BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 98 of 2019.
Date of Institution : 22.02.2019.
Date of Decision : 31.01.2023.
Navneet Singh aged about 23 years son of Shri Shamsher Singh, resident of village Sikanderpur, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Yes Bank Limited, Sangwan Chowk, Sirsa, through its Branch Manager Vipin Kumar.
2. Vipin Kumar, Branch Manager, Yes Bank Limited, Sangwan Chowk, Sirsa, Tehsil and District Sirsa.
3. Yes Bank Limited, Shop Cum Office No. 151-152, Sector 9-C, Madhya Marg, Chandigarh- 160017 through its Regional Manager.
4. Raj Kumar son of Shri Banwari Lal, resident of village Budhabhana, Tehsil and District Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986 (as amended under Section 35 of the Consumer Protection Act, 2019).
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR……………………….MEMBER.
SH. OM PARKASH TUTEJA …………………MEMBER
Present: Sh. K.S. Mehra, Advocate for complainant.
Sh. M.K. Saini, Advocate for opposite parties No.1 to 3.
Smt. Pushpa Mehta, Advocate for opposite party no.4.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as Ops).
2. In brief, the case of complainant is that in the month of June, 2018 officials of Punjab National Bank, Sikanderpur Branch told about the scheme of dairy loan of the Bank to father of complainant and it was also stated that op no.1 used to prepare loaning documents and used to provide loan from bank after completing all requisite conditions. That Avtar Singh is neighbourer of complainant who introduced Shamsher Singh father of complainant to op no.4 who stated that he is well known to Rakesh Aggarwal, Manager, PNB, Sikanderpur Branch and he has cordial relations with him and he will provide loan for dairy farm from above said Branch. He also settled meeting with Rakesh Aggarwal. It is further averred that both of them assured Shamsher Singh to give subsidy on the loan amount and collected all the documents and prepared loan case file in the name of complainant and his father became guarantor and accordingly loan was sanctioned. It was also directed to the complainant to deposit 25% of total loan to the bank. The complainant paid Rs.87,500/- in cash to Rakesh Aggarwal, Branch Manager of the Bank who also given this amount to Raj Kumar and receipt of this amount was prepared which was given to said Manager. That at the of time of preparation of loan file, Branch Manager obtained five blank signed cheques of the complainant of PNB bank and also obtained his signatures on eight vouchers and printed papers. That land measuring 4 kanals 4 marlas owned by complainant was also mortgaged with the bank.
3. It is further averred that Dr. Shiv Kumar Veterinary Surgeon, Sikanderpur checked buffaloes and tags were also attached to those buffaloes. On 13.08.2018 insurance policy for five buffaloes were obtained from Oriental Insurance Company Ltd. That proceedings of loan were conduced on 05.05.2018 and thereafter on 13.07.2018 equitable mortgage no. 1770 dated 13.7.2018 was registered in the office of Sub Registrar, Sirsa. On 9.8.2018 Rakesh Aggarwal cancelled said equitable mortgage deed of his own without prior consent of complainant. On 13,08.2018 Bank Manager also cancelled insurance of above said five buffaloes with the reason that these buffaloes should be insured for three years. That thereafter complainant was called again and complainant visited on many occasions to the bank but all in vain and all of them postponed the matter with one pretext or the others. When he visited for getting the entry of loan in Passbook, then he came to know that on 14.8.2018, an amount of Rs.2,62,500/- was deposited by Rakesh Aggarwal and on the same day said amount was transferred by him in account of op no.4. That even Raj Kumar issued affidavit dated 24.9.2018 duly attested by Executive Magistrate, Sirsa in favour of complainant to the effect that he has received Rs.3,50,000/- from Punjab National Bank and Branch Manager, PNB Sikanderpur demanded the said amount with pretext that insurance policy has not been prepared and thereafter amount shall be released to him, hence he had paid entire amount of Rs.3,50,000/- to the Branch Manager of PNB and due to this reason he has not handed over the buffaloes to the complainant. It is further averred that when amount was returned back to the Bank Manager, so the buffaloes were also returned to original owners. That thereafter complainant has filed a civil suit titled as Navneet Singh vs. Raj Kumart etc. bearing No. 1008 of 2018 in the Civil Court, Sirsa which is pending in the court of Smt. Navjeet Klair, Learned Civil Judge, Sirsa. That summons were served upon Raj Kumar and thereafter he came to the house of complainant and requested to withdraw the above said case and also assured that he will repay entire amount of Rs.3,50,000/- in favour of complainant.
4. It is further averred that thereafter panchayat of respectable was convened and in the panchayat, op no.4 in lieu of his pre-existing legal liability of above said amount of Rs.3,50,000/- issued a cheque No. 239155 dated 15.10.2018 of Rs.3,50,000/- drawn at Axis Bank limited, Sangwan Chowk, Sirsa and handed over the said cheque to the complainant in the presence of Panchayat and assured for its encashment. That accordingly complainant presented aforesaid cheque in Yes Bank i.e. op no.1 and handed over to op no.2 for encashment of the amount of cheque and op no.2 assured him to encash said cheque. That on visiting the complainant to op no.2 on many occasions, op no.2 has returned scan copy of cheque as well as return memo dated 1.1.2019 with endorsement of the funds insufficient and above said memo was handed over by op no.2 to the complainant on 19.1.2019 with above said remarks whereas original cheque has not been returned by op no.2 to the complainant with one pretext or the other. In this manner, original cheque is still in custody of op no.2 which clearly proves that all the ops are in collusion with each other and have committed entire negligence on their part in connivance with each other with malafide intention to usurp the amount of above said cheque of complainant without any legal right or authority. The op no.2 is Branch Manager of the Bank and he has obtained undue influence and benefit of his post motive to cause loss to the complainant. That thereafter complainant approached the ops and requested to return original cheque but all in vain and ops have postponed the matter with one pretext or the other and ultimately they have refused to return the above said original cheque to the complainant and as such complainant also reserves his right to file appropriate proceedings under criminal offences against the ops before the competent Court of Law. The complainant is legally entitled to recover the above said amount of Rs.3,50,000/- from ops jointly and severally alongwith interest and other incidental charges but they have refused to pay the said amount to the complainant without any rhyme or reason. That the act and conduct of the ops comes under the ambit of deficiency in service as well as unfair trade practice, due to which complainant is suffering recurring financial losses till today and is also suffering serious harassment and mental agony. Hence, this complaint.
5. On notice, ops appeared. Ops no. 1 to 3 filed written statement raising certain preliminary objections. It is submitted that true facts of the case are that answering ops is a bank and deals with the detail banking and complainant approached for opening his saving account at Chandigarh Branch of answering ops bank. The answering op after completing its formalities opened the bank account in Chandigarh Branch and at the time of opening his bank account, the complainant had given his address as #1279, Top Floor, Sector-33, Chandigarh. It is further submitted that complainant had deposited for collection with the answering op bank a cheque No. 239155 dated 15.10.2018 of Rs.3,50,000/- drawn at Axis Bank, Sirsa but the same was returned by the paying bank i.e. Axis Bank unpaid/ dishonored due to insufficient funds on 01.01.2019 and answering op bank as practice of bank immediately couriered the said dishonored cheque alongwith its return memo of dishonor vide POD No. K1081802864 to the address of the complainant which the complainant had himself provided at the time of opening of above mentioned account with answering op bank. That said cheque and return memo has been duly delivered in the said address and has been accepted by the occupants of the said house by signing the name of complainant in the receipt. It is further submitted that on 14.01.2019, the complainant visited the Sirsa Branch of answering ops and inquired about the said dishonored cheque and complainant was duly informed of the dishonor of said cheque and that the same was duly forwarded to the mailing address of complainant by officials of answering op and the concerned official also shared the courier details with him. That complainant requested to update his mailing address and also completed the formalities to change his mailing address. It is further submitted that it is clear from the averments of complainant that answering op bank admittedly helped the complainant in every possible way to extent of even issuing copy of the cheque and return memo afresh so that the rights of the complainant against the drawer of the cheque is not defeated. It is also submitted that it is settled law that loss of cheque is not an impediment in the way of initiation of proceedings against the drawer of the cheque when collecting bank has provided copies of the cheque and return memo to the payee i.e. the complainant in this case. It is also submitted that instead of pursuing recovery of the amount against the alleged fraudster, the complainant is malafidely pursuing action of recovery against the answering ops bank. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
6. Op no.4 also filed written statement raising certain preliminary objections. It is submitted that answering op has been arrayed in the complaint with the accusation that allegedly cheque dated 15.10.2018 of Rs.3.5 lac was issued by op no.4 in favour of complainant from his bank account of AXIS Bank, Sangwan Chowk, Sirsa meaning thereby at the maximum it is clear case of money transaction in question between two individuals i.e. complainant and op no.4. It is further submitted that firstly the cheque has not been issued by answering op rather as alleged it is scam being commenced by the complainant by unnecessary impleading the op in several round of litigations, an application to police and to banker of op has already been moved against complainant. Secondly the contents of instand complaint does not come even in the ambit of Consumer Protection Act more particularly complainant is not a consumer qua the answering op. On merits, it is submitted that complainant and his father Shamsher Singh are shrewd person(s) indulged in unfair practice coupled with cheating. The loan was availed by complainant and after getting the loan he is looking for false excuses to avoid repayment/ installments. It is also submitted that complainant has given a concocted story in order to make false cause of action. It is further submitted that unfortunately the complainant won his trust through one Avtar Singh resident of Sikanderpur. The answering op appeared before official of Punjab National Bank Sikanderpur and he put his signatures as dealer of milch animals through him the complainant agreed to purchase the animals from loan amount. In this process, the complainant and his father had obtained blank cheques and signatures of op no.4 on blank papers. In reality no cheque(s) was ever issued to the complainant regarding any alleged liability etc. rather he is adamant to misuse the blank signed papers and answering op has already moved a police complaint against him. It is further submitted that complainant had already availed the loan of dairy farming by adopting due procedure and in this sequence affidavit of op no.4 was availed by bank authority at the instance of complainant only. The complainant has narrated incorrect version in order to usurp the loan amount and to blackmail the answering op. The Civil Suit No. 1008 of 2018 having been filed by present complainant on basis of false and frivolous grounds and in identical facts to the present complaint has been withdrawn by him having found no success of his undue gain. It is incorrect that suit was even withdrawn on the assurance of answering op as alleged. It is further submitted that cheque in question is outcome of misdeed committed by the complainant, thus there is no iota of truth for issuing the cheque qua pre-existing legal liability. The complainant was not having legal and valid instrument in his hand thus misplacement of same from op bank is of no consequences. The answering op has already directed his banker i.e. Axis Bank, Sirsa for stoppage of payment qua the cheque in question by moving an application dated 02.10.2018. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
7. Complainant has tendered his affidavit Ex.CW1/A and copies of documents i.e. copy of complaint under Section 138 of Negotiable Instruments Act and Section 420, 467, 468, 471, 120-B IPC Ex.C1, cheque return memo alongwith copy of cheque EX.C2, affidavit of Raj Kumar op no.4 Ex.C3, application moved to DGP, Haryana, Panchkula by father of complainant Ex. C4, cheque return memo Ex.C5, legal notice Ex.C6 and postal receipts Ex.C7, Ex.C8 and statement of account Ex.C9.
8. On the other hand, ops no.1 to 3 have tendered affidavit of Sh. Anil Kumar, Branch Manager as Ex.R1 and copies of documents i.e. resolution Ex.R2, letter regarding opening of account Ex.R3.
9. Op no.4 has tendered his affidavit Ex. RW4/A and copy of the order dated 8.8.2022 passed in Civil Suit titled as Navneet Singh Versus Raj Kumar Ex.R7.
10. We have heard learned counsel for the parties and have perused the case file carefully.
11. From the pleadings of the complainant as well as op no.4 and documents placed on file by complainant as well as op no.4, it is crystal clear that they have leveled allegations of fraud and cheating against each other. In this regard, complainant Navneet Singh has already filed a criminal complaint under Section 138 of Negotiable Instruments Act as well as under Sections 420, 467, 468, 471, 120-B IPC against said Raj Kumar op no.4 and Vipin Kumar op no.2 which is already pending before the Court of Learned Judicial Magistrate Ist Class, Sirsa and in the said complaint also similar allegations of fraud and cheating etc. have been leveled by the complainant against the accused persons. Further more, the father of complainant namely Shamsher Singh has also moved an application to the Director General of Police, Haryana, Panchkula and has leveled allegations of fraud and cheating against said Raj Kumar etc. and the copy of said application is placed on file by complainant as Ex.C4. Even the complainant has also leveled allegations against the officials of the banks regarding conspiracy of fraud and cheating. Similarly, said Raj Kumar op no.4 has also moved applications to the SHO, Police Station Badaguda, District Sirsa, to the Superintendent of Police, Sirsa for taking legal action against Navneet Singh i.e. complainant and his father Shamsher Singh for obtaining signatures on blank papers and blank cheques by way of fraud and cheating for obtaining the loan for dairy farm. Since there are allegations of the fraud and cheating of the parties against each other, therefore, we are of the considered view that these allegations of fraud and cheating leveled by complainant as well as op no.4 against each other cannot be decided by the Consumer Commission. Moreover, complainant has already filed a criminal complaint against op no.4 etc. in criminal Court of Law on the similar allegations and for dishonor of cheque in question and for recovery of the amount of Rs.3,50,000/- from Raj Kumar op no.4 which is already pending before the Court of Learned Judicial Magistrate Ist Class, Sirsa and as such in this summary proceeding before this Commission, the entitlement of the complainant for the amount of Rs.3,50,000/- from said Raj Kumar cannot be decided because said Raj Kumar has also leveled allegations of fraud and forgery against complainant and his father. We are also of the considered opinion that a detailed and thorough investigation and evidence by way of examination of witnesses, their cross-examination etc. in Criminal Court of Law is required in this case and same is not possible in these summary proceedings. In so far as allegations of complainant against ops no.1 to 3 are concerned, the ops no.1 to 3 have rightly asserted that they have already provided a copy of the cheque and copy of cheque return memo to the complainant on the basis of which complainant has already filed a complaint under Section 138 of N.I Act against said Raj Kumar and moreover, ops no.1 to 3 have also asserted that original cheque and memo were already dispatched to the complainant at his address provided by complainant himself and same were acknowledged by complainant, therefore, we are also of the opinion that ops no.1 to 3 are not deficient in service and have not adopted any unfair trade practice. The complainant has failed to prove on record that ops no.1 to 3 in collusion with op no.4 have lost original cheque. Moreover, for filing a complaint under Section 138 of NI Act, a copy of dishonor cheque with copy of cheque return memo is sufficient which has already been supplied by the ops bank and on the basis of which complainant has already filed said complaint case against said Raj Kumar etc. So, we are of the considered view that present complaint is not maintainable before this Commission and deserves dismissal.
12. In view of our above discussion, the present complaint is hereby dismissed being not maintainable, but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President
Dt. 31.01.2023. District Consumer Disputes
Redressal Commission, Sirsa.
JK
