DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

                                                                             Case No.165/2013 (Old No.721/2009)

Sh. R. D. Upadhyay, Advocate

Chamber No.15,  M.C. Sheetal Ward,

Lawyer Chambers Complex,

Supreme Court of India,

Bhagwan Das Road,

New Delhi-110001                                                         ….Complainant

Versus

1.       UCO Bank

          through its Assistant General Manager

          Supreme Court Compound

          Bhagwan Das Road,

          New Delhi-110001

2.       UCO Bank

          through its Chairman

          Head Office, 10, Brabourn Road

          Kolkata                                                       ……Opposite Parties

                                                          Date of Institution          :  22.09.09                                               Date of Order        :  07.01.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

The Complainant had filed consumer complaint No.721/09 before this forum praying inter-alia for direction to the OPs to credit Rs.4,58,000/- together with interest to the complainant from the date of the amounts were withdrawn by miscreants and also to pay compensation of Rs.2,00,000/- together with cost of this litigation. 

After filing the complaint the matter was disposed off on 22.10.2009 rejecting the complaint on the presumption that the cheques were issued by the complainant.  Being aggrieved the complainant challenged the order before the state commission by filing appeal no. FA847/09 on 21.11.2009.  The Ld. State Commission set aside the order dated 22-10-20-09 passed by the District Consumer Forum while disposing off the complaint No. 721/09 the Hon’ble State Commission directed the parties to appear before this forum on 16-02-2011 for further proceeding.  It appears that case file was thereafter not traceable and the complainant filed copies of complaint and documents.

Complainant’ case, in short, that he had saving bank account No.24008 with the OP No.1 in the Supreme Court Compound. The OPs issued cheque book from time to time for operating the account and also issued ATM Card for the same purpose. On 31.10.08 when he was in need of some money, he went to the ATM of the OP No.1 bank to withdraw the money from his account, he checked the balance amount but he was shocked to know that the balance in his account was showing short amount. He was under the impression that the machine was not correctly showing the amount and he went inside the bank and checked the amount from the computer, the amount which was being shown at the ATM was the same which the computer was showing. He came to know that 10 withdrawals were made from his bank account on different dates between 2.09.08 to 20.10.08 through different cheques no. total amounting  to Rs.4,58,000/-.  He found in his chamber that several leafs from his cheque book had been stolen. He went back to the OP No.1 bank and requested the bank official to show him the withdrawal cheques, he found that his signatures on all these cheques were forged and withdrawals had been made. On 31.10.08 he lodged a complaint with the OP No.1. The OP No.1 assured him that necessary action will be taken by them very soon.  He made several visits time and again to the OP No.1 and the AGM of OP No.1 assured him that after the internal vigilance enquiry the action will be taken; but when no action was taken by them he sent another letter on 27.04.09 and the letter was handed over to the AGM of OP No.1 and copy to OP’s Chief Vigilance Officer at Kolkata. After waiting for another two months he sent another letter on 23.06.09 to the OP No.1 and the Chief Vigilance Officer, Kolkata. It is stated that the appropriate instructions must have been issued by the OP in its manual of instructions to the staff to maintain the specimen signatures of all depositors with it and compare the same with the signatures on the cheque before passing the same for payment and when abnormal withdrawals are made from any account the bank staff ought to get alerted and strictly check any further withdrawals and get in touch with the depositor but OP No.1 failed to observe operating manual issued by the Bank and also by the Vigilance Department of the Bank. Hence, there is deficiency in service on the part of the OPs.  The Complainant has prayed as under:-

 1.      Direct the Assistant General Manager, Opp. party  to credit to the Complainant’s account an amount of Rs.4,58,000/- together with interest on the same from the date the amount has been withdrawn from the Complainant’s account till the date it is credited to his account,

2.       Direct the Assistant General Manager, the Opp. Party to pay a compensation of Rs.2,00,000/- to the Complainant. 

3.       Direct the OPs to pay cost of this complaint to the Complainant.

          OPs in their joint reply have inter-alia stated that the complainant himself is responsible for the loss occasioned to him and there was sheer negligence on the part of the complainant.  The complainant being an advocate practicing in the Supreme Court issued cheques repeatedly on various occasions while the cheques prior to said cheques were missing from his cheque book but the complainant did not care to report the matter to the OPs till a sizeable amount was allegedly withdrawn.  The plea raised by the complainant that on 31.10.2008 he came to know that the fraudulent withdrawals is an afterthought and a cooked up story. The OP No.1 acted with utmost care and caution while verifying the signatures and after tallying the signatures the said cheques were cleared.  Hence, there was no deficiency on the part of the OP.  The complainant issued many cheques to different parties but he did not even care to inform the OPs that the cheques were missing from his cheque book; that out of the ten  cheques, the beneficiary of four cheques was Sh. Arun Kumar Singh for an amount of Rs. 1,70,000/- in all  but as an afterthought Sh. Arun Kumar Singh informed the OPs vide letter dated 22.04.2009 that he was not aware as to how the amount of Rs.1,70,000/- was deposited in his account and withdrawn thereafter. He also expressed his desire that the amount will be refunded to the complainant from his own saving account and requested the OPs to give him sixty days time to pay off the amount of money. The beneficiary of three other cheques for Rs. 2,04,000/ was one Sh. Ashwani Kumar Sharma which fact was informed by Sh. Arun Kumar Singh in his letter that Sh. Ashwani Kumar Sharma used to sit in complainant’s chamber and was working as  junior advocate to the complainant himself; that Sh. Ashwani Kumar Sharma was badly in need of money and Sh. Arun Kumar Singh had offered to help him and gave him his ATM Card and PIN so that he could withdraw Rs.5,000/-.  However, from that day Sh. Ashwani Kumar stopped coming to the Chamber of the Complainant. It is stated that “the Complainant, instead of taking action against his staff and junior, initiated proceedings against the answering respondent bank which is highly unfair and unjust on the part of Complainant herein.” On 04.10.2010 they had filed a complaint before DCP, EOW, New Delhi to find out the true fraudster in this case.   It is submitted that it is a common practice for an advocate to send his assistant to do the work in the bank.  Hence, OP bank was not at fault in honouring the cheques because if they dishonour the cheque the OP Bank would have been in the problem. The Pass book and cheque book must be kept in the possession of the account holder. It is because of negligent behavior of the complainant himself that the balance was reduced.  Hence there is no deficiency on part of the OP.  OP has prayed for dismissal of the complaint.  

          Complainant has not filed the rejoinder.

          Complainant has filed his own affidavit in evidence while affidavit of Ms. Anita Sood, Chief Manager has been filed in evidence on behalf of the OPs.

Written arguments have been filed on behalf of the parties.

 We have heard the oral arguments on behalf of the complainant and have also gone through the file very carefully.

 The Complainant has a saving bank account with the OPs. On 31.10.08, the Complainant went to the ATM to withdraw the money. He found that the balance in his account was showing short amount. He visited the bank and checked from the bank the amount which was being shown at the ATM was also being shown in the computer.  He found that 10 nos. of cheques in different dates amounting to Rs.4,58,000/- had been debited from his saving bank account but he had never issued  any cheque to any person. The Complainant filed a complaint with the OPs regarding fraudulent withdrawal of money from his saving bank account (copy Annexure-A). The Complainant filed a complaint with the OP No.2 (copy Annexure-C) regarding fraudulent withdrawal of money from his saving bank account 24008. The OP vide letter dated 04.10.10 filed a complaint before the Dy. Commissioner of Police, Delhi to find out the true fraudster (copy Annexure R-3).

It transpires that after filing the complaint by the OP to the DCP, Delhi the police must have carried out investigation into the matter. After carrying out investigation, there were two options with the police, namely, to file a closure report or to register an FIR. However, the parties have not filed copy of any closure report or the FIR. It is undoubtly a case of forgery and cheating. 10 nos. of cheques were not allegedly issued by the Complainant but, however, it is mentioned that since the account No. and the signature of the Complainant tallied, the withdrawals were allowed to be made. The official of the bank had paid the money to the bearer as a daily routine banking transaction bonafidely believing to be in accordance with the prudent banking norms. 7 cheques for substantial amounts had been encashed by the two friends and acquaintances of the complainant. We do not know whether the complainant had taken any action against them. It seems that the complainant has straightway filed the present complaint against the OPs without going into the real facts in depth. Unless the investigation by the police was carried out the veracity of the cheques could not be ascertained and unless the veracity of the signatures of the cheques was ascertained nothing could be done from the side of the OPs.  As we have pointed out hereinabove, the parties have not filed the copy of police report. We do not know whether the police had solved out the case and/or interrogated Sh. Arun Kr. Singh and Sh. Ashwani Kr. Sharma. Thus, vital part of evidence has not been filed before this Forum. It was a case of forgery, cheating and misappropriation. If the officials of the bank were in hands in glove with Sh. Arun Kr. Singh and Sh. Ashwani Kr. Sharma, they were also liable to be prosecuted for the offence of cheating, forgery and misappropriation of the money of the Complainant. Therefore, the Police report was in fact a very vital and important piece of evidence.  Thus, judgment in Canara Bank V/s Canara Sales Corporation, AIR 1987 SC 1603 relied on behalf of the complainant is not applicable to the facts of the present case because the judgment was rendered in a civil suit and not under the Consumer Protection Act. On the other hand, judgment of the National Commission in Bright Transport Co. V/s Sangli Sahakari Bank Ltd. MANU/CF/ 0171/2012 relied on behalf of the OP is applicable. Relevant Para 3 is reproduced as hereunder:-

“3.     Yet another reason why we would discourage the complainant from approaching this Commission is that as per the complainants there are several acts of forgery for which a criminal trial is pending. The said case is yet to be decided and the decision of the criminal cases may have a bearing on the claims made by the complainants in these complaints. This Commission has consistently taken the view in the past that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by this Commission.”

The question of forgery, cheating and misappropriation cannot be decided in the summary procedure as provided in the Consumer Protection Act.  The OPs cannot be held to be deficient in service by conducting an inquiry in a perfunctory manner.  The matter requires thorough probe and, therefore, cannot be decided by this Forum.

In view of the above discussion, we do not find any merit in the complaint and, accordingly, dismiss it with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 07.01.17.