Andhra Pradesh

Chittoor-II at triputi

CC/77/2018

K.Sunil Kumar Reddy, S/o K.Ramachandra Reddy - Complainant(s)

Versus

The Chairman and Managing Director, Andhra Bank - Opp.Party(s)

K.Ajay kumar

13 Sep 2019

ORDER

Filing Date: 26.07.2018

Order Date:13.09.2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

FRIDAY THE THIRTEENTH DAY OF SEPTEMBER, TWO THOUSAND AND NINTEEN

C.C.No.77/2018

Between

K.Sunilkumar Reddy,

S/o. K.Ramachandra Reddy,

Hindu, aged about 33 years,

D.No.20-3-100/B, 4^th Floor, Yerra Mitta,

Sivajyothi Nagar,

Tirupati,

Chittoor District,

Andhra Pradesh.                                                                                           … Complainant.

And

1.         The Chairman and Managing Director,

            Andhra Bank,

            Head Office,

            Koti,

            Hyderabad.

2.         The General Manager,

            Andhra Bank,

            Zonal Office,

            S.V.University Campus,

            Tirupati.

3.         The Branch Manager,

            Andhra Bank,

            Karakambadi Road Branch,

            Tirupati.                                                                                      …  Opposite parties.

            This complaint coming on before us for final hearing on 05.09.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.K.Ajay Kumar, counsel for the complainant, and Sri.Gotti Gajendra, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

            Complaint is filed under Section –12 of C.P.Act 1986, by the complainant alleging as follows – The complainant is a permanent resident of Tirupati town and temporarily living at Singapore, on the date of filing complaint due to employment in Software Development Company. He opened S.B.Account in Andhra Bank, Karakambadi Road Branch, Tirupati, with opposite party No.3, bearing S.B.Account No.140610100067987 in the year 2011 and obtained pass book with photo duly affixed on it. The account was in force though he was residing in Singapore. He did not obtain cheque book for his account in the bank. The complainant is the owner of the building bearing D.No.20-3-100/B, Sivajyoti Nagar, Tirupati, which consists of     4 floors, along with pent house. 3 Floors were let-out to Adi Sankara Techno School on monthly rent of Rs.90,000/- per month and the tenant used to deposit the amount by way of cash or cheque in his S.B.Account in Andhra Bank. While so, differences occurred between complainant and his father, and the complainant came to know that his father conspired with opposite party No.3 and forged his signatures and obtained cheque book fraudulently without the knowledge and consent of the complainant, and on the basis of the forged cheques, he had withdrawn amounts on 5 occasions. Thus, a total amount of Rs.9,30,000/- was withdrawn by his father. The details are given below:

            On coming to know about the fraud, complainant rushed to Tirupati, and approached opposite party No.3 and questioned about the issuance of cheque book and about fraudulent withdrawal of the amounts from his account, for which opposite party No.3 replied negligently. The complainant lodged complaint to opposite party No.3 by mentioning the facts, the opposite party No.3 inturn lodged complaint against K.Ramachandra Reddy, who is the father of the complainant. A criminal case was registered in Crime No.52/2016 of Alipiri P.S. The complainant thereafter demanded opposite party No.3 to refund the amounts fraudulently withdrawn from his account. Since 07.11.2015 complainant has been demanding for refund of the amounts illegally withdrawn by his father. It is alleged that opposite party No.3 in active collusion with complainant’s father obtained cheque book fraudulently and withdrawn the amounts as referred above by using forged cheques containing forged signatures and caused financial loss to the complainant and thus committed offence of cheating, forgery and misappropriation. Opposite party No.3 has given false information to complainant by concealing the real facts. The complainant approached higher authorities of bank (opposite party No.2) at Tirupati and also police. In view of the fraud committed by opposite party No.3, the police altered the F.I.R. and added opposite party No.3 as Accused No.2. Thereafter, complainant has issued legal notice on 09.07.2018 to opposite parties demanding to pay the amounts illegally withdrawn from his account. Opposite party No.3 is liable to compensate the financial loss caused to the complainant, but they failed to do so, which amounts to deficiency in service on their part. The complainant suffered mental agony due to deficiency in service on the part of the opposite parties and therefore the complainant is entitled for compensation also to a tune of Rs.4,00,000/-. Hence, the complainant claimed Rs.9,30,000/- being the total amount withdrawn from his account illegally with interest at 24% p.a. from 06.08.2015 and also compensation of Rs.4,00,000/- besides costs of the complaint.

            2.  Written version filed by opposite party No.3, and the same was adopted by opposite parties 1 and 2 by filing adoption memo. Opposite parties 1 to 3 contended as follows – At the outset complaint averments are denied. The specific denial is with regard to obtaining cheque book fraudulently by the father of the complainant and on the strength of forged cheques, withdrawn amounts as alleged by the complainant. It is admitted that complainant had S.B.Account No.140610100067987 with opposite party No.3 and pass book duly affixed with the photo of complainant was issued. It is denied that complainant did not obtain any cheque book from the bank. The complainant is called upon to prove that he is the owner of the building bearing D.No.20-3-100/B, Siva Jyothi Nagar, Tirupati, and that the tenant Adi Sankara Techno School, has been depositing Rs.90,000/- per month in the account of the complainant every month. It is denied that father of the complainant conspired with opposite party No.3 and got cheque book for the S.B.Account of the complainant, and later forged the signatures of the complainant and presented the same for encashment and that the bank encashed the cheques by colluding with complainant’s father. It is denied that complainant rushed to Tirupati from Singapore, on coming to know about the fraud committed by his father in collusion with bank officials to withdraw a total sum of Rs.9,30,000/- illegally from complainant’s account. It is denied that the cheques presented for withdrawal are forged one. The complainant is called upon to prove that he lodged complaint with police with regard to illegal withdrawal of money from his account, and that cheques presented in the bank are forged by his father to make it appear that the complainant himself signed the cheques. The opposite party gave complaint to the police on the representation made by the complainant about the fraud and the same was registered against the complainant’s father and the case is pending. It is denied that complainant contacted opposite parties and demanded refund of the amounts illegally withdrawn from his account and since 07.11.2015 he has been making such demands and that opposite parties did not respond to his demand. It is also denied that complainant came to know that opposite party No.3 in active collusion with complainant’s father obtained cheque book fraudulently and had withdrawn Rs.9,30,000/- by using forged cheques containing forged signatures of the complainant and thus caused financial loss to the complainant and thereby they committed offence of cheating, forgery and misappropriation. It is denied that opposite party No.3 has given false information to complainant by concealing the real facts and that complainant approached higher authorities of the bank, opposite party No.2 at Tirupati, and that in view of the fraud committed by opposite party No.3, the police altered the F.I.R. and added opposite party No.3 as Accused No.2 in the criminal case and complainant having vexed with the attitude of opposite parties issued legal notice dt:09.07.2018 demanding refund of Rs.9,30,000/- with interest and opposite parties having acknowledged the same neither replied nor complied the demands of the complainant. It is denied that there is deficiency of service on the part of opposite parties and that they are liable to pay compensation to the complainant. It is denied that complainant is a consumer and opposite parties are liable for deficiency in service. There is no cause of action to file this complaint. The alleged cause of action was invented for the purpose of the case for wrongful gain. The complaint is barred by limitation. The complainant’s father K.Ramachandra Reddy is a proper and necessary party in this complaint and the complaint is therefore liable to be dismissed for non-joinder of necessary party. It is submitted that the father of the complainant is having account with opposite party No.3 vide Account No.140610100020083. His son, who is the complainant herein, is also having account in the same bank with net facility and SMS alerts vide Account No.140610100067987 since 2012. The father of the complainant introduced his son for opening the account with opposite party No.3. In the S.B.Account opening form, complainant mentioned his father as nominee. On 21.07.2015, father of the complainant approached opposite party No.3 bank with a request to issue cheque book to his account and also to his son’s account, and on the same day both account pass books were updated. Opposite party No.3 issued cheque book containing 10 leafs on the request through phone calls and e-mail by the complainant and obtained signature of the father of the complainant in the cheque book issue register. On 06.08.2015, the father of the complainant presented cheque bearing No.341252 for Rs.6,15,000/- in his account and the same was transferred to his account and the same was withdrawn on the same day. Subsequently, another cheque bearing No.341254 dt:12.08.2015 for Rs.1,00,000/- was presented at SBI Korlagunta branch by the father of the complainant in his account, and similarly another cheque bearing No.341257 dt:18.09.2015 for Rs.1,00,000/- presented at SBI Korlagunta branch by the father of the complainant in his account, and another cheque bearing No.341256 dt:18.08.2015 for a sum of Rs.85,000/- and another cheque bearing No.341258 dt:08.10.2015 for Rs.30,000/- presented at SBI Korlagunta branch in the account of the complainant. The cheques presented in SBI Korlagunta branch were realized and opposite party No.3 received e-mail from complainant giving details of the cheques issued. Therefore, the cheques were issued and passed in good faith, there is no negligence by opposite party No.3. Subsequently, opposite party No.3 received e-mail from complainant stating that total sum of Rs.9,30,000/- were withdrawn illegally from his account and further stated that he did not receive any cheque book and never requested for issuance of cheque book. The cheque book was handed over to wrong person without his knowledge. Immediately, opposite party intimated the father of the complainant about the complaint given by his son with regard to forgery of his signatures and fraudulent withdrawal of amounts by presenting forged cheques. But there was no response from the father of the complainant. Therefore, opposite party issued letter dt:19.11.2015 to him stating that till date no information was received. So, this opposite party was forced to lodge complaint in police station as per the banking norms. While so, on 20.12.2015 opposite party No.3 gave written complaint to East Police Station, Tirupati, but police have not taken any action. On 05.01.2016 the manager gave representation to Superintendent of Police, Tirupati, requesting to take action against the father of the complainant. Subsequently, on 29.01.2016 police had taken complaint from opposite party No.3 and registered a crime under FIR No.21/2016 against K.Ramachandra Reddy. So far police have not taken any action against Ramachandra Reddy and requested opposite party No.3 to furnish original cheques and relevant records and the same were submitted to police. It is submitted that opposite party No.3 received letter from K.Ramachandra Reddy on 11.12.2015 stating that he received the cheques from the bank with the consent of his son by name K.Sunil Kumar Reddy, complainant herein and also made transactions in SBI Korlagunta branch. The opposite party officials are not responsible for the said transactions and the same was done with the consent and knowledge of his son K.Sunil Kumar Reddy. It is further submitted that complainant and his father are having disputes, and opposite party No.3 came to know the said fact after complaint given by the complainant. Opposite party No.3 further came to know that K.Ramachandra Reddy filed case against his son in the Family Court, Tirupati, for maintenance and the same was granted by the order of the Court. Therefore, to get over the maintenance case and to settle the dispute between them, complainant used opposite party No.3, for settlement of dispute between him and his father. Opposite party No.3 stated that they acted in good faith in issuing of cheque book with the consent of complainant and the officials never committed any offence like collusion with K.Ramachandra Reddy. Opposite party No.3 officials are no way related to neither the complainant nor K.Ramachandra Reddy. There is no deficiency of service on their part. In order to gain wrongfully, the complainant created the story of forged cheques and filed this complaint to harass his father. Hence, it is prayed to dismiss the complaint.

            3. The points for consideration are:-

(i). Whether the cheque book issued by opposite party No.3 to the father of the

      complainant without the consent and request of the complainant?

(ii).Whether the complainant’s father used the alleged forged cheques

       containing forged signatures of the complainant for withdrawing money

       from complainant’s account fraudulently?

(iii).Whether there is deficiency of service on the part of opposite parties?

        If so, to what extent the complainant is entitled for the reliefs?    

4.  Points (i), (ii) and (iii):-  At the first instance, opposite parties contended that complainant is not a consumer and as such complaint is not maintainable under C.P.Act. In a decision reported in Polmann India Ltd. vs. Central Bank of India – Maharashtra SCDRC, Page.370, Part-II, Vol-IV, November 2018 CPJ, it is held that – Banking transaction so far as it relates to its account holder is a transaction between service provider and consumer and is within scope of Consumer Protection Act, 1986 and Complainant is consumer. In the instant case also it is not denied that complainant is having account bearing No.14061000067987 with opposite party No.3 bank and hence by applying the said decision, it is to be held that complainant is a consumer under Section-2(i)(d) of C.P.Act 1986.

5.  It is the contention of complainant that without his knowledge and consent cheque book was issued fraudulently by opposite party No.3 branch to his father, who had forged his signatures in the cheques and used the forged cheques to withdraw amounts from his account and that it is not in dispute that complainant and his father are having separate accounts in opposite party No.3 bank. It is also not in dispute that amounts were withdrawn from the account of the complainant as mentioned above. But the opposite parties contended that only at the request of the complainant, cheque book was issued and handed over to complainant’s father and as such opposite party bank cannot held accountable for issuance of cheque book in favour of the complainant. It is the contention of the opposite party counsel that they received        e-mail from complainant for issuance of cheque book and accordingly acted on the request made by the complainant and therefore it is not open for the complainant to say that he did not made any request for issuance of cheque book and handing over the same to complainant’s father.

6.  Coming to the documentary evidence, Ex.A1 shows that complainant addressed a letter to opposite party No.3 Manager reporting unauthorized transactions in his account bearing No.140610100067987. In Ex.A1 he made it clear that he never requested for cheque book from opposite party No.3 bank and as per the discussion made with opposite party No.3 bank, they have issued cheque book to K.Ramachandra Reddy (father of the complainant) based on e-mail originated from unknown source / person, but his e-mail address as per records is

8.  The documentary evidence and written arguments filed by both parties shows that, it is not in dispute that the complainant and his father both are having separate accounts in the same branch i.e. opposite party No.3. It is also not in dispute that the cheque book has been issued by opposite party No.3 branch in the name of complainant and the same was handed over to complainant’s father. It is also not in dispute that amounts were withdrawn on five occasions by the father of the complainant, on the basis of five cheques and the total amount withdrawn is Rs.9,30,000/-. It is also not in dispute that the complainant has given his e-mail address for the purpose of bank records as Gujarat SCDRC (CN) between Ashwinbhai Ashabhai Patel vs. State Bank of India, Page.288, Vol-II, (June) 2019 CPJ, it is held that “Banking and Financial Institutions Services – Cheque – Unauthorized withdrawal – Police Complaint – It is the duty of the bank official passing cheque to verify signature on cheque before passing such cheque payment – Bank has failed in its duty to do so thereby putting complainant to lot of inconvenience – Bank unauthorizedly allowed a third party to withdraw huge amounts from SB Account of complainant …..’’. It can be presumed on the basis of Ex.A8 coupled with the fact that bank failed to prove that the cheque book was handed over to the father of the complainant only on the requisition made by the complainant, cheque book went into the hands of wrong person, who must have misused the same to withdraw the amounts from the account of the complainant. Hence, we are of the view that there is deficiency of service on the part of opposite party No.3 and hence opposite parties 1 to 3 are liable to compensate the complainant for the same by paying reasonable compensation and credit the amounts already withdrawn illegally from the account of the complainant. Accordingly, this complaint is to be allowed.

9.  In the result, complaint is partly allowed directing the opposite parties 1 to 3 jointly and severally to pay Rs.9,30,000/- (Rupees nine lakhs thirty thousand only) to the complainant with interest at 7% p.a. from 06.08.2015 till realization and to pay Rs.5,000/- (Rupees five thousand only) towards compensation, in addition to Rs.2,000/- (Rupees two thousand only) towards litigation expenses. The order shall be complied within a period of eight (8) weeks, failing which the compensation amount of Rs.5,000/- shall also carry interest at 7% p.a. from the date of this order till realization.                    

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 13^th day of September, 2019.

       Sd/-                                                                                                                      Sd/-                                              

Lady Member                                                                                               President (FAC)

APPENDIX OF EVIDENCE

Witnesses Examined on behalf of Complainant/s.

PW-1: Sri K. Sunil Kumar Reddy (Evidence Affidavit filed).

Witnesses Examined on behalf of Opposite PartY/S.

RW-1:  Sri B. Doraswamy Naik (Chief Affidavit filed).

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

                                                                                                                                              Sd/-

                                                                                                                                      President (FAC)

                                  // TRUE COPY //

// BY ORDER //

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

Copies to:-     1.  The complainant.

                        2.  The opposite parties.