STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 329 of 2016

Awadh Kishor Singh (the then Chairman PACS), Son of Ramdeo Singh, Resident at Village- Salehpur, Ward no. 1, Police Station- Mahmadpur, District- Gopalganj

                                                                                                                                                 … O.P. no. 3/Appellant

Versus

1. Kalam, Son of Md. Salim, Resident of Village- Saraya Pahad, Police Station- Sidhwaliya, District- Gopalganj

                                                                                                                                            …. Complainant/O.P. no. 1

2. Manager, Amarpura PACS, Block- Sidhwaliya, Gopalganj

                                                                                                                                                 …. O.P. no. 1/O.P. no. 2

3. Cashier, Amarpura PACS, Block- Sidhwaliya, Gopalganj

                                                                                                                                                  …. O.P. no. 2/O.P. no. 3

4. Manager, Sahara India Corporation Limited, Barauli Sector-1599, Police Station- Barauli, District- Gopalganj

                                                                                                                                                   …. O.P. no. 4/O.P. no. 4

Counsel for the Appellant: Adv. Niranjan Kumar

Counsel for the Respondent: Adv. Uday Kumar

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 09.08.2023

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed for setting aside the judgment and order dated 30.01.2016 passed by Ld. District Consumer Disputes Redressal Forum, Gopalganj in Complaint case no. 03 of 2013 whereby and whereunder the Ld. Forum has directed O.P. no. 1, O.P. no. 2 & O.P. no. 3 to pay the cheque amount of Rs. 29,237/- and Rs. 25,000/-as compensation for physical and mental harassment and Rs. 10,000/- as cost of litigation to the complainant within 1 month failing which interest @15% shall become payable.
2. Breifly stated the facts of the case as disclosed in complaint petition is that complainant is a Hawker and had opened an account under daily deposit scheme of Sahara India from 10.04.2006 and on maturity complainant was given a cheque of Rs. 29,237/- dated 22.09.2011 from Sahara India (O.P. no. 4) drawn on Central Bank of India Barauli Branch.
3. Complainant deposited said cheque of Central Bank of India in his account no. 1136 opened in PACS on 26.11.2011 and received receipt of deposit of cheque. After deposit of cheque when amount was not credited in his account he met PACS office bearers O.P. no. 1 to 3 several times and each time he was given assurance that after clearance of cheque from concerned branch amount will be credited but same was never credited as such complainant filed consumer complaint case in the District Consumer Forum, Gopalganj for payment of cheque amount with interest as well as grant of compensation and cost of litigation.
4. Notices were issued to opposite parties for their appearance.
5. O.P. no. 4 (Sahara India Ltd.) appeared and filed its written statement stating therein that maturity amount of Rs. 29,237/- was paid to complainant through a cheque of Central Bank of India Barauli Branch dated 22.09.2011 and cheque amount on collection has already been withdrawn on 01.12.2011 from account of Central Bank of India.
6. O.P. no. 3 (Appellant) stated in his written statement that he was not incharge of business activities of PACS at the relevant period as such he is not responsible for non payment of cheque amount. By proposal of management Committee on 21.12.2010, Assistant Manager Suresh Kumar Singh (O.P.no.1) and Deputy Assistant Manager Dinanath Prasad (O.P. no. 2) were made incharge to conduct the affairs of PACS who locked the office of PACS on 02.03.2012 and misappropriated deposited amount of PACS. O.P. no. 3 (appellant) send a letter on 27.03.2012 to the District Co-Operative office to take necessary action in this regard. The District Co-operative officer by letter dated 04.04.2012 requested the SDO Gopalganj to unlock the office of PACS and to prepare inventory and to hand over the charge of PACS to chairman by deputing a magistrate. By letter dated 16.04.2012 Vishnudev Singh then C.O was deputed to unlock the office and prepare inventory but still office of PACS is locked and O.P. no. 3 is not in charge of PACS.
7. O.P. no. 1 & 2 the Manager and cashier of PACS did not appear as such case was heard ex-parte against them.
8. The District Consumer Forum after hearing the parties and considering and appreciating the evidences on record held that complainant had opened an account under daily deposit sheme of Sahara India and used to deposit amount and on maturity received a cheque dated 22.09.2011 of Central Bank of India, Barauli Branch for amount of Rs. 29,237/- which was deposited in his account of PACS for its credit on 26.11.2011 and he received a receipt by PACS but cheque amount was not credited in his account. He met O.P. no. 1,2,3 for crediting the cheque amount but he was always told that as soon as cheque is cleared from bank cheque amount will be credited but same was never credited in his PACS account.
9. Complainant has stated in his evidence that he handed over the cheque to O.P no. 3 in presence of O.P. no. 1 and O.P. no. 2.
10. The District Consumer Forum held that complainant deposited cheque of Rs. 29237/- in his account of PACS on 22.11.2011 and cheque amount was withdrawn from Central Bank of India on 01.12.2011 and collected amount came into the account of PACS at Amarpura but the collected amount was not credited into the account of complainant and affairs of PACS was managed by O.P. no. 1 to 3 as such there was deficiency in service and directed to pay ninety seven to the complainant cheque amount of Rs. 29237/- with interest @9% per annum and Rs. 25,000/- as compensation for physical and mental harassment of Rs. 10,000/- as cost of litigation within one month failing which interest @15% p.a.
11. Aggrieved by judgment and order dated 30.01.2016 passed by District Consumer Forum, Gopalganj, Appellant/O.P. no. 3 has preferred this appeal before the State Commission.
12. It is submitted on behalf of counsel for the appellant that opposite party no. 1 (Manager) and O.P. no. 2 (Cashier) were incharge of PACS Bank and appellant had no concern with the affairs of Bank as such appellant cannot be held responsible for misappropriation of cheque amount. On the other hand counsel for complainant /respondent no. 1 has submitted that all the three O.P. no. 1 to 3 were involved in misappropriation of the cheque amount as such the judgment and order passed by District forum does not require any interference in appeal.
13. Heard the parties.
14. It is an admitted fact that after maturity period cheque amount of Rs. 29,371/- was issued by Sahara India Ltd. in the name of complainant who deposited said cheque in his PACS account on 26.11.2011 in presence of O.P. no. 1 to 3 for which receipt was also granted however cheque amount was never credited in his account and Branch Manager of Central Bank of India informed that said cheque was encashed from Central Bank of India on 01.12.2011 but O.P. no. 1 to 3 always used to say to complainant that cheque amount will be credited in complainants account once it is cleared by Central Bank of India although cheque amount was encashed from Central Bank of India on 01.12.2011 and the amount was misappropriated by opposite parties and complainant was kept in dark by the opposite parties.
15. Individual liability of office bearers of co-operative society in case of misappropriation and defalcation of depositors money is well settled in case of V.C. Sindhwani (Vazir Chand Sindhwani) Vs. PNB Employee Co-Operative (S.E.) Thrift & Credit Society Ltd. since reported in 2017 (3) CPJ (NC) 645 para 19 of which reads as follows:

           19. In view of the discussion above, we answer the reference as follows:

            "a. Ordinarily Ex-Secretary Ex- President or other office bearers of any co-operative Credit society shall not fall within the category of service providers in respect of any dealing of the depositors with such society".

“b. However if it is established that Ex-president, Ex secretary, Ex-Officer bearer of Co-Operative society has indulged in fraudulent activity with a view to defraud depositors such person shall fall within the category of service provider and shall be liable to compensate the consumer for deficiency in service”.

16. In present case opposite parties have misappropriated the cheque amount of complainant by fraudulent means as such the judgment and order passed by District Consumer Forum requires no interference.
17. Appeal is devoid of any merit and is accordingly dismissed.

(Ram Prawesh Das)                                                                                                             (Sanjay Kumar,J)

       Member                                                                                                                               President

Md. Fariduzzama