State Consumer Disputes Redressal Commission
Sudarshan Kumar vs State Bank Of India on 16 July, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.314 of 2007.
Date of Institution: 28.02.2007.
Date of Decision: 16.07.2012.
Sudarshan Kumar, aged 59 years, S/o Sh. Lal Chand S/o Sh. Bogi Ram,
Resident of House No.614-A, Mohalla Kishanpura, Moga.
.....Appellant.
Versus
1. State Bank of India, a body corporate, constituted under the State
Bank of India Act, 1955 (Act XII of 1955) having its Central Office at
Madam Cama Road, Nariman Point, Mumbai.
2. One of its Local Head Office at Sector 17-B, Chandigarh.
3. One of its Branch Office at Majestic Road, Moga, through its Branch
Manager and Principal Officer Mr. Chander Gupt Sharma.
...Respondents.
First Appeal against the order dated
08.02.2007 of the District Consumer
Disputes Redressal Forum, Moga.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:- Sh. B.S. Bhalla, Advocate, counsel for the appellant.
Sh. I.P.S. Doabia, Advocate, counsel for the respondents.
----------------------------------------
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Sudarshan Kumar, appellant (In short "the appellant") has filed this appeal against the order dated 08.02.2007 passed by the learned District Consumer Disputes Redressal Forum, Moga (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, alleging that the appellant on 20.03.1990 through Smt. Raj Rani, PPF Agent bearing Code No.5533, opened PPF Account No.734 in his name and his wife was the nominee. The said PPF Account No.734 was for First Appeal No.314 of 2007 2 15 years and was to mature in March, 2005. The appellant kept on depositing the amount every year through the said agent Smt. Raj Rani and she was receiving commission from the respondents on every deposit.
3. On 02.09.2004, a lady posing herself as Sudesh Rani i.e. the wife of the appellant along with her companions who identified her, approached the officials of the respondents and applied for the withdrawal of the sum lying in the aforesaid PPF Account No.734 along with interest, being the nominee of the appellant, on the basis of a fictitious death certificate of the appellant and on the same day, the respondents promptly issued cheque no.354970 dated 02.09.2004 for Rs.6,89,058/- to the said imposter lady and her companions and closed the aforesaid PPF account of the appellant as death case.
4. Before issuing the cheque, the respondents ought to have inquired from the office of the Registrar, Births and Deaths, to know the genuineness of the said certificate and should have called Smt. Raj Rani, the said PPF Agent, through whom the appellant deposited the aforesaid amount. The respondents should have inquired about the rightful claimant of the appellant, but instead of verifying the death of the appellant or the identity of the claimant and the genuineness of the death certificate, the respondents in a hasty manner treated the declaration of the above persons as gospel truth and issued the said cheque which caused loss to the appellant and it amounts to deficiency in service.
5. On 16.02.2005, the appellant applied for issuance of duplicate passbook relating to the said PPF account, as his Accountant Sh. Vivik Jain and his son Sh. Nitish Jain were avoiding to deliver the original passbook to the appellant on one pretext or the other. On the same day, the appellant came to know that his aforesaid PPF account had been closed on 02.09.2004 and the entire amount along with interest has been paid to the lady imposter, who posed herself as widow of the appellant. The wife of the appellant namely Sudesh Rani on 16.02.2005 itself moved an application to the First Appeal No.314 of 2007 3 respondents, stating that she has neither claimed nor received any sum lying in PPF Account No.734. Registered letter was also sent on 04.04.2005 to make the payment and the respondent replied vide reply dated 20.04.2005. The respondents refused to make any payment along with interest.
6. On 21.05.2005, the appellant opened with the respondent a new PPF account in his name, bearing No.01P00902625 through PPF Agent Sh. Tarsem Kumar bearing Agency Code No.0035751 and the said account is still continuing and the respondents had the knowledge that the subscriber of PPF Account No.734 and of the above account is one and the same person.
7. It was prayed that the respondents be directed to pay to the appellant a sum of Rs.6,89,058/- along with interest w.e.f. 02.09.2004 @ 1% per month till realization.
8. In the written reply filed on behalf of the respondents, preliminary objections were raised that the complaint is not maintainable. Complicated questions of law and facts are involved and the District Forum has no jurisdiction.
9. A criminal case u/s 419, 420, 465,467,468,471 & 120-B IPC is pending in the court at Moga, titled as "State Vs Nitish Kumar & Ors.", arising out of FIR No.62 dated 22.03.2005, P.S. City-1, Moga and the civil court is competent. The appellant voluntarily handed over the original passbook to his income tax lawyer whose son namely Nitish Kumar along with other accused misused it and committed cheating and forgery and the appellant is not a consumer and there is no deficiency in service on the part of the respondents. The appellant approached the Banking Ombudsman and has dragged the respondents into unnecessary litigation and the complaint is liable to be dismissed with compensatory costs.
10. On merits, it was admitted that the appellant got opened in his name a PPF Account under the Public Provident Fund Scheme, 1968 and his wife namely Sudesh Rani was his nominee. Under the PPF Scheme initiated by the Govt. of India, the respondent bank only maintains the accounts of First Appeal No.314 of 2007 4 subscribers of PPF Scheme as an agent of the Govt. The bank has no contract with such subscribers to provide services which are being rendered by the bank to various customers. It was admitted that the money was being deposited in the said account by the appellant.
11. In the last week of August, 2004, one lady along with a man approached Sh. G.P. Chahal, Deputy Manager of the respondent bank and introduced themselves as Sudesh Rani and Nitish Kumar Jain and showed the original passbook of the PPF account to the officials of the respondent bank, along with original death certificate of the appellant. Being the nominee of the said account, the said lady demanded the payment of the outstanding amount lying in the said account. The official asked her to get herself introduced and identified by two persons known to the bank. On 02.09.2004, the said lady again approached the officials along with four persons. The official made a note on the reverse of the PPF Form-G as follows:-
"I personally know Smt. Sudesh Rani W/o late Sh. Sudershan Kumar R/o 615, Mohall Kishanpura, Moga nominee of Sh. Sudershan Kumar and she has signed in my presence".
The official of the bank obtained their signatures below the said note. The bank officials asked them to right their account numbers with the bank along with the respective addresses and they did so. Out of them, one person was Ram Nath, partner of M/s Grover Medical Store, who was maintaining his account with the respondent bank, Main Bazar, Moga. The second person was Neeraj Garg of M/s Shivalik Automobiles, Village Duneke, Ferozepur Road, Moga, who was dealing with the respondent bank at G.T. Road, Moga branch and the third person was Gaurav Jindal of Moga, who was having a saving bank account with the respondents where the appellant was having his PPF account in question. The fourth person was not maintaining any account with the respondent bank and the official asked him to get his signatures identified/attested from the other official of the bank known to him and he got First Appeal No.314 of 2007 5 himself identified through Sh. S.P. Uppal, who was an employee of the respondent bank. The official after satisfying himself with the genuineness submitted a note to the Assistant General Manager of the branch for recommending payment of the outstanding amount to the claimant and the note was approved and banker cheque no.354970 dated 02.09.2004 for Rs.6,89,058/- was delivered to Smt. Sudesh Rani after obtaining a receipt from her. On the next day, the said cheque was presented in Bank of India, Branch Moga and the amount was deposited in the genuine account of Smt. Sudesh Rani having account no.17816. The said amount thereafter was withdrawn.
12. On 16.02.2005, a person approached the respondent bank, requesting it to issue duplicate passbook of his PPF account and on inquiry, he was informed about the closure of the account. On inquiry, it was revealed that four persons namely Nitish Kumar Jain, Ram Nath, Neeraj Garg and Gaurav Jindal have committed a fraud with the bank, after forging signatures of Smt. Sudesh Rani and producing a fake death certified of the appellant. Immediately, the complaint was lodged with the concerned police station.
13. In view of above circumstances, it is clear that the staff/officials of the bank had taken due care while doing the job and acted under good faith and took the introduction/identification of the claimant from four reputed persons known to the bank.
14. In fact, the appellant himself was negligent in handing over his original passbook of the said PPF account to the persons, who played fraud with the appellant as well as with the bank, by misusing the said passbook and forging the signatures of the wife of the appellant.
15. The money fraudulently withdrawn from the bank was deposited in the bonafide account of the wife of the appellant with Bank of India, Partap Road, Moga and from there, the money went in the hands of fraudsters. The appellant approached the Banking Ombudsman at Chandigarh and it was found that payment has been made by the respondent bank after complying First Appeal No.314 of 2007 6 with the formalities and there was no negligence on the part of the bank. The matter being subjudized in the court of law was not further perused. Other allegations were denied and it was prayed that the complaint may be dismissed with costs.
16. Parties led evidence in support of their respective contentions by way of affidavits and documents.
17. After going through the documents and material placed on file and after hearing the learned counsel for the parties, Sh. S.S. Gill, Member wrote the dissenting order, disagreeing with the majority view, whereas the majority view taken by the District Forum dismissed the complaint. It was observed that the Banking Ombudsman vide letter Ex.R-12 intimated that since the police has registered an FIR No.62 dated 22.03.2005 and after investigation, challan has been filed in the court at Moga and the matter is subjudized and as per the orders of the Banking Ombudsman, the matter cannot be pursued further. There is no deficiency in service on the part of the respondents.
18. Aggrieved by the majority view taken by the District Forum in the impugned order dated 08.02.2007, the appellant has come up in appeal.
19. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
20. On behalf of the appellant, it was contended that the respondents in a hasty manner and without verifying the facts of the death of the appellant, issued the cheque for Rs.6,89,058/-. The respondent bank was negligent in identifying the real nominee. The wife of the appellant never applied for withdrawal of the PPF amount, nor she made any request and the payment of the amount to unauthorized persons amounts to deficiency in service on the part of the appellant. The majority view taken by the District Forum is more of the fact that the photographs of the account holder as well as the nominee in the joint account were also missing which were required to First Appeal No.314 of 2007 7 be produced as per the guidelines of the Reserve Bank of India. The signatures of Sudesh Rani were not compared or else, the appellant should have not suffered the loss. The respondent bank has also ignored the rules which provide for completion of certain formalities for withdrawal of the amount before the maturity. The majority view of the District Forum is not sustainable and the same is liable to be set aside.
21. On the other hand, it was contended on behalf of the respondents that there is no deficiency in service on the part of the respondents. The respondent bank verified and got identified the claimant from the persons, who had account in the bank and there is no negligence on the part of the bank. The respondent bank was not required to take any opinion of the expert before making the payment. All precautions were taken. A criminal case was also registered against the said fraudsters, which is pending and the District Forum in its majority view rightly dismissed the complaint and the view taken by the single member is not correct and the appeal may be dismissed.
22. We have considered the respective submissions advanced by the learned counsel for the parties and have minutely scrutinized the entire record and material placed on the file.
23. Admittedly, PPF Account No.734 was opened by the appellant through Smt. Raj Rani, PPF Agent bearing Code No.5533. Smt. Sudesh Rani wife of the appellant was nominee. The PPF amount was deposited every year through Smt. Raj Rani, Agent. The maturity of the PPF account was in March, 2005, whereas on 02.09.2004, the death certificate of the appellant was produced by one lady for withdrawal of the amount, as nominee. Application Ex.A-2 was given by the said lady on 02.09.2004 for withdrawal by the nominee and she was identified by Neeraj Garg, Ram Nath and Gaurav Jindal and one another person. Death certificate Ex.A-3 of appellant was produced by said Sudesh Rani and on the same day i.e. 02.09.2004, the cheque Ex.A-4 was issued in favour of said Sudesh Rani. First Appeal No.314 of 2007 8
24. The argument that the said Sudesh Rani was identified by the persons whose accounts were there with the respondent no.3 bank and that the death certificate and the original passbook was produced and all formalities were completed, is without any basis because the fraud was played by the said persons in connivance with imposter Sudesh Rani and for that a criminal case was also registered. Respondent no.3-bank wrote a letter to the appellant Ex.A-11 with reference to his letter dated 19.05.2005 mentioning that the instructions have been followed for making the payment. It is further mentioned that the act of the appellant in handing over of the passbook to Sh. Nitish Jain has facilitated him to commit the fraud in his account. The respondent no.3-bank wrote a letter Ex.R-2 to SHO, Police Station, City-1, Moga, for registration of the criminal case for cheating, forgery and fraud against the above said persons. Ex.R-3 is also to the same effect and ultimately, FIR Ex.R-6 was registered on the complaint of the appellant against above mentioned Nitish Kumar, Vikas Sood and Veena Rani & others for cheating, forgery etc. regarding the withdrawal of the amount of Rs.6,89,058/-. The Banking Ombudsman also did not decide the controversy only on the ground that the criminal case has been registered and the matter is sub-judice.
25. From the above discussion, evidence and material placed on record, it is clear that one Sudesh Rani imposter, in connivance with the bank officials and other persons as well as the accountant of the appellant, withdrew the amount from the bank illegally. Since the bank officials were also conniving, as such, everything was done in haste and on the very same day, the application was given and the matter was processed on the same day and the cheque of Rs.6,89,058/- was also issued on the same day. The cheque was issued as Account Payee and it was credited in the account of Sudesh Rani and thereafter again, the above persons withdrew the amount by forging and fabricating the signatures of the wife of the appellant. The act and conduct of the officials of respondent no.3-bank, who have cheated the First Appeal No.314 of 2007 9 appellant, is depreciable and the respondent bank cannot take benefit of the wrongs done by its own employees and respondent no.3-bank has every right to proceed against its own employees and initiate the disciplinary action, if it so wishes and the criminal case has already been registered against all the persons, who were party to this conspiracy, but for all these acts, omissions and commissions of the officials of respondent no.3-bank, the appellant can not be allowed to suffer. Hon'ble Delhi State Consumer Disputes Redressal Commission in a case reported as "State Bank of India Vs Amar Kumar Prem", 2005(2) CLT, held the bank deficient on account of unauthorized withdrawal from saving account on account of lapse on the part of officials of the bank in not verifying the signatures by way of comparison. The District Forum has lost sight of all these facts and evidence on record and, as such, the impugned order is not sustainable.
26. In view of above discussion, the appeal is accepted and the impugned order dated 08.02.2007 under appeal passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/complainant is allowed and the respondents are directed to pay Rs.6,89,058/- to the appellant within 45 days of receipt of copy of the order. However, it is made clear that the respondents can recover this amount from the persons, who have committed the offences of cheating and forgery.
27. The arguments in this appeal were heard on 05.07.2012 and the order was reserved. Now the order be communicated to the parties.
28. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member July 16, 2012.
(Gurmeet S)