This appeal is directed against the final order dated 22.09.2015 delivered by Ld. D.C.D.R.F., Siliguri in Reference to CC No. 86/S/2012. Here in this case the appellant Durga Trading Company under the proprietorship of Smt. Bimala Devi Mahalani who has been represented through Sri. Tapan Mahalani filed the instant Consumer Complaint against Mallaguri Branch of Bank of India and Vivekananda Road Branch of Indian Bank and Siliguri Branch of Axis Bank. The complainant’s case in nutshell is that she has the current account with Bank of India Mallaguri Branch, one Utpal Roy has represented himself before the complainant to the score that he was an agent and representative of Axis Bank, Siliguri Branch and due to such representation, the complainant issued a cheque bearing No. 426654 dated 08.01.2012 for a sum of Rupees 90 drawn on Bank of India Mallaguri Branch in favour of Axis Bank on 08.01.2012. On 13.06.2012 the complainant came to know that a sum of Rupees 90.900/- had been debited from the said account. On inquiry the complainant came to know that one Naresh Banerjee has received the said amount in his account of Bank of India, Vivekananda Road Branch, Siliguri. The complainant then raised objection for such debit from her account sum of Rupees 90,900/-. She informed the matter Pradhan Nagar, P.S. on 14.06.2012. The further case of the complainant she never issued any cheque bearing No. 426654 dated 08.01.2012 in favour of Naresh Banerjee he issued the said cheque only for a sum of Rupees 90 in favour of Axis Bank and the said cheque was handed over to one Utpal Roy who was the representative of Axis Bank.  The further case is that while the Pradhan Nagar P.S. could not take any steps then she intimated the said incident to the Commissioner of Police, Calcutta, Additional Superintendent of Police, Siliguri and Superintendent of Police, CID Bhavanibhavan. The further case of the complainant is that she  Vide letter dated 15.06.2012 requested all the concerned Banks to return back the said sum of Rupees 90,900/- in her account and on received of the said letter the O.P. No. 3 Indian Bank Vide reply letter dated 21.06.2012 intimated the complainant that said Naresh Banerjee did not maintain any account with Indian Bank, Vivekananda Branch but Indian Bank at Panihati Branch and the said cheque was cleared by Bank of India, Mallaguri Branch through the clearance service of banking system. The further case of the complainant is that in fraudulent way Rupees 90,900/- has been wrongly debited in the account of Naresh Banerjee and the Bank Authorities attached to this instant transaction has serious lapses for such fraudulent transaction and for that reason the instant Consumer Complaint was registered with a prayer to recover the said amount of 90,900/- in her account, Rupees 1 Lakh as compensation, Rupees 10,000/- as cost of litigation. The instant Consumer Complaint was contested by bank of India, Indian Bank by filing separate written versions.

In written version Bank of India that is O.P. No. 1 and 2 have mentioned that the instant Consumer Complaint was bad for nonjoinder necessary party, that the claims of complainant was frivolous manufactured one and the Bank has no latches on their part and the Bank has cleared the said disputed cheque after being satisfied over the discloser and identification of Naresh Banerjee by O.P. No. 3,4 and 5. The O.P. No. 3,4 and 5 also filed separate written version. They have also raised some objections as O.P. No. 1 and 2 and contended that the claim of the complainant was false and frivolous one. The O.P. Axis Bank also contested the claim by filing the written version stated that Naresh Banerjee was a necessary party to the case and due to his absence, the present case could not be adjudicated properly. The Axis Bank further claimed in their written version that Utpal Roy was not connected with the Axis Bank of Siliguri Branch and he never acted as agent of this Branch. Ld. Forum after recording evidences and hearing the valuable arguments and on perusal of the material documents came in a conclusion that in absence of Naresh Banerjee and Utpal Roy, the Forum had no occasion to presume regarding the actual incident happened over the said cheque bearing No. 426654 dated 18.01.2012 and for that reason the Consumer Complaint was dismissed on contest. Being aggrieved with the said order this appeal follows on the ground that the adjudication of Ld. Forum was not proper, appropriate and beyond the Authority of Law and liable to be set aside and the Consumer Complaint should be accepted and reasonable order should be passed in favour of the complainant. So, that she may be rightly compensated. The Bank of India, Indian Bank as well as Axis Bank has contested the appeal and they have submitted the written note of arguments through their Ld. legal counsels. The appellant also submitted the written note of arguments through Ld. legal counsels and conducted the hearing on behalf of the appellant. The appeal was heard in presence of Ld. Advocate of all sides.

Decision with reasons

Admittedly, the complainant had a current account at Mallaguri Branch of Bank of India. It is also not disputed that the complainant issued a cheque bearing No. 426654 dated 18.01.2012. The bone of contention is that she has issued the cheque in favour of Axis Bank, Sevoke Road Branch, Siliguri to the tune of Rs. 90 only and handed over it to an agent of Axis Bank named Utpal Roy. The Complainant claimed that she never issued any cheque in favour of Naresh Banerjee. While the cheque was placed before the Bank of India through Indian Bank for clearance of the said cheque and to credit the same in the account of Naresh Banerjee lying at Indian Bank, Panihati Branch. The Bank of India Mallaguri Branch has cleared the said cheque being satisfied over the proper identification of the drawer placed before it by the concerned Branch. Now the question is whether the cheque was manufactured by Naresh Banerjee or not. The complainant communicated the matter of this fraudulent transaction to Inspector of Police, CID who has seized the said original cheque bearing No. 426654 dated 18.01.2012 and at the instance of Investigation Authority the Indian Bank could not allowed Naresh Banerjee to withdraw the entire disputed money of Rupees 90,900/- and ultimately Rupees 66,729/- was still lying in the account of Naresh Banerjee at Indian Bank. The Investigation process is still continuing and the Forum had no occasion to get the clear knowledge of genuinity  of the said transaction unless and until the criminal investigation could be completed and for that reason Ld. Forum came into a conclusion that as there was no expert evidence and no other evidence to justify to what was the truth. Either the cheque itself was true or the statement of complainant was true and in absence of Naresh Banerjee and Utpal Roy nothing could be presumed regarding actual incident of the said cheque and for that reason the case was dismissed on contest. During the course of hearing in the appeal stage it has also not become clear whether the criminal investigation has come to an end or still it is continuing. This Appellate Authority also has got no opportunity to hold either the instant cheque bearing No. 426654 dated 18.01.2012 was manipulated or not. Rather one Naresh Banerjee and Utpal Roy obviously were the necessary party and in absence of them no purposeful justice could be achieved. However, the complainant should get an opportunity to re-agitate the case by impleading Naresh Banerjee and Utpal Roy in the instant Consumer Complaint and thereafter the hearing of the Consumer Complaint should start afresh and after observing all formal procedures an effective final order should be passed from the end of Ld. D.C.D.R.F. Siliguri. Accordingly, the appeal should be allowed in order to achieve the fruitful and proper justice.

Hence, it’s ordered

That the appeal be and the same is allowed on contest without any const. The judgement and the final order delivered by Ld. D.C.D.R.F. Siliguri dated 22.09.2015 in CC No. 86/S/2012 is hereby set aside. The complainant shall have the opportunity to add new party in this case and to implead Naresh Banerjee and Utpal Roy and thereafter the Ld. Forum shall hear the case afresh according to the provisions of Consumer Protection Act, 1986. The Ld. Forum may adopt all the evidences already tendered in new trial or may call for fresh evidences from either side. Ld. Forum is also requested to mitigate the dispute within a short span of time as it is pending since 2012.

Let a copy of this order be handed over to the parties without any cost and also to be communicated to the Ld. D.C.D.R.F., Siliguri. Parties are requested to appear before the Ld. D.C.D.R.F., Siliguri on 12.08.2021 for obtaining necessary order from the Ld. D.C.D.R.F., Siliguri.