JUDGEMENT

            This is an application U/s 12 of the C.P. Act, alleging deficiency in service, unfair trade practice as against the complainant and claiming total Rs.4,99,000/- for relief.

            The short case of the complainant that he has purchased one tractor bearing No.WB 41B/3564 which was duly financed by the O.P. No.1 through the O.P. No.2 branch.  The loan agreement is described in schedule ‘C’ of the claim.  It has alleged at the time of sanctioning the loan in respect of the said vehicle the O.P. finance company demanded from the complainant illegally three signed blank chque for payment of insurance premium of the loan agreement and ultimately complainant handed over the three cheque without signing the same.  It has further alleged the O.P. finance company by imitating the signature of your complainant illegally signed the name of the complainant and one of those three cheque placed the same for encashment in the bank.  The Bank Authority after receiving the cheque which is described in detail in the schedule ‘B’ without verifying the signature of the complainant with that of the specimen signature of the complainant issued the cheque returning memo thereby endorsing that the cheque has been dishonoured due to insufficient of fund.  Thereafter, the O.P. company receiving the cheque along with return memo issued an Advocate’s notice to your complainant U/.S 138 of the NI Act and upon receiving the answer of the said notice initially a false complaint case making your complainant as an accuse therein for committing offence U/s 138 of NI Act and the said false case has been numbered and registered as complaint case No.11387 of 2006 of the Ld. 11^th Court, M.M. Calcutta.  It has claimed that in the said criminal case complainant prayed for comparing the signature of the B schedule cheque with that of the admitted signature of your complainant by appointment of a hand writing expert and the hand writing expert opined by submitting the report dated  8.4.2009 that the author of the admitted signature and the author of signed B schedule cheque are different.  The said report of the hand writing expert was collected by the complainant which is a certified copy only on 8.4.2009 and thereby the cause of action of this case has finally arisen on and from 8.4.2009 and the same is continuing.

            It has alleged that O.P.s have filed the false criminal cases against your complainant by forging a signature of your complainant, for which the complainant had to undergo a false criminal trial which is undoubtedly an act of deficiency of service and unfair trade practice and negligent act affected by the O.P.s as against your complainant, for which without any reason the prestige and reputation of your complainant in the society at large has been hampered.  Accordingly prays for Rs.4,99,000/- for initiating a false criminal case by forging the signature or your complainant in the B schedule  cheque and hampering the prestige and repudiation of your complainant in the society at large.

            The O.P. No.1 & 2 filed joint written statement and has denied all the allegation leveled against them.  It is the positive case of this answering O.P.s that complainant handed over a cheque of Rs.1,00,964/- dated 5.8.2006 bearing No.251661 drawn on Burdwan Central Co-operative Bank, Panagarh Branch which was dishnoured by the said bank for insufficient of fund  and not for signature mismatch.  It has further stated that this O.P. had filed this case U/s 138 of NI Act which is pending in the 11^th Court, Metropolitan Magistrate, Kolkata.  It has stated that hand writing expert compare the signature which admitted by the complainant and opined divergence of signature in the cheque in question.  But the signature of the cheque had not been compared with the specimen signature of the Bank record.  It has further claimed that cheque was dishonoured for insufficient of fund, not for signature mismatch.  Accordingly to determine the deficiency in service or unfair trade practice it is necessary to compare the signature of the complainant with the signature lying in the bank record.  Accordingly prays for dismissal of the complaint with exemplarily cost.

            The O.P. No.3 also filed written objection and has denied all the allegation against the bank and also claimed that complainant is not entitled to get any amount whatsoever.  It has strongly claimed that present dispute cannot be termed as a consumer dispute and as such the instant case is liable to be dismissed in limine.  It has further stated that there is no specific allegation against the O.P. No.3, for which O.P. No.3 bank should be expunged from the instant case being unnecessary impleaded.  It has further claimed that the present proceedings is not a bonafide one and there has been no deficiency in service U/S 12 & 14 of the C.P. Act, 1986 on the part of this O.P. and as such this court has no jurisdiction to entertain the dispute raised by the complainant.  It has strongly claimed that the submission of element of fraud which has ousted the jurisdiction of Ld. Forum and complainant ought to have taken recourse to any general law and in default the present proceeding is fit to be dismissed.  Accordingly this case if fit to be dismissed against the O.P. Bank.

Point for consideration in this case is;

1. Whether the O.P.s acted any deficiency in service to the complainant which amounts to unfair trade practice?

DECISION WITH REASON

            Admittedly one cheque was dishonoured from the O.P. No.3 Bank on the ground that insufficient of fund and admittedly taking the memo of insufficient of fund O.P. No.1 & 2 filed a criminal case against the complainant U/S 138 of NI Act before the Ld. Metropolitan Magistrate, Kolkata which is pending.  It is the further case of the complainant that since the expert has opined that the signature is mismatch the O.P. No.1 & 2 taking the advantage filed criminal case against the complainant.  From the record we find that the expert report is lying wherefrom it appears that expert has opined ‘admitted signatures marked as A/1, A/2 and specimen signature and S/1, S/6 are executed by one and the same person’.  This is the report of expert.  The question is whether initiating false criminal case against the complainant and forging signature is false amounts to deficiency of service and unfair trade practice by which the prestige and reputation of the complainant in the society at large hampered?

            First of all there is no deficiency of service of O.P. No.3 because O.P. No.3 dishonoured the cheque for insufficient fund.  It is well known to us that if the fund permits for withdrawal of the amount of the cheque, then and then question of matching the signature arises in the cheque have to be compared with the specimen signature lying in the bank custody.  Herein the instant case there was no sufficient fund.  There is no deficiency of service on the part of the bank because if the signature was matched then and then also cheque was dishonoured for insufficient fund. 

The O.P. No.1 & 2 filed a criminal case U/s 138 of NI Act for dishonour of cheque, the ground the insufficient of fund, not for forging the signature of the complainant.  So, we find there is no deficiency of service and unfair trade practice on the part of O.P. No.1 & 2 also and by filing the case against the complainant by the O.P. No.1 & 2 did not act any unfair trade practice also.  It is not the case of the complainant that he had sufficient fund at the relevant time and inspite of that in connivance with the bank authority (O.P. No.3) the O.P. No.1 & 2 got the cheque dishonoured for filing the criminal case.  But it is the case of the complainant that his signature was forged.  If it is the forged signature the complainant have to file proper complaint firstly before the concerned police station and if police authority is reluctant to start the case, then the complainant  ought to have filed specific complaint U/S 156(3) CRPC before the Ld. Chief Judicial Magistrate, Burdwan for starting FIR against the O.P. No.2.  But inevitable did not happen and unnecessarily filed this case before this Forum, particularly when Chapter-II of IPC clearly demonstrate the remedy for hampering prestige in the society from Section 499 of IPC.

With that observation we find that this type of complaint is unheard before this Ld. Forum since import elements fraud has ousted from the jurisdiction of Ld. Forum and complainant ought to have taken recourse to any general law as stated above and in this back drop, we hold that the this complaint is not maintainable within the purview of C.P. Act.  Hence, it is

ORDERED

that the application U/S 12 of the C.P. Act is dismissed on contest against all the O.P.s but due to ignorance of law we do not like to saddle the poor complainant in dealing the same U/s 26 of the C.P. Act.  Let the free copy of this order be given free of cost to the parties.

                    (Udayan Mukhopadhyaya)        

             Dictated and corrected by me.                                                           President,       

                                                                                                                    D.C.D.R.F., Burdwan.

                  (Udayan Mukhopadhyaya)

                           President,

                   D.C.D.R.F., Burdwan.

(Mrs. Silpi Majumder)

Member,

D.C.D.R.F., Burdwan