DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 344/2011
M/s Mirkana Engineer Pvt. Ltd.
A-19, Mohan Cooperative Industrial
Estate, Mathura Road, New Delhi ….Complainant
Versus
- Kotak Mahindra Bank Ltd.
Ambadeep Branch,
Cannuaght Place, K.G. Marg,
New Delhi.
- State Bank of India
921, Sabji Mandi
Delhi ….Opposite Parties
Date of Institution : 14.09.11 Date of Order : 05.01.19
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
ORDER
Member - Kiran Kaushal
Brief facts as pleaded in the complaint are that:-
- The complainant, M/s Mirkana Engineering Pvt. Ltd. is a private limited company and was authorized dealer, engaged in the business of selling Tata Motor passenger cars. It had showrooms and workshops for the same at different locations in Delhi.
- It is stated that Kotak Mahindra Bank Ltd. (OP-1) and State Bank of India (OP-2) are commercial banks duly registered with Reserve Bank of India. The complainant was customer of OP-1 for last about 8 years.
- It is next averred that Md. Yamin Sekh Ansari was entrusted with some civil work to be carried out at various sites of the company at different points of time between 2005 to 2006.
- It is next stated that Md. Yamin Sekh Ansari had free access to the account branch of the complainant. Md. Yamin Sekh Ansari alongwith his son Amir Choudhary took advantage of this situation and stole cheques and stationary from the account branch of the complainant with intention to commit fraud and caused wrongful loss to the complainant.
- It is next stated that the duo, father and son tampered with the cheques and forged the signature of the director of the complainant. They presented nine cheques for encashment in their bank account maintained with OP-2. It is alleged that OP-2 in most careless and callous manner scanned the torn/ mutilated/ forged cheques and sent to OP-1 for encashment. Even OP-1 in complete neglect of its duty without verifying the instrument and signatures cleared the cheques. Thereby causing loss of Rs.22,29,941/- to the complainant.
- It is further stated that after repeated complaints by the complainant, OP-1 transferred/ returned a sum of Rs.16,10,044/- on 22.01.2010, in the account of the complainant. The complainant again on various occasions approached OP-1 and OP-2 for the refund of the balance amount of Rs.6,19,897/- but OPs refused to refund the balance amount.
- Aggrieved by the same, complainant approached this forum with the prayer to direct OP-1 and OP-2 to refund the sum of Rs.6,19,897/- with interest @ 24% per annum and to pay Rs.5,00,000/- on account of deficiency in service, harassment etc. Additionally to pay sum of Rs. 55,000/- as cost of litigation.
2. OP-2 resisted the complaint inter-alia raising preliminary objection that the complaint is not maintainable for lack of jurisdiction as the complaint is about stolen cheques and consumer court is not a competent court to adjudicate the present matter. Another objection raised by OP-2 is that the role of OP-2 was limited to merely collecting the cheques and placing the alleged cheques for collection of money to OP-1 bank. OP-2 further denied that it had sent the forged and tampered cheques for clearance, as to the naked eye the cheques were looking apparently original and genuine. Hence, the cheques were sent for clearance.
2.1 The allegation of the complainant that the accused persons opened a new account with OP-2 is denied. It is stated that the account of Md. Yamin Sekh Ansari was opened with OP-2 on 13.03.2005. The account of his son was opened with OP-2 after considering and verifying his introducer carefully. It is next submitted that OP-2 is a worthy service provider to the public at large and in day to day business it takes all necessary and vigilant care while dealing with any negotiable instrument. It is reiterated that OP-2 had checked the cheques in question before sending them for collection. Hence, the complaint is not maintainable against OP-2 and is liable to be dismissed with costs.
3. Averments made in the complaint against OP-2 are reiterated by the complainant in the rejoinder. Evidence by way of affidavit has been filed by the complainant. Evidence of Shri Dharampal, Senior Manager, State Bank of India has been filed on behalf OP-2.
4. Written arguments have been filed on behalf of the complainant and OP-2.
5. OP-1 was proceeded against exparte on 13.12.11. Averments made qua OP-1 have remained uncontroverted and unchallenged.
6. Arguments on behalf of the complainant and OP-2 are heard and material placed on record is perused.
7. The main dispute between the parties is that OP-1 and OP-2 did not refund sum of Rs.6,19,897/- out of total amount of Rs.22,29,941/- which was debited from the account of the complainant through forged cheques.
8. Admittedly the complainant had made payment to Md. Yamin Sekh Ansari vide a cheque for civil work done at various sites in its company. It is submitted by the complainant that Md. Yamin Sekh Ansari worked for his company between 2005-06 and it is during this period that he had free access to the account branch of the complainant. Then we wonder as to how and why in 2009 the cheques and stationary were stolen from the account branch of the complainant?
9. Details of the nine cheques placed on record shows that the clearing date of first cheque was 23.05.2009 and ninth cheque was cleared on 22.10.2009. It seems, the complainant was himself negligent to such an extent that for a period of five months, the fraud was being committed and cheques were being cleared without his knowledge. Complainant has failed to justify due care at his end in maintaining his account. Further on perusal of the cheques placed on record, it is observed that the signatures of the director of the company are very simple which can be forged easily. Hence, complainant should have taken extra care and caution to keep the cheque book under lock and key or in his personal custody.
10. Complaint’s averment that OP-2 was negligent in not detecting that cheques were torn or mutilated is not supported by any evidence Bald averments hold no value as no FSL report or scientific evidence is placed on record by the complainant to prove the same.
11. As regards OP-1, physical cheques were not sent to OP-1. It had received scanned copies of the cheques therefore there was no occasion for it to notice if the cheques were torn or mutilated. Further OP-1 has shown its bonafides by returning / transferring Rs.16,10,044/- to the complainant which in its opinion were debited on account of cheques of doubtful integrity. The remaining cheques for which OP-1 did not return the amount were evidently valid/ good cheques where in the forgery was not apparent.
12. Therefore from the facts and discussion above, we are of the considered opinion that OPs were not deficient in providing the service. Hence, the complaint is dismissed with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 05.01.19.
