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State Consumer Disputes Redressal Commission

Assiciation Of Multi Modal Transport ... vs The Branch Manager, Corporation Bank. on 11 January, 2018

A/14/105                                                            1/8


   STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
              MAHARASHTRA, MUMBAI

                          Appeal No.A/14/105
(Arisen out of order dated 18/07/2013 In Complaint No.235 of 2008 of
                    District Forum, South Mumbai)

Association of Multi Modal Transport
Operators of India, Through its Treasurer
Mr.R.K. Rubin,
C/o C.K.B. 20, Raja Bahadur Mansion,
Fort, Near Stock Exchange, Mumbai.        ...........Appellant(s)

                   Versus


The Branch Manager,
Corporation Bank,
Fort Branch 32, Dalal Street,
Mumbai.                                       ........Respondent(s)

BEFORE:
           Hon'ble Mr. Justice A.P. Bhangale - President
           Hon'ble Mr. D.R. Shirasao - Judicial Member

PRESENT:
           Advocate Mr.Akshay Deshmukh for the appellant.
           Advocate Mr.K.A. Suryanarayanan for the respondent.

                                 ORDER

Per Hon'ble Mr.D.R. Shirasao - Judicial Member:

(1) Being aggrieved by the judgment and order passed by the Ld.District Consumer Disputes Redressal Forum, South Mumbai in Consumer Complaint No.235/2008 on 18/07/2013, dismissing the complaint, the complainant has preferred this appeal.

(2) Brief facts of the case are as under:

Appellant/original complainant had filed complaint for getting amount of Rs.9,82,000/- from the opponent Bank which was fraudulently siphoned from his bank account along with costs and compensation. Complainant submitted that they are having a current account with the opponent located at Veena Chambers, 21, Dalal Street, Fort, Mumbai 400 023. Their Current Account Number is 11863. The Bank account was operated by the office bearers of the association including President, Vice President, Secretary and Treasurer. The names and specimen signatures of the four office bearers were given to the Bank. The cheques were to be signed at least by two office bearers. Complainant submitted that they learnt that amount of Rs.9,82,000/- was misappropriated from their Bank account with the help of forged cheques. That misappropriation had taken place during the period from 30/08/2005 to 24/06/2006. The amount was misappropriated with the help of 47 forged cheques. The Complainant had given list of 47 cheques to the opponent and claimed that opponent had given payment of those cheques although they were forged.

The complainant submitted that by giving payment of cheques although they were forged the opponent had given deficiency in service to the complainant. Hence, complainant had demanded from opponent to give credit of that much amount in the account of the complainant. On failure of the same the complainant has filed this complaint for getting amount of Rs.9,82,000/- from the opponent along with interest on that amount along with costs and compensation.

(3) The opponent contested the complaint by filing their written A/14/105 3/8 version on record. They admitted that complainant is having their current account in their Bank. They admitted that the complainant had given names and specimen signatures of all four office bearers to the Bank. They admitted that the cheques given by the complainant association used to be signed by at least two office bearers and they were giving payment of those cheques after verifying signatures of the office bearers. They submitted that on 10/07/2006 complainant further informed that their cheque book was in the custody of their employee by name - Praveen Mohan Maherkarkar and he had withdrawn amount by making false signatures of office bearers on 47 cheques amounting to Rs.9,82,000/-. They submitted that the Bank was giving monthly statement to the complainant. However, complainant had never checked their account. They submitted that on 11/08/2006 Praveen Mohan Maherkarkar had come to the Bank along with cheque of amount of Rs.1,80,000/- of complainant. They submitted that at that time they caught hold Praveen Mohan Maherkarkar and had handed him over to the police. They submitted that the report was given by the complainant against Praveen Mohan Maherkarkar in that police station and police had registered offence against Praveen Mohan Maherkarkar. They submitted that after investigation of the case charge-sheet was filed against Praveen Mohan Maherkarkar. They submitted that the amount was misappropriated from the account of complainant by their employee and officials of the Bank are not responsible for the same. Hence, they submitted that Bank had not given any deficiency in service to the complainant and hence, Bank is not required to deposit amount of Rs.9,82,000/- in the account of the complainant. Hence, they submitted that complaint filed by the A/14/105 4/8 complainant be dismissed.

(4) Considering rival contentions of the parties, evidence adduced by both the parties on record and documents filed on record the Ld.District Forum had come to the conclusion that opponent has not given deficiency in service to the complainant and hence, opponent is not required to deposit amount of Rs.9,82,000/- in the account of the complainant and hence, dismissed the complaint filed by the complainant. Being aggrieved by the same the complainant has preferred this appeal.

(5) Heard Ld.Advocate appearing for the appellant and respondent.

The Ld.Advocate appearing for the appellant/original complainant submitted that the amount was misappropriated with the help of forged cheques. He submitted that it was the duty of the officers of the Bank to verify the cheques and signatures present on the cheques by tallying them with the specimen signatures of office bearers of the complainant available with them. He submitted that the officials of the Bank had not performed their duty diligently and casually honoured all the 47 cheques and because of which amount of Rs.9,82,000/- was misappropriated from the current account of the complainant. Hence, he submitted that opponent has given deficiency in service to the complainant and opponent is required to deposit that much amount in the account of the complainant. However, he submitted that the Ld.District Forum had not considered the same and dismissed the complaint filed by the complainant. Hence, he submitted that appeal be allowed by setting aside the order passed by the Ld.District Forum and complaint filed by the complainant be allowed by directing the opponent to deposit amount of Rs.9,82,000/- in the A/14/105 5/8 account of complainant along with interest on that amount and direct opponent to give costs and compensation.

(6) The Ld.Advocate appearing for the respondent/opponent submitted that the cheques and cheque books of the complainant were in the custody of Praveen Mohan Maherkarkar who was employee of the complainant. He had produced the cheques in the bank and obtained withdrawal on the basis of those cheques. He submitted that in respect of misappropriation of amount from the account of complainant, the complainant had given report against Praveen Mohan Maherkarkar in police station and police had registered offence against Praveen Mohan Maherkarkar and filed charge-sheet against him in the Court. He submitted that there is no evidence on record that officials of the Bank are involved in misappropriation of amount of complainant. Hence, he submitted that the Ld.District Forum has rightly considered this fact and dismissed the complaint filed by the complainant. Hence, he submitted that appeal be dismissed. For that purpose he relied on following rulings:

Order passed by the Hon'ble National Commission in First Appeal No.63/1994 on 18/03/1997 in the matter of Lala Samachar Newspaper V/s. General Manager, Telecom Department, Ludhiana and Ors., and order passed by the Hon'ble National Commission in Original Petition No.141/1994 on 30/05/1997 in the matter of Reliance Industries Limited V/s. United India Insurance Co. Ltd. In both these rulings it has been observed by the Hon'ble National Commission that the fact of misappropriation of amount from the account of the consumer cannot be decided by the A/14/105 6/8 Consumer Court and for that purpose parties have to approach the competent Civil or Criminal Court.

(7) In this case, it is admitted fact that the complainant association is having their Current Account with the opponent Bank. Their Current Account Number is 11863. The account of the complainant was operated by their office bearers including President, Vice President, Secretary and Treasurer. The names and specimen signatures of all the office bearers were given to the Bank. The cheque was to be signed by at least two office bearers.

It appears that in the month of July, 2006 for the first time the complainant learnt about misappropriation of amount from their account and they had given intimation about the same to the Bank and directed them to stop further transactions of their Current Account. They also informed Bank that amount of Rs.9,82,000/- has been misappropriated from their Current Account with the help of forged cheques during the period 30th August, 2005 to 24th June, 2006. Hence, the Bank had stopped further transaction of the account of the complainant. However, it appears that on 11th August, 2006 Praveen Mohan Maherkarkar had brought the cheque of complainant of amount of Rs.1,80,000/- in the Bank. At that time the officials of the Bank had obstructed him and had given him in custody of police. In respect of misappropriation of amount complainant had given report against Praveen Mohan Maherkarkar in police station and police had registered offence about the same against Praveen Mohan Maherkarkar. Further, police had filed charge-sheet against Praveen Mohan Maherkarkar in the Court. In this case it is admitted that Praveen Mohan Maherkarkar is employee of complainant and he was in custody of cheques and cheque books of the complainant and he had A/14/105 7/8 withdrawn the amount by making false signatures of office bearers. Hence, in respect of misappropriation of amount police had registered offence against Praveen Mohan Maherkarkar and filed charge-sheet against him. There is no evidence on record that Bank officials were involved in misappropriation of amount of complainant. At this stage there is also no evidence on record that the cheques were not bearing signatures of office bearers and they were bearing forged signatures. In view of the rulings cited by the Ld.Advocate appearing for the opponent it has become clear that the question of misappropriation of amount is complicated question of law and facts and it shall be decided by the Civil and Criminal Court. Consumer Court has no such authority to determine the same. Prima-facie, there is no evidence on record that the officials of the Bank were involved in misappropriation of amount of complainant. Under such circumstances, the Ld.District Forum has rightly come to the conclusion that it was due to mistake of complainant that amount was misappropriated from their account as they had given cheques and cheque books in the custody of their employee Praveen Mohan Maherkarkar. Now, the complainant cannot take benefit of their own wrong and ask opponent Bank to credit amount of Rs.9,82,000/- in their account which was misappropriated from their account by Praveen Mohan Maherkarkar. We are of the opinion that considering all these facts the Ld.District forum has rightly dismissed the complaint filed by complainant against the Bank. Moreover, the complainant has not made Bank as a party to the proceeding but has made Branch Manager as party to the proceeding, who cannot be personally held liable for giving service to the complainant.

Under such circumstances, we are of the opinion that the Ld.District Forum has rightly dismissed the complaint of complainant and hence, appeal is to be dismissed. Hence, we pass the following order:

ORDER

(i) Appeal is dismissed.

(ii) Parties to bear their own costs.

Pronounced on 11th January, 2018.

[Justice A.P. Bhangale] President [D.R. Shirasao] Judicial Member ep