State Consumer Disputes Redressal Commission
Central Bank Of India vs Smt. Rekha Patel on 22 April, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/13/349
Instituted on : 22.05.2013
Central Bank of India,
Branch : Fafadih, Through Branch Manager -
Shri T.K. Haldhar S/o Late T.P. Haldhar,
Central Bank of India, Branch Fafadih, Raipur,
City, Tehsil and District Raipur (C.G.) ... Appellant
Vs.
Smt. Rekha Patel, W/o Shri Tulsi Patel,
R/o : M/s Capital Timber Company,
Fafadih, Raipur,
City, Tehsil and District Raipur (C.G.) ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri Bhupendra Jain, for appellant.
Shri Dhirghesh Sharma, for respondent.
ORDER
DATED : 22/04/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 26.04.2013, passed by District Consumer Disputes Redressal Forum, Raipur (C.G) (henceforth "District Forum") in Complaint Case No.28/2012. By the impugned, the learned District Forum, has partly allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay a sum of Rs.2,00,000/-, which is the amount of cheque along, with interest @ 6% from the date of filing of the complaint i.e. 01.02.2012 till the date of payment. The District Forum has further // 2 // directed to the appellant/O.P. to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.3,000/- towards cost of litigation.
2. Briefly stated, the facts of the complaint filed by the respondent/complainant before the District Forum are : that the respondent/complainant and her husband namely Tulsi Patel having a joint saving bank account No.1261355823 in the appellant (O.P.) Central Bank of India, Branch Fafadih, Raipur. The respondent/complainant had obtained loan of Rs.2,00,000/- from her relative namely Himmat Bhai Patel, through cheque No.042979 dated 11.01.2012. The respondent/complainant submitted the said cheque in the appellant (O.P. Bank) for clearance on 11.01.2012 and obtained receipt from the concerned Bank. On 18.01.2012, when the respondent/complainant went to the appellant (O.P. Bank) and inquired about the clearance of the said cheque, the she was told by the employee of the appellant (O.P.) that the amount of the said cheque could not be deposited in her account and the amount of the same cheque was deposited in the account of one Pradeep Paul. The respondent/complainant contacted Himmat Bhai Patel and requested him to verify his account and to inquire about the said cheque from Vyavsayik Sahakari Bank. On being inquired, it is found that on 12.01.2012 the amount of the cheque was withdrawn from the account of Himmat Bhai Patel and the amount of the cheque was deposited in account of one Pradeep Paul. The // 3 // respondent (complainant) made complaint in this regard before the Branch Manager of the appellant (O.P.) on 18.01.2012 and the appellant (O.P. Bank) informed the respondent (complainant) vide letter dated 23.01.2012 that the amount of cheque was withdrawn fraudulently by one Pradeep Kumar, who is having account No.0515010008340. When the respondent (complainant) obtained photocopy of the said cheque then she found that the name of respondent (complainant) was deleted by using whitener and instead of name of the respondent (complainant), name of one Pradeep Paul was entered in the cheque and rubber stamp seal of Pradeep Paul was also affixed. The amount of the cheque was deposited in the account of Pradeep Paul fraudulently forgery was committed. The respondent (complainant) made complaint in writing before the Senior Superintendent of Police, Raipur on 27.01.2012, but no action has been taken by him. Thereafter, the respondent (complainant) filed consumer complaint before the District Forum seeking total compensation of Rs.2,20,000/- from the appellant (O.P. Bank).
3. The appellant (O.P.) filed his written statement before the District Forum and denied that the respondent (complainant) obtained loan of Rs.2,00,000/- from her relative Himmat Bhai Patel through Cheque No.042979 dated 11.01.2012. The said cheque was not deposited before the appellant (O.P. Bank) for clearance. The allegation made by the respondent (complainant) against the appellant // 4 // (O.P. Bank) is false and frivolous. The appellant (O.P. Bank) did not commit any deficiency in service, hence the respondent (complainant) is not entitled for any compensation. The respondent (complainant) is a regular customer of the appellant (O.P. Bank), therefore for providing assistance to the respondent (complainant), the appellant (O.P. Bank) had written a letter dated 23.01.2012 and report was lodged in Police Station, Ganj, Raipur to provide assistance to the respondent (complainant). The appellant (O.P. Bank) is not liable for paying any compensation to the respondent (complainant) and the complaint is liable to be dismissed.
4. After due appreciation of the documents filed by the parties and the material available on record, the District Forum, has partly allowed the complaint and awarded compensation to the respondent (complainant), as mentioned in para 1 of this order.
5. Shri Bhupendra Jain, learned counsel appearing for the appellant (O.P. Bank) argued that the District Forum has not considered the matter in its right perspective. The impugned order passed by the District Forum, is contrary to law and is not sustainable. The respondent (complainant) has not made his husband Tulsi Patel as complainant in the complaint, who is a joint account holder and the District Forum has not considered this fact and passed the impugned order. He further argued that the respondent (complainant) pleaded // 5 // regarding forgery in the cheque, therefore, the District Forum, has no jurisdiction to take cognizance in the matter, and only Civil Court is competent to decide the matter, hence, the order passed by the learned District Forum, is without jurisdiction.
6. Shri Dhirghesh Sharma, learned counsel appearing for the respondent (complainant) supported the impugned order.
7. We have heard learned counsel for the parties and have perused the record of the District Forum.
8. The respondent/complainant filed documents. The documents are letter dated 23.01.2012 sent by Branch Manager, Vyavsayik Sahakari Bank Ltd. to the Chief Manager, Central Bank, Fafadih, Raipur (C.G.), statement of account in respect of account No.1261355823, photocopy of cheque No.042979 dated 11.01.2012, deposit slip, letter dated 18.01.2012 sent by Tulsi Patel to Branch Manager, Central Bank of India, Fafadih Branch, Raipur mentioning that the amount was not deposited in the account, letter dated 19.01.2012 sent by Smt. Rekha Patel and Tulsi Patel to Public Information Officer, Bank of Baroda, Main Branch, Raipur (C.G.), letter dated 19.01.2012 sent by Himmatbhai Patel to Public Information Officer, Vyavsayik Sahakari Bank Ltd., Jawahar Nagar Branch, Raipur (C.G.), copy of Pass book of S.B. Account No.010397 of Ravji Bhai and Sons HUF, letter dated 23.01.2012 sent by Chief Manager, Central // 6 // Bank of India, Branch Fafadih, Raipur to Smt. Rekha Patel, respondent (complainant), application dated 27.01.2012 sent by the respondent (complainant) Smt. Rekha Patel to Senior Superintendent of Police, Raipur, District Raipur (C.G.).
9. In the case of Bihta Co-operative Development and Cane Marketing Union Ltd., and another. Vs. Bank of Bihar and others, AIR 1967 Supreme Court 389 (V 54 C 75) , Hon'ble Supreme Court held thus :
"(11). The principle of this case cannot help the respondent before us.
If the signatures on the cheque had been genuine so that there was a mandate by the customer to the banker but the cheque was somehow got hold of by an unauthorized person and encashed by him, the bank might have had a good defence. If the signatures on the cheque or at least that of one of the joint signatories to the cheque are not or is not genuine, there is no mandate on the bank to pay and the question of any negligence on the part of the customer, such as, leaving the cheque book carelessly so that a third party could easily get hold of it would afford no defence to the bank. According to Halsbury's Laws of England (3rd Edition), Vol. 2 Art. 380 :
"A document in cheque form to which the customer 's name as drawer is forged or placed thereon without authority is not a cheque, but a mere nullity. Unless the banker can establish adoption or stopped, he can not debit the customer with any payment made on such document".
In this case, the finding is that one of the signatures was forged so that there never was any mandate by the customer at all to the banker and the question of negligence of the customer in between the signature and the presentation of the cheque never arose. Not only // 7 // was there negligence on the part of the banker is not ascertaining whether the signatures on the cheques were genuine, the circumstances attending the encashment of the cheque show conclusively that the banker was negligent and some of its officers fraudulent right from the beginning. The cheque form did not come out of the customer's cheque book. A loose cheque from returned by an ex-constituent had been used for the purpose of making out a cheque purported to be drawn by the customer. The entries in the register for the issue of such loose forms were so suspicious that it is difficult to believe that the employees of the bank concerned with the encashment of the cheque were acting bona fide. There was no negligence on the part of the customer according to whose resolution, the cheque had to be signed jointly by two persons. The fraud could only be perpetrated because of the complicity of the employees of the bank, no doubt with the help of one of the officers of the Union. The dishonesty of a particular officer of the Union was not the proximate cause of the loss to the bank. In our opinion, the case of Guddappa Chikkappa Kurbar v. Balaji Ramji, AIR 1941 Bom 274 (FB), referred to in the judgment of the High Court has no application to the facts of this case".
10. In the case of N. Venkanna vs. Andhra Bank, 2005 CTJ 494 (CP) (NCDRC), Hon'ble National Commission observed thus :-
"12. The Hon'ble Supreme Court in Canara Bank v. Canara Sales Corproation, AIR 1987 P.1603 : (1987) 2 SCC 666, in para 4 observed as under :-
"When a cheque duly signed by a customer which is presented for encashment before a bank, it carries a mandate to the bank to pay. However, if the signature on the cheque is not genuine, there is no mandate on the bank to pay. The bank when it makes the payment on // 8 // such a cheque cannot resist the claim of the customer with the defence of negligence on his part such as leaving the cheque book carelessly so that third parties would easily get hold of it. This is because a document in cheque form, on which the customer's name as drawer is forged, is a nullity. The bank can succeed only when it establishes adoption or estoppel. It was further observed by the Hon'ble Supreme Court in para 30 as under :
"....In order to sustain a plea of acquiescence, it is necessary to prove that the party against whom the said plea is raised, had remained silent about the matter regarding which the plea of acquiescence is raised, even after knowing the truth of the matter..."
The Supreme Court also observed in para 44 as under :
"....Nor can inaction for a reasonably long time in not discovering fraud or irregularity be made a defence to defeat a customer in action for loss..."
14. The judgments referred to hereinabove were referred to in the case of Citizen Cooperative Bank Ltd. v. Ritesh Mittal - 2004 CTJ 211 (Jammu & Kashmir High Court) (CP) and in that case claim of the complainant was for loss suffered by the complainant by clearing four forged cheque for payment. It was allowed by the State Consumer Disputes Redressal Commission and the bank was directed to pay a sum of Rs.1,52,000/- but with interest @ 6% p.a. only. On appeal by the bank, the High Court of Jammu & Kashmir also confirmed the order holding that the bank was liable to pay.
15. In Bihta Cooperative Development & Cane Marketing Union Ltd. v. Bank of Bihar, AIR 1967 SC 389, the Supreme Court had also taken the view earlier and held that what was said in Macmillan and Another's case (Supra) would not be applicable because the accepted principle of law that if signature on the cheque is genuine and there is a mandate by the customer to pay then the bank has no obligation but // 9 // discharge the liablity but if the signatures of the cheque or at least one of the signature is not genuine, then there is no mandate on the part of bank to pay and there would be no qustion of any negligence on the part of the customer, such as leaving the cheque book carelessly so that a third party could easily get hold of it would afford no defence to the bank. This view was filed in Canara Bank (Supra).
11. In the case of Federal Bank Ltd. vs. Arbee Star Maritime Agencies (P) Ltd., III (2007) CPJ 207, Tamil Nadu State Consumer Disputes Redressal Commission, Chennai observed that Cheque encashed fraudulently - Request to reverse entry not accepted - Contention of O.P., Bank staff honoured bear cheque after complying established procedure, rejected - Cheque bore the signature of only one signatory while cheques passed by O.P. bank subsequently bore signatures of two authorized signatory - O.P. negligent in not getting in touch with complainant to satisfy genuineness of cheque - Merely getting address of bearer in his own handwriting at back of cheque would not absolve bank of its obligations to its customers in ensuring proper service - Held liable to pay amount of disputed cheque with interest @ 12% p.a.
12. In the case of Citizen Co-operative Bank Ltd. vs. Ritesh Mittal, I (2004) CPJ 33 (DB), Jammu & Kashmir High Court observed thus :-
"4. The relationship between a bank and its customer arose for consideration before the Supreme Court of India in the case of Bihta Co-operative Development & Cane Marketing Union Ltd. v.
// 10 // Bank of Bihar, 1967 SC 389. In the above case, a suit was filed by the Society for illegal withdrawal of Rs.11,000/- from the bank. The suit was decreed by the Trial Court and affirmed by the High Court. The case then came before the Supreme Court of India. The plea taken by the bank was that if the customer chooses to dispense with the ordinary precautions and permits a forgery to be committed and if owing to the negligence of such precautions, it is put into the power of any dishonest person to increase the amount by forgery, the customer must bear the loss. For this argument , reliance was placed a decision of House of Lords given in the case of London Joint Stock Bank Ltd. v. Macmillan & Arther, 1918 AC 777. The Supreme Court of India, was however, of the opinion that what was said in Macmillan and Arther's case (supra) would not be applicable because the accepted principle of law that if signature on the cheque is genuine and there is a mandate by the customer to pay then the banker has no obligation but to discharge the liability but if the signatures on the cheque or atleast one of the signature is not genuine, then there is no mandate on the part of bank to pay and there would no question of any negligence on the part of the customer, such as, leaving the cheque book carelessly so that a third party could easily get hold of it would afford no defence to the bank. The ratio of decision given in Bihta Co-operative Development & Cane Marketing Union Ltd.'s case (supra) stand approved in the later decision in Canara Bank v. Canara Sales Corporation, AIR 1987 SC 1603. In the above case, the Chief Accounts Officer of the Company who was attending the maintenance of the Company's accounts and was also in-charge and custody of the cheque books forged 42 cheques for a total amount of Rs.3,26,047.92 between 1957 and 1961. The Bank contended that the customer was stopped from claiming the amounts by reason of its own negligence on account of its acquiescence in, and ratification of, the payments made by the bank as the customer was being supplied by the monthly // 11 // statement of accounts and half yearly accounts over a period of four years and he had not raised any objection at the appropriate time to the correctness of the accounts.
5. The Supreme Court of India observed that when a cheque duly signed by a customer is presented before a bank, it carries a mandate to the bank to pay. If a cheque is forged, then there is no such mandate. The bank can escape liability only if it can establish knowledge to the customer of the forgery in the cheques. Inaction for a continuously long period cannot by itself afford a satisfactory ground for the bank to escape its liability. The customer in the above case swung into action immediately on the discovery of the fraud committed by its accountant. he Supreme Court of India observed that there is no duty for a customer to inform the bank about the fraud committed on him of which he was unaware. There is a duty of the customer to inform the bank of irregularities when he comes to know of them. He can be stopped when he remained silent even after knowing the truth of the matter."
13. The respondent (complainant) specifically pleaded that she obtained loan from one Himmat Bhai Patel through cheque and the cheque was deposited with the appellant (O.P. Bank) for clearance. The appellant (O.P. Bank) denied the above facts. But the appellant (O.P. Bank in their written statement in sub para 3 of para 15 stated that at the request made by the respondent (complainant) to the appellant (O.P. Bank) , the appellant (O.P. Bank) wrote a letter dated 23.01.2012 for helping the respondent (complainant) and made complaint before Police Station, Ganj, Raipur (C.G.).
// 12 //
14. Letter dated 23.01.2012 was sent to the respondent (complainant) by the Chief Manager of the appellant (O.P. Bank). In the said letter it is mentioned :-
"fo"k; %& vkids }kjk tek fd;s x;s psd la[;k 042979 fnukad 11-01-2012 : 2-00 yk[k lanHkZ %& vkidk i= fnukad 18-01-2012 fo"k;karxZr ys[k gS fd mijksDr psd cSad vkWQ cMksnk xks'kkyk 'kk[kk ds }kjk psd esa fd;s x;s QthZ Qsjcny ij /;ku ugh nsrs gq, fdlh iznhi iky uke ds O;fDr ds [kkrk la 05150100008340 tks fd ewy 'kk[kk cSad vkWQ cMksnk fo'kk[kkiVue gS] esa O;olkf;d lgdkjh cSad tokgj uxj 'kk[kk ds es jkoth HkkbZ ,.M lal ds [kkrk ls mDr jde QthZ rjhds ls laxzfgr dj fy;k x;k gS- bl izdj.k esa vnkdrkZ cSad O;olkf;d lgdkjh cSad us Hkh psd esa fd;s x;s QthZ Qsjcny ij /;ku ugh nsrs gq;s psd dh jkf'k dk Hkqxrku cSad vkWQ cMksnk xks'kkyk 'kk[kk dks dj fn;k gS- mDr iznhi iky ds }kjk mDr jkf'k dh fudklh dj yh xbZ gS- gekjs }kjk bl fo"k; esa iqfyl Fkkuk xat esa ,Q-vkbZ-vkj- ntZ fd;k x;k gS rFkk nksuksa lEcaf/kr cSadksa ls mDr jkf'k ds Hkqxrku dk nkok fd;k x;k gSA vkils fuosnu gS fd mDr jde izkIr gksrs gh vkids [kkrs esa tek dj fn;k tk;sxk-"
On the basis of above letter, the respondent (complainant) and her husband made written complaint before the Senior Superintendent of Police, Raipur (C.G.) on 27.01.2012.
15. The respondent (complainant) sought information under Right to Information Act from the Bank of Baroda, Main Branch, Raipur (C.G.). In the said letter it is mentioned thus :-
// 13 // "fo"k; %& vkosnui= vrxZr /kkjk&6 lwpuk dk vf/kdkj vf/kfu;e&2005 vkosnd dk uke o irk % js[kk iVsy ifr Jh rqylhnkl iVsy irk& }kjk dsfiVy fVEcj da- QkQkMhg xyh uacj&1 jk;iqj ¼N-x½ pkgh xbZ tkudkjh % vkosnd us vius cSad lsUVªy cSad vkWQ bfM;k QkQkMhg ds [kkrs esa ,d psd tek fd;k x;k Fkk ftldh dhEkr 2]00]000@&:i;s gS] mDr /ku jkf'k dk psd vkids cSad esa iznhi iky ds [kkrk la[;k 05150100008340 esa /kks[kk ls tek fd;k x;k gSA mDr [kkrk /kkjd dk uke o irk rFkk jkf'k vgj.k dk forj.k fd vko';drk gqbZ gSA 'kqYd % vkosnu ds lkFk 10@& :i;s dk iksLVy vkMZj pLik fd;k tk jgk gSA jk;iqj ¼N-x-½ fnukad 19-01-2012 vkosnd js[kk iVsy ifr Jh rqylhnkl iVsy "
Shri Himmat Bhai Patel also sought information from Vyavsayik Sahakari Bank Limited, Jawahar Nagar, Raipur regarding payment of the concerned cheque. The Branch Manager, Vyavsayik Sahakari Bank Ltd. sent letter dated 23.01.0212 to the Chief Manager, Central Bank, Fafadih, Raipur (C.G.) a copy of which was also endorsed to Ravji Bhai and Sons in which it is mentioned that :-
"mijksDr psd] cSad vkQ cMkSnk 'kk[kk xks'kkyk jk;iqj esa Hkqxrku ds fy, izLrqr fd;k x;k Fkk] vkSj mDr psd lek'kks/ku ds ek/;e ls Hkqxrku ds fy;s gekjs cSad esa vk;k Fkk ftlesa iznhi iky [kkrk ua- 05150100008340 tks i<+us esa cgqr Li"V Fkk vkSj mDr psd eas // 14 // lansg djus dk dksbZ dkj.k ugh Fkk blfy, gekjs cSd ds }kjk Hkqxrku fd;k x;k gSA vkids }kjk mijksDr psd dh jde dh ekax djuk vR;ar vk'p;Z pfdr djus okyk gS vkSj vkids cSad ls psd pksjh gqvk gS] mds lac/a k esa iqfyl esa dksbZ dk;Zokgh ugh fd;s gS ;g vkidk d``R; lansgkRed gS vkids cSad dk deZpkjh ;k vf/kdkjh gh psd ds pksjh esa lafyIr gS ftldks cpkus ds fy, vkids }kjk gekjs cSad ls jde dh ekax dh tk jgh gS bl ?kVuk ds iwoZ vkids cSad esa lkr&vkB iwoZ esa Hkh bl rjg dh ?kVuk ?kfVr gks pqdh gS ftldh izFke lwpuk fjiksVZ xat Fkkuk jk;iqj esa ntZ gSA"
16. The appellant (O.P. Bank) admitted that the mistake was committed by his employee and the appellant (O.P. Bank) also undertakes that when the amount of cheque will be recovered, then the same will be deposited in the complainant's account.
17. Looking to the above documents, it appears that the respondent (complainant) submitted tendered cheque before the appellant (O.P. Bank) for clearance and the amount of cheque was not deposited in the account of the respondent (complainant) and in the said cheque some interpolation was done and the amount was deposited in the account of one Pradeep Paul. The Vyavasayik Sahakari Bank Ltd. specifically stated that same type of interpolation in the cheque was committed by the employees of the appellant (O.P. Bank) earlier.
18. Looking to the documents filed by the parties, it appears that the respondent (complainant) deposited the cheque of Rs.2,00,000/- for clearance with the appellant (O.P. Bank) and the amount of the cheque was not deposited in the account of the respondent (complainant) and // 15 // instead of complainant's account, the amount mentioned in the said cheque was deposited in account of one Pradeep Paul. It appears that the appellant (O.P. Bank) committed negligence which is apparently comes in the category of deficiency in service.
19. In view of above discussions, we are of the confirmed view that the impugned order dated 26.04.2013 passed by the District Forum, is well reasoned order and does not suffer from any infirmity, irregularity or illegality.
20. Hence, the appeal filed by the appellant (O.P. Bank) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/04/2014 /04/2014