ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Per Sh. Rakesh Kapoor, President

                    The complainant is maintained a savings bank account bearing No. 1522000100042382 with OP -. He has also been using the cheque book facility granted to him by OP – 1.  The complainant has alleged that since he    was to visit Australia he had contacted  OP-3 for booking an air ticket in his name.  He had issued a cheque bearing no. 700404 dated 1.10.2009 drawn on OP-1 bank in favour of OP-3 for a sum of Rs.41,500/- towards the cost of the Air ticket. It is alleged by the complainant that OP-3 is maintaining an account with OP-2 where he had deposited the aforesaid cheque in his account by putting the same in the drop box.  It is further alleged that OP-3 had informed the complainant that the amount of the cheque had not been credited to his account whereas on enquiry by the complainant from his banker OP-,1 it was learnt that the amount of the cheque had been debited to the account of the complainant.  On further enquiry it was revealed to the complainant that the cheque amount had been credited in the account of one  M/s Aay Ess Silk Mill.  The complainant had further come to know that some changes had been made in the body of the cheque by changing the drawee’s name from M/s S B M Air Travel to M/s Aay Ess Silk Mill. He  has alleged that somebody had forged his signatures on the cheque at the place where the changes had been made.  The complainant had no knowledge as to when the drawee has deposited the said cheque in his account, how the changes were made and the amount credited to the account of somebody else.  He had alleged that a fraud had been committed on the part of OP-1 & OP-2 in as much as he had no connection or any  dealing with M/s Aay Ess Silk Mill.  The complainant has further alleged that he had came to know that the aforesaid cheque had been stolen and deposited with OP-4.  He has alleged that the banker involved in the transaction did not bother to look into the changes made in the cheque and were guilty of connivance.  The complainant was alleged that OP – 3 has been demanding the cost of the air ticket i.e. Rs.41,500/- which he had to pay under protest.  The complainant had lodged a complaint with OP -1 and with the police on 15.10.2009.  Since his grievance was not resolved he had approached this Forum with the present complaint.

      The complaint has been contested by OP-1, OP-2 and OP-4.  OP-3 M/s S B M Air Ticket has chosen not to contest the complaint and has been proceeded with exparte.

      In its written statement OP-1 has denied any deficiency in service and has claimed that the complaint against it is not maintainable at all.  It has prayed that the complaint against it be dismissed.

     OP-1 has taken the following Preliminary Objections in its W.S.

1. That as per the contents of the complaint, the cause of action of the present complaint arose on or about October, 5, 2009 when the payment of the cheque No.7004O4 for Rs.41,50O was credited to the account of MIs. Aay Ess Silk Mills and lastly on 15.10.2009 when the complainant lodged the FJ.R. in P.S. Prasad Nagar, New Delhi but the Complainant has filed the present complaint after a period of more than two years from the date on which the cause of action had arisen and as such the present comP1t is barred by limitation as provided U/S 24-A of the Consumer Protection Act, 1986 and is liable to be dismissed in limni.

2. That it is alleged by the Complainant that the amount of the cheque has fraudulently been credited to the account of MIs. Aay Ess Silk Mills, SO in case of fraud the amount of the cheque may only be recovered from M/s. Aay Ess Silk Mills and as such the presence of M/s. Aay Ess Silk Mills before this Hon’ble Tribunal is necessary  in order to enable the Hon’ble Tribunal effectually and comp1etely to adjudicate the issue that how the alleged cheque reached in the hands of the creditor i.e. 14  M/s. Aay Ess Silk Mills M/S. Aay Ess Silk Mills as party. so the complaint is bad for non-joinder of necessary party and is liable to be dismissed.

3. That the Complainant  has alleged in his complainant that a fraud has been committed with him which amounts to crime as envisaged US 419/420 1 P C. . case of alleged fraud a descriptive enquiry and evidence is required to be recorded which is triable by a Criminal Court as provided by law. As such this Hon’b1e Forum has no jurisdiction to hear and try the present complaint and the complaint is liable to be dismissed on this ground also.

          OP-1 in its reply on merits has taken the following defenses in Para 4 & 6 which are reproduced as under:-

4. That the contents of Para no. 4 of the complaint are not admitted and are denied so far as the copy of the deposit slip of the cheque is concerned, it may be prepared by anyone at any time and is not a valid proof of submission of the cheque in any account.

6.That the contents of Para no. 6 of the complaint are not admitted and are vehemently denied.  The most important question in the present case is that from whose custody and how the alleged cheque no. 700404 dated 1.10.2009 reached in the hands of M/s Aay Ess Silk Mills when not given by the complainant or Opposite Party No. 3 because it might only be given by the person having its custody i.e. the complainant or opposite party no. 3 and at the most opposite party no. 2 so far as the Punjab National Bank (Opposite Party No. 1 ) is concerned, it never came in the contact of the cheque before making the payment, so, the answering Opposite party had not occasion or opportunity to commit any wrong and has not committed any fraud as stated in the complaint.

          In its separate written statement OP-2 has also denied any deficiency in service on its part  and has claimed that the complaint is liable to be dismissed against it.  Preliminary Objections Nos. 2, 5, 6 and 8 of the written statement filed by OP-2 are relevant for the purpose of the decision of this complaint and are reproduced as under:-

2. That the complaint of the complainant insofar as the same pertains to the answering opposite party is wholly misconceived, baseless and factually incorrect to the knowledge and notice of the complaint himself.  It is submitted that the alleged cheque was never deposited with the answering opposite party by the opposite party No. 3. Further, as per the own  averments of the Complainant, the same was deposited in Bank of India, Mandir Marg Branch and was cleared by the clearing house of Punjab National Bank. This infers that the alleged cutting, alteration or change on the face of the alleged cheque was made either in Bank of India or in the Punjab National Bank. The answering opposite party has nothing to do with the same and it is abundantly clear that only on the ground that the opposite party No. 3 is maintaining his current account with the answering opposite party, the Complainant has dragged the answering opposite party into the present unwarranted and uncalled for litigation. Therefore the answering opposite party is entitled to be deleted/dropped from the array of the parties of the present case.

5. That complainant is not a Customer to this Opposite party and there is no Consumer relationship between the complainant and this Opposite party as such complaint is not maintainable against this Opposite Part

 6 That the Complaint is bad for non-joinder of necessary parties, since M/S Aay Ess Silk Mills not added, who Purportedly withdrawn the cheque proceeds

8. That as per the complaint, purportedly cheque was presented by M/S Bank of India with Punjab National Bank as such no role of this Opposite party No. 2 was established.  That many of the averments in the complaints either not to the knowledge of this Opposite Party No:2 or nor pertains to this Opposite Party, hence no reply is offered at this juncture, however, this Opposite Party reserves its right to file additional reply as and when it is warranted by the circumstances.

          A separate W.S. was filed by OP-4.  It has also claimed that the complaint against it is liable to be dismissed.  Its main defence is contained in Para 7 of the Preliminary Objection of the complaint and reads as under:-

7. That Purportedly complaints already lodged with Reserve Bank Ombudsman and police. However, complainant not chosen to disclose the status of complaint. Unless and until an investigation is done by statutory authority establish the actual aspects of the purported fraud, a decision on the various issues, including purported lapses of services on the part of any of the opposite parties can’t be decided by this Hon’ble Court.  

          We have heard arguments advanced at the bar and have perused the record.

       On a consideration of the facts we are of the considered opinion that the present complaint is liable to be dismissed.  The complainant had issued a cheque in favour of OP-3 towards the cost of the air ticket purchased by him.  Op-3 is stated to have deposited the cheque in his account maintained by OP-2.  There is however no evidence that the cheque was actually deposited by OP-3 with OP-2.  As already stated, OP-3 has been proceeded with expart and has failed to contest the present complaint.  No evidence has been led on record to the effect that OP-3 had actually deposited the cheque issued in his favour by the complainant with OP-2 for collection. In the absence of such an evidence, the whole basis of the present complaint falls to the ground. Even otherwise, the complainant is not the person aggrieved in the present case.  It was OP-3 who was the aggrieved person and should have filed a complaint against the banker for non collection of the proceeds of the cheque.

          Secondly, the cheque was issued by the complainant in favour of OP-3 on 1.10.2009.  The proceeds of the cheque were deposited with OP-4 on 5.10.2009.  The complainant had lodged an FIR with the police with regard to the wrong collection of the proceeds of the cheque issued by him in favour of OP-3 on 5.10.2009.  The cause of action to file the present complaint had, therefore, begun in October, 2009.  The present complaint was filed by the complainant  in this Forum on 3.4.2012 which is beyond the period of limitation of two years prescribed under the CP Act.  The complaint is, therefore, not maintainable as being barred by time.

          Thirdly, the complainant has himself alleged that a fraud had been committed on him and a aforgery had been committed with respect to the body of the cheque whereby the name of the drawee had been changed and his signature had been forged.  The complainant had lodged a police complaint in this regard.  It, therefore, is yet to be established as to whether an  interpolation had been carried out in the cheque and if so, who had carried out the same.   Since it has yet to be established by the police investigatin that a forgery had been committed and, if so, who was the culprit, no verdict can be given with regard to the allegations levelled in this complaint against the Ops.

          Fourthly, OP-2 M/s Karur Vysya Bank has no privity of contract  with the complainant.  The complainant is not a consumer of  this bank and had not taken any services from it for consideration.  The complaint against OP-2 is, therefore, not maintainable. On the same ground the complaint lodged against OP-4 is not maintainable.

          From the discussion above  we hold that there are no merits in the present complaint.  The same is liable to be dismissed.  We ordered accordingly.  

          Copy of the order be made available to the parties as per rule.  File be consigned to record room.

          Announced in open sitting of the Forum on.....................