DATE OF FILING: 11.4.2013
DATE OF DISPOSAL: 22.02.2017
Dr. N. Tuna Sahu, Member:
The complainant has filed this consumer dispute under Section 12 of Consumer Protection Act, 1986 against the Opposite Parties (for short O.Ps) alleging deficiency in banking service and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant as alleged in the complaint is that he deposited a sum of Rs.1,60,000/- (Rupees One Lakh Sixty Thousand) only containing currency notes of Rs.1,000/- denomination of 136 numbers and currency notes of Rs.500/- denomination of 48 numbers in the account of the O.P.No.5 bearing Account No.31595689397 on 28.06.2011. When the complainant came to know about the deposit of Rs.10,000/- in excess in the account of O.P.No.5, he along with another accountant and O.P.No.5 immediately rushed to the office of O.P. No.1 for cross verification on the same day i.e. on 28.6.2011. On cross verification, it comes to light that the O.P.No.4 had changed the written denomination of currencies as placed on the case record as Annexure-1 without implicit consent of the complainant and corrected by overwriting it in such a way that it may create an impression that complainant was corrected the said slip. It is also alleged that the O.P.No.4 corrected the figures of currency notes in notes column for Rs.500 from 48 numbers to 28 numbers and for Rs.1000/- notes, the O.P.No.4 just corrected by overwriting from Rs.24,000 to Rs.14,000 and overwrote on the figure of Rs.1,36,000/-. On 2nd July 2011 the complainant along with O.P.No.5 wrote a complain letter and sent it to O.P.No.1&2 and demanded for refund of excess amount of Rs.10,000/- deposited wrongly in the account of O.P.No.5. On 10.7.2012, the O.P.No.5 gave in writing to the complainant in shape of the declaration that the O.P.No.4 had accepted that he had manipulated the Annexure-1 in presence of O.P.No.1 and their bank staff. Due to such manipulation by O.P.No.4 and non-refund of the said amount to the complainant even after several approaches to the O.P.No.1 along with written notice, the O.P.No.5 deducted a sum of Rs.10,000/- from the salary of the complainant as advance on 28.6.2011. The O.P.No.3 issued the photocopy of the computerized scan copy of deposit voucher dated 28.6.2011 through R.T.I. Act, 2005 bearing No.RBO/BER/R-II/2612 dated 20.11.2012. It is also alleged that the O.Ps are jointly or severally deficient in service for dereliction of duty and for such dereliction of duty and negligence they are liable to compensate the complainant for suffering physically, mentally and financially. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to refund the excess amount of Rs.10,000/- with penal interest @18% per annum, compensation of Rs.90,000/- for physical, mental and financial loss and to pay a sum of Rs. 5,000/- towards cost of litigation in the best interest of justice.
3. Upon notice the O.P. No. 1 to 4 filed written version/argument through their counsel Shri B.K. Mohanty, Advocate, Berhampur. In the written version / argument it is stated that the allegations made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations which are not specifically admitted herein. The averments made in Para-3, 4, 5, 6 and 7 are not all true and the same are denied in toto by this O.Ps and the complainant is put to strict proof of the same. The O.Ps submits that an amount of Rs.1,50,000/- was deposited in account No.31595689397 of Lohiya Motor Pvt. Ltd on 28.6.2011. The amount deposited was clearly mentioned both in figures and words in the account pay-in-slip and in its back sides also. It was not over written at any place. Only the denomination and the amounts in the reverse were over written without any change made to the total amount. As because, the customer i.e. M/s Lohiya Motors is one of the valued customer of this O.Ps and the total amount was not tempered in the pay-in-slip, the cashier in good faith received the pay-in-slip along with Rs.1,50,000/- only. On receipt of a complain dated 3.7.2011 from Sri Srikanta Sahu, the matter was thoroughly inquired and investigated by the Regional Manager, State Bank of India. However, as there was no truth in the allegation, the Regional Manager, vide its letter No. RM/BER/R II/1100 dated 19.7.2011 addressed to Sri Srikanta Sahu, intimated that, “with reference to your letter dated 2.7.2011 on the above subject, we have made thorough investigation into the matter and found our system/records are correct. Cash balance is tallied and there is no excess cash on 28.6.2011 to your satisfaction. It was also mentioned that you have also viewed the CCTV recording at our Gandhi Nagar Branch and found no suspicion. In view of the above, we are unable to consider your request, kindly bear with us”. This O.P. has also provided all necessary information and extended full cooperation to the complainant. Hence there is no deficiency in service. The complainant had also filed a complaint vide No. 0598/2011-12 before the Banking Ombudsman, Bhubaneswar. On receipt of the reply and documents from this O.P.No.1 the Hon’ble Ombudsman was pleased to pass an order stating therein that, “In this connection, the Banking Ombudsman has observed that as it is difficult to take a view as to whether the alteration in the pay-in-slip was done by the depositor or the cashier, your complaint is rejected under Clause 13 C of the Banking Ombudsman Scheme, 2006”. This case involves complex question of facts, evidence and law. Hence, this Hon’ble Forum has no jurisdiction to admit the case, and try the same and the matter can be properly adjudicated in the Civil and Criminal Court. Moreover, the complainant is neither a customer nor a consumer of the bank. The actual account holder has not filed this case disputing the amount deposited on 28.6.2011. Due to the above facts, this does not come within the scope and ambit of the consumer Forum and there is no deficiency in service provided by these O.Ps. This matter requires through investigation and punishment of the guilty and confiscation of the amount from the criminal. These O.Ps i.e. the SBI is not liable to refund the amount, and pay anything towards loss, damage, cost harassment etc. The petition is barred by limitation and the same has not been properly valued. The complaint is not maintainable due to non-joinder and mis-joinder of parties. Hence these O.Ps 1 to 4 prayed to dismiss the complaint with exemplary cost in the interest of justice.
4. On issue of notice to the O.P.No.5, he filed version through his learned counsel Shri S.V. Ramana Murty Pattnaik, Advocate and Associates, Berhampur. In the written version, it is stated that the complainant while holding service as cashier, dealing with the monetary transactions for this O.P. even with its Banks deposits including O.P.No.1, he drew and taken Rs.1,60,000/- of this O.P. on 28.6.2011 for deposit in its name Bank account in the O.P.No.1 Bank located opposites to this O.P. Company Office in the same street. This O.P. not knowing if the complainant’s version of depositing that quantum of amount with the O.P.No.4 as mentioned in that Bank deposit slip by him but he mentioned in it the total amount as Rs.1,50,000/- mistakenly instead of Rs.1,60,000/- was true or not. Such act of him very much speaks and confirms his gross negligence, carelessness and dereliction in discharge of his duties and in violation of confidence reposed on him by this O.P. Nothing prevented him from obtaining the amount deposit receipt under the signature of that Bank cashier i.e. O.P.No.4 with the stamp seal of that Bank and not verifying it then and there in the bank if the actual cash deposit of Rs.1,60,000/- as per deposit slip entries shown or Rs.1,50,000/- was reflected in it to claim the difference amount of Rs.10,000/- from O.P.No.4 then and there. The very allegation of complainant’s words in para 4 of the complaint that when the complainant came to know about the deposit of Rs.10,000/-in excess in the account of O.P.No.5, he along with other accountant immediately rushed to the O.P.No.1 Bank for cross verification on the same day i.e. on 28.6.2011, very clearly shows, denotes and connotes of his afterthought act long after such alleged deposit occurred. The other Accountant depending on such version of the complainant as to deficit of Rs.10,000/- in the deposit slip, might have accompanied the complainant to that Bank and on verification seen the Bank deposit slip written thereon the number of currency notes with the respective denominations with correction and over writings showing 28 numbers in place of 48 numbers of Rs.500/- rupees notes and corrected figure of Rs.14,000/- in place of Rs.24,000/- but it is not true that this O.P. accompanied the complaint to that bank on 28.6.2011. On the insistence and persuasion of the complainant, this O.P. might have counter signed it the letter dated 02.07.2011 of the complainant believing the complainant’s version on that day but it does not lead to absolve the complainant from his liability and responsibility of making good of said loss of Rs.10,000/- occurred to this O.P. due to carelessness and deficiency of duty of the complainant. This case dispute is exclusively between the complainant and the O.P.No.1 to 4 only in any event. This O.P. is not aware of the alleged confession of O.P.No.4 before others in his Bank on 10.07.2012 but in good faith, this O.P. signed the complainant’s prepared letter Annexure-2 at the behest and persuasion of the complainant, without knowing the purport of it believing that it was of the complainant and of his version. Due to complainant’s negligence, carelessness and folly, this O.P. since suffered loss of its money of Rs.10,000/- in the hands of complaint, this O.P. legally and rightly recovered such loss from the complainant gradually of course less Rs.1383/- by 29.02.2012, as such balance could not be recovered since the complainant left job at his own in this O.P. establishment. This case is not maintainable against this O.P. as no cause of action arose or subsists against this O.P.No.5. Hence this case may be dismissed against O.P.No.5 awarding compensatory cost and compensation to it payable by the complaint, for defending this speculative frivolous and illegal case and its related harassment suffered by this O.P.
5. On the date of hearing of the consumer dispute, we heard the oral arguments from the learned counsels for the complainant as well as for the O.P. No.1 to 4. The O.P. No.5 is on repeated calls found absent and not filed any steps today. We have also gone through the complain petition, written arguments filed by the parties to this dispute and also verified the materials placed on the case record.
During the course of hearing of the case and on perusal of complaint and other materials placed on the case record it reveals that the present complainant is an employee of O.P.No.5 who was used to go to the branch office of O.P.No.1 for bank transaction of O.P.No.5 who is a bona fide customer of O.P.No.1. As contended by the learned counsel for petitioner, the complainant on 28.06.2011 deposited an amount of Rs.1,60,000/- in the account of O.P.No.5 containing currency notes of Rs.1,000/- denomination of 136 numbers and currency notes of Rs.500/- denomination of 48 numbers. Due to over site, the complainant wrote the total amount as Rs.1,50,000/- in the said deposit slip of O.P.No.1. When the complainant came to know about the excess deposit of Rs.10,000/- in the account of O.P.No.5, the complainant along with another accountant and O.P.No.5 immediately rushed to the O.P.No.1 for verification on the same day i.e. on 28.06.2011. It is also alleged that while verification of the deposit slip it was come to light that the O.P.No.4 had changed the written denomination of currencies in the Annexure-1 without implicit consent of the complainant. It is further contended that the O.P.No.4 has also corrected and by overwriting the Annexure-1. The O.P.No.4 corrected the figures of currency notes in the note column for Rs.500/- from 48 numbers to 28 numbers and for Rs.1000/- notes he just overwrote in amount column by correcting Rs.24,000/- to Rs.14,000/- and also overwrote on the figure of Rs.1,36,000/-. Hence, the complainant along with O.P.No.5 wrote a grievance letter to O.P.No.1 &2 and demanded refund of excess amount of Rs.10,000/- deposited wrongly in the account of O.P.No.5 by the complainant. The learned counsel for the complainant further argued that due to non-refund of said amount by the O.P. No.4, the O.P.No.5 deducted a sum of Rs.10,000/- from the salary of the complainant as advance on 28.06.2011. The O.P. No.2 also issued the photocopy of deposit voucher dated 28.06.2011 through RTI Act, 2015 which also speaks about manipulation but despite repeated requests the O.P. No.1 to 4 did not care to refund the excess amount to the complainant that amounts to deficiency in service on part of the O.Ps. The learned counsel for the complainant also cited a number of decisions of different Hon’ble State Commissions and National Commission in support of his case. He cited a citation of Hon’ble State Commission, Andhra Pradesh in the case of D.V. Lakshminarayan Vs. The Divisional Electrical Engineer & Another where it was held that it is a paramount importance that the employees of the Electricity Board shall perform their functions and discharge their duties fairly and properly in accordance with law. In case of dereliction of duty on their part, the Board is not justified in collecting surcharge from a consumer for belated payment of charge. In another citation, the Haryana State Commission in the case of Dr. B.S. Siddhu Vs. The Secretary, Central Government Post & Telegraph Department & Ors it was held that in the true spirit of consumerism the Act has not confined itself to the original hirer alone, but equally extended it to the subsequent beneficiaries of the services as well. Similarly, the citation of Hon’ble State Commission, West Bengal in the case of UCO Bank Vs. Ajit Saha & Anr reported in II (2003) CPJ 234 decided that in course of employment of cashier mischief was done by him. Since the mischief was done in course of employment, the bank is also bound by the act of negligence of the cashier. Further, he cited a decision of Hon’ble National Commission, New Delhi in the case of Federal Bank Ltd Vs. Gakamam S. Alva reported in I (1996) CPJ 252 (NC) and a case reported in I (2013) in the case of Andagro United Services Ltd. Vs. United India Assurance Co. Ltd & Anr where it was decided regarding previty of contract between complainant and O.Ps due to agreement entered between parties – complainant is a consumer. In view of the aforesaid decisions, the learned counsel for the complainant argued that the present complainant is a consumer of O.Ps and prayed before this Forum to direct the O.P.No.1 to 4 to refund the excess amount of Rs.10,000/- along with interest @18% per annum and to pay a sum Rs.90,000/- towards compensation for physical harassment and mental agony and Rs.5,000/- towards cost of litigation. He has also prayed to direct the O.P. No.1 &2 to pay compensation of Rs.100/- per day according to Payment & Settlement System Act, 2007 in the best interest of justice.
Similarly, the learned counsel for the O.P. No.1 to 4 also vehemently argued that the O.P.No.5 is a valued customer of O.P. No.1 to 4 but the present complainant is not a customer of said O.Ps and there is no relationship between the complainant and O.P. No.1 to 4 since there is no previty of contract between the complainant and the O.P.No.1 to 4. It is humbly submitted that Rs.1,50,000/- was deposited in account No.31595689397 of Lohiya Motor Pvt. Ltd on 28.06.2011. The amount deposited was clearly mentioned both in figures and words in the account pay-in-slip and in its back side and it was not overwritten at any place. Only the denomination and the amounts in the reverse were over written without any change made to the total amount and since the customer Lohiya Motor is a valued customer and the total amount was not tempered in the pay-in-slip, in good faith the cashier received the pay-in-slip along with Rs.1,50,000/- only from the complainant. It is also submitted that on receipt of a complaint from Sri Srikanta Sahu on 02.07.2011, the matter was thoroughly inquired and investigated by the Regional Manager, State Bank of India but was found that there was no truth in the allegations. The Regional Manager vide its letter No.RM/BER/RII/1100 dated 19.07.2011 addressed to Sri Srikanta Sahu intimated that “we have made thorough investigation into the matter and found our system/records are correct. Cash balance is tallied and there is no excess cash on 28.06.2011. To your satisfaction, you have also viewed the CCTV recording at our Gandhi Nagar Branch and found no suspicion. In view of the above, we are unable to consider your request”. It is further submitted that the complainant had also filed a complaint vide No.0598/2011-12 before the Banking Ombudsman, Bhubaneswar. The Ombudsman was pleased to pass an order stating that in this connection the Banking Ombudsman has observed that as it is difficult to take a view as to whether the alteration in the pay-in-slip was done by the depositor or by the cashier it is difficult to hold and the complaint was rejected under Clause 13 C of the Banking Ombudsman Scheme, 2006. He also contended that the case involves complex question of facts, evidence and law. Hence, this Hon’ble Forum has no jurisdiction to admit the case and the case can be properly adjudicated in Civil and Criminal Court. The complainant is neither a customer nor a consumer of the bank. The actual account holder has not filed this case disputing the amount deposited on 28.06.2011. In view of the aforesaid facts, this case does not come within the scope and ambit of the Consumer Forum and there is no deficiency in service hence the Hon’ble Forum be pleased to dismiss the complaint with exemplary cost in the interest of justice.
6. We have heard the arguments at length and have also thoughtfully considered the contentions advanced before this Forum. In this consumer dispute, the only point to be decided by this Forum whether this Forum has got jurisdiction to adjudicate factual complex matter like manipulation or alteration of denominations of notes in the pay-in-slip in this summary process ?
On perusal of the pay-in-slip placed on the case record as Annexure-1, it reveals that an amount of Rs.1,50,000/- was deposited by the complainant on 28.06.2011 in the account of O.P.No.5 in which the amount was clearly mentioned both in figure and words. There was no alteration made either on the front side of the pay-in-slip in the figures or words of total amount or on the counterfoil of the deposit slip. However, on the back side of the pay-in-slip there was an alteration made with regard to the cash particulars of denominations of one thousand and five hundred currency notes but there was no change made in total amount and it was written as total amount of Rs.1,50,000/-. In this peculiar fact and circumstance of the case, we would like to view that it is difficult to ascertain why there was alteration made in the denominations of currency notes and who had made it without changing the total amount. In this case, during the course of hearing there was no cross examination conducted either to the complainant or to the concerned cashier of the bank to record their statement with regard to change of denomination of aforesaid currency notes and the O.P. bank has also not submitted the CCTV footage of transactions to ascertain the same. However, the learned counsel for the O.P.No.1 to 4 during the course of argument contended that the complainant had viewed the CCTV footage in the Gandhi Nagar Branch and found no suspicion. In the aforesaid context, it is very difficult to hold whether the complainant was deposited Rs.1,50,000 or Rs.1,60,000/- in the account of the O.P.No.5. The complainant claims that he has deposited Rs.1,60,000/- in the account of the O.P.No.5 but in fact mentioned in the total amount as Rs.1,50,000/-. Similarly, the O.P. Bank also denies to have received Rs.1,60,000/- and but admitted to have received Rs.1,50,000/- as per the pay-in-slip filled up by the complainant. Under the above peculiar fact and circumstances of the case and in a sequel to the aforesaid discussion, in our considered view we would like to say that in this case the matter involved adjudication of issues involving disputed factual questions. It is not possible to adjudicate the factual complex matters in this summary jurisdiction and the complex factual position requires matter to be examined by appropriate Court of Law and not by this Forum. Our finding is fortified with the decision of Hon’ble Supreme Court of India in the case Oriental Insurance Company Ltd Vs. Munimahesh Patel decided on 12.09.2002 vide Civil Appeal No. 4091 of 2006 from the judgment and order dated 19.05.2004 of National Consumer Disputes Redressal Commission, New Delhi in F.A. No.82 of 2002. The citations filed by the learned counsel for the complainant as discussed above are not applicable to the instant case due to factual difference of citations discussed above. Hence, the complainant is at liberty to redress his grievance in the appropriate court of law and for that the complainant is advised to take recourse to file a case in an appropriate Forum.
7. Consequently, in the light of above discussion and considering the factual position of the case, we dismissed the complaint of the complainant with a direction to the complainant to file such complaint before any other competent jurisdiction for adjudication of his factual dispute and he may avail the benefit under Section 14 of the Limitation Act, 1963 to get exempt of limitation in the best interest of justice. The case of the complainant is disposed of accordingly. No cost.
8. The order is pronounced on this 22nd day of February 2017 under the signature and seal of this Forum. The office is directed to supply free copy of this order to the parties as per rules. A copy of this order be sent to the server of www.confonet.in for posting in internet then the file be consigned to the record room.
