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.49/2008 Order dated this the 17th day of October 2008 COMPLAINANT/S Sri.Ramalingegowda, S/o Kullegowda, # K.T.305, 12th Cross, Chamundeswarinagara, Mandya. (By Sri.A.Narasimha Murthy., 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 22.04.2008 Date of service of notice to Opposite party 02.05.2008 Date of order 17.10.2008 Total Period 5 Months 15 days Result The complaint is partly allowed directing the Opposite party to pay Rs.1,71,000/- to the complainant with interest at 9% p.a. from 26.10.2006 till payment with cost of Rs.1,500/-. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for a direction to the Opposite party Bank to pay amount of Rs.4,10,000/- with compensation of Rs.3 lakhs. 2. The brief facts of the complaint are as fallows; The complainant is having S.B. Account No.8339 in the Opposite party Bank from 29.11.2003 and is having transactions regularly and he had deposited Rs.1,71,000/- on 07.07.2006 and Rs.39,000/- on 26.10.2006, but the Opposite party has not credited the said amount to the account of the complainant. Further, he presented the cheque No.085411 for Rs.2 lakhs on 18.10.2007 and the complainant was paid Rs.2 lakhs to suppress the deposit of Rs.4,10,000/- in his account, (because the complainant had deposited the above mentioned Rs.1,71,000/- and Rs.39,000/- and further Rs.2,67,000/- on 08.10.2007) and on the same day the complainant has presented the cheque No.085412 for Rs.10,000/- and encashed the same the balance should have been Rs.2,89,577/-, but they have mentioned in the ledger book showing the balance of Rs.2,577/- only as on 19.10.2007. He was under impression that bank would maintain proper accounts. Bank Official was not making entries of transaction whenever demanded, pleading ground of pressure of work, likewise the accounts are not properly maintained in the records of the bank and later the cheque No.085412 for Rs.2 lakhs was encashed on 04.12.2007 illegally in the name of one M.N.Chaluvaraju and deducted the said amount from his account illegally. Then he obtained duplicate pass book on 23.01.2008, but the entries found in the pass book issued on 08.12.2003 are not tallying with the entries made in the duplicate pass book. For the illegal and improper maintenance of the account and difference of amount, the complainant lodged a complaint to Superintendent of Police and Mandya Police Station on 31.03.2008 and also petitions to Opposite party demanding Rs.4,10,000/- but they have sent evasive reply. Therefore, the Opposite party has committed deficiency in service and liable to pay Rs.4,10,000/- with compensation of Rs.3 lakhs. 3. The Opposite party has filed version admitting that the complainant is an account holder from 29.11.2003. Denying that on 07.07.2006 Rs.1,71,000/- and as 26.10.2006, Rs.39,000/- was deposited, it is also denied that on 08.10.2007, Rs.2,67,000/- deposited by the complainant. Therefore, there is no question of making entries in the account of the complainant. The allegation that the cheque No.085411 dated for Rs.2,00,000/- was presented on 18.10.2007 and the said cheque was passed illegally on 04.12.2007 in the name of M.N.Chaluvaraju and encashed is false, but the complainant got presented through M.N.Chaluvaraju on 04.12.2007 a cheque No.085411 dated 18.10.2007 for Rs.2 lakhs and got encashed, therefore the allegation that totally Rs.4,10,000/- has been illegally shown less in the account is false and the other allegations made in the complaint are false. It is their duty of the customer to get entries in the pass book immediately after each transaction. The allegation that the staff of the Opposite party Bank postponed to make entries in the pass book are all false. On account of demand and pressure of the complainant, duplicate pass book was issued on 23.01.2008 from the beginning, since incomplete pass book was with the complainant. For the letters dated 31.01.2008 and 22.01.2008, the Opposite party has sent suitable reply about the demand of Rs.4,10,000/-. Opposite party has not committed any deficiency in service. Since it was found that D.group employee G.S.Jayaramu of the Opposite party Bank was found committing irregularities in the banking internal affairs prima-facie he was kept under suspension pending departmental enquiry from 06.11.2007. In their letter dated 22.01.2008 given by the complainant to the Opposite party it is mentioned that cheque bearing No.085411 drawn self for Rs.2 lakhs mentioning the date 18.10.2007 was handed over to G.S.Jayaramu by oversight, but at on that date said G.S.Jayaramu was not on duty in the bank. 4. During trail, the Complainant and one witness are examined and Ex.C.1 to C.10 are marked, on behalf of the complainant. The Opposite party is examined RW.1 and Ex.R.1 to R.8 are marked. The complainant has filed written arguments. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the complainant proves that he has deposited Rs.1,71,000/- on 07.07.2006 to his account in the Opposite party Bank? 2) Whether the complainant proves that he has deposited Rs.39,000/- on 26.10.2006 to the Opposite party Bank to his account? 3) Whether the complainant proves that his cheque dated 18.10.2007 for Rs.2 lakhs bearing cheque No.085411 was illegally encashed through M.N.Chaluvaraju and deducted the amount from his account? 4) Whether the complainant proves that the accounts are not properly maintained by the Opposite party Bank in respect of his S.B. Account and Opposite party has committed deficiency in service? 5) Whether the complainant is entitled to amount of Rs.4,10,000/- claim? 6) Whether the complainant is entitled to compensation? 7) What order? 7. Our findings and reasons are as here under:- 8. POINT No.1:- The undisputed facts are that complainant is a consumer that is, a customer of Opposite party Bank having S.B. account No.8339 in the Opposite party Bank starting from 29.11.2003. It is also admitted fact, the Opposite party has issued duplicate pass book Ex.C.9 to the complainant starting from 29.11.2003. The complainant has produced the pass book Ex.C.1, but the entries are disputed by the Opposite party Bank. 9. It is the case of the complainant that on 07.07.2006 he has deposited Rs.1,71,000/- to his S.B. Account. This fact has been denied by the Opposite party Bank. The complainant has relied upon Ex.C.2 counterfoil of the challan dated 07.07.2006. This is also disputed by the Opposite party. According to the Opposite party, the entries in Ex.C.1 and even Ex.C.2 challan has been created in collusion with the G.S.Jayaramu, the D.Group employee of the Opposite party Bank who is under suspension facing enquiry. It is admitted by the complainant that there is no entry of deposit of Rs.1,71,000/- in the pass book Ex.C.1. It is not in dispute that in the duplicate pass book Ex.C.9 and the ledger extract Ex.C.5 there is no mention of deposit of Rs.1,71,000/- on 07.07.2006. The contention of the counsel for the Opposite party is that, in Ex.C.2 the counterfoil challan, there is no signature of the Accountant or Secretary of the Opposite party Bank, therefore it is not a valid challan and it is created. The Opposite party has relied upon Ex.R.4, a counterfoil challan dated 09.04.2008, in which the cashier and authorized officer have put signature. But Ex.C.2 the counterfoil challan format is quite different to the format Ex.R.4. Therefore, the Ex.R.4 is not useful for the Opposite party. Admittedly for the irregularities in the money transaction in the records and complaint by the customers, RW.1 Secretary has submitted a report as per Ex.C.6 to the President of the Opposite party Bank complaining financial irregularities and misappropriation by P.Puttaraj, N.Prakash and G.S.Jayaramu and even the Opposite party has filed dispute No.4701/2008 as per Ex.C.7 under section 70 of the Co-Operative Society Act against G.S.Jayaramu, Prakash, Puttaraju and C.K.Balaraju alleging misappropriation of the amount destroying the records and making false entries to the extent of Rs.34,90,000/. In Ex.C.6, the Opposite party has mentioned in his report against P.Puttaraju, cashier that in account No.8339 in respect of Ramalingegowda Rs.1,71,000/- was received on 07.07.2006 under challan No.18 and entered in the scroll and then given up at the end of the day. It is contended that it is not a final report and it is to be investigated and relied upon the Ex.R.5 the transaction sheet of the Opposite party Bank. On 07.07.2006 there were 3 pages of transaction sheet and each page is having No.1 to 50 and it refers to challan number and the transactions are entered and there is no entry of deposit of Rs.1,71,000/- under challan No.18. In Ex.R.4 challan No.17 mentioned, but the page number of the transaction sheet is not mentioned. So it is confusing to which challan number of the three sheets, Ex.C.2 pertains. So, the Opposite party Bank officials dealing with the finance transaction are not properly discharging their duties according to banking norms. Merely because in Ex.R.5 there is no entry of depositing of Rs.1,71,000/- on 07.07.2006 under challan Ex.C.2, then it is not explained on what basis the Opposite party has submitted the report Ex.C.6 along with the letter of Ex.C.6 and mentioned that on 07.07.2006 Rs.1,71,000/- under challan No.18 was received to the S.B.Account No.8339 of Ramalingegowda and entered in the scroll and then it was given up at the end of the day. So, the Opposite party must have some documents to give this report mentioning the misappropriation of Rs.1,71,000/- apart from 3 items by cashier P.Puttaraju. This report clearly established that P.Puttaraju, Cashier has received the amount of Rs.1,71,000/- under challan No.18 and entered in the scroll, but later given up at the end of the day, though mentioned in the scroll leading to the presumption of misappropriation of the amount and in this connection the Opposite party has initiated recovery proceedings. So, under these circumstances, the Consumer Forum which deals the complaint by summary trial has to rely upon the admitted documents and therefore, the Ex.R.5 the transaction sheet cannot be relied upon. The contention that Ex.C.2 is created in collusion with the G.S.Jayaramu the attender of the Opposite party Bank cannot be accepted, because the challan has the signature of the cashier and the seal of the bank. So, this Ex.C.2 challan when corresponds to the report made by the Opposite party to the President of the Bank as per Ex.C.6, it has to be held that the complainant has deposited Rs.1,71,000/- to the Opposite party Bank, but it was not entered in the pass book or in the ledger of the Opposite party Bank by the cashier and therefore, the Opposite party Bank cannot take shelter, on the ground that there is no entry in the ledger book and the transaction sheet. Therefore, the complainant has proved that he has deposited Rs.1,71,000/- on 07.10.2007 and hence we answer point no.1 affirmative. 10. POINT NO.2:- It is the case of the complainant that on 26.10.2006 he has deposited Rs.39,000/- to his account in the Opposite party Bank and though it is mentioned in the pass book Ex.C.1, but it is not entered in the ledger maintained by the Bank. The complainant has produced the ledger extract Ex.C.5 in which there is no entry of deposit of Rs.39,000/- on 26.10.2006. The Opposite party has denied the deposit of Rs.39,000/- on that day. The Opposite party has produced the transaction sheet dated 26.10.2006 marked as Ex.R.7 and contended that if the complainant had deposited the amount it should have find a place in the transaction sheet Ex.R.7 and also in the ledger sheet Ex.C.7. 11. Of course in Ex.C.1, the pass book there is an entry of deposit of Rs.39,000/- on 26.10.2006 marked as Ex.C.1(a), but in Ex.C.1(a) there is no entry of the year. The Opposite party suspects the entries made from the entry Ex.C.1(a) onwards, on the ground that up to 21.10.2004 the entries are correct, but though the complainant has made so many transaction from 21.10.2004 he did not got entered the deposit or transaction in the pass book Ex.C.1 up to the alleged date of 26.10.2006. Ex.C.1 the pass book starts from 29.11.2003 when the account was opened and when the entries are compared with the duplicate pass book Ex.C.9 which is corresponding to the account extract Ex.C.7, up to 21.10.2004 the entries are correct showing the balance of Rs.2,32,566/-. Thereafter, though from 02.11.2004 up to September 2006 he has made transactions irregularly and recorded in the ledger and same were entered in the duplicate pass book Ex.C.9 from page 5 to 12, but they are missing in the original pass book Ex.C.1. Even though the complainant has pleaded and deposed that the bank officials were not making entries in his pass book at the time of transaction in spite of his demands, but in his evidence the complainant has admitted that he did not give any letter to the Opposite party Secretary about not making entries in his pass book. Why he kept quite without filing a petition against the cashier or the ledger clerk for not entering the transaction made by the complainant from October 2004 to September 2006 to the pass book is astonishing question. Admittedly, the complainant was working as Secretary in a Co-Operative Society for more than 20 years and he knows the banks transaction. In Ex.C.1(a) there is no mention of the year and the previous entry pertains to 21.10.2004. How suddenly the deposit of 26.10.2006 finds a place as per Ex.C.1 (a) in the pass book is not explained by the complainant. When there is no entry in the transaction sheet Ex.R.8 and the account extract of Ex.C.7, the complainant should have produced the challan for having deposited Rs.39,000/-. In his evidence, the complainant has deposed that there are 5 or 6 challans with him, but has produced only one challan Ex.C.2 to the Forum. He deposed that the challan for having deposited Rs.39,000/- is not with him. So, when there is no entry in the transaction sheet Ex.R.8 and the account ledger extract Ex.C.7 about the deposit of Rs.39,000/-, the entry of Rs.39,000/- in Ex.C.1(a) is doubtful to accept, because the year is not mentioned when suddenly from the entry of 21.10.2004 was jumped to 26.10.2006 as per Ex.C.1(a), why the complainant did not complain to the Secretary of the Opposite party Bank for not making entries for nearly 2 years creates doubtful question on the part of the complainant. The burden is on the complainant to prove for having deposited Rs.39,000/-, when the Opposite party has disputed the said deposit and under Bankers Evidence Act the books of accounts maintained regularly in the ordinary process of business by the bank shall be considered as true and correct unless contrary is proved. Admittedly the complainant has not produced the challan for having deposit of Rs.39,000/- on 26.10.2006. When the Opposite party has disputed the entries made in the pass book Ex.C.1 and when entries made in Ex.C.1 are not tallying with the accounts maintained in the Opposite party Bank, the complainant should have taken steps to prove that the Opposite party Bank cashier has received the amount and made entries in the pass book Ex.C.1 or the ledger clerk has made entry to his pass book. In the decision reported in 2006 (1) CPR 516 in the case of R.P.Venkatachalam Vs- State Bank of India, it is held by Pandicherry State Commission, that when the deposit of cheque Rs.25,000/- is disputed and genuineness of the counterfoil of the challan was disputed, the burden is on the complainant to prove that the seal found on the counterfoil was affixed by the bank and signed by the cashier. Admittedly the complainant has not taken any steps to prove that the entry Ex.C.1(a) is made by the Opposite party Bank Official. Under these circumstances when the challan is not produced for having deposited the amount and entry Ex.C.1 is not proved and when there is no mention of the deposit in Ex.R.8, the day transaction sheet and the account extract Ex.C.7 it has to be held that the complainant has failed to lead satisfactory evidence to establish deposit of Rs.39,000/- on 26.10.2006 to the Opposite party Bank and therefore, we answer the point in the negative. 12. POINT NO.3:- The complainant has complained that his cheque No.085411 for Rs.2 lakhs dated 18.10.2007 was presented to the Bank on 18.10.2007 and the complainant received Rs.2 lakhs, but the said cheque was passed illegally by the Opposite party Bank to the name of M.N.Chaluvaraju for Rs.2 lakhs on 04.12.2007 as per the accounts and illegally deducted the amount from his account. But the contention of the Opposite party is that the cheque dated 18.10.2007 drawn self for Rs.2 lakhs by the complainant was presented through M.N.Chaluvaraju and encashed and therefore Rs.2 lakhs has been deducted on 04.12.2007 from the account of the complainant. The complainant has produced Ex.C.10 the copy of the cheque presented. It shows that cheque is dated 18.10.2007 drawn self for Rs.2 lakhs and the cheque number is 085411 and the complainant has put signature on the cheque and also back of the cheque. The complainant has admitted the same in his evidence, but the cheque has been encashed on 04.12.2007 after presentation by M.N.Chaluvaraju who has put signature and the same is entered in the ledger account of the complainant. Of course, prima-facie it reveals that the cashier who received the cheque has put the date 18.10.2007 and then altered as 04.12.2007, but the stamp of bank does not contain any date. The Opposite party has produced Ex.R.7 the transaction sheet dated 04.12.2007 under which Rs.2 lakhs has been paid from the S.B. Account No.8339 that is pertaining to the complainant and in the ledger extract Ex.C.7 it is shown that amount was paid to Chaluvaraju. It cannot be understood, how the complainant could say that the bank authorities paid Rs.2 lakhs without making entry in the ledger or in his pass book. There is no explanation why he did not got entered the presentation of the cheque for this 2 lakhs and another Rs.10,000/- and why kept quite for two year is not forthcoming. It is not the case that there is double payment. So when there is no entry of deduction of Rs.2 lakhs in the ledger account and the transaction sheet about the drawel of Rs.2 lakhs by the complainant on 18.10.2007. If we consider Ex.R.1 & R.2 it clearly proves that the complainant is in collusion with G.S.Jayaramu the D.Group employee of the Opposite party Bank. Admittedly Ex.R.1, R.2 and R.3 letters were given by the complainant to the Opposite party Bank complaining the irregularities. In Ex.R.1 it is clearly mentioned that on 1st of December he came to the Bank to draw the amount along with the cheque No.085411 dated 18.10.2007 for self for Rs.2 lakhs and since the amount from the other bank were not credited to his Bank, the attender told to come after some time and so again enquired, he told that the bank has not received, therefore he did not come bank again and forgotten about giving of cheque to Jayaramu on account of the holidays to the bank, but he issued the cheque for Rs.1,00,000/- and another Rs.1,50,000/- to the parties and kept quite and on 17.01.2008 by depositing the amount he got entered in the pass book and came to know that on 04.12.2007 the said cheque No.085411 has been encashed by putting forgery signature as M.N.Chaluvaraju, the said attender Jayaramu has received the amount and the said cheque was given to Jayaramu on 01.12.2007 saying it was for self, but the said Jayaramu has committed fraud by drawing the amount. The Ex.R.1 letter also reveals that he used to present the cheque through the Jayaramu and receiving the amount immediately. Therefore, the allegation and the evidence of the complainant that on 18.10.2007 itself, he presented the cheque and he was paid Rs.2,00,000/-, but later that cheque was illegally drawn by the staff signing as Chaluvaraju and Opposite party has committed fraud by deducting the said amount from his account cannot be accepted at all in view of Ex.R.1 contents. But the version of the complainant in Ex.R.1 clearly established that though cheque is dated 18.10.2007 for self, he came to be bank on 01.12.2007 and gave to Jayaram the attender and kept quite, but he has not whispered in this letter that on 18.10.2007 itself he has received the amount of Rs.2 lakhs after presenting the cheque. So naturally when the account holder does not present the cheque along with the pass book, drawn for self and that cheque is signed by the customer on the face of the cheque and on the back side for self drawal, and when it is not presented by the account holder with pass book and when that cheque is presented by other person without pass book, naturally the presenter will sign on the back of the cheque below the signature of the account holder and the bank will accept the cheque and make the payment. Therefore, the allegation that illegally Rs.2,00,000/- has been deducted on 04.12.2007 from his account for the cheque dated 18.10.2007 by forging the signature of M.N.Chaluvaraju and the said amount has been illegally deducted from his account is quite inconsistent on the face of Ex.R.1 and therefore, the complainant has failed to prove this allegation and therefore we answer this point in the negative. 13. POINTS NO.4 & 5:- The complainant has alleged that the Opposite party Bank officials colluded together have not made proper entries in the accounts and missed so many deposits in the ledger and they have illegally drawn the cheque of the complainant, but the Opposite party has disputed the same. But to certain extent as admitted by the Opposite party in his report Ex.C.6, there are so many irregularities in the account, misappropriation of the amount deposited by the customers and the difference of the amount in the pass book and the ledger and in fact those staff are kept under suspension and legal action has been taken and so the Opposite party has not properly discharged their duty in controlling the staff from last two years and there is no supervision at all about the account books and the cash transaction and the Opposite party kept quite for nearly two years and now it has taken action. Since the complainant has proved the deposit of Rs.1,71,000/- as held under point no.1, naturally there will be variance in the accounts maintained by the bank and also pass book and therefore the Opposite party has committed deficiency in service in not properly maintaining the accounts and hence we answer points no.4 & 5 partly affirmative. 14. POINTS NO.6 & 7:- The complainant sought for a direction to pay Rs.4,10,000/- and compensation of Rs.3,00,000/- for the deficiency in service. In view of our findings on points no.1 to 3, the complainant has established the deposit of Rs.1,71,000/, but has failed to prove the deposit of Rs.39,000/- and illegal deduction of Rs.2 lakhs and therefore, the complainant is entitled to Rs.1,71,000/- from the Opposite party. Since the Opposite party official has misappropriate the amount in spite of issuing counterfoil challan and making entry in the scroll of the bank, Opposite party is liable to pay. 15. The complainant has sought for compensation of Rs.3,00,000/- for deficiency in service, but it is reasonable to award interest for Rs.1,71,000/- from the date of deposit as compensation. 16. Further, it is open to the complainant to approach Civil Court with regard to the deposit of Rs.39,000/-, if so advised against the Opposite party. 17. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed directing the Opposite party to pay Rs.1,71,000/- to the complainant with interest at 9% p.a. from 26.10.2006 till payment with cost of Rs.1,500/-. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 17th day of October 2008). (PRESIDENT) (MEMBER) (MEMBER)
