Per Mr S M Shembole, Hon’ble Presiding Judicial Member
This appeal is directed against the order dtd.12.01.2009 by District Consumer Forum Nagpur in Complaint No.CC/07/486, partly allowing the complaint directing o.p. / appellant – bank to pay 75,000/- with interest @ 12% p.a. w.e.f. 31.12.2006 to the complainant / respondent.
Brief facts giving rise to this appeal are as under:-
1. Complainant / respondent is a customer of appellant Bank. He was having Saving Account with appellant bank with cheque facility. Cheque book was issued to the complainant / respondent. On 21.12.2006, complainant found two cheques bearing No.256442 & 43 missing from the cheque-book. He perused the account book and came to know that somebody withdrawn the amount of Rs.75,000/- from his account by using cheque No.256442 and therefore, on 21.12.2006 the complainant / respondent sent email to the appellant Bank informing that on 21.12.2006 he found sum of Rs.75,000/- fraudulently withdrawn from his account. Complainant / respondent also issued ‘Stop Payment’ instruction to the Bank. But, no reply was given by the appellant Bank. However, by a letter dtd.26.12.2006 the complainant was informed that cheque was passed in due course on verifying his signature. It is averred by the complainant / respondent that the bank did not bother to use any scientific technique to verify his signature. It is further averred that the bank officials were negligent in passing the cheque and hence, he sustained the loss, etc. Therefore, by notice dtd.22.01.2007, he called upon the bank to take steps to carry out proper scientific and forensic enquiry into the forged signature and credit the sum of Rs.75,000/- in his account. But the Bank authorities fail to comply with the same. Therefore, the complainant filed the complaint before the District Forum, Nagpur.
2. By reply dtd.14.12.2007, o.p. / appellant bank denied the averments made by the complainant / respondent and submitted that the cheque was passed in due course by verifying the specimen signature of the complainant / respondent.
3. Pending the complaint, on application of the complainant, the hand-writing expert was called and he opined that the signature on the disputed cheque is not made by the complainant / respondent, etc.
4. Thereafter on hearing both the sides and considering the evidence led by the parties the District Consumer Forum partly allowed the claim and directed the o.p. / appellant bank to pay an amount of Rs.75,000/- with interest @12% p.a. to the complainant / respondent, holding that o.p. / appellant casually passed the cheque without verifying the signature of the complainant / respondent and thereby committed deficiency in service.
5. Feeling aggrieved by the judgement and order o.p. bank preferred this appeal.
6. We heard the learned counsel of both the sides at length and perused the impugned judgement as well as copies of disputed cheque, handwriting expert’s opinion, etc.
7. The undisputed facts are that respondent / complainant was having saving account with the appellant / o.p. bank. The Cheque bearing No.256442 of Rs.75,000/-, was passed by the bank and amount of Rs.75,000/- was debited from the saving account of the respondent / complainant.
8. The crux in the matter as to whether the cheque was misplaced and it was used by making forged signature or the complainant / respondent himself withdrew the amount by presenting the bearer chque.
9. Adv. Mr Mewar appearing for the appellant - bank, vehemently argued that the cheque was passed by the bank by verifying the signature on the cheque with the specimen signature of the respondent / complainant. But it is not specific contention of the appellant that the cheque was presented by the respondent / complainant himself. When it was the bearer cheque, it was obligatory on the part of the bank to verify the signature on the cheque with specimen signature, calling the Identity-Card or PAN-Card of the person who presented the cheque. It is submitted that at the relevant time i.e. in the year 2006, there was no specific direction from the Reserve Bank of India to the banks to verify the person, presenting the cheque, asking bearer to produce PAN-Card or any Identity-Card, etc. and therefore, in routine course the bank passed the cheque, in question.
10. It is further submitted by the learned counsel for the appellant that the District Forum allowed the claim merely relying on the handwriting expert’s opinion though it is not the conclusive proof. According to Adv.Mr Mewar for the appellant, when the disputed signature on the cheque was identical with specimen signature, there could be no any reason for the bank officials to refuse the cheque. According to him, the disputed signature is similar to the specimen signature of the respondent / complainant; and therefore, the Forum ought to have rejected the handwriting expert’s opinion. According to him the opinion given by the handwriting expert and also photographs of the documents, the Forum should not have relied on the expert’s opinion. Further the Forum also erred in rejecting the appellant’s / o.p’s application seeking permission for cross-examination, etc. It is not disputed that the appellant’s application seeking permission for cross-examination to the handwriting expert was rejected but this being a summary proceedings, it cannot be accepted that the Forum committed any error in rejecting the application of the appellant, seeking permission for cross-examination.
11. Adv.Mr Mewar further submitted that the expert’s opinion is being not a conclusive evidence, the Forum should have rejected the same, etc. He tried to support this contention by relying on the following authorities:-
i. AIR 1959 SC 488; Haji Mohammad Vs. State of W.B.
ii. AIR 1963 SC 1728; Ishwari Prasad Vs. Mohammad Isa
iii. AIR 2010 SC 806; Ramesh C Agrawal Vs. Regency
iv. II(2009) CPJ 343; (Goa); Allied Photo Vs. Harischandra
v. 2010(3) SCJ 338; Secretary Vs. Hawrah
12. We have gone through the above authorities. Since it is settled law that the expert opinion is not a conclusive evidence, we need not consider the above authorities.
13. It is well settled law that u/s 173 of Evidence Act the court can compare the disputed signature with the specimen signature. Therefore, we compared it. A bare glance on the disputed signature on the copy of cheque and admitted signature of the respondent / complainant, it manifests that the disputed signature is not identical with the admitted signature. Therefore, the Ld. Members of the Forum have rightly jumped to the conclusion that the officials of the appellant – bank acted negligently while passing the cheque and thereby committed deficiency in service.
14. Adv.Mrs G. Venkatraman appearing for the respondent / complainant relying on the following authorities :-
i. III - 2003 CPJ 133
ii. IV - 2005 CPJ 42
iii. III - 2007 CPJ 207
iv. 2003(1) CPR 145 (NC)
v. 2006(2) CPR 438
vi. IV - 2005 CPJ 363
vii. I - 2004 CPJ 363
viii. 2003 (I) CPR 340
ix. 2003 CPJ – 20 (NC)
x. III 2003 CPJ – 9 (SC)
xi. A-1987 SC – 1603
xii. A-1938 – All - 374
submitted that the bank cannot escape from its responsibility in verifying the signature while passing the bearer cheque, merely on the ground that in routine the cheque was passed. We find much force in the submission of the learned counsel for the respondent / complainant which fortify by the ruling of National Consumer Commission in the case of Abdul Razak & Anr. Vs. The South Indian Bank Ltd. - 2003(1) CPR 145 (NC) in which Hon’ble National Commission observed that bank cannot escape from the responsibility in comparing the signatures and if bank failed to compare the signatures it is a case of deficiency in service. In the present case, from the contentions of the appellant / o.p. that the cheque in question, was passed in routine course itself suffice to held that the bank was negligent in discharging its duty by carefully verifying the signatures though it was not necessary for the bank to ask the bearer of cheque to produce Identity Card or PAN card. Since, the cheque in question was of Rs.75,000/-, it was obligatory on the part of bank to verify the signatures on the cheque with the specimen signature carefully. Moreover, it is pertinent to note here that when it was a bearer cheue issued in the name of one Pathak, it was obligatory on the part of Bank officials to obtain signature of the bearer while passing the cheque.
15. For the foregoing reasons, it is obvious that the Forum has rightly held that appellant bank was negligent in verifying the disputed signature with the specimen signature of the complainant / respondent and thereby committed deficiency in service. Therefore, We do not find any infirmity or illegality in the order.
16. In the conclusion the appeal is being devoid of any merit deserves to be dismissed.
Hence, we pass the following order:-
ORDER
1. Appeal stands dismissed.
2. No order as to cost.
3. Inform the parties accordingly.
Pronounced on 09.08.2011.
