BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27th day of July, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.224/2008

Between

Complainant : Hassan S/o Moideen

Kavumkara House,

Kumaramangalam kara,

Kumaramangalam Village,

Thodupuzha Taluk.

(By Adv: K.S. Cyriac)

And

Opposite Parties : 1. Kumaramangalam Co-Operative

Bank Limited.,

No.4122, Kaloor East P.O.

Kumaramangalam Village.

2. The Secretary,

Kumaramangalam Co-Operative

Bank Limited.,

No.4122, Kaloor East P.O.

Kumaramangalam Village.

(Both By Adv: K.J.Thomas)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant is the member of the opposite party Co-operative Bank. On 22/11/2006 the petitioner availed a gold loan for Rs.5,000/- from the Kumaramangalam Branch of the 1st opposite party as gold loan No.202. When the Administrative sub committee of the bank examined the pledged ornaments on 20/05/2006, it was revealed that the ornament, pledged by the complainant was fake gold. Then the 2nd opposite party made a complaint before the Thodupuzha Police Station and a crime was registered as 287/06. In order to get the explanation from the complainant, the complainant was called before the sub-committee of the bank on 24/05/06. On hearing the explanation from the complainant, the sub-committee have understood that the complainant was innocent, the ornament was entrusted by another person to the complainant, for pledging and the complainant did the same with bonafide intention to help his friend. So the 1st opposite party directed the complainant through the 2nd opposite party to close the loan account and told that the criminal case would be withdrawn. The complainant closed the loan account on 26/05/06. But the opposite party did not close the criminal case, thus the complainant spent a huge amount for conducting the case before Sessions Court as well as in Chief Judicial Magistrate Court Thodupuzha. The case is pending before the Chief Judicial Magistrate Court Thodupuzha as CC.408/2008 in which complainant is the 6th accused. So this petition is filed for directing the opposite party to withdraw the Criminal Case against the complainant before the Chief Judicial Magistrate Court Thodupuzha and also for compensation.

2. The opposite party filed written version and admitted that the complainant is a member of opposite party Bank. So the complainant is not a consumer of the opposite party as per Co-operative Societies Act. The complainant availed gold loan from the opposite party Bank and when it was found that the ornament was fake gold, a complaint was filed by 2nd opposite party against the complainant before Thodupuzha Police Station. The opposite party authorized an Administrative sub committee for getting the primary details of the incident, and the statements of the alleged persons were taken. So the bank has taken legal action against the alleged staff of the bank and criminal complaint was also filed. No assurance was given by the 2nd opposite party to the complainant about the withdrawal of the criminal complaint. The opposite party is not aware of the expense spent by the complainant for conducting case. The opposite party received the entire amount of the gold loan from the complainant, but no consideration received from the complainant. No loss is caused to the complainant by the act of opposite party, and this petition is filed by the complainant in order to escape from the Criminal Case.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PW1 to PW4 and Exts.P1 to P10 marked on the side of the complainant and Ext.R1(series) marked from the part of the opposite parties.

5. The POINT:- The complainant pledged fake gold ornaments before the opposite party bank, in good faith, without knowing that the same were fake. Complainant has closed the entire gold loan as per the request of opposite party. But the opposite party never tried to withdraw the criminal case against him. The complainant deposed as PW1. One of his neighbours named Mathew entrusted the ornament to the complainant for pledging before the opposite party bank. The said Mathew cheated the complainant, and the same was revealed by the Administrative sub committee of the bank. So the 2nd opposite party directed to close the loan and assured the complainant that the criminal case would be withdrawn. The letter written by the opposite party to appear before the sub committee is marked as Ext.P1. The copy of the receipt for the repayment of the loan is Ext.P2. In that receipt Rs.5/- is charged as appreciar Charge. But the opposite party never tried to find out the pureness of the ornament or never tried  to test the ornament with an appricer, even though the charge was received. If the ornament was tested by an appricer the opposite party would have revealed that the gold was fake, at the time of pledging. Only because of the deficiency in the part of opposite party, in testing the purity of the ornament, the complainant was involved in criminal case. If it was revealed at the time of pledging the ornament, the complainant might have avoided from prosecution. Ext.P5 is the FI statement given by the 2nd opposite party to the Thodupuzha Police. Ext.P3 is the order from the Sessions Court Thodupuzha for granting anticipatory bail to the complainant and Ext.P4 is the summons from Chief Judicial Magistrate Court Thodupuzha. Ext.P9 is the copy of the lawyers notice issued to the opposite party by the complainant. PW2 to PW4 are the director board members of the bank. The same chief and cross of witness Mathew in CC.222/08 is adopted in this case, who is the person who entrusted the ornaments to the PW1. As per written version of the opposite party, the criminal case is pending before the Chief Judicial Magistrate Court Thodupuzha as CC.408/08 where the complainant is the 6th accused. The prayer of the complainant is to give direction to withdraw the criminal case, which cannot be possible.

4. As per the complaint, the opposite party ought to have tested the ornament by an appricer because they have charged Rs.5/- for the same. If it was done, it would have revealed that the ornaments were fake gold and so the complainant would have avoided from prosecution. By the prosecution proceedings the complainant spend about 1 lakh Rupees and this caused mental agony to the complainant.

5. But we think that it was the duty of the complainant to make sure whether the gold ornament was fake or not, before approaching the opposite party bank. It is admitted by Thomas, who entrusted the ornaments to the PW1, who is PW2 in CC.222/08 that he is also the member of the bank. If the ornament was tested with the help of an appricer at the time of pledging the same, the complainant would be an accused in "the attempt of doing the same". When the learned counsel for the opposite party cross examined PW1, he deposed that "he don't know whether the 2nd opposite party assured that the criminal case would be withdrawn if the gold loan was repaid".

The criminal case is already pending before the Chief Judicial Magistrate Court Thodupuzha. So the Court will decide whether, the complainant is innocent or not. The 2nd opposite party is not a person to decide whether the complainant is guilty or innocent, when a criminal case is pending. As per the Ext.P5 FI statement given by the 2nd opposite party it is written that "with the help of the Branch Manager, the person who was in charge of the Manager, the person who was in the charge of the Cashier, the complainant has pledged the ornament". It means that the entire staff of the Kumaramangalam Branch of the bank are also involved in the crime, they have colluded with the complainant. So criminal proceedings are going on against the staff of the bank also. Disciplinary Action was also taken against the staff of the bank by the 2nd opposite party and the Administrative board. Ext.P5 is the copy of the First Information Statement produced by PW1. The 2nd opposite party is the secretary of the whole bank. So we think that if the appricer was not engaged for testing the complainant's gold ornament, it was the duty of the Branch Manager to do so. The 2nd opposite party has taken disciplinary action against them and also filed criminal complaint.

So no deficiency in service is found in the part of 2nd opposite party. Hence the petition dismissed.

Pronounced in the Open Forum on this the 27th day of July, 2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Hassan

PW2 - A.T Sivaraman

PW3 - Rajesh Rajan

PW4 - T.C Lukachan

On the side of Opposite Parties :

nil

Exhibits:

On the side of Complainant:

Ext.P1 - Letter dated 22-05-2006.

Ext.P2 - Copy of Receipt dated 26-05-2006.

Ext.P3 - Order from the Sessions Court Thodupuzha.

Ext.P4 - Summons from Chief Judicial Magistrate Court, Thodupuzha.

Ext.P5 - Copy of First Information Statement given by the 2nd opposite party.

Ext.P5(a) - Copy of additional statement dated 20-05-2006.

Ext.P6 - Statement of Rajesh Rajan dated 20-05-2006.

Ext.P7 - Statement of A.T. Sivaraman dated 20-05-2006

Ext.P8 - Statement of Luckachan dated 02-06-2006

Ext.P9 series (1-3) - Copy of Lawyers Notice dated 27-11-2008

Ext.P10- AD card.

On the side of Opposite Parties :

Ext.R1series (a) - Copy of Postal receipt dated 20.12.2008

Ext.R1series (b) - Copy of Reply Notice.