By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to pay Rs.4,00,000/- with 12% interest from 30.11.2009 and to pay the cost of the proceedings.

2. Complaint in brief:- The 2^nd Complainant is working in United Kingdom and had send a cheque bearing No.10011444 drawn on the Federal bank Ltd Sulthan Bathery for a sum of Rs.4,00,000/- to the 1^st Complainant. The 2^nd Complainant is maintaining an NRE SB A/c No.10692100156779 with 1^st Opposite Party bank. The date of the cheque was 15.12.2009. The 2^nd Complainant duly informed the 1^st Complainant that such a cheque is already sent to him. When the letter containing the cheque was not received the 1^st Complainant contacted the 1^st Opposite party and on enquiry the bank replied that a cheque for Rs.4,00,000/- drawn on the 1^st Complainant's name was encashed by one Thomas Varghese on 30.11.2009. On enquiary it was found that the signature of 2^nd Complainant was forged and no endorsement from the 1^st Complainant was taken. The date of cheque was also forged and clearly visible. The month was changed from 12 to 11 and endorsed by forged signature. All these are evident from the face of the cheque but still the bank was negligent in encashing the cheque to a stranger without establishing his identity. The 2^nd Opposite party was the Manager of the Bank at the time of encashment. The 2^nd Opposite party replied to the Complaint given by the Complainant having no bonafiedes. If the Opposite Parties take proper care, verification and identification of the person who encahsed the cheque, the bank could have found out the theft and forgery and cheating. When the amount involved is a huge sum the bank authorities should have taken proper care and caution before encashing his cheque. The bank was negligent and there is deficiency of service from the part of Opposite parties. Aggrieved by this the complaint is filed.

3. On receipt of complaint, notices were issued to Opposite Parties and Opposite Parties appeared before the Forum and filed version. In the version of Opposite Parties, the Opposite Parties stated that the 2^nd Complainant is the customer of 1^st Opposite Party bank and denied all other allegations in the complaint. The Opposite Parties stated that the sending of cheque by the 2^nd Complainant to the 1^st Complainant for a sum of Rs.4,00,000/- from United Kingdom is not known to the Opposite Parties. The Opposite Parties denied the allegation that Sri. Thomas Varghese who had encashed the cheque was not authorised to encash the cheque. The bank records reveal that the bearer of cheque No.10011444 for Rs.4,00,000/- drawn on the SB-NRE account of T.V Mathew was encashed across the counter on 30.11.2009 by Sri. Thomas Varghese who was the bearer of the cheque. Since it was bearer cheque and the signature of the drawer on the cheque tallied with specimen signature of 2^nd Complainant, the bank had made the payment in due course of banking business in good faith, without negligence and in accordance with the apparent tenor of the instrument to the bearer of the said instrument. The subject cheque being a bearer cheque, the bank is fully justified in making the payment. Before making payment, the bank had verified the signature on the cheque with the specimen signautre of 2^nd complainant and confirmed that the signature of the cheque tallied with his specimen signature. The correction made in the date of the cheque was also authenticated properly. As such there was no negligence on the bank's part. The Complainant having raised the issue of forgery is not justified in approaching the Forum in the light of the settled position of law that matters involving question of fact or law could be tried in a competent Civil Court only. The bank had acted upon the cheque as per the guide lines given by the RBI. Hence there is no deficiency of service from the part of Opposite Parties and the complaint is liable to be dismissed.

4. On perusal of complaint, version and documents, the Forum raised the following

points for consideration.

1. Whether there is deficiency of service from the part of Opposite parites?

2. Relief and costs.

5. Point No.1:- The complainant filed proof affidavit and is examined as PW1 and called for documents are marked as Ext.X1 series. The 1^st Opposite Parties filed proof affidavit and is examined as OPW1 and Ext.X1(1) is marked. Ext.C1 also marked and Ext.B1(1) and (2) also marked. 1^st Opposite Party's witness is examined as OPW2 and Ext.B2 is marked. 2^nd Opposite Party also filed proof affidavit and 2^nd Opposite party is examined as OPW3 and another witness is examined as OPW4. Here the case of Complainant is that the Opposite parties were so negligent in encashing the cheque to a stranger without establishing his identity, without looking to the forgery in signature and correction which is evident from the face of cheque. The Opposite Party denied it and stated that the cheque was a bearer cheque and the signature of the drawer on the cheque tallied with the specimen signature of 2^nd complainant and the bank made the payment in due course in good faith. The Ext.C1 is the report of handwriting expert wherein the expert stated that the cumulative occurrence once of similarities in writing characteristics seen in the questioned and standard items are only due to their common authorship and not due to any accidental coincidence or attempted imitation. In the report, it is stated that with the available evidence of similarities, it is concluded that the writer of the standard signatures stamped and marked A1 to A14 and S1 to S30 probably also wrote the questioned signature similarly stamped and marked Q1. The Complainant filed IA 15/2015 to setaside to Commission report and to send the cheque again for handwriting expert. But the Forum found that the petition is only to protract the matter and hence that petition is dismissed. On perusal of the Ext.X1(1) cheque by the Forum, the forum found that it is a bearer cheque signed by the 2^nd Complainant. There is a correction in the date portion and it is duly signed and there is no visible deference in both signatures according to the forum. The Expert also found that these two signatures are similar in nature. The forum found that since it is a bearer cheque, if there is no visible difference in signature and if the material alteration portion is duly signed, the bank is obliged to encash the cheque to the bearer as per the provisions of payment in due course as envisaged in the Negotiable Instruments Act of 1881. The Complainant alleges forgery theft and cheating for which criminal action is necessitated. Here the Complainant not produced any evidence to show that the complainant initiated any such criminal actions against anyone. As per Ext.B2 document, the Forum found that the Complainant gave a complaint to the 1^st Opposite party and as per the complaint, the 1^st Opposite Party gave a complaint to the Sulthan Bathery Police as per Ext.B1 complaint and the police recorded it wide No.274/10. Later the Police stopped the investigation with the request of the Complainant that it will create enemies to the Complainant if any investigation is proceeded. It is stated in Ext.B2 document. The Ext.B2 document is not denied by the Complainant. More over, the Complainant did not produce any document or evidence to show that the cheque was sent from United Kingdom and it reached at the concerned post office. The Complainant not produced any document to show that the Complaint proceeded against the postal department. Since the Ext.X1(1) cheque is drawn for a huge amount, the drawer must be more vigilant in crossing the cheque or sending it in registered post. The drawer of the cheque must be more vigilant than that of the bank who encahsed a bearer cheque. Whenever a bearer cheque is presented before a bank, it carries a mandate to the bank to pay the amount if there is no premafacie and visible difference in the signature of the drawer. So the passing officer did not look in to the details of the bearer. In a ruling 1993(2) SSC 97, Bank of Maharashtra V/S Automotive Engineering Company in which it was held that the petitioner bank is not liable on the ground of negligence merely because of its failure to scrutinize the cheque in ultra violet ray lamp. In such circumstance, no liability should have been fastened on the petitioner bank for encahment of cheque on the basis of forged cancellation of endorsement. Here in this case, the passing officer of the bank by nacked eye could not find any difference or forgery in the Ext.X1(1) document. Even in the Forensic Science Laboratory examination also there is no doubt regarding forgery in the cheque. It is pertinent to note that the cheque in question is a bearer cheque and if there is no doubt regarding the signature, it is a mandate for the bank to make the payment. In another ruling by the Hon'ble National Consumer Disputes Redressal Commission in RP 4315/12 dated 20.05.2014 the Hon'ble National Consumer Disputes Redressal Commission verdicted that when there was an allegation of forgery in the Complaint and criminal case is pending, the Complainant is to approach a Civil Court for redressal of his grievances. In a ruling by the Hon'ble National Consumer Disputes Redressal Commission in RP No.2139/13 dated 16.05.2014 verdicted that if deficiency of service from the part of bank is not proved, it is not a justice to provide relief to the Complainant. So by evaluating the entire evidence in this case, the Forum found that the Complainant failed to prove their case and no deficiency of service is found against the Opposite Parties. Point No.1 is found accordingly.

6. Point No.2:- Since the point No.1 is found against the Complainant, the Complainant is not entitled to get cost and compensation.

In the result, the complaint is dismissed. No order as to costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 22^nd day of January 2016.

Date of Filing:24.07.2010.

PRESIDENT : Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. T.M. Varghese Complainant.

Witness for the Opposite Parties:

OPW1. Joseph N.A Chief Manager, Federal Bank, Sulthan Bathery

OPW2. Augustine T.A S.I of Police, Sulthan Baathery.

OPW3. K.P. Balakrishnan Rtd. Chief Manager, Federal Bank.

OPW4. Dhanya D Nair. Asst. Manager, Federal Bank, Kozhikode

(Main Branch)

Exhibits for the complainant:

X1(1). Cheque dt:15.11.2009

C1 Commission Report. dt:29.09.2014

Exhibits for the opposite Parties.

B1(1). Copy of Letter. dt:15.03.2010.

B1(2) Copy of Receipt. dt:16.03.2010.

B2 Copy of Statement.