Date of Filing:25/04/2017 Date of Order:12/03/2019 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27. Dated:12th DAY OF MARCH 2019 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT SRI D.SURESH, B.Com., LL.B., MEMBER COMPLAINT NO.814/2017 COMPLAINANTS : | | M/S DHRUVDESH MOTORS PVT. LTD., No.1 & 18, Shankar House, RMV Extension, Mekhri Circle, Bangalore 560 080, Represented by its Managing Director, Mr.Satish Kumar, Aged 39 years. (Sri C.Sudhir Kumar, Advocate for Complainant) | |
Vs OPPOSITE PARTIES: | | ORIENTAL BANK OF COMMERCE, Yelahanka Branch, Yelahanka Site No.1053, Opp. SBT Factory BB Road, Near Yelahanka Police Station, Yelahanka, Bangalore 560 064, Represented by its Chief Manager. (Sri M.R.Shashidhar Adv. for O.P) | | | | |
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
1. This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service against OP and for refund of Rs.5,85,000/- debited wrongfully from its account along with interest at 18% per annum and Rs.5,00,000/- as damages towards the harassment suffered and pass such other reliefs as the Forum deems fit.
2. The brief facts of the complaint are that: the complainant is in the business of selling and servicing Honda motor cycles and scooters in Bangalore. They have a current account with OP bearing No.11221011000667. On 07.06.2014, one Subhasis R Samantha came to their showroom and booked a motor cycle HONDA TRIGGER by paying Rs.1,000/- as booking advance and receipt bearing No. 8231 was passed on to him. On 08.06.2014, the said person came to the show room again and cancelled the booking order stating that he has some personal inconvenience and inability to mobilize the fund to purchase the motorcycle and hence they cancelled the booking and returned the amount of Rs.1,000/- by drawing a cheque bearing No.004023 dated 09.06.2014 on OP’s bank. During the month of June 2014, when they got the account statement of their account statement, they found a Sum Rs.5,85,000/- has been debited against cheque No.004023 drawn in favour of Subhasis R Samantha. The said debit was made on 21.06.2014. On 07.07.2014 complainant contacted the chief manager of the oriental bank of commerce i.e. O.P and brought to his notice regarding the debit of Rs.5,84,000/- against the cheque issued for Rs.1,000/- and the same was acknowledged by him and further replied that the matter was taken up with the Central Bank of India which has presented the cheque for encashment on behalf of the said person and also informed that the cheque bearing No.004023 dated 18.05.2014 has been issued in favour of Subhassis Ranjith Samantha for Rs.5,85,000/- and the same was credited to his account by debiting the same to the complainant’s account.
3. It is contended that the cheque has been tampered and that the complainant issues printed cheque and the word account payee has been also printed across the cheque. Further the manner of writing after removal of printed words in order to overcome the print marks can be made out by the fashion of writing and condition of the cheque which clearly shows that the same has been tampered. When the same was brought to the notice of OP, they directed them to make a complaint before the concerned police and a complaint was also lodged and a criminal case also registered by Sadashivngar Police Station Bangalore in CR No.0179/2004. The police have taken up the investigation by taking all the details from them. The said Subhasis R Samantha was not traceable. They have also investigated the case but could not trace him. The OP and Central Bank of India had failed to extend their full support to the police investigation. They had to issue another letter on 09.07.2016 to the OP regarding filing of the case.
4. It is replied by OP that already a criminal case has been filed and complainant to follow the same for speedy remedy and washed their hands. No useful purpose served inspite of the complainant approaching the jurisdictional police. Honouring and encashing the cheque without proper examination of the cheque under UV light, verification of disruptions in writing and over writing, the change in the Ink marks which are mandatorily required under banking norms, rules and regulations, clearly discloses that there is dereliction of the duty on the part of the O.P in clearing and passing the cheques which clearly amounts to deficiency in service which has caused financial loss to the complainant.
5. OP is negligent in wrongfully debiting the amount. Complainant has not committed any mistake and hence the deficiency on the part of the O.P. The cause of action for the complaint arose on July 2014 and subsequently when the complainant issued letter to the OP on 09.07.2016 and the reply given by assigning untenable ground on 10.02.2017, and hence prayed the Forum to allow the complaint and grant the prayer.
6. Upon the service of notice, O.P appeared before the Forum and filed its written version contending that the complainant is not a customer as defined in the consumer protection Act, but admitting that the complainant is a customer of the bank and has good banking relation with it and has denied all the allegations against it parawise and contended that the complaint is filed on imaginary grounds. Complainant did not make efforts in getting the investigation done by the police. The complaint is barred by limitation.
7. It has further contended that, the complainant issued the cheque bearing No.0004023 on 09.06.2014 in favour of Subhash R Samantha for Rs.5,85,000/- and in the ordinary course of payment, the said amount was credited to his account the said fact was only informed them on 07.07.2014. Immediately, they took up the matter with their service branch at Chennai which handles the inward cheque of southern region. In the enquiry it was found that the cheque No.004023 dated 18.05.2014 was issued for Rs.5,85,000/- by the complainant favouring Subhash R.Samantha who deposited the same with Central Bank of India in Hampankatta Branch, Mangalore and credited to his account No.3334635678 standing with Kadivilli Branch Mumbai. The service branch of OP took up the matter several times with central bank of India Mangalore and Mumbai branch. The Mangalore branch ultimately informed that they presented the cheque for encashment after verifying the genuineness of the cheque and they exercised their due diligence and no addition alteration or manipulation in the cheques was found.
8. It was further contended that, the CTS cheque (Cheque Truncation system) procedure makes fully responsible the collecting steps and procedure to be followed. The presenting banker has to take full responsibility of collecting steps on behalf of the intended payee and to exercise due diligence before presenting the cheque.
9. It is further contended that, as per CTGS procedure, the original cheque will remain with the presenting bank in this case the Central Bank of India and they will send the image of the cheque to RBI Chennai and there after respective service branches of the bank will receive the images. In this case the service branch of Chennai of O.P received the message of cheque and debited the amount after verifying the image of the cheque. O.P will sent SMS to all clients at the time of receipt of image informing the details of the cheque and again send another SMS after debiting the amount to their customer. The complainant ought to have verified the details of the SMS sent by OP.
10. It is further contended that, immediately after receiving the complaint, the service bank of OP at Chennai took up the matter with the Central Bank of India Mangalore and Mumbai branch. There is no delay or negligent on their part. As per the CTS guidelines, O.P has paid the amount to central bank of India. The presenting banker has to ensure the genuineness of the cheque and the follow the CTS guidelines, On 02.08.2018, the Central Bank of India informed that as per the normal course of action after verifying the genuineness of the cheque the same was presented for CTS clearance after exercising due care and diligence before accepting the cheque for clearance. It was also made clear that it has not noticed any manipulation in the cheque and Kandavalli branch had opened the account after obtaining the relevant documents. There is no negligence on their part in paying the amount. Hence prayed the Forum to dismiss the complaint.
11. In order to prove the case complainant and O.P examined themselves as PW-1 and RW-1 and filed documents. Arguments Heard.The following points arise for our consideration:-
1) Whether the complaint is barred by law of limitation?
2) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
3) Whether the complainant is entitled to
the relief prayed for in the complaint?
12. Our answers to the above points are:-
POINT NO.1: In the Affirmative.
POINT NO.2 and 3: Do not survive for our consideration
For the following:
REASONS
POINT No.1:-
13. We have perused the affidavits and documents of the complainant and OP. It is not in dispute that the complainant is a current account holder of O.P and the fact of the complainant issuing cheque to one Subhash R.Samantha. It is also not in dispute the cheque bearing No. 004023 has been encashed for Rs.5,85,000/-. The incident had taken place on 21.06.2014 the day on which the cheque was given and subsequently the same was honoured. The complainant has made several efforts to get the amount back. Even it has filed a criminal complaint before the Sadashivanagar Police station Bangalore who have registered a criminal case and FIR lodged and investigation has taken-up. No document regarding the fate of the investigation is filed before this Forum. Further the allegation made by the complainant in respect of the encashment of the said cheque is to the effect that it has been altered, manipulated and fabricated and a sum of Rs.5,85,000/0- has been drawn which amounts to playing fraud by the said person on the complainant and on the OP.
14. Consumer Forum cannot decide a case which is of a fraudulent in nature. To decide a such type of case detail evidence has to be adduced. Since the consumer Forum has adopted a summary procedure in deciding the complaints, this Forum cannot decide as to whether the cheque has been fabricated, manipulated and altered to deceive the complainant and the O.P Bank. Already a criminal investigation has been taken up by the concerned police. In view of this, this Forum cannot decide this complaint.
15. Further as pointed out, the cause of action for the complaint arose on 07.06.2014 and the cheque issued on 08.06.2014 and the same was encashed on 27.06.2014. The complainant ought to have filed this complaint within two years from the said date. This complaint is filed on 25.04.2017 which is much beyond the time limit prescribed under Section 24 of the C.P Act. Complainant also filed I.A. under Section 24-A(2) of the Consumer Protection Act along with affidavit. On perusing the same, it is found that since the police did not take any action even after two years, it has filed this complaint belatedly. The action or inaction of the complaint cannot be and will not be a reason for the complainant not filing complaint within the time limit prescribed. It is in the affidavit that OP made a request for the copy of the cheque to be issued to him to the inspector. The said actions are all after the period of limitation and hence there is no strong reasons made out to condone the delay in filing the complaint. In view of this the complaint is barred by limitation as per Section 24 of the Consumer Protection Act. Hence we answer Point No.1 in the Affirmative.
16. In view of the said discussion, answering on Point No.2 and 3 will serve no purpose and hence we are of the opinion that the said points do not survive for consideration anymore. Hence we pass the following:-
ORDER
1. The Complaint is hereby dismissed. Parties to bear their own costs.
2. Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 12th MARCH 2019)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri Gopal Krishna authorized signatory of the – Complainant |
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1:Copy of authorization letter dated 18.04.2017..
Doc.No.2:Copy of latest account extract.
Doc.No.3: Copy of booking order dated 07.07.2014..
Doc.No.4: Copy of receipt bearing No.8231.
Doc.No.5: Copy of booking cancelation from 8.6.2014.
Doc.No.6:Copy of payment voucher No.548 dated 09.06.2014
Doc.No.7: Copy of monthly statement for the month of June, 2014
Doc.No.8:Copy of letter dated 07.07.2014.
Doc.No.9:Copy of letter dated 09.07.2014.
Doc.No.10: Copy of letter dated 13.08.2014
Doc.No.11: Copy of cheque in favour of Mr.Subhasis Ranjit Samanta.
Doc.No.12: Copy of letter dated 18.08.2014
Doc.No.13: Copy of FIR in Cr.No.0179/2014
Doc.No.14: Copy of letter dated 25.08.2014
Doc.No.15: Copy of letter dated 26.08.2014
Doc.No.16: Copy of letter dated 09.07.2016
Doc.No.17: Copy of letter dated 15.07.2016
Doc.No.18: Copy of letter dated 10.02.2017
Doc.No.19: Copy of cheque.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: P.S.Sivadasan, Senior Manager of OP.
Copies of Documents produced on behalf of Opposite Party/s
Doc.No.1:Copy of letter issued by OP to complainant dated 09.07.2014.
Doc.No.2: Copy of letter issued by Central Bank of India Mangalore dated 02.08.2014.
Doc.No.3: Copy of letter dated 13.08.2014 issued by OP to complainant.
Doc.No.4: Copy of the cheque .
Doc.No.5: Copy of police notice dated 1.12.2014.
Doc.No.6: Copy of reply letter dated 02.12.2014 issued to Police sub-inspector.
MEMBER PRESIDENT
A*
