JUDGEMENT

            Complainant by filing this complaint has submitted that he was entrusted the present op Bank for investing her Life Savings.  In course of the business relationship with the op/Bank op no.4 Biswajit Roy was introduced by the op no.3 as the Personal Banker for the complainant who would take care of and assist her in respect of all her operational requirements and keep track of the transactions and shall update her from time to time.

          Op no.4 being the employee of the Kotak Mahindra Bank was appointed as the Personal Banker designated by the op/Bank for the said purpose for the complainant.  Accordingly Biswajit Roy had met her and convinced her that investing in mutual funds were not correct at her age and advised her to invest in fixed income products and by saying so, the op no.4 had told the complainant about a scheme which the Kotak Mahindra Bank had launched as well as the schemes that was an offer at their behest that would earn a fixed interest rate of 20% annually.  The op no.4, representing the op/Bank had also convinced the complainant saying inter alia that the money invested in such schemes with the Kotak Mahindra Bank would be very safe in comparison to mutual funds and the interest earned would be directly credited into the complainant’s account.

          Due to such canvassing and promises, the complainant was induced and convinced and thereby consented to invest her life savings with the Kotak Mahindra Bank to earn from the same and in order to metrialize the version of op nos. 1 to 3 through their said designated person i.e. the op no.4, the complainant was advised to open an account in November, 2009 with their Kakurgachi Branch, and that was insured.

          Finally op no.4 representing the op nos. 1 to 3 started receiving account payee cheques from the complainant, drawn in favour of Kotak Mahindra Bank from December 2009, and details of which are in the complaint and mentioned below.

Cheque Leaf of      Cheque dt. Cheque No.  Cheque   Issued in favour of

                                                                        Amount  

1 ICICI Bank                    11.12.09      546866              50,000/-    Kotak Mahindra Bank

2 Kotak Mahindra Bank    20.01.10      000006              40,000/-    Kotak Mahindra Bank

3 Dhanlakshmi Bank        09.02.10      000780              50,000/-    Kotak Mahindra Bank

4 Bank of Mahashtra       09.02.10       540468              50,000/-   Kotak Mahindra Bank

5 HDFC Bank Ltd.           24.02.10       524997            1,00,000/-  Kotak Mahindra Bank

6 Bank of Mahashtra       29.03.10       540471              50,000/-   Kotak Mahindra Bank

7 HDFC Bank Ltd.           13.03.10      525001              50,000/-    Kotak Mahindra Bank

   Cash borrowed                                                       30,000/-

                                                                Total       4,20,000/- 

          Thereafter complainant being satisfied used his debit card for purchase of article of Rs.500/- on June-2010 and he was surprised the see that the card was rejected when she talked with Kotak Mahindra Bank who told that their fund was insufficient and complainant immediately tried to check the matter and to meet op no.4 as complainant’s fund is insufficient but op Kotak Mahindra Bank as told that balance was  only Rs.400/- and hearing this complainant was completely shocked and perplexed and then met with op no.3 and explained in details to op no.3 and complainant prayed for recovery of the money but op deferred the matter.  Kotak Mahindra Bank submitted that Biswajit Roy in his personal capacities did such act and bank has no liability.  Op bank refused to take any action against Biswajit Roy and no doubt the act of the ops are negligent and deficient in manner and also it is unfair trade practice and only to protect Biswajit Roy, ops cancelled the entire matter and tried to deceive the complainant though as consumer complainant is entitled to get back entire amount of Rs.4,20,000/- and also compensation.

          Whereas op nos. 1 to 3 by filing a written statement submitted that complainant did not file any police case against Biswajit Roy for practicing fraud and when it is a case of fraud, the Forum has no jurisdiction to decide it.  But it is admitted by the op Bank that Biswajit Roy was their staff and who left his job on 15.06.2010 and subsequently Biswajit Roy was made                             statement on 23.02.2011 admitting the fact and on the basis of Biswajit Roy’s statement op nos. 1 to 3 lodged a police case in the concerned police station being FIR No.29 dated 23.02.2011 against Biswajit Roy and an investigation is pending till now.

          It is further submitted by the op/Bank that as per Biswajit Roy he also paid Rs.2,30,000/- and rest would be refunded soon.  Further he has submitted that Biswajit Roy is solely responsible for his act and bank is not liable for that and bank is not responsible for illegal act for his staff if Biswajit committed any illegal act, then it is absolutely the liability of Biswajit Roy not the bank and it is submitted by the op/Bank that cheques were in favour of the Kotak Mahindra Bank through Biswajit Roy.  Further on the basis of present investigation and confession of Biswajit Roy that he had practiced fraud upon Aruna Pal and for which bank invariably lodged a complaint for the fraudulent act of Biswajit Roy and so no liability is cast over the Bank.  Moreover Biswajit Roy had left his employment with bank on 15.06.2010 and so the present claim is not tenable and there was no deficiency in service on the part of the Bank.

                                            Decision with reasons

          In this case practically after considering the complaint and written version it is found that Biswajit Roy was an employee of the Bank what is undisputed.  But he left the job of the op nos. 1 to 3 on 15.06.2010.  But it is equally true rather admitted by the op Bank of (op nos. 1 to 3) that Biswajit Roy collected the noted below cheques from Aruna Pal, the complainant -                         

1 ICICI Bank                    11.12.09      546866              50,000/-    Kotak Mahindra Bank

2 Kotak Mahindra Bank    20.01.10      000006              40,000/-    Kotak Mahindra Bank

3 Dhanlakshmi Bank        09.02.10      000780              50,000/-    Kotak Mahindra Bank

4 Bank of Mahashtra       09.02.10       540468              50,000/-   Kotak Mahindra Bank

5 HDFC Bank Ltd.           24.02.10       524997            1,00,000/-  Kotak Mahindra Bank

6 Bank of Mahashtra       29.03.10       540471              50,000/-   Kotak Mahindra Bank

7 HDFC Bank Ltd.           13.03.10      525001              50,000/-    Kotak Mahindra Bank

And all the cheques were issued in favour of the Kotak Mahindra Bank and as per admission of the op/Bank op nos. 1 to 3 it is fact that Biswajit Roy collected it and it was issued in the name of Kotak Mahindra Bank.  But their claim is that it was against the account of Biswajit Roy and it is undisputed fact that when the complainant came to learn about over act of the employee of the Bank he reported the matter to the Bank.  Thereafter only to save the said employee of op no.1 to 3 they advised him under certain cause to resign and actually Biswajit Roy submitted resignation on 15.06.2010.  But all the cheques were collected by Biswajit Roy the employee of Bank op nos. 1 to 3 in between 01.12.2009 to 13.03.2010.  Fact remains that cheques were issued in the name of Kotak Mahindra Bank but Biswajit Roy at the time of placing before Kotak Mahindra Bank his name was noted after banks name but that was not writing of complainant.  Most interesting factor is that the present op also managed to write the name of staff i.e. Mymuna Chandi Sahanad or Biswajit Roy and peculiar factor is that in such a fashion no such cheque is ever issued by any person and practically present op bank encahsed the same by clearance and fact remains that it was noted to pay to Kotak Mahindra upto that fund is quite ok.  But another part of cheques “ Mainnua Saha or Biswajit Roy”  are all subsequent writing made by Biswajit Roy and op has admitted that Biswajit Roy did it and it was done by his employee but at his personal capacity under op nos. 1 to 3 and when it was found that their employee did it then op nos. 1 to 3 went to police and filed case against Biswajit Roy and when op no.1 to 3 realized that op no.4 as employee did it the op nos. 1 to 3 collected one statement that op no.4 committed fraud and he has paid some amount to Arunal Pal and balance amount shall be paid by him but such declaration should not be considered by the Forum because it was collected by the complainant during pendency of the police case.  But no such statement was made before Judicial Magistrate as confessional statement.

          Practically to save the skin of op nos. 1 to 3, op nos. 1 to 3 collected such statement but we cannot rely upon such statement which was against settled principle of law and such statement ought to have been made before the Ld. Magistrate as confessional statement.  But only to save skin of op nos. 1 to 3 they have collected it and it indicates that the entire banking authority of Kotak Mahindra Bank had connaivance with Biswajit Roy as employee for encashing those cheques by Biswajit Roy in the name of Biswajit Roy or someother person.  But truth is that complainant deposited the cheque through Biswajit Roy, the then employee of the op nos. 1 to 3 and it is admitted by the Bank that it was those cheques which were encashed by Biswajit Roy by practicing fraud and for that reason it can safely be said that banking authority acted illegally and adopted unfair trade practice and they did not try to check the cheque before placing and even after encashment.  Not only that admitted position is that Biswajit Roy as employee of the op nos. 1 to 3 confessed that the present complainant to invest her entire savings for more benefit and invariably it was done by the banking administration and complainant got assurance from the Bank that Biswajit Roy shall give her personal assistance for investment to the Bank.

          In the light of the above observation we are convinced to hold that op nos. 1 to 3 the Banking Authority are liable to refund the entire amount which was grabbed by their employee with the help of the Banking Administration along with compensation and for adopting such unfair trade practice by the bank, op nos. 1 to 3 who should be penalized because they helped their dishonest employee to grab those money and in this regard the participation of the Bank op nos. 1 to 3 cannot be denied.

          Most interesting factor is that on 15.06.2010 the employee left the service and complaint was filed by the Bank on 23.02.2011 and at the relevant time Biswajit Roy absconded.  But one statement is collected from Biswajit Roy on 23.02.2011 by the Bank that Aruna Pal for investment purpose issued such cheque in the name of Kotak Mahindra Bank Ltd in what Biswajit Roy and other workers have grabbed from her account.  Then it is clear that this paper was collected by the Bank when the situation of the Bank was out of control and when it was found by the Banking Authority that their involvement in practicing such fraud is well proved then ultimately to save their skin collected this paper and filed the police case.

          So, it is proved very clearly that Aruna Pal issued all those 7 cheques in favour of Kotak Mahindra Bank Ltd but words Biswajit Roy or some other workers name were written by the bank employee of the bank.  Though the negligent and deficient manner of service at the same time unfair trade practice was done by the all ops the bank employees, officers and authority, for that reason invariably complainant is entitled to get such relief for such sort of inhuman unfair trade practice by the Banking Authority of Kotak Mahindra Bank Ltd. and his employees.  So, question is on which the complaint was filed by the bank.  Practically complaint was filed by the op bank on 23.02.2011 against his Bank employee.  But it is settled principal of law that if Bank files any complaint against his employee for practicing fraud for that reason complainant shall not have to wait for the conviction of the employee but it is the duty on the part of the bank to refund the entire amount of the customer what had been withdrawn by his employees when admitted position is that those cheques were handed over to Biswajit Roy op no.4 and which was in the name of Kotak Mahindra Bank Ltd. and it was received by op no.4 only to assist the complainant.  But malpractice was practiced by the op no.4 with full knowledge of the op nos. 1 to 3 and for that reason there is no necessity to observe that till to police investigation the matter may be kept abeyance.  Rather it is proved that it is the overact of the Bank when Bank employee committed fraud to the customer which is admitted by the op nos. 1 to 3.  Then for the overact of the Bank employees the Banking Authority shall have to compensate the customer when customer had no fault in this regard.

          In the light of the above observation we are convinced to hold that complainant has proved the entire case against the op no.4 and op nos. 1 to 3 and no doubt the Bank Authority is bound to refund the entire amount with 10% interest since 13.03.2010 over the amount of Rs.4,20,000/- and till full satisfaction of the said amount.

          Accordingly the complaint succeeds.

          Hence, it is

                                                ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against op nos. 1 to 3 and same is also allowed exparte against op no.4 with cost of Rs.10,000/-.

          Op nos. 1 to 3 are hereby directed to refund Rs.4,20,000/- along with interest @ 10% over the said amount with effect from 13.03.2010 till its full payment by the op nos. 1 to 3.  Further for causing harassment and practicing unfair trade practice and to harass the complainant to enjoy the benefit of the investment op nos. 1 to 3 are imposed punitive damages to the extent of Rs. 1,00,000/- which shall be paid to the State Consumer Welfare Fund.

          Op nos. 1 to 3 are hereby directed to comply the order jointly or severally within one month from the date of this order failing which for each day’s delay penal interest @ 1,000/- per day shall be assessed over the said amount and if same is collected it shall be deposited to the State Consumer Welfare Fund and even if, non compliance of the order is continued by the op nos. 1 to 3 in that case penal action shall be started against the op nos. 1 to 3 and for which even they may be sent to jail for implementation of this order