidence to show that it is really not genuine. As already indicated defalcation and forgery is alleged against the driver of the complainant himself in, whom admittedly he had much confidence. It is in the background of the fact that the complainant who is very old used to present cheques for encashment through Jomon his driver as he was unable to climb the steps to the bank. On going through Exts.A1 & A2 the two cheques in question it can be seen that the purported signatures of the complainant are fluently put. It is difficult to forge a signature so fluently. It is difficult to say that the writings and signature are in different handwritings. Ext.A3 is the complaint to the Sub Inspector of Police, Town Police Station, Ernakulam North dated 18.06.2005 in which it is stated that he came to know of defalcation and forgery only on 17th when he went to the bank to enquire as to why another cheque issued by him was dishonoured. Admittedly, based on the complaint of the respondent the Sub Inspector of Police, Town North registered crime no.165/2005 and investigated the matter. Charge sheet is filed before the judicial first class magistrate court, Ernakulum. Ext.A5 is the copy of the final report which is pending adjudication as CC.No.2903/2005. Charge sheet is seen filed against Jomon under sections 381, 406,407,468 and 471 IPC. The allegation in the charge sheet is that the accused who was a trusted driver of the complainant cheated the complainant and intentionally stole two cheque leaves bearing nos. 450389, 450390 from the cheque book entrusted to the accused and kept in the car of the complainant and forged the signatures of the complainant and defrauded him. From Ext.A5 itself it can be seen that the disputed signatures of the complainant were sent to the Forensic Science Laboratory for comparison with specimen signatures of the complainant. It is significant that the complainant purposefully did not produce the result of examination of the disputed signatures and the specimen signatures of the complainant. Not only that the complainant failed to make available his signatures put at or around the time of the disputed signatures for comparison by the Forum or this commission. Without any such evidence the Consumer Forum assumed that the signatures seen on Exts.A1 & A2 are not the genuine signatures of the complainant. If this course of action is adopted, It would be easy for any customer to defraud a bank even after presenting cheqeus with genuine signatures. The complainant has not even gone to the witness box to assert that the signatures seen on Ext.A1 & A2 were not put by him. The excuse appears to be that he is pretty old. Pw1 his daughter cannot say for sure that the signatures are not that of her father. So there is not even flimsy evidence to show that the signatures on Exts.A1 & A2 are not the genuine signatures of the respondent / complainant. Therefore the consumer forum erred in allowing the complaint. In short, the appeal is liable to be allowed.
In the result, the appeal is allowed. The order of CDRF, Ernakualm in CC.No.96/2011 dated 27.08.2012 is set aside. The complaint is dismissed. The parties are directed to bear their costs in this appeal.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
Be/
KERALA STATE
CONSUMER DISPUTES
REDRESSAL COMMISSION
SISUVIHARLANE
VAZHUTHACAUD
THIRUVANANTHAPURAM
APPEAL NO.330/13
JUDGMENT
DATED : 31.07.2014
BE/
