BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 26^TH DAY OF JULY 2022

ORDER

KUM. RENUKADEVE DESHPANDE, MEMBER

This complaint has been filed under section 12 of C.P.Act 1986 (herein after referred as “Act”) against the OPs for the following reliefs.

1. To direct the opposite party to pay a sum of Rs.85,000/- as per the cheque bearing No.966386 dated 17.12.2012 and give compensation for mental agony with 24% p.a., as it is misused without proper verification by the OP.
2. Award compensation of Rs.13,000/- towards mental agony.
3. To grant court cost of Rs.2,000/- and such other reliefs.

2.        The brief facts of the complaint is as follows:

The complainant submits that they are having S.B.A/c bearing No.2592 with the OP bank.  On 19.11.2012 a sum of Rs.85,000/- was withdrawn by someone from the S.B. account by using cheque leaf bearing No.966386 dated 17.11.2012 with forged signature of Vice-President and Treasurer. On 22.11.2012 complainant along with Treasurer checked the cheque book and pass book, cheque No.966386 was misplaced.  Immediately complainant informed the same to OP. OP sent a copy of the cheque leaf to the complainant.  Complainant verified the same and found that the seal of the President has been tampered and VICE is written in hand writing with ink. Same was informed to the OP bank vide letter dated 22.11.2012.  The complainant lodged a complaint with the HAL Police Station for forgery and theft of the cheque on 24.11.2012. It is suspected Mr.Laskar from Hawk Security Agency whose service we have terminated on 02.11.2012.  The complaint was lodged with the Banking Ombudsman on 18.01.2013, On 02.04.2013 complaint was lodged to the Corporate Office, Syndicate Bank, Gandhinagar, Bangalore. The corporate office replied on 09.04.2013 that “we acknowledge receipt of your complaint dated 02.04.2013 on captioned subject.  We have taken up the matter with the officer concerned and you will be directly hearing from them in this regard in due course.”

3.        OP did not reply for the wrong payment made in the self cheque from the complainant’s account to the third person without verifying the proper person and the signature in the cheque.  OP has committed a default in tendering proper service which amounts to deficiency of service.  Hence this complaint.

4.        On receipt of the notice, OP appeared through his counsel and filed version.  In the version OP has denied that the word “VICE” is written in hand writing in ink, and seal of the President was tampered.  President signed by Smt.Vidya was also forged.  It is clearly seen that both the signatures of the Vice President and Treasurer are genuine and they tally with specimen signature furnished by them to the OP.   It is further admitted that copy of the statement of their S.B. account maintained with the OP bank also shows that the encashment by the said cheque was on 19.11.2012.

5.        OP further submits that the complainant used to draw their money from their S.B. Account by means of self cheques viz., cheque No.966343 dated 03.05.2012 for Rs.30,000/-, cheque No.966365 dated 05.09.2012 for Rs.20,000/-, cheque No.966375 dated 20.10.2012 for Rs.2,000/- and Cheque No.9663379 dated 26.10.2012 for Rs.4,000/-.  Complainant has come out in this complaint with all sorts of false allegations against the OP that, someone had forged the said cheque by committing theft of the cheque.  This cheque was drawn payable to a bearer only, the said bearer and one who encashed the said cheque viz., Kajal Hussain Laskar, and who was none, other than watchmen of the complainant’s Apartment Association, whom they now admit to have terminated from service on 02.11.2012, but without informing this to the OP bank.  It is also possible that the office bearers must have signed on the blank cheques and the said watchman must have stolen it as alleged by them.   Sri.Kajal Hussain Laskar was neither a stranger nor a mere bearer of the cheque in question but in fact a customer of this OP bank and therefore, the said cheque was paid by the OP bank in the normal course of its business and in good faith and without negligence. Apart from these factors, the cheque in question was also a cheque payable to bearer and such payment made by this OP is duly protected under section 9 of the Negotiable Instruments Act, 1881, and therefore, the OP bank denies the complainant’s allegation that there was any kind of deficiency of service on the part of this OP bank.

6.        Complainant filed Forensic Report issued by the Hand Writing Institute India, Basavanagudi, Bangalore, on 07.01.2014.  OP filed objection to the said report as it was not done under the order of the Hon’ble forum but, privately obtained by the complainant, which is based on one sided. By denying all other allegations made in the complaint, OP prayed to dismiss the complaint.

7.        In order to substantiate his case, complainant has filed affidavit evidence and it is mentioned as reply to arguments.  OP has filed its affidavit evidence and 7 documents produced along with citation.  We have gone through the available materials on record.

8.        On the basis of the pleadings, the following points arise for our consideration;

1. Whether the complainant proves deficiency of service on the part of the OP, if so complainant is entitled for the relief sought for?
2. What order?

9.      Our answer to the above points are as under:

       Point No.1:- In the negative

      Point No.2:-As per the final order

For the following

REASONS

10. Point No.1:   

We have briefly stated the contents of the complaint as well as the version filed by OP in para 2 and 3 in details.  Statements filed on behalf of the complainant stated as reply.  The contents though attested by a notary on 29.07.2013, are not made on oath and liable to be dismissed as affidavit evidence. 

11.    That cheque No.966386 dated 17.11.2012 for Rs.85,000/- issued by the complainant was duly signed by its authorized representative viz., S.V.Shenoy, Treasurer and Smt.Vidya Vice President, on behalf of the complainant association and therefore it was not forged as alleged in para 2 in their reply.  It was encashed by the own watchmen Kajal Hussain Lashkar who is also an account holder of the OP bank and introduced by the complainant office bearers themselves vide document No.7 and 9.

12.    The maximum amount drawn by the complainant was only for Rs.30,000/- till then and hence the cheque in question was naturally for higher amount. The complainant themselves are responsible for the loss as stated in the complaint and hence the complaint is liable to be dismissed.  Kajal Hussain Lashkar was neither a stranger nor a mere bearer of the cheque in question, but in fact customer of this OP bank.  Therefore the said cheque was paid by the OP bank, in normal course as it is a business and in faith and without negligence.  Apart from these facts the cheque in question was also a cheque payable to bearer and such payment made by OP is duly protected u/s 9 of the Negotiable Instrument Act 1881.  Therefore the OP bank denies the allegations made by the complainant that there is no deficiency of service on the part of this OP bank.

13.    There is any cause of action in the complaint against the OP as they have to suffer for their own admitted negligence as stated above.  Under the well known principle of volenti non-fit injuria which means that complainant cannot claim any injury for their own act of the omission and commission, pleased to dismiss the complaint and not maintainable and devoid of merit with OP bank, OP bank relies on the decisaion relied in 2015(II) CPJ 54(NC); between P.N.Khanna –vs- Bank of India wherein the Hon’ble National Consumer Commission held that where the allegations against the Bank involved forgery, theft etc., would require adjudication of elaborate evidence etc., which cannot be decided by the Consumer Forums.  Consumer Protection Act 1986 – u/s 21(a)(ii)-jurisdiction-forged cheque-clearance by Bank- allegations of theft, forgery adjudication, whereof requires elaborate evidence, cannot be decided by consumer fora – complaint  dismissed.”  This decision squarely applies to the present case.

14.    Under such circumstances, we do not find any merits in the complaint, hence the complaint is liable to be dismissed. Accordingly we answer Point No.1 in the negative.

15.   Point No.2:

In the result, we proceed to pass the following;

O R D E R

1. The complaint is dismissed. Looking to the circumstances of the case, we direct both the parties to bear their own cost.
2. Furnish free the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 26^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

• NIL -

Documents produced by the representative of opposite party – R.W.1 : Nil