State Consumer Disputes Redressal Commission
M/S.Ashish General Stores vs Chiplun Urban Co-Op. Bank Ltd. on 19 April, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 1077 OF 2005 Date of filing : 16/06/2005 IN CONSUMER COMPLAINT NO. 13 OF 2003 Date of order : 19/04/2008 DISTRICT CONSUMER FORUM : RATNAGIRI M/s.Ashish General Stores Proprietor Shri C.B. Kapale At & Post Adur, Tal. Guhagar, Dist. Ratnagiri. Appellant/org. complainant V/s. The Branch Manager Chiplun Urban Co-op. Bank Ltd. Guhagar Br. Chiplun, Dist. Ratnagiri. Respondent/org. O.P. Corum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Smt. S.P. Lale, Honble Member Present: Advocate C.P. Devgirikar for the appellant.
None for the respondent.
- : ORDER :-
Per Smt. S.P. Lale, Honble Member This appeal is directed against the dismissal order dated 06/05/2005 passed by District Consumer Forum Ratnagiri in consumer complaint No.13/2003. Aggrieved by the order passed by the District Consumer Forum, org. complainant himself has filed the present appeal.
The facts giving rise to this appeal are as under :-
The complainant had maintained a Current Account bearing No.133 and Cash Credit Account bearing No.45 with O.P.-Bank. The complainant has alleged that org. O.P. has made payment of three forged cheques
1) Cheque No.011271 dated 08/08/1996 for Rs.28,000/- in favour of Pandurang Tukaram Kapale
2) Cheque No.011272 dated 21/08/1996 for Rs.17,000/- in favour of Pandurang Tukaram Kapale
3) Cheque No.011275 dated 22/04/1997 for Rs.25,000/- in favour of Vinayak Trading Co. Sangli.
The aforesaid cheques were drawn on Chiplun Urban Co-op. Bank Ltd., Guhagar Branch, Dist. Ratnagiri. The cheques were issued in the Current Account No.133 maintained by the org. complainant in the name of M/s.Ashish General Stores. The signature of the aforesaid cheques was forged and O.P.-Bank negligently made payment to the payee of the cheques, which amounts to deficiency in service on the part of O.P.-Bank. It is further alleged by the complainant that in another Cash Credit Account No.45 cheque No.911815 dated 06/07/1998 for Rs.2,000/- issued in favour of Rajkor Ilahi Bagwan by forging the signature of the complainant was allowed to be encashed. Thus, according to the complainant, O.P.-Bank acted negligently and without observing duty of verifying the signature as per the Specimen Signature Card available with the Bank. The complainant came to know about the aforesaid forgery when one more cheque No.011277 for Rs.30,372/- was purportedly issued on 30/04/1997 in favour of M/s.Vinayak Trading Co. Ltd., Sangli. The said forged cheque however could not be honoured by the O.P.-Bank as there was no sufficient balance in the Current Account No.133 maintained by the org. complainant with O.P.-Bank. As result of dishonour of aforesaid cheque, the payee of the said cheque M/s.Vinayak Trading Co. Ltd. had filed a Criminal Complaint under Section 138 of Negotiable Instruments Act before Chief Judicial Magistrate, Sangli. The complainant made inquiry with the O.P. by sending notices through his Advocate. But, the O.P. did not send reply to any notice of the complainant. Therefore, the complainant personally went and perused the ledger account and also perused the cheques paid by the O.P.-Bank and it came to his notice that his signatures were forged. Again a detailed inspection on 27/04/2002 was taken by the complainant and thereafter the complainant confirmed that the signatures of the complainant on the aforesaid cheques were forged. The criminal case filed by the payee i.e. M/s.Vinayak Trading Co. Ltd. against the complainant was dismissed on 17/01/2004 on the ground that the complainant had not issued the cheque bearing No.011277 dated 30/04/1997 for Rs.30,372/- issued in favour of M/s.Vinayak Trading Co. Ltd., Sangli, which was returned for insufficient fund. Therefore, from the Current Account No.133 and Cash Credit Account No.45 of the complainant, huge amount aggregating to Rs.72,000/- was withdrawn on the basis of forged signatures. The complainant has placed on record opinion of Handwriting Expert, Chief State Examiner of documents, C.I.D., M.S., Pune dated 13/12/2004. However, even though the Handwriting Expert has given opinion in Para 2 of the said opinion in favour of the complainant, the O.P.-Bank failed and neglected to pay the said amount of the cheques mentioned in Para 2 of the report to the complainant. Therefore, the complainant filed consumer complaint before the Forum the below for deficiency in service.
O.P. filed written statement and contended that the O.P. has made a payment since signature of the cheques tallied with the specimen signature of the complainant. Therefore, there is no deficiency in service on the part of the O.P.-Bank. Further, the Advocate for the O.P. during the oral arguments before the Forum below had taken an objection with regard to point of limitation. According to the O.P. cause of action arose in the year 1998 and the complainant has filed complaint in the year 2003. Therefore, complaint is hopelessly time-barred. After considering the affidavits and documents placed before it, the Learned District Consumer Forum dismissed the complaint and passed the impugned order.
We heard Advocate C.P. Devgirikar for the appellant/org. complainant. None was present for the respondent-Bank.
It is the contention of the appellant that he had maintained two accounts viz. Current Account bearing No.133 and Cash Credit Account No.45 with the O.P. since last 12 years. Due to negligence of the O.P.-Bank, the amount of Rs.72,000/- had been wrongly debited and caused loss to the appellant. The appellant after inquiry on 27/04/2002 found that his signature was forged. Therefore, he requested the O.P.-Bank to pay the amount of forged cheques, but respondent-Bank refused to pay on the ground that the payment was made after verifying the signature from the Specimen Signature Card maintained by the respondent-Bank. The criminal case was filed by M/s.Vinayak Trading Co. Ltd. against the appellant and same was dismissed on 17/01/2004 on the ground that the appellant had not issued a cheque bearing No.011277 for Rs.30,372/- on 30/04/1997. The respondent-Bank had raised a point of limitation. It has contended that the cause of action has arisen in the year 1997, but the appellant has filed a complaint in the year 2003. We find that the appellant learnt about the aforesaid forgery when he received summons on 26/12/2001 from the Chief Judicial Magistrate, Sangli fixing a next date of 26/12/2001. Therefore, cause of action arose on 26/12/2001 and appellant has filed complaint on 21/02/2003 i.e. well within limitation. In view of these circumstances, we find that the complaint is not barred by limitation and on this ground appeal cannot be dismissed.
The appellant has placed on record opinion of Handwriting Expert dated 13/12/2004 given by Chief State Examiner of Documents, C.I.D., M.S. Pune, which is reproduced as under :-
OPINION The documents of this case have been carefully and thoroughly examined by me.
2. The person who wrote the red-enclosed signatures marked Exs.S-1 to S-20 did not write the red-enclosed signatures marked Exs.Q-1 and Q-3.
3. It has not been possible to express any definite opinion on the red-encircled signatures marked Exs.Q-2 and Q-4 in comparison with the standard signatures marked Exs.S-1 to S-20 for want of sufficient identifying characteristics.
Clause No.2 clearly goes to show that the signatures of the appellant were forged. Person who has signed documents marked S-1 to S-20 did not put signatures on documents marked Q-1 and Q-3. The Forum below has failed to take into consideration the clause No.2 of the opinion. Therefore, the order passed by the Forum below is bad in law. The Honble Supreme Court in the matter of Canara Bank V/s. Canara Sales Corporation & Ors., reported in AIR 1987 SC 1603 has taken a view that whenever a cheque purporting to be by a customer is presented before the Bank, it carries a mandate to the Bank to pay. If a cheque is forged there is no such mandate. The Bank can escape liability only if it can establish knowledge to the customer of the forgery in the cheque. The respondent-Bank has not established that the complainant had a knowledge of the forgery. Therefore, it amounts to deficiency in service on the part of respondent-Bank. Therefore, in our view the respondent-Bank has committed serious deficiency in their service allowing unauthorized withdrawal of amounts from the appellants accounts. The respondent-Bank failed to satisfy or justify the unauthorized withdrawal from the Current Account and Cash Credit Account of the appellant. We are therefore inclined to set aside the dismissal order passed by the Forum below and direct the respondent-Bank to pay to the appellant as per clause No.2 of the Handwriting Experts opinion dated 13/12/2004. Q1 was the cheque for Rs.25,000/- drawn in the name of M/s.Vinayak Trading Company. Q3 was the cheque for the amount of Rs.2,000/-. According to the handwriting expert, these two cheques were not bearing signatures of complainant/appellant herein because those signatures are not tallying with the admitted signatures found on S1 to S20. As such the respondent/Bank committed gross negligence in passing two cheques and debiting amount of Rs.27,000/- from the account of complainant when the cheques were forged one. Hence, respondent/Bank be directed to pay to the appellant Rs.27,000/- involved in two disputed cheques. Therefore, the Forum below erred in law in not appreciating expert evidence in the right perspective and erroneously dismissed the complaint. In the result, we pass the following order :-
-: ORDER :-
1. Appeal is partly allowed. The impugned dismissal order stands quashed and set aside. Complaint is partly allowed.
2. Respondent-Bank is directed to pay cheques amount of Rs.27,000/- to the appellant/org. complainant along with interest @ 6% p.a. from the date of filing of the complaint till realisation.
3.
No order as to costs.
4. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member dd.