Before:    Hon’ble Member, Debi Sengupta.

                                    Hon’ble Member, Samaresh Kumar Mitra.                                                                   

  FINAL ORDER

Samaresh Kumar Mitra, Member:

         This an application U/s 12 of the C.P.Act, 1986 filed by the petitioner Lakshman Chandra Das praying for a direction on the Bank to pay him Rs.1,50,000/- along with interest from 3.12.12 and to pay Rs.50,000/- as compensation and Rs.15,000/- as cost of litigation.

            The case of the petitioner is that he left the cheque book and pass book before Jonaki Chatterjee official of Medi Assist TPA of National Insurance Company when he went there to file documents and cancelled cheque in respect of settling the medical expenditure of her wife. Thereafter he came to know when he updated his passbook that an amount of Rs.150000/- has withdrawn from his savings bank account by one Manik Mishra by using the cheque no.090510 though he had not issued any cheque after 090508. And after getting the copy of the cheque he came to know that the signature in the said cheque is not his signature through which a sum of Rs.150000/- has withdrawn from his account.  The complainant is confident that in his absence Mrs Jonaki Chatterjee must have taken the cheque No.090510 by tearing off from the cheque book and this fraud was committed by using the said cheque and forging the signature of the complainant. As a result the complainant lodged a complaint with Baranagore P.S. on 24.12.2012 and on the basis of his complaint the police of said P.S. started a P.S. case U/S-420/120(B) of IPC.  He wrote a few letters to the bank authority and others for getting his redressal but of no result then he filed the instant complaint before this Forum for getting direction upon the complainant to pay a sum of Rs.150000/- alongwith interest @12% p.a. compounded quarterly, to pay compensation to the tune of Rs.50000/- for harassment and mental agony and litigation cost and other reliefs as per law and equity.

  The OP filed written version denying the allegations as leveled against him and averred that the op has no connection whatsoever with the said Manik Mishra who presented the cheque bearing no.090510 issued by the complainant. The officials of the OP after verification the cheque and the signature on it being sure that the complainant permitted for the encashment of the said cheque. There has been no fault or deficiency of service on the part of the opposite party. The correspondence sent by the complainant to the federation of consumer associations is wrong or not maintainable. The OP paid the cheque only after verifying the signature on it, being similar to the specimen signature. But the OP admitted that the personnel who tallied the signature of the cheque with specimen signature was not handwriting expert.

   The complainant filed evidence on affidavit in which he assailed that he left the cheque book and pass book before Jonaki Chatterjee Official of Medi Assist TPA of National Insurance Company when he went there to file documents and cancelled cheque in respect of settling the medical expenditure of her wife. Thereafter he came to know when he updated his passbook that an amount of Rs.150000/- has withdrawn from his savings bank account by one Manik Mishra by using the cheque no.090510 though he had not issued any cheque after 090508. And after getting the copy of the cheque he came to know that the signature in the said cheque is not his signature through which a sum of Rs.150000/- has withdrawn from his account. He wrote a few letters to the bank authority and others for getting his redresssal but of no result then he filed the instant complaint before this Forum for redresssal. The bank authorities collected his signature on plain paper for sending it to CFSL and during the pendency of this Complaint Case he received the report of the CFSL wherefrom it is crystal clear that the signature on the disputed cheque does not tally with signature of the complainant recorded with the bank.

The OP filed evidence on affidavit which is the replica of the written version as filed earlier.

The OP filed affidavit in chief which is also the replica of the written version so it is needless to discuss.

Both sides filed affidavit in chief and complainant filed written notes of arguments which are taken into consideration during the passing of final order.

The argument as advanced by the advocate of the complainant heard in full.

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

 1). Whether the Complainant Lakshman Chandra Das is a ‘Consumer’ of the Opposite Party?

 2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainant Lakshman Chandra Das is a ‘Consumer’ of the opposite party?

     From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP bank is maintaining a savings bank account before the OP No.1 and other Ops are the responsible offices of the OP bank, so he is entitled to get service from the service provider i.e. OP No.1

     (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

        Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.            

    (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

       The case of the petitioner is that on 12.12.2012 when he came to the OP/Allahabad Bank, Begampur Branch for updating the status of his Savings Bank Account no. 21340646143 then he found that Rs.1,50,000/- was withdrawn from his account by one Manik Mishra on 3.12.2012 by using his cheque no.090510 though said Mishra was not known to him and he never issued such cheque to him. His further case is that for Mediclaim policy he issued one cancelled cheque in favour of one Jonaki Chatterjee, employee of Medi Assist, TPA and she might have committed theft of his alleged cheque being no. 090510. His signature was forged and Rs.1,50,000/- was withdrawn from his account by said Manik Mishra. There is a Criminal case over the issue and the branch authorities  asked the complainant to get his signature in plain paper for sending the same to forensic dept for verification of his signature and he acted as per their advice and waited for a prolong time but no step has been taken to redress him, so getting no alternative he filed the instant complaint before this Forum for getting direction upon the complainant to pay a sum of Rs.150,000/- alongwith interest @12% p.a. compounded quarterly, to pay compensation to the tune of Rs.50,000/-for harassment and mental agony and litigation cost and other reliefs as per law and equity.

The answering op assailed that he has no connection with the said Manik Mishra who presented the cheque bearing no.090510 issued by the complainant. The officials of the OP after verification the cheque and the signature on it being sure that the complainant permitted for the encashment of the said cheque. The OP encashed the cheque only after verifying the signature on it, being similar to the specimen signature. But the OP admitted that the personnel who tallied the signature of the cheque with specimen signature was not handwriting expert. There has been no fault or deficiency of service on the part of the opposite party so the complaint is deserved to rejected.

The complainant argued that when a cheque is presented to a bank for payment the bank is expected to carefully scrutinize it in all respects by visual comparison with the specimen signature of the drawer and unless on such scrutiny it finds reason to doubt the genuineness of the signature of the drawer, it is bound to honour the instrument and make payment. In case of doubt the cheque will be returned to the party presenting it with a reason that the signature does not tally with the specimen signature recorded in the bank. Bank officials having comparing large number of signatures everyday and they develop some kind of expertise in such comparison which layman would not possess. As the verification of the signature of the drawer of the cheque with the specimen signature recorded in the bank is the only key/link for making payment of cheque/ withdrawals , the bank officials are expected to be more vigilant and careful while encashing a bearer cheque as compared to A/C payee cheque. In case of transfer in the account it is easily traceable but in case of payment to bearer cheque is not traceable. The OP in his written argument stated that the officials OP had verified the cheque and the signature on it and being sure that of the complainant, permitted for the encashment of the said cheque. They denied that any cheque as alleged, has been stolen by Mrs. Chatterjee or has wrongly been honoured by the OP and they acted as per rules and procedure of banking.  They averred that the cheque containing the signature of the complainant has been duly scrutinized by the personnel of the OP No.1 in accordance with due official process. Moreover the personnel of the OP who tallied the signature of the cheque with specimen signature was not the handwriting expert.  

  The complainant relied upon the decision of National Commission in Chandrabhan Mishra & Others Vs. Central Bank of India , CPR 2015 (4) page9 No.610(NC) wherein their lordship held that “ Banking official having comparing large number of signature everyday they develop some kind of expertise is such comparison which a rank layman would not possess”. He also relied another decision of National commission in N. Venkanna Vs. Andhra Bank, I (2006) CPJ 132 NC in which Hon’ble Commission directed the bank to give credit of the sum of Rs.34000/- with interest withdrawn from the complainant’s account on the forged withdrawal from which was presented with the pass book, reported to have been lost by the complainant. By producing the copy of page containing the answer to question- ‘Bank’s liability for forged cheques” in CTJ -2010 January it is stated that “A valid cheque must have the customer’s signature. As against this, the cheque that bears a forged signature is not a valid instrument. If the bank pays the amount of a cheque, without looking into the customers signatures registered with it, the bank is liable to make good the customer’s loss. He also relied on the explanation given on this in the renowned Text Book namely “Tannan’s Banking Law & Practice” by Vinod Kothari in which 45.43 speaks that it should be noted that a banker is bound to know the signature of his customer and his authorized agent, if any. The banker is supposed to have specimen signatures of all persons authorized to draw on him, so that he can compare the signatures on the cheques with specimens supplied to him. Should he come to the conclusion that the drawers signature on a cheque differs from the specimen signature supplied to him, he should not honour it. It must be noted that the statutory protection afforded to the paying banker in case of a forged endorsement is not available to the bank if the signature of the drawer are forged, as the bank is bound to know the signature of his customer. In case the signature is forged cleverly and he fails to detect the forgery, he cannot debit his customer’s account with the amount of the cheque, as he has no legal authority from his customer to part with funds. The hon’ble Supreme Court in Canara Bank Vs. Canara Sales Corporation AIR 1987 P.1603 in para 24 it is observed that : When a cheque duly signed by a customer which is presented for encashment before a Bank, it carries a mandate to the Bank to pay. However, if the signature on the cheque is not genuine there is no mandate on the bank to pay. The bank when it makes the payment on such a cheque cannot resist the claim of the customer with the defense of negligence on his part such as leaving the cheque book carelessly so that third parties would easily get hold of it. This is because a document in cheque form, on which the customer’s name as drawer is forged, is a nullity. The bank can succeed only when it establishes adoption or estoppels.

  A criminal case is pending against Manik Mishra & Jonaki Chatterjee in c/w with the Baranagore P.S. case No.589/2012 dated 24.12.2012, U/S-420/120(B)  in relation to cheating and dishonestly inducing delivery of property of this complainant. The Consumer Forum has ample jurisdiction to adjudicate a complaint even if a Criminal case is pending before the Criminal court since the reliefs sought for is different in nature from that of the matter pending before the Criminal court. The complainant also filed the instant case against the OP for deficiency of service on the part of the bank and prayed for redresssal as prayed in the prayer portion complaint. The OP bank referred the specimen signature of this complainant in plain paper, to tally the same with the signature in the impugned cheque before the CFSL, Kol.14. The report of the CFSL speaks that all the significant fundamental differences appearing in the questioned signature with respect to standard signatures are found at one or the other places and there are also some material differences existing between them.

 From the above discussion we are in the opinion that the complainant proved his case by producing sufficient documents and argued on the point whether the OP is responsible or under liability to make good the customer loss.

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.1 bank is liable to pay the ordered amount. The ordered amount includes the interest so there is no question of allowing compensation. 

ORDER

                    Hence, it is ordered that the complaint case being No.148 of 2014  be and the same is allowed on contest against the Opposite Party No.1 with a litigation cost of Rs.10,000/-.

                  The whole gamut of the facts and circumstances leans in favour of the complainant, we therefore allow the complaint and Opposite Party No.1is directed to pay the sum amounting to Rs.1,50,000/- along with interest @9% p.a. since 03.12.2012 till realization to this complainant within 45 days from the date of order.         

               OP No.2&3 are exonerated from this Proceeding.

            At the event of failure to comply with the order the Opposite Party No.1  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and corrected by me Samaresh Kr. Mitra, Member.