Sri Shyamal Gupta, Member

This Appeal is moved by AXIS Bank against the Order dated 30-03-2016, passed by the Ld. District Forum, North 24 Pargtanas in CC/470/2015, whereof the complaint has been allowed.

In short, case of the Complainants is that, in good faith they handed over the cheque book to one Sri Manas Kumar Das, when he visited the residence of the Complainants to discuss investment related matter.  However, taking undue advantage of their good faith, said Sri Das stolen two cheques bearing nos. 242101 and 242107 from the cheque book handed over to him by the Complainants and used the same for siphoning of an amount of Rs. 60,000/- and Rs. 40,000/-, respectively, from the account of the Complainant.  Not only that, said Sri Das also transferred an amount of Rs. 30,000/- to his personal savings account from the account of the Complainants by changing the name of the ‘payee’ in the cheque bearing sl. No. 663137.   Holding the OPs responsible for their abrupt failure to prevent such illegal transfer of money from their savings account, this complaint was filed by the Complainants.

By filing a WV, it is submitted by the OPs that the complaint case is bad for non-joinder of necessary parties.  It is further submitted by the OPs that Police have already completed investigation and filed charge sheet and the case is pending before the Ld. ACJM, Barackpore.  As for the Cheque No. 663137, it is submitted that as per RBI guideline dated 22-06-2010, restriction on cheque alteration/correction is not applicable to cheques cleared under other clearing arrangements such as MICR clearing, non MICR clearing, over the counter collection (for cash payment) or direct collection of cheque outside the clearing house arrangement and the same is applicable only in case of CTS clearing.  As the subject cheque was a transfer cheque, the OPs, after checking the apparent tenor of the instrument and after ensuring that the signature on the instrument tallied with the specimen available in the records of the OPs and verifying the authenticity of the cheque through UV rays, cleared the same.  Regarding the other two cheques, it is submitted by the OPs that the these cheques belonged to a different series.  Therefore, the Complainant owe due explanation as to how the same got stolen from his custody.  It is further submitted that the said cheques were cleared as there was no ingenuity in any manner whatsoever.  The said cheques were also paid as per the apparent tenor of the instrtuments and after ensuring that the signatures on such cheques tallied with the specimen signature available in the records of the OPs. 

Decision with reasons

Both sides were heard in the matter and the documents on record carefully gone through.

It appears from the cause title that Sri Manas Kumar Das, whom the Respondents accused of acting fraud upon them, has not been arrayed to this case.  No doubt, he was a necessary party to the case.  We are fully in agreement with the contention of the Appellants that the complaint case is bad for non-joinder of necessary party.

On the aspect of merit also, we find that the Respondents made no sincere effort to prove their case.  It is though alleged by them that they did not sign the cheque nos. 242101 and 242107 at all or the signature appeared on cheque no. 663137 to facilitate correction of name did not belong to them, it is indeed surprising that they made no such prayer before the Ld. District Forum to refer the matter to a handwriting expert to establish such fact beyond all reasonable doubt. 

In view of this, it was futile to hold the Appellants responsible for the alleged fraudulent withdrawal of money from the account of the Respondents. We, therefore, cannot endorse the decision of the Ld. District Forum.

The Appeal, accordingly, succeeds.

Hence,

O R D E R E D

The Appeal stands allowed on contest against the Respondents.  The impugned order is hereby set aside.