STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (First Appeal No.167 of 2010) Date of Institution | : | 16.04.2010 | Date of Decision | : | 07.07.2011 |
HDFC Bank Ltd., a Banking Company incorporated and registered under the Companies Act, 1956 having its Registered office at ‘HDFC Bank House, Senapati Bapat Marg, Lower Patel (West), Mumbai 400013, inter-alia, having a branch at SCO 52-53, Sector 9-D, Chandigarh through its General Attorney. ……Appellant V e r s u s M/s PNS Leathers Pvt., #1149, Phase 5, SAS Nagar, Mohali through its Director Gurvinder Singh. ....Respondent Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. S.A. Sharma, Adv. for the appellant. Sh. Neeraj Sharma, Adv. for the respondent. PER JAGROOP SINGH MAHAL, MEMBER 1. This appeal is directed against the order dated 26.2.2010, rendered by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent and directed the OP to credit the amount of Rs.4.73 lacs in the saving bank account of the complainant and further to pay Rs.1,00,000/- as compensation for harassment and Rs.5,000/- as costs of litigation. 2. The facts, in brief, are that the complainant-firm was doing the business of leather and had a current account with the OP. On 13.09.2008, it was noticed that two blank cheques bearing No.033770 and 033771 were missing. The complainant immediately informed the OP-Bank in writing for stopping the payment of those cheques. However, the complainant was informed by OP that one of the cheques bearing No.033771 of Rs.4,73,000/- stood already cleared and the amount was transferred in the account of one Krishan Prabhu P. maintained with State Bank of India, Sector 10, Panchkula. It was alleged by the complainant that the OP-Bank did not tally the signatures of the authorised signatory and cleared the same without proper checking. It was stated that though no cheque of the company was ever signed by all the authorized signatories, yet the cheque in question bore the alleged signatures of all the authorized signatories which are forged. It was alleged that the cheque in question was encashed with the connivance of the OP-bank officials which amounted to deficiency in service. The complainant approached the OPs to pay damages but they did not pay any heed. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as the Act) was filed. 3. The OP-Bank in their reply denied that the cheques in question were missing from the cheque book issued to the complainant. It was stated that the account No. of the complainant was stamp marked on each of the cheques and the complainant was responsible for its safe custody. It was admitted that on 13.9.2008 the complainant informed about the loss of the cheques No.033770 & 033771 and requested to stop payment whereafter it (complainant) was immediately informed that one of the cheque, bearing No.033771 for Rs.4,73,000/-, had already been cleared in favour of Sh. Krishna Prabhu P. on 11.9.2008 which was presented by the State Bank of India, Sector 10, Panchkula. It was pleaded that cheque cleared was in order and there was no discrepancy and even the signatures completely matched with the specimen signatures available with the Bank. It was pleaded that cheque in question was seized by the police in F.I.R. No.2008 dated 05.11.2008 under Section 379, 420, 467, 468, 471, 120-B IPC registered with the Police Station-3, Chandigarh and the police could not trace Krishna Prabhu P. due to negligence of State Bank of India, Sector 10, Panchkula. It was pleaded that all the signatories were authorized to sign singly/severally. It was denied that there was any deficiency in service or unfair trade practice on their part. Remaining averments were denied, being wrong. 4. Parties led evidence in support of their case. 5. After hearing the Counsel for the parties and on going through the evidence on record, the learned District Forum allowed the complaint in the manner referred to in the opening para of this order. 6. Feeling aggrieved, the instant appeal has been filed by the appellant/OP. 7. We have heard the Counsel for the parties and have gone through the evidence on record of the case carefully. 8. The ld. Counsel for the appellant/OP Bank has argued that the impugned order is liable to be set aside on the ground that the signatures on the cheque were compared with the naked eye and as mentioned in para 12 of the affidavit of Krishan Kumar, the same matched with the specimen signatures kept in the bank; that the bank was not required to microscopically compare the signatures of the complainant on the disputed cheque, as is done by the handwriting experts; and otherwise, there was no apparent discrepancy in the amount in words and figures nor any overwriting on the cheque. It is argued that the banks are not equipped with such mechanism as is available with the handwriting experts and moreover thousands of cheques are to be cleared daily by a single branch of the bank and a through examination, as is expected by the complainant/respondent, could not be undertaken by the bank employees. According to the ld. Counsel, the bank officials are to compare the signatures with naked eye and if there is no overwriting, discrepancy or mismatch of signatures, a cheque is passed. His further contention is that the cheque was issued from the cheque book issued to the complainant and he should have kept the cheque book under lock and key to avoid any such mishap, but he himself allowed the cheque to be used for this transaction and, therefore, cannot now allege the deficiency on the part of the appellant bank, when the complainant himself was negligent in keeping the cheque book in his proper custody. These contentions, to our mind, have no force. It is true that the complainant was required to be vigilant in keeping the cheque book in his proper custody so that the same is not misused by any unscrupulous person, but this negligence on the part of the complainant cannot absolve the bank of their responsibility to compare the signatures of the complainant on the disputed cheque with his specimen signatures. Krishan Kumar no where mentioned in his reply or affidavit if he was posted with the appellant/OP bank in their Sector 9D Branch on the date on which the disputed cheque was passed or that he had himself dealt with, and compared the signatures on the said cheque with the specimen signatures of the complainant kept in their bank. The averment made by him in para 12 of his affidavit is, therefore, hearsay, without any substance and inadmissible in evidence. The appellant bank has not produced the affidavit of the official before whom the said cheque was presented and who had compared the signatures with the specimen signatures and passed the same for payment. In the absence of this evidence, we cannot accept the contention of the appellant bank if the signatures were ever compared by them with the specimen signatures and were found to tally with each other. 9. There is no dispute about it that the signatures on the disputed cheque are forged. When FIR was lodged with the police, the said cheque was taken into custody by the police in the criminal case and was got examined from the Govt. Examiner of Questioned Documents, Chandigarh. Annexure C-20 is the report submitted by the said laboratory showing that the signatures on the cheque did not tally with the specimen signatures of the complainant maintained by the OP bank. The complainant has also got examined the matter and placed on file the report (Annexure C-16) submitted by Devendra Prasad, Forensic Document Expert, who has also come to the same conclusion. The complainant has produced the affidavit (Ex.CA) of Devendra Prasad, aforesaid to prove the said report. A number of discrepancies have been pointed out by Devendra Prasad suggesting that the disputed signatures did not tally with the specimen signatures of the complainant and were forged. 10. The appellant/OP bank did not produce before the ld. District Forum any evidence to prove that the signatures on the cheque tallied with the specimen signatures maintained by them. However, at the stage of arguments before this Commission, an application was moved for additional evidence to produce the report dated 9.6.2010 submitted by Shri Navdeep Gupta, Handwriting Expert. It was alleged that this opinion could not be obtained bonafide and inadvertently during hearing of the complaint. The application has been opposed by the respondent/complainant on the ground that it is a procured one and should not be allowed at this stage to be adduced in evidence. Interestingly, the appellant/OP bank did not produce the affidavit of Navdeep Gupta, aforesaid alongwith the application nor is there any request in the application to allow any such affidavit of Navdeep Gupta to be produced in evidence. In the absence of affidavit of Shri Navdeep Gupta, his report, being not per se admissible, cannot be allowed to be admitted in evidence. It may be mentioned that if the additional evidence was sought, it was necessary for the appellant/OP bank to have proved the report of Shri Navdeep Gupta by producing his affidavit supporting the contents of the report. In the absence of the affidavit, the placing of the report on record alone would be of no use and, therefore, the application cannot be allowed. 11. We have gone through the report dated 9.6.2010 of Shri Navdeep Gupta. He nowhere supports the contention of the appellant/OP and rather gave a finding that the signatures on the disputed cheque did not tally with the specimen and admitted signatures of the complainant/respondent. Even this report categorically proves that the signatures on the cheque were forged. The ld. Counsel for the appellant/OP referred to clause No.3 under the heading of “Opinion” at page 12 of the report and argued that symptoms of forgery in the signatures cannot be detected by merely examining the signatures with naked eye and for the proper examination to find out whether the signatures in dispute is (are) genuine or not, the scientific instruments are required. Even if this contention is accepted, it does not further the case of the appellant/OP bank. It is not the dispute in this case whether the scientific instruments were needed, or not, to detect the forgery. What was required to be proved and is missing from the report of Shri Navdeep Gupta also is that the signatures on the disputed cheque, when examined with a naked eye, tallied with the specimen signatures maintained by the bank, but this evidence is nowhere to be found even in this report of the expert. The report of Shri Navdeep Gupta, therefore, lends no support to the appellant/OP and rather supports the case of the respondent/ complainant. However, the application for additional evidence submitted by the appellant/OP bank is hereby dismissed having been moved at a belated stage and not accompanying the affidavit of Sh. Navdeep Gupta. 12. The mere fact that the disputed cheque was from the cheque book issued to the complainant and the complainant had been negligent in not keeping the same in their safe custody, would not absolve the appellant/OP bank to evade their liability for the deficiency in service in not properly comparing the signatures. No doubt for this negligence on their part, the complainants may not be entitled to any compensation for harassment and mental agony because they themselves are partly responsible for that by not keeping the cheque in proper custody. 13. The ld. Counsel for the appellant/OP bank has cited the case of Kerala State Co-operative Marketing Federation Vs. State Bank of India & Ors.-2004 (2) SCC 425 and Vijay Bank Limited Vs. United Commercial Bank-1990 ISJ (Banking) 67. According to him the cheque was received by the OP bank in clearing and if the payment was made, it was the fault of the State Bank of India, with whom a fake account in the name of Krishna Prabhu P. was opened and the payment was made to him. It was argued that Krishna Prabhu P. was subsequently not available and was proved to be a fake person. This authority nowhere helps the appellant/OP and rather goes against their interest. In fact, the payment would be deemed to have been made by the appellant/OP bank and it was their duty to compare the signatures on the cheque with the specimen signatures maintained by them. They, therefore, failed to prove having acted in good faith as required under Section 131 of the Negotiable Instruments Act. In that case also the suit was decreed against the bank and the same should be the case here. 14. The ld. Counsel for the appellant has also referred to the case Bank of Maharashtra Vs. M/s Automative Engineering Co.-1993 (3) RRR 178 (SC). In that case, it was found that on visual examination, no sign of forgery or tampering with the writing on the cheque could be detected; the signatures on the cheque with the specimen signatures of the constituent, namely the defendant, had been compared and on a scrutiny of the cheque, visually no defect could be detected by him. There was, therefore, no occasion to doubt about the genuineness of the cheque from the apparent tenor of the instrument. It was held that the bank was not obliged to verify the cheque for further scrutiny under advanced technology or for that matter under ultraviolet ray lamp apart from visual scrutiny. This authority was relied upon in case Tara Chand Lal Chand Vs. Oriental Bank of Commerce-IV (2009 CPJ 220 (NC). The ld. Counsel for the appellant argued that in the present case also, the appellant/OP bank was not negligent at all. We do not find any merit in this argument. The appellant bank has not produced the concerned official to prove that the disputed signatures were compared with the specimen signatures or on visual examination the same matched with each other. There was, therefore, no reasonable care taken by the appellant bank, as was done in the case referred to above, as even the person who could have examined the said cheque, and passed it for payment, has not been examined as a witness. The appellant/OP, therefore, cannot take benefit of these authorities. 15. In case Canara Bank Vs. Canara Sales Corporation & Ors.-AIR 1987 SC 1603, the plaintiff found on special audit that a sum of Rs.3,26,047.92 had been unauthorisedly withdrawn from its account under 42 cheques which were forged. A civil suit was accordingly filed against the bank which was decreed. The case ultimately reached the Hon’ble Supreme Court. The finding recorded that the cheques were forged and second defendant was responsible for it was maintained. It was held that if a cheque is forged, there is no such mandate that the bank has to make the payment. 16. In case N. Venkanna Vs. Andhra Bank-I (2006) CPJ 132 (NC) the payment was withdrawn on the basis of a forged withdrawal form. The deficiency on the part of the bank was held to have been proved and they were liable to make the payment thereof. 17. In view of the above discussion, it becomes clear that the cheque, on the basis of which the payment was made by the appellant-Bank, was a forged one. The appellant bank was negligent in not comparing the signatures of the constituent with the specimen signatures maintained by them. They are, therefore, liable to compensate the respondent/complainant for the loss suffered by them due to this default on the part of the appellant/OP bank. In fact, the complainant should be placed in the same position as if the said amount of Rs.4.73,000/- had not been withdrawn from their account and they would be entitled to interest thereon from the date of withdrawal, if admissible. 18. However, the impugned order, allowing a compensation of Rs.one lac, does not appear to be justified. The complainant/ respondent was partly responsible for this episode because they did not keep their cheque book under proper custody due to which the two cheques were stolen therefrom. Otherwise also, the complainant has been fully compensated by not only restoring the full amount, which was illegally withdrawn from their account, but also allowing interest thereon, if admissible. The order directing the payment of Rs.one lakh is accordingly set aside. 19. We, therefore, modify the order that the amount of Rs.4,73,000/- shall be deposited in the account of the complainant on the same date on which it was allegedly withdrawn and interest on the said amount payable, if any, shall be paid to the complainant from the said date. The complainant would be entitled to the costs of litigation as allowed by the learned District Forum. This order shall be complied with by the appellant/OP within thirty days from the date of receipt of copy of this order, failing which they would be liable to pay the said amount with interest @ 12% per annum since the date of withdrawal of the said amount till its payment. The appeal filed by the appellant/OP is accordingly partly allowed, leaving the parties to bear their own costs. Copies of this order be sent to the parties free of charge. Pronounced. 7th July, 2011 Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
