BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.140/2008 Order dated this the 30th day of March 2009 COMPLAINANT/S Sri.G.M.Jayashankar S/o Late Mollekalegowda, No.2616, 2nd Main Road, Gandhinagar, Mandya. (By Sri.M.B.Rajashekara., Advocate) -Vs- OPPOSITE PARTY/S The Secretary, Mandya City Co-operative Bank Ltd., V.V.Road, Mandya, (By Sri.T.Lokesh., Advocate) Date of complaint 31.12.2008 Date of service of notice to Opposite party 13.01.2009 Date of order 30.03.2009 Total Period 2 Months 17 Days Result Complaint is allowed, directing Opposite party to pay Rs.87,585/- with interest at 9% p.a. from the date of complaint till realisation with cost of Rs.2,000/-. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986 for a direction to the Opposite party to pay Rs.87,585/- and compensation of Rs.2,50,000/- with costs. 2. The case of the complainant is that he is a Account Holder in the Opposite party Bank having S.B. A/c No.7307 from 07.12.2001. The complainant has made transaction from 06.12.2006 and the Opposite party has made entries in the pass book and the complainant has believed the same. But the Opposite party has not recorded the transaction properly in ledger and committed deficiency in service. On 13.03.2008, when the complainant went to draw the amount, which was not mentioned in the pass book, he sought for the difference of amount in his account in writing, but the Opposite party did not respond. The Opposite party has filed complaint in Crime No.62/2008 on 04.04.2008 before Mandya West Police Station against some Bank Employees, complaining mis-appropriation of the amount and committing fraud and dis-honesty to the customers and in that complaint the difference of amount in respect of the complainant between the pass book and the ledger is mentioned. Therefore, the present complaint is filed for the above relief. 3. The Opposite party has filed version, admitting that the complainant is a Consumer. The detail of the statement shown in the complaint is nothing, but a concocted theory to have wrongful gain. It is false that the entries found in the pass book of the complainant have not been shown in the ledger extract maintained by the Opposite party. Since, the pass book has been fabricated in collusion with the suspended employees of the bank, the entries found in the pass book are not supposed to find a place in the ledger extract. It is false that the complainant approached the Opposite party Bank on 13.03.2008 and questioned the employees of the Opposite party Bank with regard to the not mentioning of the entries in the ledger extract. Mere lodging of the complaint before the police is not a conclusive proof of the allegations made in the complaint. Just because the entries in the pass book are not tallied with the ledger extract, it does not mean that Opposite party Bank has fraudulently mis-used the amount. There is no negligent act and also no deficiency in service on the part of the Opposite party Bank. Domestic enquiry is still pending before the Enquiry Officer and hence the report submitted by the Opposite party Bank is not a conclusive proof. The complainant can approach the Civil Court and can have his remedy. The pass book produced finds a seal, but there is no signature of the bank employees in and around the seal. There is no merit in the complaint and the complaint is liable to be dismissed. 4. During trial, the complainant is examined and has produced Ex.C.1 to C.13. The Opposite party is examined and Ex.R.1 document is produced. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1. Whether the complainant proves that the Opposite party Bank Employees have failed to mention the transaction entered in the pass book to the ledger of the Bank and have mis-appropriated the amount and there is difference of Rs.87,585/-? 2. Whether the complaint is not maintainable? 3. Whether the complainant is entitled to the relief sought for? 7. Our findings and reasons are as here under:- 8. It is an admitted fact that the complainant is a Consumer having S.B. A/c No.7307 from 07.12.2001. Naturally, the pass book must have been issued and it is an admitted fact that complainant has made transaction. 9. According to the complainant, the transaction made by him are entered in the pass book Ex.C.1, but some of the transactions are not mentioned in the ledger maintained by the Bank and there is difference of Rs.87,585/- and Opposite party Bank Officials have mis-appropriated the amount, but the Opposite party contended that the pass book produced by the complainant does not bear the signature of the Secretary or the Officer inside the seal and some entries in the pass book have been concocted and the pass book has been fabricated in collusion with the suspended employees of the Bank. 10. It is contended by the complainant that the Opposite party himself has filed the complaint against its employees as per Ex.C.7 about the mis-appropriation of the amount of the customers and committed breach of trust and in that complaint, the difference of amount with regard to the complainant at item No.11 is mentioned and that report is based on the verification of the documents. 11. Though, it is contended by the Opposite party that mere filing of the complaint against these staff, is not a proof of the mis-appropriation amount by the staff of the bank and department enquiry is pending and hence no liability can be fixed on the Opposite party. 12. The contention that the pass book of the complainant has been fabricated in collusion with the suspended employees of the bank and hence, the entries in the pass book are not supposed to find a place in the ledger extract and there is no signature of the Bank Officer in side the seal in Ex.C.1, but this pass book issued on 06.12.2006 and it is a old pass book and it is not a new pass book and it cannot be said that in collusion with the suspended employees the pass book is fabricated. This pass book contains the old photo with seal of the Bank and the pass book is also a old pass book and not a new pass book. It cannot be accepted at all that Ex.C.1 pass book is not issued by the Opposite party Bank. The contention is that the entries have been manipulated with the employees of the bank, after they were suspended, but there is no evidence when the employees against whom the complaint is filed are suspended. Before the police when the complaint was lodged, it is clearly stated that they have obtained already audit report with regard to the mis-appropriation of the amount by the employees and on that basis, a complaint is filed against the Bank employees. So on the basis of the record available in the Opposite party Bank, they have come to the conclusion that these 4 employees have cheated the customers and committed breach of trust and mis-appropriated the amounts of the customers. The Opposite party has admitted in cross-examination that it appears that Ex.C.1 has been issued by the Opposite party Bank and the entries made in the Ex.C.1 are that of Jayaram and Balaraj who were attenders. He has admitted that the contents in the complaint before the police are true and before lodging the complaint, the documents of the Bank were examined and the difference of amount in the pass book of the complainant to that of ledger is admitted. It is admitted that in the ledger there is deposit of Rs.4,50,000/- to the account of the complainant on 24.11.2007, but who has deposited is not mentioned but entry is not made in the pass book Ex.C.1 at all. If we peruse the entries in the pass book, they are maintained as if they are properly written, but they are contrary to the entries made in the ledger Ex.R.1. It cannot be accepted that in collusion with the suspended employees the entries in the pass book are fabricated. Even for the shake of arguments, the pencil entries from 05.02.2008 up to 19.06.2008 is written, but the transaction in the pass book is correctly stated though mentioned in the pencil with regard to balance amount. As per the entries in the pass book as on 11.01.2008 the balance is shown as Rs.4,64,923/-. But in the ledger Ex.R.1 (Ex.C.2) as on 11.01.2008 the balance is shown as Rs.3,76,934/-. So, the difference comes to Rs.87,989/-. Naturally, the customer believes the entries made in the pass book until he noticed the difference. Admittedly, the entries are made by the employees of the Bank, when it is admitted that it is not known how Rs.4,50,000/- is deposited on 24.11.2007 as per the ledger Ex.R.1, we does not find a place in the pass book Ex.C.1, if the complainant wanted to mis-use the same, he would have got entered this amount in his pass book, but he believed the entries made in his pass book only, but the Opposite party Officials have made different entries in the ledger contrary to the entries in the pass book. We find that though the amount is deposited as per the pass book on one day, the entry is shown on the next date in the ledger. Further, in the ledger on 31.03.2008 there is credit of interest of Rs.663/-, but in the pass book that entry is made after the entries of 27.06.2008. So writing different account in the ledger, the Opposite party Bank Officials have managed to write the correct transaction made by the complainant in the pass book, so that he cannot suspect any entries and in that manner they have mis-appropriated the amount in different way and caused difference of Rs.87,989/-. There is no reason to suspect the entries made in the pass book and it is supported by the report of the Opposite party submitted to the police based on the audit report and hence Opposite party has committed deficiency in service by not performing duty of controlling the staff and caused loss to the complainant and for the mis-use of the amount from the account of the complainant by the staff of the Opposite party Bank, the Opposite party is vicariously liable to make good the loss as it is open to the Opposite party to recover the amount from this staff according to the law. 13. It is contended that the complainant has to approach the Civil Court for the remedy and the complaint is not maintainable, but the complainant is a Consumer and he need not go to Civil Court and he can select one of the legal remedies provided in the Civil Court or Consumer Forum and hence, the complaint is maintainable. 14. The complainant has sought for Rs.87,585/- with compensation of Rs.2,50,000/-. As per the finding above, we find the difference of Rs.87,989/-. Though the complainant has sought for compensation of Rs.2,50,000/- there are no sufficient grounds to claim this exhogerated compensation. But, it is just to award interest for the amount payable by the Opposite party. 15. In the result, we proceed to pass the following order; ORDER Complaint is allowed, directing Opposite party to pay Rs.87,585/- with interest at 9% p.a. from the date of complaint till realisation with cost of Rs.2,000/-. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 30th day of March 2009). (PRESIDENT) (MEMBER) (MEMBER)
