Date of filing: 04.05.2013.
Date of disposal: 15.01.2014.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: Sri A. M. L. Narasimha Rao, B.Sc., B. L., President
Smt N. Tripura Sundari, B. Com., B. L., Member
Wednesday, the 15th day of January, 2014
C.C.No.108 of 2013
Between:
Kishore Madepalli, S/o Dr Prasad Babu Medepalli, Christian, Aged about 25 years, Shanti Apartments, Vijayawada – 8, Rep: by the Authorized Person/GPA Medepalli Raju, S/o Yohan, Aged 33 years, Vasantha Hospital – Zion Hospitals, Machilipatnam Road, Gangur, Penamaluru Mandal, Krishna District.
….. Complainant
And
1. The Branch Manager, Canara Bank, Madhu Nagar, Vijayawada - 10.
2. The Managing Director, Canara Bank, Head Office, Bangalore, State of Karnataka.
. … Opposite Parties.
This complaint coming on before the Forum for final hearing on 01.01.2014, in the presence Sri K.M.S. Sastry, P. Siva Sankara Rao, advocates for complainant; Sri Md. Hayad, advocate for opposite parties and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President Sri A. M. L. Narasimha Rao,)
1. This complaint is filed under Section 12 of Consumer Protection Act, 1986 for a direction to the opposite parties to restore the amount of Rs.4,93,500/- withdrawn from the FDR/SB Accounts of the complainant, to pay Rs.4,93,500/- towards compensation, to pay Rs.1,14,897/- towards interest on the FDR amount and to pay costs.
2. The averments of the complaint in brief are as follows:
The complainant’s father Prasad B. Medepalli opened a minors NRI account in the name of the complainant on or about 3.8.2003 with the NRI account branch of the opposite parties. A sum of Rs.4,17,245/- was deposited in Canara bank as fixed deposit on 18.2.2005 in the name of the complainant. The maturity value of Rs.5,32,339/- was payable by the maturity date 18.2.2007. A receipt in DR. No. JRKD 050005994 and MNR19479 dated 7.11.2005 was issued. The amount was payable to the complainant after he became major. The complainant was born on 12.10.1987. The complainant attained majority on 12.10.2005. The complainant is in USA. In his absence the fixed deposit in his name was cancelled on 1.12.2005 and the amount of Rs.4,94,309/- was transferred to the account in his name. A cheque book was issued in the name of the complainant without the knowledge of the complainant. The amount of Rs.4,93,500/- was withdrawn from the SB Account of the complainant through six cheques between 2.12.2005 and 16.12.2005. The complainant amount was transferred and withdrawn from the account without his knowledge approval authority or written instructions from him. The fraud was played in the bank involving several persons by resorting to forgery and cheating and the complainant’s amount was diverted. The complainant is in USA on all the dates of cancelling the FDR, transferring the FDR amount to his SB account and withdrawal of amounts through cheques. The complainant made representation to the 1st opposite party on 18.10.2012 about the misappropriation of the amount and asked him for immediate action. The 1st opposite party did not give any reply but made phone calls to the GPA holder of the complainant to meet him. Thereafter the complainant sent representation to several authorities on 3.4.2013, he also sent a report to SHO, L & O, VII Town PS, Vijayawada on 8.4.2013. Reports were sent to banking ombudsman and also reserve bank of India. There is deficiency in service on the part of the opposite parties and therefore the present complaint is filed.
3. The 1st opposite party filed version which was adopted by the 2nd opposite party denying the allegations made in the complaint and further stating as follows:
The complaint is not maintainable. While the complainant was minor, his father Prasad B. Medepalli as guardian opened S.B. Account No.8989 with the opposite party no.1 on 7.2.1997. It is not an NRI S.B. Account. The account was to be operated by the father as guardian. The complainant’s father had also taken a fixed deposit KD No.236/2002 in the name of the complainant with the value of Rs.3,79,168/- on maturity by 18.2.2005. At the instance telephone request received from Prasad B. Medepalli from USA the fixed deposit was renewed with maturity value of Rs.5,32,339/- after maturity period of two years. The original KD receipt was with the complainant’s father and a photocopy of the receipt was produced before the branch. The renewal was under receipt KD 5994/2005. The complainant’s father informed the bank on 28.11.2005 about the complainant attaining majority on 12.10.2005. The complainant’s father also stated that SB Account No.8989 would be operated by the account holder-the complainant. The complainant’s father submitted specimen signatures of the complainant duly attested by him along with the said letter dated 28.11.2005. At the request of the complainant the deposit under KD 5994/2005 was encashed and profits were credited to the complainants SB Account No.8989. The complainant signed on the reverse of the original KD receipt in token of receipt of the said KD amount. Cheque book was issued as per the request of the complainant’s renewal letter dated 30.11.2005. The six cheques, presenting which the amount of Rs.4,93,500/- was withdrawn, bear the signature of the complainant as available with the 1st opposite party duly attested by the complainant’s father. The 1st opposite party acted in accordance with the provisions of law and in compliance to the instructions given by the complainant from time to time in all transactions. After lapse of 7 years this complaint is filed disputing the transactions. It is an afterthought. The complainant and his father colluded together and filed this complaint with a view to make wrongful gain. The complainant’s father is a necessary party to the proceedings and this complaint is bad for not impleading him as party. The complainant is not entitled to any relief.
4. The complainant filed rejoinder meeting the allegations made in the version of the opposite party and further stating that the opposite parties did not comply with the rules and regulations and procedure of banking rules, natural justice and equity and the bank cannot be exempted from the consequences and liability that the flows from omissions and negligence on the part of the opposite parties and that all the necessary parties are impleaded in the complaint.
5. The complainant’s GPA holder M. Raju filed his affidavit as deposition of witness on behalf of the complainant and it is received as deposition of PW-1. Senior Manager of the 1st opposite party filed his affidavit and it is received as deposition of DW-1. Exs.A1 to A23 are marked on behalf of the complainant and Exs.B1 to B11 are marked on behalf of the opposite parties.
6. Heard the arguments advanced by the learned counsel for both the parties. The complainant has filed memorandum of written arguments and additional written arguments along with Pass-Port (3 books) of the complainant and FDR issued on 14.3.2002.
7. The points that fall for determination are:
- Whether this Forum can decide the dispute in view of allegation that the bank officials have committed fraud and forgery in parting with the complainant’s amount?
- Whether there is deficiency in service on the part of the opposite parties in transferring the amount of the complainant from FDR to his SB Account and allowing withdrawal from the SB Account through cheques?
- Whether the complainant is entitled to the reliefs prayed for?
Point No.1:
8. One of the objections raised during arguments is that the dispute involves complicated questions and that they could not be decided in a summary procedure by this Forum. Though this point is not specifically raised in the written version, we shall decide this as it relates to the jurisdictional capabilities of this Forum.
9. The complainant alleges that the opposite party bank had resorted to forgery of signatures of the complainant, committed fraud on the complainant by allowing withdrawal of the complainant’s money from the opposite party bank by someone allowing impersonation. The complainant was born on 12.10.1987. The complainant’s farther had opened an SB Account in the name of the complainant while he was a minor. A sum of Rs.3,79,168/- was deposited in the name of the minor complainant on 10.2.2002 for a fixed period of 3 years to mature to Rs.4,84,425/- by 10.2.2005. The deposit was renewed with investing sum of Rs.4,77,240/- with maturity value of Rs.5,32,339/- by 18.2.2007 (vide Ex.B2). The complainant attained majority on 12.10.2005. The complainant was in US. The fixed deposit amount was withdrawn premature and credited to the complainant’s savings account. On 28.11.2005 a letter (vide Ex.B11) was submitted to the opposite party bank purportedly by the complainant’s father stating that the complainant has became major and he would operate the account. Thereafter a letter was issued purportedly by the complainant to the bank on 30.11.2005 for issue of cheque book. Accordingly a cheque book containing 20 leaves seems to have been issued and a sum of Rs,4,93,500/- was withdrawn from the complainant’s account using six cheques, the original of Ex.B3 to B8, between 2.12.2005 and 12.12.2005.
10. The complainant states in the complaint that he was in US and did not draw the amounts and the bank had committed fraud. The opposite party submitted that the complainant’s father himself had submitted the letter with signature of the complainant and later the request for cheque book and the cheques were signed by the same person and there was fault on the part of the bank.
11. The passports filed by the complainant indicate that he was not in India in the month of November and December, 2005. The original FDR issued on 14.3.2002 by the opposite party is with the complainant. The passports and the original FDR are filed in this case. So some other person may have withdrawn the amounts by importation. Can we readily infer fault on the part of the bank?
12. When a father-guardian brings a person and states that he is his son-account holder and became major, the bank would not entertain any doubt. The bank would accept such person as the real account holder and allow him to operate account. No doubt the bank could have verified this passport for identification after becoming major and would have asked to produce the original FDR. Here again if the original FDR was left in US and undertaking was given, the bank may not insist for original FDR, particularly when there was no scope for doubt.
13. There is also possibility of some officer of the bank playing fraud. Before commencing probe in that directions we need the statements of the aggrieved person. The complainant is not appearing in person. One Raju acting on GPA makes the statements in the complaint and also in evidence affidavit. It is not said how he could know the facts. The presence of the complainant’s father, who admittedly opened the account, is not secured either as party or as witness. His affidavit is not filed. The relations between the complainant and his father are not shown to have become strained. When no whisper is made by the complainant and his father personally, alleging fraud or misdeeds on the part of the bank, we cannot enter into probe. Not a single original signature of the complainant or his father is available. The complainant taking the plea of forgery failed to file even one authenticated original signature.
14. If really fraud is played a thorough enquiry is needed. It is necessary to find if the complainant did not visit India and did not attend the bank after he attained majority, if the father had presented some person impersonating his son for the purpose of operating account as major and for applying for cheque book and for withdrawal of the amount, if the complainant and his father are on amicable terms, if the bank papers such as request letter for cheque book, introducing letter of the complainant father, the specimen signature from the cheuqe, bear the signatures of the complainant and his father, how specimen signature sheet Ex.B10 could bear the date 6.12.2005 while the cheque book was issued on 30.11.2005 and first cheque with the signature of the complainant was honoured on 2.12.2005, etc. A large and secrious dispute does exist, if either version is believed. Verification of several original records of the bank, several personal papers of the complainant and his father is needed. Oral evidence of several persons and probing cross examination will be necessary. Collection of experts’ opinion is required. All these details cannot be secured in the summary enquiry in this Forum. We are also aware that we are not equipped with expertise in hand writing comparison and we cannot give an expert opinion, though we may say that two signature appear similar or dissimilar. So we feel that we cannot decide the dispute in a summary procedure. Consequently we hold that the dispute involved in this case cannot be resolved in a summary procedure in this Forum.
Points 2 and 3:
15. In view of the answer on point no.1 these points cannot be answered. Consequently the complainant has to be dismissed giving liberty to the complainant to approach appropriate forum.
16. In the result this complaint is dismissed and the complainant will be liberty to approach appropriate forum to get the dispute resolved and such Forum or Civil Court may consider the time spent in this proceedings, for exclusion in computing the period of limitation. The parties shall bear their respective costs. Original documents filed by the parties be returned to them on substitution of marked documents.
Dictated to steno, N. Hazarathaiah, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 15th day of January, 2014.
PRESIDENT MEMBER
Appendix of evidence
Witnesses examined
For the complainant: For the opposite party:
complainant’s GPA holder M. Raju – PW-1. Senior Manager of OP.1-DW-1;
(by affidavit) (by affidavit)
Documents marked
On behalf of the complainant:
Ex.A1 07.11.2005 Photocopy of FDR
Ex.A2 21.12.2005 Photocopy of cheque for Rs.30,000/-
Ex.A3 06.12.2005 Photocopy of cheque for Rs.80,000/-
Ex.A4 07.12.2005 Photocopy of cheque for Rs.30,000/-
Ex.A5 07.12.2005 Photocopy of cheque for Rs.30,000/-
Ex.A6 12.12.2005 Photocopy of cheque for Rs.33,500/-
Ex.A7 12.12.2005 Photocopy of cheque for Rs.20,000/-
Ex.A8 18.10.2012 Photocopy of letter issued by the complainant to OP.
Ex.A9 Photocopy of postal receipt.
Ex.A10 Photocopy of postal acknowledgement.
Ex.A11 03.04.2013 Photocopy of letter issued by complainant to Finance Minister.
Ex.A12 Photocopy of Postal receipt.
Ex.A13 08.04.2013 Photocopy of letter issued by the complainant to SHO, VII Town PS, Vijayawada.
Ex.A14 28.11.2012 Photocopy of letter issued by the complainant to Banking Ombudsman, RBI.
Ex.A15 Photocopy of Postal receipt.
Ex.A16 Photocopy of Postal receipt.
Ex.A17 Photocopy of Postal receipt.
Ex.A18 Photocopy of letter issued by the complainant to Banking Ombudsman, RBI.
Ex.A19 Photocopy of Postal receipt.
Ex.A20 Photocopy of postal acknowledgement.
Ex.A21 Photocopy of power of attorney.
Ex.A22 30.12.2011 Photocopy of statement of account.
Ex.A23 Photocopy of pass-port.
On behalf of the opposite party:
Ex.B1 30.11.2005 Photocopy of letter issued by complainant to OP.1
Ex.B2 07.11.2005 Photocopy of FDR
Ex.B3 21.12.2005 Photocopy of cheque for Rs.30,000/-
Ex.B4 06.12.2005 Photocopy of cheque for Rs.80,000/-
Ex.B5 07.12.2005 Photocopy of cheque for Rs.30,000/-
Ex.B6 07.12.2005 Photocopy of cheque for Rs.3,00,000/-
Ex.B7 12.12.2005 Photocopy of cheque for Rs.33,500/-
Ex.B8 12.12.2005 Photocopy of cheque for Rs.20,000/-
Ex.B9 07.02.1997 Photocopy copy of account opening form.
Ex.B10 06.12.2005 Photocopy of specimen signature card.
Ex.B11 28.11.2005 Photocopy of letter issued by complainant to OP.1.
PRESIDENT
