BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.88/2008 Order dated this the 27th day of February 2009 COMPLAINANT/S Sri.B.Ravikumar S/o Boregowda, R/o Hombale Nilaya, Ramamandira Road, 3rd Cross, Thavregere, Mandya City. (By Sri.S.Shiva Shankar., Advocate) -Vs- OPPOSITE PARTY/S 1. The President, 2. The Secretary, Both are R/at The Mandya City Co-operative Bank Ltd., V.V.Road, Mandya (By Sri.T.Lokesh., Advocate., Advocate) Date of complaint 01.09.2008 Date of service of notice to Opposite parties 17.09.2008 Date of order 27.02.2009 Total Period 5 Months 10 Days Result The complaint is allowed, directing the Opposite parties to refund Rs.95,000/- with interest at 9% p.a. from 17.08.2005, Rs.45,000/- with interest at 9% p.a. from 08.11.2005 and Rs.15,000/- with interest at 9% p.a. from 27.10.2007 till realization with cost of Rs.2,000/- to the complainant. Send the copy of the order to the Reserve Bank of India, Bangalore for taking necessary action against the Opposite party Bank as number of complaints are being filed against the Opposite party Bank complaining the mis-appropriation of the amount from the accounts of the customers. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, against the Opposite party for a direction to pay Rs.2,59,500/- with interest and costs. 2. The case of the complainant is that he is a Account Holder in Opposite party Bank from 12.07.2005 having S.B. Account No.9140. The complainant has not obtained any cheque book at any time of transaction. The Opposite party Bank obtained the pass book on the ground of verification due to computerization, but issued duplicate pass book. On 27.10.2007, the complainant had deposited Rs.15,000/- under challan No.12, but that amount was not mentioned in the duplicate pass book. When the complainant enquired, at the instance of the Opposite party, he obtained ledger extract and he found that on 17.08.2005 Rs.95,000/- has been withdrawn from his account by using withdrawal slip No.076045 and again on 08.11.2005 Rs.45,000/- had been withdrawn through cheque No.075722 in the name of Sri.Mohan Kumar L. The complainant has not drawn Rs.95,000/- by using withdrawal slip (withdrawal cheque) on 17.08.2005, nor had issued cheque No.075722 dated 08.11.2005 for Rs.45,000/- in favour of Mohan Kumar L. Therefore, the staff of the Opposite party Bank have committed fraud and caused loss illegally to the complainant. The complainant informed to the same to the Opposite party to rectify the irregularities, but Opposite party went on dragging. Therefore, the Opposite party has committed deficiency in service and is liable to pay Rs.95,000/- with interest of Rs.62,700/-, Rs.45,000/- with interest of Rs.28,050/- and Rs.15,000/- with interest of Rs.3,025/- and notice charges and other charges of Rs.725/-. For irregularities and mis-appropriation of the amount, the complainant and other customers have filed petition to the Assistant Registrar of Co-Operative Societies and enquiry is going on. The 2nd Opposite party has filed a case before the Joint Registrar of Co-operative Societies, Karnataka State Co-operative Banks Federation against the employees Sri.P.Puttaraju, Sri.C.K.Balaraju, Sri.G.S.Jayaramu, and Sri.N.Prakash, about the mis-appropriation of the amount in U.B.F. No.4701/2007-08 and they have obtained attachment before judgment of the properties of the above employees. Even 2nd Opposite party has submitted a report to 1st Opposite party about the mis-appropriation of the amount by the said bank employees and the Opposite party Bank Management has passed a resolution in that matter on 31.01.2008. Therefore, the Opposite party Bank has committed deficiency in service and is liable to pay the amount claimed. As the Opposite party had not complied with the legal notice dated 21.06.2008. The cause of action has arisen on 25.02.2008, when the complainant obtained the account extract and further on 21.06.2008 when the claim was made to the Opposite party Bank. 3. The Opposite party Bank has filed version admitting that the complainant is having S.B. A/c No.09140 from 12.07.2005. It is denied that the complainant has not obtained cheque book from 12.07.2005 and the bank has collected the original pass book when the bank was computerized and instead of returning the original, duplicate pass book has been issued. It is false that the complainant has deposited Rs.15,000/- to his account under challen No.12, it is a concocted document and hence, it is false that the Opposite party has not credited the amount of Rs.15,000/- to his account or pass book. It is false that the complainant has not withdrawn Rs.95,000/- on 17.08.2005 under cheque No.076045 for self from his account. It is false that on 08.11.2005 he has not at all issued a cheque bearing No.075722 to one Sri.Mohan Kumar for a sum of Rs.45,000/- and illegal withdrawals are shown in his account. It is false that the Bank Officials have mis-appropriated the above said amount of Rs.15,000/-, Rs.95,000/- and Rs.45,000/- and the claim is nothing, but a self assessed amount for which there is no basis at all. It is true that the Opposite party Bank has already suspended its 4 employees and initiated proceedings against them. But, that proceeding is not in respect of any of the amount claimed by the complainant. In view of the report made by the Bank to its Higher Authorities and Resolution it does not support the theory of the complainant. The legal notice dated 21.06.2008 has not been suitably replied by the Bank. Even earlier Bank has clearly informed that it has not at all any amount payable to the complainant. In fact, the letter dated 25.02.2008 and 04.03.2008 written by the complainant to the Opposite party Bank clearly established that the claim made by the complainant is frivolous and illegal. From 12.07.2005 to 31.03.2008, the complainant has made several transactions. During this period 13 cheques have been honoured by the Bank by following the rules. The present balance is only Rs.696/- as per ledger extract maintained. In a letter dated 04.03.2008, the complainant has clearly stated that he has credited a sum of Rs.15,000/- on 27.10.2005, but not on 27.10.2007, whereas in the complaint he has stated that he has credited on 27.10.2007. All the claim of the complainant relating to year 2005 are all clearly barred by limitation. Therefore, the complainant is not entitled to the relief and the complaint is liable to be dismissed with costs. 4. During trial, the complainant is examined and Ex.C.1 to C.26 are marked. The 2nd Opposite party is examined and has produced Ex.R.1. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1. Whether the complainant proves that he has deposited Rs.15,000/- on 27.10.2007 under challan No.12 to his account in the Opposite party Bank? 2. Whether the complainant proves that Rs.95,000/- has been withdrawn from his account illegally by creating withdrawal slip dated 17.08.2005? 3. Whether the complainant proves that Rs.45,000/- has been paid from this account for cheque No.075722 dated 08.11.2005 to one Sri.Mohan Kumar L. illegally, though he had not issued any cheque? 4. Whether the complaint is barred by limitation? 5. Whether the complainant is entitled to the amount claimed? 7. Our findings and reasons are as here under:- 8. POINT NO.1:- It is undisputed fact that the complainant is having S.B. A/c No.9140 in Opposite party Bank from 12.07.2005 and transacted up to 31.03.2008. It is admitted that Ex.C.1 is the duplicate pass book issued by the Opposite party Bank and it was issued on 11.04.2008. The complainant has filed petition Ex.C.2 on 25.02.2008 to the Opposite party Bank, seeking for the details of his account on the ground of difference in the amount and as per Ex.C.3 he has filed a application on 04.03.2008 stating that Rs.15,000/- deposited under challan No.12 on 27.10.2005 has not been credited to his account. The Opposite party Bank has furnished the information as per Ex.C.4 on 11.04.2008 about the drawal of the account through cheques, when the complainant filed Ex.C.20 application under Right to Information Act on 27.03.2008. 9. According to the complainant, on 27.10.2007, he has deposited Rs.15,000/- under challan No.12 to his account, but it has not been mentioned in his pass book or account. Ex.C.1, the duplicate pass book does not shown that entry of Rs.15,000/-. The Opposite party has denied the deposit of Rs.15,000/- under challan No.12, but the complainant has produced Ex.C.19 a challan dated 27/10/--- for having deposited Rs.15,000/- and the bank seal has been put and it is signed by the cashier and T scroll and this challan number is 12 pertains to account No.9140. In view of Ex.C.19, the challan which bears the seal of the bank and the signature of the cashier, there is no reason to discard this document at all. It is not the case of the Opposite party that the complainant has got printed challan book and created this document. We dont expect that the complainant is in a position to print a challan and the seal of the bank and created the challan. Though in the letter dated 04.03.2008 Ex.C.3, the complainant stated that the date of deposit is 27.10.2005 and in the complaint, it is stated 27.10.2007 it does not make any difference, because there is no entry at all in the pass book, either on 27.10.2005 or 27.10.2007. Therefore, it is established by the complainant that he has deposited Rs.15,000/- to the Opposite party Bank under challan No.12 Ex.C.19 on 27.10.2007. For the reasons mentioned above and also the reasons given hereafter. 10. The further case of the complainant is that though he has not withdrawn Rs.95,000/- by using loose cheque leaf on 17.08.2005 and he had not issued any cheque No.075722 dated 08.11.2005 for Rs.45,000/- in favour of Sri.Mohan Kumar L. as he has not at all obtained any cheque book from the bank and obtaining the account extract due to difference in the amount, he came to know these two illegal withdrawals creating documents. The Opposite party has denied the same and contended that the complainant has withdrawn the amount of Rs.95,000/- and issued the cheque for Rs.45,000/-. The Opposite party furnished the account extract Ex.C.5 to the complainant and also copies of the disputed loose leaf and cheque and they are marked as Ex.C.7 and C.6. Ex.C.6 is dated 08.11.2005 in favour of one Sri.Mohan Kumar L. and Ex.C.7 is dated 17.08.2005. The complainant has denied the signatures in Ex.C.6 and C.7. At that time, the complainant filed an application calling for the production of originals of Ex.C.6 & C.7 and specimen signature of the complainant and the Opposite party has produced the same and the original cheque is marked as Ex.C.24 and original loose leaf is marked as Ex.C.26 and Ex.C.25 is the document of specimen signatures of the complainant. The complainant filed an application to send the disputed documents i.e., Ex.C.24 & C.26 for comparison with admitted signatures in Ex.C.25 (specimen signatures) and also the complaint, vakalath and signatures taken by the Forum to an handwriting expert. So, those documents were sent to the Director of Forensic Science Handwriting Expert Section, Bangalore on 29.11.2008 and on 27.01.2009, the Forensic Science Laboratory sent back the documents stating that they have approached Honble High Court to instruct the Sub-ordinate Court not to send the questioned documents for handwriting expert opinion on the ground of heavy pendency. So, the complainant filed an application to consider the documents under section 73 of the Evidence Act requesting this Forum to examine the disputed documents and admitted documents and compare the signatures. 11. Now admittedly as per Ex.C.21 on 08.04.2008, the complainant and other customers have filed a complaint about the mis-appropriation of the amount from the S.B. Accounts of the customers by the staff of the Opposite party Bank to the Co-operative Department and even to the Reserve Bank of India and the Government. It is also undisputed that the Opposite party Bank through 2nd Opposite party has filed dispute before the Joint Director of Co-operative Societies Karnataka State Bangalore in U.B.F. No.4701/2008 under section 70 of the Karnataka Co-operative Act alleging that the 4 employees of the Bank have mis-appropriated of Rs.34,90,000/- and obtained an attachment before judgement of some of the properties of those employees as per Ex.C.22 and C.22(a). In Ex.C.21, it is mentioned about the extent of amount mis-appropriated from the accounts of the customers giving some names by forging the signature and not entering in the pass books and mis-appropriation of the amount by the staff of the Opposite party Bank. Taking in to consideration, these documents Ex.C.21 and C.22 let us consider the documents relied on by the Complainant and the Opposite party to consider whether by forging the signature of the complainant under Ex.C.24 and C.26, the Opposite party Bank Officials have illegally withdrawn Rs.95,000/- and Rs.45,000/-. It is an admitted fact that as per Ex.C.8 to C.18 from 16.11.2005 to 13.03.2008 the complainant has withdrawn the amount from his account only through loose leaf of the Opposite party Bank and they are not disputed. These documents are filled up by the complainant himself by his own handwriting in Kannada, nowhere he has used the English words in these loose leaves. But in Ex.C.26, the loose leaf of the Opposite party Bank of current account cheque No.076045 for Rs.95,000/-, Rs.95,000/- has been withdrawn from the account of the complainant and this loose leaf is filled up only in English except the signature. If we compare the signature found in Ex.C.26, the disputed loose leaf cheque with the specimen signature found in Ex.C.25 and the admitted signatures in loose leaf cheques Ex.C.8 to Ex.C.18, the signature is apparently to the nacked eye is different one. At no stretch of imagination, we can say that admitted signatures in Ex.C.25 and Ex.C.8 to C.18 and the vakalath, complaint is same to signature in Ex.C.26 and of the same person, Under Section 73 of the Evidence Act, the Forum has powers to compare the disputed signature with the admitted signatures of the documents and it is not essential to refer the questioned documents to handwriting expert. It is not mandatory to obtain the handwriting expert opinion about the questioned signatures to decide the value of the document. So exercising powers Under Section 73 of the Evidence Act, this Forum has powers to compare the disputed signatures and admitted signatures to decide the dispute and the opinion of the expert is not conclusive. 12. Likewise, when we compare the disputed signature in Ex.C.24 with admitted signatures in specimen signatures in Ex.C.25 and admitted signatures in Ex.C.8 to C.18, the vakalath, complaint and signatures obtained before the Forum, under Section 73 of the Evidence Act, it is very clear and conclusive that the signature found in Ex.C.24 is different to the signatures found in admitted documents. Further, it is the case of the complainant that he has not at all obtained any cheque book from the Opposite party Bank and was not using the cheque at all and used to make transaction to withdraw the amount using loose leaf cheque and the complainant has produced Ex.C.8 to C.18 the duplicate of the loose leaf cheques used by the complainant issued by the Opposite party Bank admittedly and according to the complainant, he has not at all issued any cheque in favour of alleged Sri.Mohan Kumar L. and it is a created cheque forging his signature. The 2nd Opposite party in his evidence has admitted that while issuing a cheque book to the customer, the address of the customer, account number will be mentioned and cheque will be issued obtaining the customers signature and even at the time of issuing withdrawal slip (loose leaf cheque) Opposite party obtains signature in a register. It is admitted by him that without signature of the customer, the cheque book will not be issued to any customer. Admittedly, 2nd Opposite party has not produced the register for having issued cheque book to the complainant at any time or register for issue of withdrawal slip. There is no explanation by the Opposite party has to why the register or issue of the cheque book and withdrawal slip are not produced. The inference to be drawn is only that the Opposite party Bank has not at all issued any cheque book to the complainant, otherwise the Opposite party Bank would have produced the register to prove that actually cheque book was issued to the complainant. It is common that at the time of issuing the cheque book, the starting number of the cheque and closing number of cheque in the cheque book will be mentioned in the register at the time of issue of cheque book and the signature of the account holder would be obtained, but Opposite party has not produced any piece of material to prove that actually Opposite party had issued cheque book to the complainant and Ex.C.24 is one of the cheque issued by the complainant out of the cheque book issued to him. Further, this disputed cheque Ex.c.24 is filled up in English by different collour ink and the signature is in different collour and even the signature in Ex.C.24 is not at all similar, but entirely different to the admitting signatures in Ex.C.25 and C.8 to C.18 and other documents. It is strange that Ex.C.24 is filled up in English by different person when the complainant used to fill up the loose leaf Ex.C.8 to C.18 only in Kannada language. Therefore under these circumstances, if we compare the signatures in Ex.C.24 and C.26 they are not at all tallying with and different to admitted signatures in Ex.C.25 & C.8 to 18 vakalath or complaint and therefore these two disputed signatures are different to the admitted signatures and hence, we hold that the complainant has established that these signatures in Ex.C.24 & 26 are forged by somebody in the Banks Staff and illegally withdrawn the amount mentioned in these two cheques and mis-appropriated. 13. The Opposite party has taken a defence that the complaint is barred by limitation on the ground that the transaction took place in 2005 and the complaint is filed in August 2008 and the complainant has not filed any application to condone the delay and hence, the complaint is liable to be dismissed. The complainant has pleaded in the complaint that the cause of action has arisen on 25.02.2008 when he obtained the ledger extract and observed and subsequently on 21.06.2008 when the legal notice was issued. Of course, the complainant refers to the transaction dated 17.08.2005, 08.11.2005 and 27.10.2007. It is the case and evidence of the complainant that after deposit of Rs.15,000/- on 27.10.2007 when he checked the duplicate pass book, there was no entry of Rs.15,000/-. Thereafter, he obtained the ledger extract of his account, he applied for ledger extract on 25.02.2008 as per Ex.C.2 and the Opposite party issued Ex.C.5 and came to know the difference of the amounts in his account and then sought for the copies of the cheque and withdrawal slip and Opposite party has issued the same as per Ex.C.6 & C.7 without putting any date. It is well known the cause of action starts from the date of transaction or from the knowledge of error committed in his account or denial of claim by Opposite party. The complainant by filing Ex.C.20, the application under Right to Information Act, sought for all the cheque transaction made by him and Opposite party issued Ex.C.6 to C.18 after 27.03.2008 and the complainant noticed the forgery of the signature in Ex.C.6 and C.7 and then he got issued a legal notice Ex.C.23 dated 21.06.2008 and it served on the 1st & 2nd Opposite parties as per the postal acknowledgements produced. But, the Opposite party has not at all replied to the said legal notice and therefore, it amounts to refusal or denial of the claim. Therefore, the knowledge of illegalities in his account and the denial of the claim by the Opposite party is the starting point for cause of action and therefore, we cannot accept the contention that the complaint is barred by limitation. Immediately after noticing the irregularities in his account, the complainant has corresponded with Opposite party from 25.02.2008 and complaint is filed on 30.08.2008. So, from the date of knowledge of the discrepancy and irregularities in the account of the complainant and not replying to the legal notice of the complainant gives cause of action to the complainant and hence, we hold that the complaint is not barred by limitation. 14. The complainant has sought for refund of Rs.15,000/- deposited under challan Ex.C.19 and Rs.95,000/- and Rs.45,000/- illegally drawn from the account by forging the signature of the complainant in the cheques Ex.C.26 & C.24 respectively with interest from the date of those documents. In view of the circumstances of the case, it is established by the complainant that the Opposite party has committed deficiency in service by neglecting the illegal acts committed by the staff of the Opposite party Bank and hence, they are liable to refund the amount to the complainant with interest. 15. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the Opposite parties to refund Rs.95,000/- with interest at 9% p.a. from 17.08.2005, Rs.45,000/- with interest at 9% p.a. from 08.11.2005 and Rs.15,000/- with interest at 9% p.a. from 27.10.2007 till realization with cost of Rs.2,000/- to the complainant. Send the copy of the order to the Reserve Bank of India, Bangalore for taking necessary action against the Opposite party Bank as number of complaints are being filed against the Opposite party Bank complaining the mis-appropriation of the amounts from the accounts of the customers. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 27th day of February 2009). (PRESIDENT) (MEMBER) (MEMBER)
