SMT. BANDANA ROY, PRESIDENT

The case of the complainant in brief is that one Manik Chandra Patra was the husband of the complainant no.1. Manik Chandra Patra was employed in IOC Haldia and he retired from service on 31.12.2014.  He had a savings A/C with the OP No.1 Bank being A/C No.30660488854 since 2009. OP No.2 is the son- in- law of said Manik Chandra Patra and complainant no. 3 was wife of OP No.2. OP no.2 and Manik Chandra Patra had good relation with each other being close relations and OP no.2 was the helping hand of Manik Chandra Patra in banking affairs. In the year 2009 complainant no. 3 and OP no.2 requested Manik Chandra  for a loan of Rs. 1,75,000/- for opening a beauty parlor. For the above purpose Manik Chanda Patra took a loan of Rs. 1,75,000/- from his employer by a cheque on 05 03.2009 and on the same day Manik Chandra along with his son-in-law went to his bank for encashment. On the day OP no.2 fully helped Manik Chandra to fill up his cheque for withdrawing the amount. Manik Chandra only signed the cheque.  At this time OP no.2 managed to retain two signed cheques from the cheque book of Manik Chandra Patra. After one year complainant no.3 and OP No.2 again demanded more money but said Manik Chandra refused to render it. On 01.11.12 OP No. 2 drove out complainant-3 from his house r non-payment of that amount by Manik Chandra. So, complainant no.3 started a maintenance case U/sec 125 CrPC against OP No.2. On 31.12.14 Manik Chandra retired from his service of IOC Haldia and deposited the amount of all his retirement benefit in his A/C. On 25.05.15 OP no.2 in connivance with the OP no.1 Bank withdrew Rs. 1,00,000/- by depositing one of the two signed cheque no. 615360 dated 25.05.15. On the same day OP no. 2 deposited another cheque No. 615361 dt 25.04.15 for Rs. 10,00,000/-and transferred that amount in his own account No 0010522042411 in the same branch of  OP No. 1. OP nos. 1 and 2 have done such mischievous act with a view to cheat Manik Chandra Patra. The matter came to the notice of Manik Chandra Patra on 06.06.15 and on quarry he came to know that the OP no.2 has done such fraudulent transaction himself. Thereafter Manik Chandra Patra lodged complaint against the OP no. 1 and also lodged a complaint at Haldia PS against OP no.2 which is pending before the court of ld. ACJM Haldia.  Manik Chandra Patra was admitted at CMRI Calcutta for his ailment of kidney and he died on 24.06.16. Before his death Manik Patra informed the matter to RBI Calcutta. For such deficiency of service on the part of the Bank, the heirs of Manik Chandra Patra being the complainants hereof have filed the present complaint case praying for reliefs as mentioned therein.

The OP No.1 State Bank of India Haldia Branch has contested the complaint case by filing written version and denied all the material averments of the complaint. It is their specific case that this OP has not committed any deficiency in their service as  they acted as per norms and regulations of the Bank. It has been contended that the instant complaint case has been filed to achieve some material gain which is liable to be dismissed against this OP.

The OP no.2 contests the complaint by filing written version and WNA. It is contended that the present case is not maintainable in its present form, that the claimant has no right to file this case as they have no consumer relationship with this OP. The instant case is barred by the provision of Limitation Act. It is the specific case of this OP No2 that he is son-in-law of late Manik Chandra Patra who was an employee of IOC , Haldia. Late Manik Chandra Partra came to know in the year 2012 that this OP got a high amount of money by selling his share of inherited property and so he asked this OP for a loan of Rs. 11,00,000/- in cash for his own purpose and in the year 2012 this OP provided such loan to late Manik Chandra Patra. Said loan amount was repaid by Manik Patra to this OP by cheque on 25.05.15 prior to effecting divorce between this OP and the complainant no.3. The divorce between OP no.2 and the complainant no.3 was effected on 28.06.16 and thereafter to teach a lesson to this OP no.2 all the complainants have become united and have filed this false motivated case.   

          On the grounds above, this OP no.2 has prayed for dismissal of the case.

          The points for consideration is whether the complaint is  maintainable and whether the complainants are entitled to get the relief or reliefs as prayed in the complaint petition.

Decision with Reasons.

          Both the issues are taken up together for discussion for the sake of convenience and brevity.

          It is pertinent to mention that OP No.2 on 07.12.16 filed a petition alleging that the complaint is not maintainable because the petition filed by the complainants is the subject matter of judgement of Haldia PS Case No 71/15 dated 11.06.15 u/sec 467/468/420 IPC lodged by deceased Manik Chandra Patra which is now pending before the court of ld. ACJM Haldia. According to the OP No.2 complainants cannot get any relief from this Consumers Redressal Forum during pendency of that PS Case.

          The petition was heard by us and by order Nol. 5 dated 08.12.16 we kept open said petition for passing order at the time of framing of judgement. But against that order the complainants did not prefer any Revision before the appropriate Court

          There is no dispute that deceased Manik Chandra Patra had a Savings Bank A/C with the OP no.1 Bank being account No. 30660488854 since 2009. It is also not disputed that in the year 2009 complainant no. 3 and OP no2 requested Manik Chandra Patra since deceased for giving a loan of Rs. 1,75,000/- for opening a beauty parlor by complainant no.3. Subsequently the marriage between complainant no.3 and OP no.2 was ended due to a decree of divorce. The contention of the complainant is that Manik Chandra Patra, since deceased signed two cheques and handed over the cheque book to the OP no.2 who managed the same cheques from the cheque book bearing signature of Manik Chandra Patra ,since deceased. The allegation is that on 25.05.15 OP no.2 with the help of OP nop.1 bank by one of the said signed cheques being No. 615360 dt. 25.05.15 withdrew Rs. 1,00,000/- issued by deceased Manik Chandra Patra who signed the cheque admittedly and the amount of Rs. 10,000,00 by another signed cheque bearing No. 615361 dt. 25.05.15 was transferred to the account of OP no.2 being No. 0010522042411 in the same branch of the Bank. The complainants have further stated that Manik Chandra Patra, since deceased was admitted on 24.05.15 at CMRI Calcutta for his ailment of chronic kidney disease V of MHD and he was discharged from the hospital on 28.05.15 but he died on 24.06.16. Deceased Manik Chandra Patra lodged a complaint to the OP no.1 and also at Haldia PS. Haldia PS started case No. 71/15 dated 11.06.15 u/sec 467/468/420 of IPC against the OP No.2 which is still pending before the court of ld. ACJ M Haldia. The complainants have prayed for refund of said Rs. 1,00,000/- and Rs. 10,000,00/-  with interest from 25.05.15 before this Forum and also for a direction to pay compensation of Rs. 8,90,000/-for mental agony.

          Question is whether complainants are entitled to any relief when a criminal case is already pending and admittedly  Manik Chandra Patra, since deceased signed the two cheques .Ld lawyer for the complainants referred to a decision reported in 2014 (4) CPR 548(NC) wherein it has been held that  before alleging transfer of amount  in the account of a third party  at the instruction of the account holder but failed to prove such instructions will amount to deficiency of service  on the part of the Bank.

          We have perused the entire judgment but do not find any similarity between the facts of the said case and the present complaint case. So, we are of the view that the decision is not applicable in the circumstances of the present case.

          Secondly, the ld lawyer for the complainants also referred a decision reported in 2015 (2) CPR 49 (NC) wherein it has been held that Current Account – Amount lying in complainant’s account-  Withdrawn and transferred by OP in other account by mistake and negligence, held negligence was proved. In this regard we are also of the view on perusal of the judgement of the National Commission that the facts and circumstances of the case is not similar with the facts of the present case.

          Here deceased Manik Chandra Patra admittedly signed two cheques and admittedly he filed a criminal case u/sec 467/468/420 IPC against the OP no.2. Whether bank in connivance with the OP no.2 transferred the disputed amount to the A/C of OP no.2 is true or not cannot be decided in the summary proceeding. In this connection we want to refer a decision reported in 2016(3)CPR 549 (NC)  wherein it has been  held  that complicity question of cheating and forgery  cannot be adjudicated in a summary proceeding under the Consumer Protection Act. Complainants have alleged cheating and fraud played by the OP No.2 but admitted that Manik Chandra Patra signed the disputed cheques. We do not find any deficiency in service of bank because is not proved by cogent evidence that the bank was in connivance with the OP no.2 for transferring the disputed amount.

          Accordingly we are of the view that the complaint is not maintainable and the complainants are not entitled to get any relief  from this Forum.

          Hence, it is

ORDERED

          That the complaint case no. 259/2016 be and the same is dismissed on contest.

          Parties do bear their own cost.