BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A.  509/2008 against C.C. 787/2007, Dist. Forum-III, Hyderabad

Between:

Pankaj Joshi,

S/o. Late Mansukhlal  V. Doshi

R/o 3-6-327, Basheerbagh

Hyderabad.                                                 ***               Appellant/Complainant.    

.                                                                  And

1)  ICICI Bank, Rep. by its Manager

Khairatabad, Hyderabad.

2)  ICICI Bank, Rep. by its Manager

Himayatnagar Branch

Hyderabad.                                                 ***               Respondents/O.Ps

Counsel for the Appellant:                          M/s.  Khaja Mohiuddin

Counsel for the Resp:                                  M/s.  Ramesh Kumar Nayani

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

                                                             &

  SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE FIRST DAY OF NOVEMBER TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Appellant is unsuccessful complainant.

2)                The facts leading to filing of the complaint are  that the complainant was having saving bank account with the respondent bank with cheque book facility.    While so, when he received a statement  from the bank  on  28.2.2007  he noticed that  there were withdrawals of  Rs. 15,000/- each on  9.2.2007, 12.2.2007 and 13.2.2007 respectively through cheques.    He never used those cheques   nor signed on them.    On his request  when photostat copies of the cheques were furnished he found that the signatures were forged.    On the reverse one Mr. Satish one of his accountants had signed.    However his signature was also found to be forged.    The mobile number mentioned under his signature also does not belong to him.     It belongs to one Mr. Rajesh of Gaddiannaram.   On a report the police registered a case in Crime No.  129/2007. The bank could not have paid the amount on forged cheques, and therefore sought for refund of the amount together with compensation and costs.

3)                The bank resisted the case.  No doubt the complainant issued a report to the police.  The bank on presentation of cheques found that there was sufficient balance in the account of the complainant and the signatures of the complainant were tallying with specimen signatures on the computer screen and therefore cheques were honoured.    The account holder had to keep the cheque book in a safe place and not to allow third parties to use.    His son also made some other claim.   This shows that the complainant was in the habit of issuing signed blank cheques in order to facilitate the third parties to withdraw the amounts.  The person who misused the cheques must have  been known to him.   Complaint was filed   one month after.    It shows negligence and tardiness on the part of the complainant, and therefore prayed for dismissal of the complaint with costs. 

4)                 The complainant in proof of his case filed his affidavit and got Exs. A1 to A5 marked while the respondent bank did not file any documents.

5)                 The Dist. Forum after considering the evidence placed on record opined that the bank authorities had  verified the signatures  with the specimen signatures and found to be tallied  and in view of the fact that the cheques were  in possession of third parties  bearing the signature of the complainant  it   honoured the same.    It cannot be said that there was deficiency in service on its part and therefore dismissed the complaint.

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    The bank could not prove that the signatures on the cheques were genuine.    The protection u/s 10 & 85 (2) of N.I. Act is not available to the banker when signatures are forged.    Therefore he prayed that the complaint be allowed directing the bank to refund the amount. 

7)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                 It is an undisputed fact that cheque bearing Nos. 103802, 103821 and 103823 contained in the cheque book of the complainant were encashed on 9.2.07, 12.2.07 and 13.2.2007 for an amount of  Rs. 15,000/- each.    The complainant alleges that the bank ought not to have honoured the cheques as they did not contain his signatures and therefore sought for refund of the amount. 

9)                 Except taking the stance that the cheques did not bear his signatures he did not take any steps by filing a petition for a direction to send the cheques to hand writing expert for comparison. 

10)               The learned counsel for the appellant/complainant vehemently contended that the cheques that were presented in the branch office where his signatures do not find place and the clerk who honoured the cheques could not have verified the signatures and the very payment was irregular.    The bank had categorically stated that signatures of the complainant are available on computer screen.    Computer generated electronic signatures could be compared wherever cheques were presented in any branch office.    If the signatures tally with the specimen signature the banker is bound to honour the cheques.    Therefore the contention that his signatures were not compared  before honouring the cheques could not be countenanced.    The complainant for the reasons best known did not expatiate as to how he could lose three cheques from his cheque book.  It is not as though on the reverse of these cheques somebody had signed.  Admittedly his own accountant by name Satish had signed.  May be a  wrong mobile number was mentioned.  The complainant dare not file the specimen signature of Mr. Satish or his affidavit evidence refuting the averments made in the written version filed by the respondent.    The complainant did not file any other evidence to substantiate the circumstances under which he lost the cheques.    He ought to have explained the circumstances under which such cheques are being encashed  by third parties  a paltry amount of Rs. 15,000/-,  when he was having substantial amount  in his account.    The complainant could not deny   that his son also made such allegation.    When the complainant had failed to substantiate that cheques were forged by getting his signatures compared through hand writing expert and when he could not establish any of the circumstances as to how he could part these cheques and in the light of the fact that his signatures were tallied by the employees of the bank with electronic signatures generated in the computer and  only after perusal,  honouring the cheques cannot be said to be irregular.  

11)              Section 10 of the N.I. Act envisages “payment in due course" means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.”    

12)                Under Section 85 of the N.I. Act the bank had to pay the amount to the bearer of the cheque.     The complainant evidently did not give report to the police immediately.    The complainant after coming to know that his cheques were encashed he waited for one month.   It is not known as to the outcome of the investigation.    When the complainant has failed to establish any of the facts, we are of the opinion that the Dist. Forum has appreciated the facts or law in correct perspective in this regard.  We do not see any merits in the appeal.

13)               In the result the appeal is dismissed.  No costs.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.   01. 11. 2010

*pnr

“UP LOAD – O.K.”