STATE CONSUMER DISPUTE REDRESSAL COMMISSION
BIHAR, PATNA
Appeal No. 107 of 2014 & Appeal No. 122 of 2015
1. The Manager, State Bank of India, Main Branch, PO, PS & District- Arwal
2. General Manager, State Bank of India, Local Head Office, Judges Court Road, Patna- 800001
… Opposite Parties /Appellants
Versus
Triputi Pandey, S/o- Parshuram Pandey, Resident of Village- Kubri, PO- Usri, PS- Karpi, District- Arwal
…. Complainant/Respondent
Dated 28.04.2023
As per Sanjay Kumar, President.
O r d e r
- Mr. Ashok Kumar Roy, Ld. Counsel for the appellant and Mr. Basant Kumar Sinha, Ld. Counsel for the respondent are present.
- State Bank of India through its Manager are the appellants who have filed this appeal for setting aside the order dated 19.10.2013 passed by Ld. District Consumer Forum, Arwal in Complaint case no. 10 of 2011 whereby and whereunder the Ld. District Forum has directed appellant to pay Rs. 2,80,000/- with interest @12% from the date of withdrawal of cash from the account of complainant. Further, Rs. 60,000/- is to be paid on account of mental agony and Rs. 10,000/- as cost of litigation to the complainant.
- Briefly stated the facts of the case is that complainant had opened a saving account in S.B.I Branch at Arwal having account number 31007070345 and complainant deposited his retiral benefit amounting to sum of Rs. 12,85,349/- vide cheque no. 505444 in July, 2010.
- Complainant withdrew a sum of Rs. 1,000/- on 02.07.2010 through cheque number 735051. Complainant approached the bank on 24.11.2010 to know his balance amount. He was shocked to know withdrawal of a sum of Rs. 2,80,000/- on 15.07.2010 through cheque No. 735057 which was withdrawn through a bearer cheque drawn in name of one Baijnath Pandey. Complainant has alleged that alleged amount has been withdrawn fraudulently by putting his forged signature on said cheque which is not the signature of the complainant.
- It is alleged that Branch Manager of S.B.I, Arwal in connivance with other staff got the forged signature cheque encashed fraudulently.
- Written statement was filed on behalf of appellant/bank in which categorical statement was made that signature of complainant matched, signature kept in the bank and accordingly, cheque was cleared for encashment. An FIR being Arwal, PS case no. 21 of 2011 dated 31.05.2011 was also lodged by the bank against the complainant and other family members however, after investigation police submitted final form as mistake of fact.
- It is well settled preposition of law that before the Consumer Commission summary procedure is adopted to decide the case and complex and complicated issued of forgery and fraudulent act cannot be gone into by Consumer Forum. Case of forgery and fraud cannot be proved in a summary proceeding as elaborate and concrete evidence including examination in chief and cross examination of witness as well as examination of specimen signature of relevant persons by handwriting expert are required to be proved which can be done only in Civil Court, however, the Apex Court in case of J.J. Merchant and Ors. Vs. Shrinath Chaturvedi reported in 2002 (3) CPJ SC 8 has held as follows:
“In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side is not necessary. It should be kept in mind that legislature has provided alternative efficacious, simple. Inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also betotally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act providers sufficient safeguards.”
8. The investigation conducted by the police on FIR instituted by appellant /Bank also appears to be faulty when it is an admitted position that account holder himself has stated that his signature has been forged as such it was bounden duty of the I.O to find out who has committed forgery. Even if I.O finds that there is no involvement of persons name in FIR still I.O has to identify and arrest the actual culprit who committed forgery but strangely I.O has submitted final form as mistake of fact against which protest petition has been filed by appellant/Bank.
9. From materials available on record it appears that column in both cheques have been filled by same person and name of bearer of cheque has also been written by him and same person “Baijnath Pandey” withdrew the amount in name of Baijnath Pandey as signature of Baijnath Pandey resembles handwriting in which column of cheques has been filled.
10. Similar allegations have been levelled in the FIR lodged by Manager of the appellant/Bank.
11.The person who had filled the columns of both the cheques and withdrew the amount was well known to complainant but no where he has disclosed his name and identity and this vital material fact has been suppressed by complainant in complaint petition for reasons best known to him. Inspite of having knowledge about the person complainant had not lodged any FIR against him and has let him go Scott free which makes conduct of complainant suspicious as he is shielding the main culprit who is the mastermind behind this forgery and has leveled allegations against the Bank personnels only. However conduct of complainant cannot absolve bank employees if they have shown lack of care and caution and negligence while clearing the cheque of heavy amount. Either they were negligent or were connivance with the bearer of cheque, however connivance/conspiracy could have been investigated by the police if complainant had lodged any FIR.
12. It is to be examined if there was any deficiency in service of bank in clearing the cheque for payment of bearer cheque and due care and caution was taken while clearing the cheque. It is incumbent on the bank to pass the cheque after due verification and comparison with specimen signature.
13.The Branch Manager send letter to the Central Forensic Science Laboratory, Kolkata and requested to give report after comparing disputed signature with the specimen signature. Govt. examiner of question documents after examining the signatures send the report that signatures have been produced through the process of tracing and as such it was not possible to express any opinion regarding genuinity of both signatures.
14. It appears that thereafter no effort was made to send the original specimen signature and original cheques to the forensic lab to get its opinion about genuinity of signatures.
15. Expert opinion of two handwriting experts were also produced by both the parties in which one handwriting expert found that signature is of same person whereas another found that signature is of two different persons.
16. The learned Tribunal has compared signatures of complainant on both cheques and opined that signature in both cheques are of different persons and not of the same person and as such there was deficiency in service of the bank in clearing the second cheque with such a huge amount although signature in second cheque does not tally with the admitted signature of complainant which shows gross negligence on the part of bank.
Section 73 of the evidence Act empowers the court to compare signatures and form its opinion which reads as follows:
"Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1 [ This section applies also, with any necessary modifications, to finger-impressions].
17. It is also an admitted fact that bank had issued cheque book to the complainant and both the cheques were issued from the same cheque book. It is expected that the cheque book being a valuable instrument should have been kept by the complainant in his safe custody with due care and caution, however complainant has not disclosed as to how one of the cheque was removed from the cheque book when assess to such cheque book could be of complainant or his family member.
18. The second cheque dated 09.07.2010 was encashed on 15.07.2010 but complainant was made on 24.11.2010 and complainant has not lodged any F.I.R or complaint with respect to said missing cheque either in the bank or in the police station. If, there was latches and negligence on part of bank then there was latches and negligence on part of complainant also who failed to keep his cheque book in safe custody and loss of cheque remained unexplained.
19. For the reasons as stated above the order passed by District Consumer Commission, Arwal is modified to the extent that 50% of the amount of Rs. 2,80,000/- i.e Rs. 1,40,000/- shall be payable by the bank to the complainant with interest @/%8 p.a from the date of filing of complaint case. The amount of compensation on account of physical and mental harassment is reduced to Rs. 30,000/- and cost of litigation is also reduced as Rs. 5,000/-.
Appeal No. 107 of 2014 & Appeal no. 122 of 2015 are accordingly disposed of.
(Ram Prawesh Das) (Sanjay Kumar,J)
Member President
Md. Fariduzzama
