Tamil Nadu

South Chennai

CC/288/2005

Dagger International - Complainant(s)

Versus

Standard Chartered Grindlays Bank - Opp.Party(s)

R&P Partners

27 Jul 2016

ORDER

   Date of Filing :   08.05.2003

                                                                      Date of Order :   27.07.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                  

C.C.NO.288/2005

WEDNESDAY THIS  27^th    DAY OF JULY 2016

 

Dagger International,

Rep. by its Proprietor –

Nilanjan Deshpande,

No.5, Thangam Colony,

1^st Street,

Anna Nagar,

Chennai 600 040.                                             .. Complainant

 

                                         ..Vs..

 

Standard Chartered Grindlays Bank,

Rep. by its Manager,

Grindlays Garden,

1, Haddows Road,

Chennai 600 006.                                              .. Opposite party    

 

 

For the Complainant               :   M/s. J. Sivanandharaaj & others        

For the opposite party             :   M/s. Rangarajan & Prabhakharan

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to pay a sum of Rs.8,74,105/- towards compensation and also to pay a sum of Rs.50,000/- for mental agony and harassment and cost of the complaint to the complainant.

 

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

 The complainant submit that he is running a complaint mentioned Dagger International, a proprietor ship firm for which complainant is maintaining a complaint mentioned current account No.31024931 with the opposite party bank from the year 1999.   The complainant further states that he engaged a service of one Rajkumar for the said company in the capacity of an accountant.   Accordingly the said accountant was also entrusted with responsibility of operating and running current account maintained with opposite party bank.  During the month of August 2001 the complainant noticed several irregularities in the said current account maintained with the opposite party bank.  The complainant upon going through the account statements and comparing with the bank statements, cheque books, vouchers realized that the bank statement were not tallying with the records maintained with the complainant, the complainant noticed that there were double entries and for certain cheques there were no counter file entries.   In certain cases the amounts differs from the records.   Accordingly the complainant requested the opposite party to provide statement of payees into whose accounts the money from the complainant has been credited and also the photo copies of all the cheques that had been issued in the last two years.  Accordingly complainant received certain xerox copies of few cheques issued from the complainant’s account.   Upon traversing the records, the complainant discovered the accountant has tampered with the accounts and forged several cheques for withdrawing money for his personal gains.  The complainant has filed the Photostat copy of the forged cheques would clearly point out the discrepancy in the signatures, which were very well would be found out when compared with the signatures of the complainant obtained and maintained at the time of opening of the account  and maintained with the opposite party bank.  Whereas the officials of the opposite party bank having duty bound to compare the signature and found out the fraud and to take necessary action, had failed in their duties, but had simply passed / cleared the said cheques.   As such the act of the opposite party  amounts to deficiency of service  which caused monetary loss to the extent of Rs.8,74,105/- to the complainant. As such the complainant has sought for refund of said amount by way of re-crediting the said amount in the account with claiming compensation of Rs.50,000/- and cost of the complaint.   Hence the complaint.

 

Written Version of opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The complainant’s    averments  in  the  eighth  para  of the complaint not only reveal the complainant’s negligence in not keeping the cheque book  / leaves in

safe custody, in regularly checking his account bank balance regularly like any other prudent business man.     The complainant started operating his account in the opposite party as early as 1999 and was operating other accounts in the opposite party from the year 1997.  It was the complainant’s act of entrusting the book of accounts, statements, Bank records, cheque books, vouchers etc. to the accountant and complainant’s negligence in not checking his account, bank balances regularly like any other prudent business man which has made him burn his own fingers.  Further the complainant is not only silent about the date of appointment of the complainant’s accountant but is also vague about the criminal action initiated against the accountant.   The complainant on one hand states that the opposite party never compared / verified the complainant’s signature by comparing it with the specimen signature whereas on the other hand states that the opposite party inspite of noticing the difference in the signature found in the cheque from that of the specimen signature has cleared the cheque negligently.    Further the opposite party submits that on scrutiny on the apparent tenor of the cheques in question and the specimen signatures of the complainant with the opposite party no differences were noticed.  Further the opposite party was not able to deduct / doubt the fraudulent   intension of the complainant’s accountant, as the complainant himself allowed him to withdraw lump sum amount by depositing the complainant’s self cheques and the complainant issued cheques in favour of the vendors.  The opposite party has further stated that instead of cheque No.470260, the opposite party’s cheque returned details form and cheque No.799098 are filed by the complainant  The cheque returned details form clearly state cheque 799098 was returned by the opposite party as it found that the drawer signature to differ.  This fact proves beyond doubt   that the opposite party have taken appropriate steps whenever they found difference in the signature of the cheques issued by the complainant.  The opposite party submits that it was not only the complainant’s negligent act in not checking / verifying his account and bank balance atleast by the end of every month, if not every day which led to the alleged misappropriation of the money but also the complainant’s act of entrusting the book of accounts, statements, bank records, cheque books, vouchers etc. to the accountant which led to the alleged misappropriation, when the complainant himself had been negligent and irresponsible in the conduct of his business affairs.   Since there has been no deficiency in service the opposite party is in no way liable to reimburse any amount to the complainant and the complaint is liable to be dismissed. 

3.   Complainants has filed his Proof affidavit and Ex.A1 to Ex.A24 were marked on the side of the complainant.   Proof affidavit of  Opposite party filed and Ex.B1 to  Ex.B4  were marked on the side of the  opposite party.  

4.      The points that arise for consideration are as follows:-

 

1.   Whether the opposite party has committed  deficiency of

 service  as alleged in the complaint?

 

2.   Whether the complainants are  entitled for the relief sought for

in the complaint?  If so to what extent ?

5.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite party, proof affidavits  filed by  both the parties  and the documents Ex.A1 to A24  filed on the side of complainant and Ex.B1 to B4 filed on the side of opposite party and considered the arguments.

6.     There is no dispute between the parties that the complainant is running a complaint mentioned Dagger International, a proprietor ship firm for which complainant is maintaining a complaint mentioned current account No.31024913 with the opposite party bank from the year 1999.  The complainant engaged a service of one Rajkumar for the said company in the capacity of an accountant.  The said accountant was also entrusted with responsibility of operating and running current account maintained with opposite party bank.  During the month of August 2001 the complainant noticed several irregularities in the said current account maintained with the opposite party bank.  The complainant upon going through the account statements and comparing with the bank statements, cheque books, vouchers realized that the bank statement were not tallying with the records maintained with the complainant, the complainant noticed that there were double entries and for certain cheques there were no counter file entries.  In certain cases the amounts differs from the records.  Complainant requested the opposite party to provide statement of payees into whose accounts the money from the complainant has been credited and also the photo copies of all the cheques that had been issued in the last two years.  Accordingly complainant received certain xerox copies of few cheques issued from the complainant’s account.  Upon traversing the records, the complainant discovered that the accountant has tampered with the accounts and forged several cheques for withdrawing money for his personal gains.  The complainant has filed the Photostat copy of the forged cheques would clearly point out the discrepancy in the signatures, which were very well would be found out when compared with the signatures of the complainant obtained and maintained at the time of opening of the account  and maintained with the opposite party bank.  Whereas the officials of the opposite party bank having duty bound to compare the signature and found out the fraud and to take necessary action, had failed in their duties, but had simply passed / cleared the said cheques,  which amounts to deficiency of service on the part of opposite party bank, which caused monetary loss to the extent of Rs.8,74,105/- to the complainant, as such complainant filed this complaint  claiming  refund of said amount by way of re-crediting the said amount in the account with claiming compensation of Rs.50,000/- under two grounds and also cost.

7.     Whereas the opposite party has resisted the complaint by saying that on scrutiny on the apparent tenor of the cheques in question and the specimen signatures of the complainant with the opposite party, no difference were noticed.  Since there are very slight variations even in the complainant’s signature in the 3^rd and 4^th page of the account opening form Ex.B1, though the complainant himself has signed at both the places in the account opening form.  Further the opposite party was not able to deduct / doubt the fraudulent   intension of the complainant’s accountant, as the complainant himself allowed him to withdraw lump sum amount by depositing the complainant’s self cheques and the complainant issued cheques in favour of the vendors.  The opposite party has further stated that instead of cheque No.470260, the opposite party’s cheque returned details form and cheque No.799098 are filed by the complainant as document Ex.A23.  The cheque returned details form clearly state cheque 799098 was returned by the opposite party as it found that the drawer signature to differ.  This fact proves beyond doubt   that the opposite party have taken appropriate steps whenever they found difference in the signature of the cheques issued by the complainant.  Therefore there has neither negligence nor deficiency of service against the opposite party as alleged by the complainant in clearing the cheques.  However for the alleged forged cheques the complainant’s negligence act in not checking / verifying the bank balances at least by end of the every month which led to the alleged misappropriation of the money, it is also due to the complainant act of entrusting the books of accounts., statements, bank records, cheque books, voucher etc., to the accountant which led to the alleged misappropriation.

8.     The complainant has also filed the handwriting expert opinion obtained by its investigation agency on his own instance with regard to the said alleged forged signatures found in the cheques after comparing with admitted signatures of the complainant as Ex.A24.  However the way of securitization adopted by the handwriting expert cannot be expected from the bank officials while clearing / passing the cheques in respect of the signatures found thereon. Though the report reveals that there was a discrepancy in alleged signatures found in the alleged cheques said to have been forged in the complainant’s accountant, but on mere comparing the  disputed signatures found in the alleged cheques with the admitted signature of the complainant found in the Ex.B1 (The account opening form) on looking  with naked eye, the discrepancy are  found to be with very  slight variations  as in the case of the signatures found in the Ex.B1 itself. 

9.     Further the signature found in the Ex.B1 are said to have been obtained in the year 1999.  The alleged forged signatures relating to Ex.A1 to A23 are all relating to the year 2000 and 2001, due to the above said lapse of years in the usual course the signatures of the individual may differ slightly is the common admitted theory, as argued by the opposite party’s counsel.  Therefore in the process of clearing the alleged cheques by the opposite party bank cannot be said that they have not taken appropriate steps in comparing the signature while clearing the cheques. The learned counsel for the opposite party has also argued that the bank officials may not be expected to have the skill of handwriting expert in scrutinizing the signatures found in the instrument while in the process of clearing the cheques to check every stroke, turns, curvature, place of joining letters of the bearer of the cheque in normal course of their comparison.

10.    Further it is also pertinent to mention that the complainant himself admitted that the person who was involved for the fraudulent withdrawal  of the amount, on the basis of the forged cheques is of his own accountant who was entrusted to withdraw and maintained the expenditure accounts, petty cash accounts and maintained the account of bank balance.  Further in certain cases the complainant will draw a self cheque in his favour and subsequently make payment to the certain parties, even in cash of petty cash expenses the complainant will issue self cheque drawn for a lump sum  in which the said accountant will encash and keep the amount in his position.  The said accountant will then pay the petty cash expenses by drawing cash vouchers of his expenses, for all cheques issued for the vendor  are the self cheques the said accountant will record in the cheque book  counter foil  entering the date of issue, name of the payee and the amount withdrawn.  Complainant having entrusted the above mentioned entire financial affairs with regard to the bank account to the accountant to look after, as contended by the opposite party if the complainant would have done checking / verifying his account and the bank balance atleast by end of the every month if not every day, which led to the misappropriation of the money would have been avoided, as such the complainant himself as defaulter in taking atmost care and watch over the duty entrusted to his accountant, which has caused alleged misappropriation is also acceptable in the facts and circumstances of the case.

11.    Considering the above facts and circumstances of the case, we are of the considered view that if the complainant has got grievance if any, against the  bank officials concerned in the process of clearing the alleged cheques, it requires necessary pleadings, the said concerned officials of the bank are to be impleaded as parties and consequently it requires volume of evidence to decide the complicated issues arise  thereon.  Therefore, this is not the proper forum to decide such case, since this forum adopts the summary procedure.   But the proper forum would be the Civil Court as per the decision of the Hon’ble Supreme Court in the case  C.C.I. Chambers Co-op. Housing Society Ltd. .vs. Development Credit Bank Ltd., reported in (2003) 7 SCC 233 72 CD  and as per the decision of National Consumer Disputes Redressal Commission, New Delhi  rendered in the case UCO Bank (through its Manager)  -vs- Shri S.D. Wadhawa reported in  2013 (3) CPR 308 NC.

12.    Therefore we are of the considered view that, since, the complaint mentioned facts and circumstances involve complicated and complex questions which require elaborate evidence such disputes are not adjudicated in summary jurisdiction – as such the complaint was not maintainable before this forum.  Accordingly this complaint is to be dismissed, by giving liberty to the complainant to approach  the appropriate civil court for redressal of his grievance being raised by the complainant in the present complaint. Considering the facts and circumstances of the case the parties are to bear their own costs.  Accordingly the points are answered.

        In the result,  this complaint is dismissed. However, the complainant is given liberty to approach the appropriate civil court for redressal of the grievance being raised by the complainant in the complaint.  No costs. 

 

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  27^th    day  of  July   2016.

 

 

MEMBER-I                                                                                                      PRESIDENT.

Complainant’s Side documents :

Ex.A1- 15.6.2001      – Copy of forged cheque 970711 for Rs.20,000/-

Ex.A2- 27.7.2000      -  Copy of forged cheque 470271 for Rs.10,000/-

Ex.A3- 14.8.2000      - Copy of forged cheque 470293 for Rs.10,000/-

Ex.A4- 2.11.2000      - Copy of forged cheque 773796 for Rs.20,000/-

Ex.A5- 23.5.2001      - Copy of forged cheque 507232 for Rs.20,000/-

Ex.A6- 17.11.2001     - Copy of forged cheque 752201 for Rs.15,000/-

Ex.A7- 18.7.2000      - Copy of forged cheque 700200 for Rs.30,000/-

Ex.A8- 21.5.2001      - Copy of forged cheque 970708 for Rs.9000/-

Ex.A9-21.5.2001       - Copy of forged cheque 970712 for Rs.6500/-

Ex.A10- 21.5.2001     - Copy of forged cheque 970710 for Rs.9500/-

Ex.A11- 20.1.2001     - Copy of forged cheque 450075 for Rs.20,000/-

Ex.A12- 12.12.2000   - Copy of forged cheque 752222 for Rs.30,000/-

Ex.A13- 6.12.2000     - Copy of forged cheque 752230 for Rs.6,000/-

Ex.A14- 6.9.2000      - Copy of forged cheque 450055 for Rs.40,000/-

Ex.A15- 14.8.2000     - Copy of forged cheque 470030 for Rs.40,000/-

Ex.A16- 24.8.2000     - Copy of forged cheque 470297 for Rs.20,000/-

Ex.A17- 23.9.2000     - Copy of forged cheque 450072 for Rs.30,000/-

Ex.A18- 14.10.2000   - Copy of forged cheque 470292 for Rs.30,000/-

Ex.A19- 5.7.2000      - Copy of forged cheque 700192 for Rs.30,000/-

Ex.A20- 26.6.2000     - Copy of forged cheque 700177 for Rs.16,105/-

Ex.A21-         -        - Copy of forged cheque 450056 for Rs.20,000/-

Ex.A22-         -        - Copy of forged cheque 507216 for Rs.20,000/-

Ex.A23-         -        - Copy of forged cheque 470260 for Rs.20,000/-  

Ex.A24- 21.11.2007   - Expert opinion issued by M.Manonmani Rajan, Asst., Director

                               Forensic Sciences Depart, Chennai.

 

 

Opposite party’s side documents: -  

 

Ex.B1- 23.10.1999     - Copy of Account opening Form.

Ex.B2- 16.4.2003      - Copy of Cheque returned details form.

Ex.B3- 16.4.2003      - Copy of cheque No.799098.

Ex.B4- 12.10.2003     - Copy of power of attorney.

 

 

 

MEMBER-I                                                                                                   PRESIDENT.