Per Mr.Justice S.B.Mhase, Hon’ble President

Heard at length.  This appeal can be disposed of at the admission stage itself.  This is pending for admission since 2009. Both the sides are present and, therefore, we are disposing of appeal finally. Appellant is an original opponent, while respondent is an original complainant.

This appeal takes an exception to an order passed by the South Mumbai District Consumer Disputes Redressal Forum in consumer complaint no.145/1998 decided on 07/11/2008. By this order the District Consumer Disputes Redressal Forum has allowed the complaint and directed the opponent to pay an amount of `1,32,000/- along with interest @ 9% p.a. from 24/1/1997 till payment.  Opponent is further directed to pay an amount of `10,000/- by way of compensation for mental agony and `5000/- by way of cost of the litigation.  Amount was directed to be paid within a period of 4 weeks from the date of receipt of the order.  This order has been challenged by the original opponent by filing this appeal.

Complainant is an account holder of the opponent bank. His grievance is that the amount of `90,000/- and `42,000/- have been deducted from his account by two cheques respectively dated 16/1/1997 and 22/1/1997. These cheques were the bearer cheques issued in the name of one Mr.Sanjay Khanna.  The complainant’s case is that these cheques were not issued by him and they were not signed by the complainant and the bank was under obligation while making payment of these cheques to find out, whether signatures on these cheques were genuine one.  According to complainant, bank had failed to scrutinize signatures and thereby there was/is deficiency in service on the part of opponent and, therefore, complaint was filed for recovery of the said amount along with interest. Accordingly, complaint was allowed.

It is not in dispute that these two cheques were presented to the bank and bank had disbursed the amount of these cheques on respective dates to the bearer of the said cheques.  However, according to bank, signatures were of the complainant and bank was satisfied after scrutinizing the cheques with the specimen signatures that the signatures were/are genuine one and, therefore, honoured the said cheques. 

It is further their case that the bank had obtained opinion of the expert and the expert appointed by the bank had found that the signatures were of the complainant.  Therefore, only question which requires consideration in order to ascertain whether there was/is deficiency or not, is to find out whether signatures on the disputed cheques were/are of the complainant or not.  District Consumer Disputes Redressal Forum had come to the conclusion that these were/are false signatures and had allowed the complaint.

In order to establish case of the complainant, complainant had filed his own affidavit, wherein he had stated that the signatures were/are not of the complainant and those were the signatures of else one. He had categorically stated that complainant had not issued said cheques and he had further stated that bank had failed to scrutinize the signatures and, therefore, there was deficiency in service on the part of the bank.

He had also brought on record expert opinion of one Mr.Anilkumar Mathur –Forensic Examiner of the questioned documents. He is a private examiner of the documents.  According to his report, signatures on the disputed cheques were/are not genuine signatures of the complainant.  Thus, affidavit of the complainant supported by expert report of Mr.Anilkumar Mathur is the evidence of the complainant.  To rebut this evidence, there is an affidavit of the Manager of the Bank Mr.P.G.Vernekar and also expert report of one Mr.M.S.Wagh.  On perusal of this report, it appears that said examiner has come to the conclusion that the signatures on the disputed cheques are genuine signatures of the complainant.

There is third document on record namely report of Mr.D.P.Ahiwale, who is a government expert for examination of the documents. However, he has given an opinion that on comparison of the disputed cheques with the admitted cheques and specimen signatures, it cannot be firmly stated that signatures on disputed cheques are genuinely of the complainant and/or therefore his report shows inconclusiveness about the genuineness of the signatures.

Considering all this material, District Consumer Disputes Redressal Forum has come to the conclusion that signatures are not genuine one and, therefore, allowed complaint.  It is to be noted that cheques when presented to the appellants, appellants are supposed to find out whether there is balance in the account and, secondly, whether signatures are geninue.  For this purpose, after presenting the cheque, it routes through various officers and when it is passed by the Manager and, thereafter, cashier disburses the amount.  Therefore, the persons who are/were in the office of the appellant, who had perused signatures and compared the signatures on the cheques with the specimen signatures maintained by the bank were the persons who could have filed a best affidavit in that respect. However, affidavit which has been filed on record is not of those officers of the bank.  Person who has filed an affidavit has been subsequently transferred as Manager and, therefore, he has no personal knowledge as to what was the scrutiny of the cheques  carried out done by the then officials who were functioning in the bank.  No attempt was made by the bank, when the matter was before the District Consumer Forum, to place on record affidavit of the concerned person, who has actually tallied the signature.

The best possible material should be brought on record.  There are no reasons brought on record as to why those affidavits have not been filed by the bank. However, we find that affidavit of the Manager- Mr.P.G.Vernekar is not an affidavit of direct witness, who has dealt with the said cheques at the relevant time when it was presented for encashment.  Therefore there is no first hand material on record to accept said affidavit. As against that there is an affidavit of the complainant wherein he has specifically stated that signatures are not of the complainant. For a moment, we may say that expert opinion of private examiners are contrary with each other.  Therefore, Ld.counsel for the appellant submitted that both these reports may be ignored.  On the contrary, it goes against the Ld.counsel, because only affidavit of the complainant, wherein he has stated that it is not his signature is uncontroverted.  It is supported by the expert opinion and affidavit of expert.  As against this material of complainant, there is only affidavit of manager of appellant on record who is not having personal knowledge of case and he filed affidavit on the basis of record only. It is to be noted that even though Bank appellant has obtained opinion of private expert, affidavit of said expert has not been filed by appellant.  Therefore, the complainant has placed on record material which has greater probative value than the material placed by appellant Bank.  Therefore, we find that complaint has been properly dealt with by the District Consumer Forum and it has been rightly disposed of.

At this juncture, our attention was drawn to the decision of ombudsman.  However, that does not take us to anywhere because ombudsman’s findings are not binding on us. They may be binding as against the banker who has appointed the ombudsman.  According to Ld.counsel ombudsman has given opinion that the full fledge suit should be filed because there is forgery.  Ombudsman can not decide what remedies shall be followed by complainant.  Section 3 of Consumer Protection Act, 1986 states that Act is not in derogation of existing law but provides additional remedy to consumer.  Choice is always  with consumer to select remedy. What we find taking into consideration facts and circumstances of the case and material on record before the District Consumer Forum, it requires no interference.  Appeal is without any merits.  It is hereby rejected. Copies of the order be furnished to the parties.