Punjab

StateCommission

CC/12/53

Gurcharan Singh - Complainant(s)

Versus

Kotak Mahindra Bank - Opp.Party(s)

Ranjodh Singh Sarao

20 Jan 2015

ORDER

2^nd Additional Bench

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

Consumer Complaint No. 53 of 2012

                                                                      Date of institution:   8.6.2012

                             Date of Decision:  20.1.2015      

 

Gurcharan Singh S/o Baldev Singh, R/o H. No. 137, Village Mauli Baidwan, Block-1, Tehsil & District S.A.S. Nagar (Mohali).

…..Complainant

 

                                      Versus

 

1. Kotak Mahindra Bank Ltd., SCF No. 108, Phase 3-B-2, S.A.S. Nagar (Mohali) through its Manager.
2. Kotak Mahindra Bank Ltd., SCF No. 150-155, 2^nd Floor, Sector-9, Chandigarh, through its Circle Manager Sh. Saurabh P. Ghosh.
3. Kotak Mahindra Bank Ltd., Registered Office, Kotak Mahindra Bank Ltd., 36-38-A, Nariman Bhawan, 227, Nariman Point, Mumbai-400021, through its Chairman-cum-Managing Director.

…..Opposite Parties

Consumer Complaint under the Consumer Protection Act, 1986.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

              Mrs. Surinder Pal Kaur, Member

 

Present:-

 

          For the complainant         :         Sh. R.S. Sarao, Advocate

          For the opposite parties   :         Sh. Mrigank Sharma, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The complainant has filed this complaint under the Consumer Protection Act (in short ‘the Act’) against the opposite parties (in short ‘the Ops’) on the allegations that he received a land acquisition compensation of Rs. 1,53,25,830/- from Land Acquisition Collector, GMADA vide cheque No. 261901. He was having his saving bank account with Op No. 1 and the said cheque was deposited by him with Op on 8.6.2009 in his SB A/c No. 102542090001494 in Phase 3, SAS Nagar (Mohali). Thereafter, from 8.6.2009 to 13.3.2010, the complainant made the following transactions with the OP Bank.

Sr. No.	Date	Narration	Cheque / Ref. No.	Withdrawal Rs.	Deposit (Rs.)	Balance (Rs.)
1.	8.6.09	Cheque Deposit	00261901	-	15,325,830	15,325,830
2.	18.6.09	Self	-	2,00,000	-	15,12,830
3.	22.6.09	Self	-	10,00,000	-	14,12,830
4.	30.6.09	Credit Interest Capitalized	-	-	41,200.33	14167030.33
5.	21.7.09	Self	-	5,00,000/-	-	13667030.33
6.	25.7.09	Self	-	10,00,000/-	-	12667070.33
7.	11.8.09	RTGS	-	1,00,00,000/-	-	2667030.33
8.	22.11.09	Cheque Deposit	572764	-	12661.00	2679691
9.	22.11.09	Cheque Deposit	282699	-	2700	2685391
10.	17.12.09	Cheque Deposit	310464	-	140537	2825928
11.	1.1.10	Cheque Deposit	482884	-	277734	3187012
13.	Cash Deposit	-	-	-	8,00,000	3987012

 

2.                In the second week of April, 2010, the complainant came to know that fraud is going in the bank regarding illegal withdrawl of the money from the accounts of various account holders including the complainant and accordingly, he approached OP No. 1 and demanded his account statement to reconcile the same with his passbook. He was shocked after reconciling the statement that various entries of withdrawl and deposit has been illegally made by the official of OP No. 1 without the knowledge of the complainant and entries of withdrawl and deposits with the bank does not match with the entries in the passbook. In fact a balance of Rs. 39,87,012/- should have been his balance whereas the Ops were showing just a sum of Rs. 89,918/-. Further a sum of Rs. 8 lacs was deposited on 13.3.2010 by the complainant in his account. The entry of the same was made in his passbook but no entry in the statement of account. Entries regarding interest credited i.e. Rs. 41,200.33 dated 30.6.2009 and Rs. 83,350/- on 1.10.2010, respectively were not shown in the statement of account. In this way, the Ops caused a financial loss to the tune of Rs. 9,24,533/-. The complainant immediately approached the Police and moved an application to P.S. Mataur, Mohali. FIR No. 8 dated 19.4.2010 under Sections 406, 408, 409, 420, 467, 468, 471, 120-B IPC, P.S. Mataur against Ram Preet Singh Bawa, the then Manager and other officials and other FIR No. 53 dated 28.7.2010 under Sections 409, 420, 465, 467, 471, 120-B IPC was registered at P.S. Mataur, Mohali against Ram Preet Singh Bawa the then Manager and other officials. During the investigation made by the Police, it came to the notice of the complainant as well as the Police that official of OP No. 1 had withdrawn amount on various dates from the account of the complainant by impersonation and by forging signatures of the complainant on various withdrawl vouchers causing loss to the complainant to the tune of Rs. 39 lacs, which amounts to unfair trade practice as well as deficiency in services on the part of the Ops. Hence, the complaint with a direction to the Ops as under:-

“I.      To refund Rs. 39,87,012/- (Rupees Thirty nine Lacs Eighty Seven Thousand Twenty Only) along with 18% p.a. as interest on total amount deposited, till its realization;

II.       To pay Rs. 8,00,000/- as compensation for mental trauma and harassment;

III.      To pay Rs. 50,000/- as litigation expenses.”

3.                The complaint was contested by the Ops, who filed written statement on behalf of the Ops taking preliminary objections that the complaint is based on the allegations levelled against Rampreet Singh Bawa, Gurwinder Singh Punia, Harpal Singh officials of the OP Bank. The complainant has chosen not to implead these officials as Ops. In fact the complainant wants to record the findings by this Commission against those persons, who are not party to it. FIR has been registered against Rampreet Singh Bawa, Gurwinder Singh Punia, Harpal Singh and the matter is pending sub-judice before the Court at SAS Nagar, Mohali, the adjudication of the present complaint would require the determination of complicated questions of facts and law, therefore, the matter be relegated to the Civil Court; complainant had not come to the Commission with clean hands and had filed a complaint just to cause wrongful gain to himself and wrongful loss to the Ops. The complaint has been filed on the basis of false and exaggerated claim and that it is barred by limitation. On merits, it has been stated that the complainant had applied for opening of current account with the Op Bank and submitted duly signed application alongwith necessary documents. It was denied for want of knowledge that he had received a cheque from Land Acquisition Collector, GMADA. It was denied that he has having SB A/c No. 102542090001494 with the Op Bank. He had only current account No. 02542090001494 and a cheque bearing No. 261901 issued by GMADA was deposited with the Op on 8.6.2009. The monthly account statement pertaining to said account of the complainant was being sent at his address monthly. It was denied that any SB passbook was issued to the complainant. It was also denied that any transactions were reflected in the passbook held by the complainant, by the officials of the OP Bank. The statement of account was correctly maintained by the Ops. Whatever amount was withdrawn by the complainant, they have the record of the same. It was denied that a sum of Rs. 8,00,000/- was deposited by him in the account. As per the record of the bank, no such amount was deposited. His balance was correctly shown as Rs. 89,918/-. The complaint was without merit and it be dismissed.

4.                The parties were allowed to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence passbook copy of OP Bank Ex. C-1, account statement Ex. C-2, letter by complainant Ex. C-3, DDR Ex. C-4, challan form Ex. C-5, orders of Commission Exs. C-6 & 7, affidavit of Gurcharan Singh Ex. CW-1/A. On the other hand, Ops had tendered into evidence affidavit of Harjot Singh Gill Ex. O-A, copy of cheques & cash receipts Exs. O-1 to O-17, customer profile sheet/account opening form Ex. O-18.

6.                Before taking the points of the complaint on merits some preliminary objections have been taken by the Ops with regard to the fact that in this complaint complicated questions of law and facts are involved and that the matter is sub-judice before the Sessions Court at SAS Nagar (Mohali), therefore, the matter be not decided in the summary proceedings and it be referred to the Civil Court. With regard to factum of pendency of proceeding before the learned Sessions Court at Mohali, these are criminal proceedings and FIR has been got registered by Vice President and Circle Manager, Kotak Mahindra Bank against the Manager and other staff of this bank. In that case only criminal liability is to be established and consumer dispute will not be decided, therefore, on that plea the present complaint cannot be referred to the Civil Court. With regard to factum of referring the matter to the Civil Court on the ground that complicated questions of law and facts are involved, both the parties have led their evidence, it is to be decided whether any amount of the complainant has been mis-appropriated by the Ops in an illegal manner for which both the parties have led their evidence on the basis of which this fact can be decided. It is pertinent to mention here that Presiding Officer of the State Commission are a retired High Court Judge or District Judges, who have vast experience at their back to decide such like matters. A reference can be made to the judgment of the Hon’ble Supreme Court in the case of “Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi”, 2002(6) SCC 635 that:-

‘the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the ‘Consumer Fora’ after obtaining evidence and if need be after getting an expert opinion’.

Therefore, we are of the opinion that the plea taken by the Ops is not tenable to refer the matter to the Civil Court.

7.                The next point taken by the Ops is that Mr. Rampreet Singh Bawa, Gurwinder Singh Punia, Harpal Singh are not made a party. The complainant is having his account with the Op Bank. The allegations of the complainant are that his amount has been mis-appropriated by the Bank and in case directly the complainant does not prove, who has mis-appropriated the amount. It is the responsibility of the opposite Bank to properly maintain the accounts of their customers. In case they have come to know that some official of the Bank has mis-appropriated any amount of the complainant or any other customer, it is their internal matter to take action against them and to affect recoveries from them. Therefore, their non-pleading in the complaint will not have effect on the rights of the complainant.

8.                Now coming to the merits of the case. As per the allegations in the complaint, he has alleged that a sum of Rs. 39,87,012/- has been mis-appropriated from his SB A/c, however, it has been denied by the Op that the complainant was having any saving bank account. They have placed on the record current account opening form as Ex. O-18. Although he has placed on the record saving bank passbook in the name of the complainant but its authenticity has been challenged by the Ops. The statement of account Ex. C-2 placed on the record also does not disclose that it is of saving bank account. Even if it is taken that it was a current account, we have to examine it whether any amount on the part of the Ops have been mis-appropriated from the account of the complainant. He has alleged that when he obtained his land acquisition compensation from Land Acquisition Collector, GMADA, a cheque No. 261901 for a sum of Rs. 1,53,25,830/- was issued to him, which he had deposited in his account No. 102542090001494. Number is the same instead of saving it is current account and this amount stand deposited in the said account as per the statement of account Ex. C-2. Now he has alleged that the following sums were not withdrawn by him, which has been illegally withdrawn from his account.

20-Jun-09	25,000.00		15,100,830.00
29-Jun-09	165,000.00		13,935,830.00
3-Jul-09	850,000.00		13,085,830.00
6-Jul-09	100,000.00		12,985,830.00
7-Jul-09	100,000.00		12,885,830.00
9-Jul-09	360,000.00		12,525,830.00
15-Jul-09	250,000.00		12,275,830.00
18-Jul-09	755,000.00		11,520,830.00
21-Jul-09	400,000.00		10,620,830.00
22-Jul-09	865,000.00		9,255,830.00
23-Jul-09	132,000.00		9,123,830.00
27-Jul-09	100,000.00		8,023,830.00
30-Jul-09	100,000.00		7,923,830.00
4-Aug-09	100,000.00		7,823,830.00
11-Aug-09		2,190,000.00	10,013,830.00
28-Aug-09		1,000,000.00	1,013,813.45

 

 He has further stated that a sum of Rs. 21,90,000/- was not deposited by him on 4.8.2009 and similarly, a sum of Rs. 10,00,000/- was not deposited by him on 28.8.2009. These amounts have been manipulated by the Ops. Whereas the Ops have placed on the record the cheques vide which various amounts have been drawn by the Ops in the name of self and his signatures are duly verified by the Bank as per the system before clearing the same. The said cheques are Ex. O-1 to O-15, in this way, they have placed on the record all the cheques vide which the various amounts as alleged by the complainant were withdrawn by him. So far as deposit of a sum of Rs. 21,90,000/- and Rs. 10 lacs, there deposit vouchers have also been placed on the record as Exs. O-16 & O-17. For the sake of arguments, in case as pleaded by the complainant that his signatures on these cheques/deposit slips are forged one, but it is astonishing that the bank of their own will deposit a sum of Rs. 21.90 lacs and Rs. 10 lacs. Moreover, these withdrawal vouchers are on the cheque book and cheque book normally remains in the custody of the account holder.  He has not denied that he had not got issued the cheque book, therefore, the Op Bank has contradicted the pleas taken by the complainant that the various amounts as referred above was mis-appropriated by the officials of the OP Bank.

9.                Now the plea taken by the complainant is that the signatures on these cheques are forged one and that the Ops, should have proved on the record that these are his signatures. As referred above, firstly these payments have been taken against the cheque and normally cheque book remain in the custody of the customer. He has not alleged that his cheque book was got mis-placed or lost, therefore, cheques are only issued by the customers unless proved otherwise. Then he was required to lead evidence to prove that signatures on these cheques are not his signatures and these are fabricated one because onus to prove the plea is on the party, which alleges that plea otherwise on each cheque, the bank official has mentioned that signatures tally as per the system and bare perusal also shows the similarity in the signatures in the account opening form and on these cheques, therefore, in the absence of any specific evidence on the record that signatures on the withdrawl cheques are not his signatures, we are of the opinion that the plea taken by the complainant that signatures on the cheques are forged one; does not stand proved. Therefore, in case the OP has been able to contradict the plea taken by the complainant by placing on the record the specific document vide which the complainant had withdrawn the various amounts from the account then we are of the opinion that the complainant has not been able to prove mis-appropriation of any amount by the Ops from his account.

10.              With regard to deposit of Rs. 8,00,000/- mere entry in the pass book which itself does not pertains to the current account cannot be proved. He has not placed on record any deposit voucher vide which the amount of Rs. 8 lacs was deposited by the complainant. Therefore, again the complainant has failed to prove his deposit of this amount.

11.              In view of the above discussion, we do not see any merit in the complaint and the same is hereby dismissed. No order as to costs.

12.              The arguments in this consumer complaint were heard on 7.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

13.              The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

      (Jasbir Singh Gill)

                 Member

 

January 20, 2015.                                                                                                                                                             (Surinder Pal Kaur)

as                                                                                                                                                                                                    Member