PER SHRI. S.S. PATIL - HON’BLE MEMBER :

 1)        This is the complaint regarding deficiency in service on the part of Opposite Party as they did not take precautions in verifying the signatures on the cheques of the Complainant, and thereby clearing the forged cheques.

 2)        The facts of the case as stated by the Complainant are that the Complainant was having Current Account No.11863 with the Opposite Party Bank at Fort Branch.  It was being operated by any two of the office bearers of the Complainant Association.  The names and specimen signatures of all the four office bearers are with the Opposite Party.  As and when the office bearers are changed the names and specimen signatures of the concerned office bearers are given to the Opposite Party.

3)        It is further stated that the complainant used to withdraw a maximum amount of Rs.5,000/- and in exceptional cases Rs.10,000/- against single cheque to meet their financial requirements.  During the period from 30/08/05 to 24/06/06, an amount of Rs.9,82,000/- was withdrawn from the above said current account of the Complainant through 47 cheques.  When the Complainant came to know the fraud it informed the Opposite Party by its letter dtd.10/07/06 to stop further transactions. Annexure (‘D’ to the complaint).  The Opposite Party was also asked as to why due diligence was not shown while making the payment on 47 occasions.  The signatures of these cheques did not match with the specimen signatures with the Opposite Party’s record. It is alleged by the Complainant that the Opposite Party Bank casually made the payment against 47 forged cheques without verifying the signatures with the specimen signatures with them.

 4)        It is further stated by the complainant that the cheque book was kept in safe custody in the office but a manipulative employee managed to make a duplicate key and had stolen the cheque and used them for withdrawals.

5)        The Complainant has prayed that the amount of Rs.9,82,000/- be reimbursed with interest alongwith compensation for mental agony and the cost for the complaint.

 6)        The Complainant has attached the xerox copy of the table showing the date, cheque number and amount showing withdrawal of the amount, letter dtd.10/07/06 from the Complainant to Opposite Party, letter dtd.20/09/06 from the Opposite Party to the Complainant. 

The complaint was admitted and the Opposite Party was served with the notice of the complaint.  The Opposite Party filed its reply wherein it has admitted that the Complainant was maintaining a Current Account No.11863 with it and it was operated by its office bearers.  Cheques were to be signed by minimum two office bearers.  The Complainant used to issue bearer cheque very frequently. These cheques were presented by the Complainant’s employees. The Opposite Party Bank issues statement of account to the Complainant each and every month, showing each and every transaction. 

 7)        The Opposite Party has also admitted that the Complainant by its letter dtd.10/07/06 requested the Opposite Party bank to stop transaction of the said account as it came across some fraudulent transactions of withdrawal from the said account.  The Opposite Party immediately freezed the said account. The Opposite Party has further stated that the Complainant vide its letter dtd.11/09/05 informed the Opposite Party that the cheque book from which the cheques were used for the fraud, was in the custody of one of its employee Mr. Pravin Mohan Maherkarkar.  During the period from 02/09/05 to 24/06/06, Mr. Praveen forged the signatures of the office bearers and withdrew Rs.9,82,000/- by using 47 cheques.  The Complainant also alleged in this letter that the Opposite Party with the employee of the Complainant has committed the fraud.  The Opposite Party has further averred that the signatures on the cheques were tallied with the specimen signatures with them and then only the transactions were allowed.  The Complainant is unnecessary blaming the Opposite Party to cover up its own negligence.    

 8)        The Opposite Party has further added that, inspite of receiving the statement of account every month, the Complainant was not able to notice the fraud committed by its own employee during the period from 02/09/05 to 24/06/06.  The Opposite Party has also pointed out that the Complainant did not keep the cheque book with a responsible, authorized office bearer of the Complainant but it was kept with the person who committed the fraud. The Opposite Party has submitted that the fraud was possible because of mismanagement and reckless practice and negligence of the Complainant itself.  It is also alleged by the Opposite Party that, without the help of the office bearers, the employees cannot forge the signatures of the office bearers on 47 cheques.

 9)        The Opposite Party has further stated that on 11/08/06 another cheque of Rs.1,80,000/- was presented by the payee purportedly given by Mr. Pravin Maherkarkar. But the Opposite Party detained him and informed the Complainant and police.  Mr. Maherkarkar was handed over to the police.  Therefore, the Opposite Party has stated that it acted prudently and there is no deficiency in service on its part.  In this respect a F.I.R. vide No.252/06 was registered at MRA Marg Police Station which is presently investigating the mater.  During the investigation all 47 cheques were sent by the police station to handwriting expert.  However, inspite of several written letters to the concerned police station, it has not furnished the handwriting expert report to the Opposite Party.

10)      The Opposite Party has clarified that whenever the cheques were presented to the Opposite Party Bank the staff of the Opposite Party carefully verified the specimen signatures with the signatures on the cheque and after confirming the same, they cleared the payment.  It is the contention of the Opposite Party that the style of the signatures on cheques and specimen cards is similar.  With naked eye it was very difficult to make out any difference.  Accordingly the cheques were enchased by it as these signatures were similar to the genuine signatures.

 11)      It has also been pointed out that, at no point of time the Complainant has informed the Opposite Party that it would withdraw an amount of Rs.5,000/- only at the maximum against a single bearer cheque. The Opposite Party has further submitted that the forged cheques were presented by the some employee each and every time.  Had the Complainant informed the Opposite Party that same cheques were misplaced or stolen from their custody, then the Opposite Party must have been more vigilant and careful at the time of clearance.  All the organizations keep the cheque books in their safe custody. Without the knowledge and connivance and assistance of the officer bearer/staff, no person can commit a fraud.  

 12)      The Opposite Party has admitted that the siphoning of the amount from the account of the Complainant continued from 30/08/05 to 24/06/06, but the Opposite Party was also surprised to know that inspite of such large span of withdrawal and inspite of getting regularly monthly statements of accounts, how the Complainant could not know about it.  Therefore, from this it is clear that the Complainant was not diligent in handling its own bank account. 

 13)      It is the contention of the Opposite Party that, the Complainant was negligent in keeping the cheque book in its safe custody.  The Complainant was not vigilant and diligent about its statements of accounts sent by the Opposite Party Bank regularly every month.  Therefore, the Complainant cannot take advantage of their own wrongs and blame on the Opposite Party for wrong withdrawal.  It is further averred by the Opposite Party that it is the Opposite Party who caught hold of the culprit who forged the cheques and handed over him to the police station and not the Complainant.  Hence, it is not guilty of ay deficiency in the service.  It is further contended by the Opposite Party that had the Complainant kept the cheques in its safe custody and the monthly statements of account was verified regularly & diligently, there could not be ay forgery and loss to the Complainant. For the negligence and lack of diligence above on the part of the Complainant as stated above, the Opposite Party cannot be held liable for the fraud committed by the employee of the Complainant himself.     

 14)      The Opposite Party has contended that the signatures were tallied perfectly.  Cheques were presented by the same person every time.  Therefore, there was no doubt in the minds of Opposite Party.  Finally it submitted that there is no deficiency in service on its part and the complaint be dismissed with cost.

 15)      Thereafter, the Complainant filed its affidavit-in-rejoinder and affidavit and written argument wherein, it reiterated the facts mentioned in the complaint and denied the points raised by the Opposite Party in its written statement.  The Opposite Party also filed its written argument wherein it reiterated the facts and points mentioned in its written statement.  We heard the Ld.Advocates for both the parties and our findings are as follows.

 16)      The Complainant is the association of 130 transport operators and having its current account with Corporation Bank at Fort Branch since, 1999 (C.A.No.11863). (OP) One Mr. Parvin Mohan Maherkarkar was the employee of the Complainant association. He used to come to the Opposite Party Bank with the bearer cheque and encash the cheques bearing the signatures of the office bearers of the Complainant.  It is the contention of the Complainant that during the period from 30/08/05 to 24/06/06 (10 months approximately) an amount of Rs.9,80,000/- was siphoned from the above said account by using its 47 cheques.  Therefore, the Complainant wrote a letter dtd.10/07/06 to the Opposite Party requesting to stop the transactions and informed about the fraud.  The Complainant also provided the list of the cheque numbers with date and amount to the Opposite Party.

 17)      Apprised by the above said letter, the staff  of  the  Opposite  Party Corporation Bank became alert and when a person came with the bearer cheque of the Complainant for Rs.1,80,000/-, they detained him and informed the Complainant as well as MRA Marg Police Station. The person with the forged cheque of Rs.1,80,000/- who tried to encash the same was found to be the employee of the Complainant, one Mr. Pravin Mohan Maherkarkar, who had siphoned the above said amount of Rs.9,80,000/- and who used to come with bearer cheques.  He was found to be the same person who had come for encashing the previous 47 cheques.  He was handed over to MRA Marg Police Station where an FIR was registered against him for forgery and cheating vide FIR No.252/06.  After investigation a charge sheet has been filed in the Court and the said case is subjudice. 

 18)      In this case the main points are that the fraud is committed by the employee of the Complainant.  The complainant has suppressed the facts from this Forum that the alleged 47 cheques were in the custody of its employee. The Complainant has not even filed the copy of the FIR before this Forum at the time of filing the complaint.  Later on the Complainant filed some documents on 20/12/2012 i.e. after more than 4 years of filing this complaint.  In these documents he has attached the report under Sec.173 of CRPC filed by MRA Marg Police Station, in the Criminal Court (Addl. Chief Metropolitan Magistrate 38th Court, Mumbai Belard Pier) wherein it has been categorically mentioned that the “cheque books were used to be in the custody of an accused.” This clearly shows the negligence on the part of the Complainant association.  The signatories on the cheques were of the office bearers and the person who had forged the cheques were in charge of the custody of the cheque books.  This situation has facilitated the fraud and as such, the Complainant cannot take benefit of its own wrong.

 19)      The Complainant has not produced the copy of State Handwriting experts report, the Complainant has filed private handwriting experts report from structured system (Proprietor Mr. Devendra Javeria).  He has compared the photocopy of cheque No.852975 dtd.11/01/06 and board resolution dtd.30/08/07 which bears the signature of one Mr. Shashi K. Shetti.  Actually the original disputed cheques and the original sample specimen signatures with the bank were expected to be compared by any Handwriting expert to came to certain conclusion, and then his expert handwriting opinion would have been useful in coming to the conclusion as to whether the bank staff who compared the signatures of the two documents, was deficient or otherwise. Therefore, the Complainant has failed to produce State Handwriting Expert opinion in this respect and the opinion of the handwriting expert submitted by the Complainant is of little help as stated above to come to the logical conclusion.  Even the signatories of the disputed cheques have not filed their say or the statement or affidavit denying that the signatures on the disputed cheques are not their signatures. 

 20)      The Complainant has produced an order of this Forum in Complaint No.145/98 wherein the Hon’ble Member has observed that, “It is the Complainant’s specific case that if any cash payments were to be withdrawn from his account, he himself used to withdraw the same and the bank officials have been very much negligent in taking due care while allowing the stranger to encash such huge amounts without proper identification and/or verification of the signatures.  The difference in this case and the present complaint is that, in this cited case, the Complainant used to withdraw the cash himself while in the case in hand, the culprit who has allegedly forged the cheque used to withdraw the cash from the bank and the cheque books were kept in his custody thereby facilitating the alleged fraud.  The other important point in this case in hand and the case cited by the Complainant is that, in the case in hand the Complainant has made the Branch Manager, Corporation Bank as the Opposite Party while in this case cited by the Complainant, the Bank itself is the Opposite Party. 

 21)      The Opposite Party has filed the judgement of the Hon’ble State Commission (Maharashtra) wherein the Hon’ble State Commission has held in F.A. No.A/11/345 in Managing Director, Chief Executive Office IDBI Bank V/s. Krishna Chandra Pande that “IDBI Bank who actually issued ATM-cum-Debit Card and extended the facility to the Complainant and his wife is not a party.  IDBI Bank itself is a separate and distinct juridic person within the meaning of Sec. 2 (1)(m) of the Consumer Protection Act, ought to have been made a party. Its Managing Director at Khar (West), certainly are not one and the same like the bank itself.  Each one of these officials is a separate and distinct juridic person.  They are not service providers in relation to which deficiency in service alleged supra.  When we brought this particular aspect to the notice of respondent/original Complainant, he tried to submit that these officials during the trial before the Forum did not contest the matter and at no point of time raised any objection that the bank is not a party. We are afraid whether they raised or not raised such objection, is not the issue but such argument now advanced before us in appeal on behalf of the appellant and, basically, this particular issue goes to the root of the mater since the consumer dispute arose between the consumer and the service provider and not with the person who are not service providers.  Under the circumstances, we cannot support the impugned order we hold accordingly and pass the following order –

             “Appeal is allowed.  Consumer complaint stands dismissed.”       

 22)      In the case in hand also the Complainant has not made the Corporation Bank as the Opposite Party.  The Complainant has made, the Branch Manager, Corporation Bank as the Opposite Party.  Certainly, as per the above said order, the Complainant has an account with the Corporation Bank which is the service provider and not the branch manager. Therefore, in our view also the Complainant has not made the service provider as the Opposite Party and hence, on this point only this complaint deserves to be dismissed.

 23)      The Opposite Party has also filed the citations-1998 (006) – CJA 0336 – NCDRC in the matter of Lala Samachar News Paper V/s. Gen. Manager Telecom Department where the Hon’ble National Commission has held that the detailed inquiry is needed involving forged and fabricated false documents and can be dealt with, by regular Civil Court.

 24)      In the matter of N. Shivaji Rao V/s. Daman Motor Company – 1993 (001) – CTJ 0107 – NCDRC, the Hon’ble National Commission has held that the cases of complicated question of fraud and cheating cannot be entertained at Consumer Forum.  In the instant case also the case pertains to fraud, forgery and cheating and in our candid view, such cases require detailed investigation and enquiry, adducing of evidence etc and as such, are not to be entertained in the Consumer Fora as it is the summary procedure where detailed enquiry and appreciating of detailed evidence is not expected.

 25)      The Opposite Party has also cited the case vide 1997 (005) CTJ 0688 NCDRC, in the matter of Reliance Industries Ltd. V/s. United India Insurance Co. Ltd., the Hon’ble National Commission held that cases of fraud, cheating and conspiracy should be referred to Civil Court.

 26)      In view of the above citations, facts and circumstances of the case, the Complainant has not come with the clean hands as he has falsely stated that the cheques were stolen from their safe custody.  In fact they were given in the custody of the person who has forged them. The person, who siphoned the cash of the Complainant, was its own employee and the Complainant was quiet negligent in dealing with the cheque books, etc.  The Complainant cannot benefit from its own wrong.  The Complainant has not made the Corporation Bank who is the service provider to it as the Opposite Party.  Hence, on this count only the complaint deserves to be dismissed taking into consideration the judgement of the Hon’ble State Commission as mentioned above.  Therefore, in our candid view there is no merit in this case and hence, we pass the order as follows -       

O R D E R

1.           Complaint No.235/2008 is hereby dismissed for want of merit.

2.           There is no order as to cost.

3.     Certified copies of this order be furnished to the parties.