Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.09.2016
Smt. Karishma Mandal
- In the instant case the Original complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to credit the amount of Rs. 1,75,000/- ( Rs. One Lakh Seventy Five Thousand only ) with interest @ 18%.
- To direct the opposite parties to pay Rs. 2,00,000/- ( Rs. Two Lakh only ) as compensation.
- To direct the opposite parties to pay Rs. 10,000/- ( Rs. Ten Thousand only ) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The original complainant namely Srish Kumar Sinha( Since died and substituted ) had asserted that he has a saving account in State Bank of India, Mahendru Branch, Patna bearing no. 10113665432. The aforesaid account was mainly for the purpose of his pension amount. As the cheque book of the original complainant along with pass book of the aforesaid account was lost, the original complainant intimated the branch ( opposite party no. 5) on 16.05.2009 along with copy of the report to the Railway police of Patna vide annexure – 1. The bank thereafter issued a duplicate pass book along with fresh cheque book to the original complainant with forwarding letter dated 02.06.2009 and “STOP CHQS” of the lost cheque series was entered in his duplicate pass book on 16.05.2009 vide annexure – 2 series.
It is further case of the original complainant that he got his pass book updated and to his utter surprise he found that on 28.08.2009 vide cheque no. 486433 an amount of Rs. 1,75,000/- has been fraudulently debited from his account in favour of one Surendra Kumar.
It also transpires that on the same day an amount of Rs. 30,000/- was credited in his aforesaid account by one Anup Kumar.
It has been further asserted by the original complainant that both the aforesaid persons i.e. Surendra Kumar and Anup Kumar are unknown to him.
The grievance of the original complainant is that after the loss of pass book and cheque book, the original complainant had informed the bank well in time enclosing the copy of information given to the Government railway Police, Patna and the bank by way of precaution entered “STOP CHQS” on 16.05.2009 but despite this aforesaid fraud has been committed due to negligence of the bank. Thereafter the original complainant a senior citizen of 83 years reported the matter to bank on 09.12.2009 through speed post along with copies to opposite party no. 1 and 2. The original complainant had also sent a letter dated 08.03.2000 to opposite party bank precisely denying the signature in question and alleging the same to be forged. The original complainant has also sent a notice to opposite party vide annexure – 4 through speed post and in the reply the bank has retreated his earlier stand of another communication.
The original complainant has prayed for crediting the aforesaid amount in his account with compensation and litigation costs vide Para – 6 of his complaint petition.
It appears from the record that during the pendency of this case the original complainant died and his son namely Sudhish Kumar was substituted in place of the original complainant vide order dated 23.12.2014 in presence of opposite parties counsel.
On behalf of opposite party no. 5 a written statement has been filed which has been adopted by other opposite parties. Vide affidavit dated 02.04.2012 sworn by opposite party no. 5 who is bank official himself.
The opposite parties, in Para – 5 of the written statement, have replied the allegation of the original complainant made in the complaint petition in Para – 1, 2 (i) to (x) denying the aforesaid allegation. The opposite parties have asserted as follows, “it is worth to mention here that original complainant submitted the application requesting therein to make stop payment of the cheque nos. 486443 to 486455 and after receiving the request letter, the opposite party bank immediately entered “stop payment” for the above instruction in the system mentioned cheques i.e. 486443 – 486455 at 11:54 A.M. on same day on 16.05.2009 later on a duplicate passbook and a fresh cheque book were issued in the name of original complainant by the registered post at his residential address and the same were received by the original complainant.”
In Para – 7 of written statement the opposite parties have denied and stated that original complainant never requested to opposite party bank to stop the payment of cheque no. 486433 nor he lodged any complaint either in the police or concerned bank regarding missing/ theft of the said cheque i.e. cheque no. 486433.
The original complainant has filed rejoinder / reply of the aforesaid written statement filed by opposite party no. 5 repeating the same fact which he had stated earlier in his complaint petition.
Replying the Para – 5 of counter affidavit of bank, the original complainant, in Para – 10 of reply, has asserted as follows, “that it is further stated that so far statement made in the said Paragraph with regard to the request of the original complainant to stop payment of cheque nos. 486443 to 486455 is concerned, the statement of the opposite party is totally misconceived and denied. From a bare reading of annexure – 1, it would appear that the original complainant on 16.05.2009 had simply given information about loss of passbook and cheque book and issuance of duplicate/fresh passbook and cheque book, but while entering annexure – 1, the bank travelled one step further by stopping only some of the cheques, leaving the rest operative. It is for the bank to explain and satisfy why it stopped cheques only a few and not all, that too, suo moto, without there being any mandate for the same.”
Thus the specific assertion of the bank which is on the affidavit has not been denied specifically by the original complainant.
We have heard the learned counsel for the parties and examine the record in the light of submission of the learned counsel for the parties.
We have narrated that facts asserted by both the parties in the complaint petition, written statement as well as reply ( rejoinder) of aforesaid written statement.
It is the case of the original complainant that despite his information to the bank Rs. 1,75,000/- has been withdrawn fraudulently from his account vide cheque no. 486433 on 28.08.2009.
The bank has asserted that the bank was requested to stop payment of the cheques bearing no. 486443 to 486455 and as such the payment from the aforesaid cheques were stopped.
Bank has further asserted that no request was made to stop payment for the cheque no. 486433. This fact has not been specifically denied by filing relevant documents because in annexure – 1 and 1/A i.e. application to the opposite party no. 5 and officer in charge of G.R. Patna Junction, the original complainant has not mentioned the cheque no. and simply he has stated that his cheque book and pass book have been lost. Hence there is no evidence on the record to show that the original complainant has requested the bank to stop the payment for the cheque in question i.e. 486433 from which the money is alleged to have been drawn by some other person and not by the original complainant. Had the original complainant would have given any document showing the intimation to the Bank about the loss of cheque no. 486433, then the matter would have been deferent but in absence of any cogent evidence in this regard we feel difficulty on relying on the allegation of the original complainant. It is needless to say that as per law of the land it is original complainant who has to prove his allegation with respect to fraud because it cannot be presumed in respect of any person without cogent evidence. Law of our land presume everybody honest and innocent unless it is proved otherwise.
In view of the fact stated above this case stands dismissed but without cost.
Member President
