State Consumer Disputes Redressal Commission
Ms. Harvinder Kaur vs State Bank Of India Anr. on 17 September, 2024
FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 16.08.2014
Date of Hearing: 15.04.2024
Date of Decision: 17.09.2024
FIRST APPEAL NO.-817/2014
IN THE MATTER OF
MS. HARVINDER KAUR,
R/O C5D/19C JANAK PURI,
NEW DELHI-110058.
(Through: Mr. Rajiv Bakshi, Advocate)
...Appellant
VERSUS
1. STATE BANK OF INDIA,
(THROUGH ITS GENERAL MANAGER),
CENTRAL SECRETARIAT BRANCH,
NEW DELHI.
(Through: Ms. Jaya Tomar, Advocate)
...Respondent no.1
2. INDIAN BANK,
THROUGH ITS MANAGER,
PANKHA ROAD, JANAK PURI,
NEW DELHI-110058.
(Through: Mr. Jasdev Singh, Advocate)
...Respondent no.2
DISMISSED PAGE 1 OF 12
FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024
CORAM
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Rajiv Bakshi, counsel for appellant.
Ms. Jaya Tomar (email id: [email protected]),
counsel for respondent no. 1.
Mr. Jasdev Singh, counsel for respondent no. 2.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are as under:
"...case of the complainant is that he was maintaining a savings bank account with Respondent No.1 having account No. 1031429358. On 19.6.07 she issued an account payee cheque bearing No.634731 for a sum of Rs.2.5lacs drawn on Respondent No. 1 bank in favour of her sister Ms Jasvinder Kaur. She handed over the cheque to Davinder Singh, real brother of the complainant, for depositing the said cheque in S.B. account No.440122916 which was being maintained by her with Indian Bank Janak Puri Branch. Davinder Singh went to Respondent No.2 bank for depositing the cheque, he filled the deposit form. The money was required immediately hence, Davinder Singh went to the concerned officials of Respondent No.2 bank requesting that cheque should be sent for clearance on urgent basis. The cheque was accordingly deposited with an unknown person who pretended to be the employee of the respondent bank as he was sitting on the desk and was gossiping with the DISMISSED PAGE 2 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 employees of Respondent No.2 who assured about the expeditious clearance of the said cheque. On 21.6.07 at about 11.00 a.m. brother of the complainant went to Respondent No.2 bank to inquire about the clearance of the aforesaid cheque and crediting of the amount in the account of his sister but he was informed by the officials of Respondent No.2 that the said cheque had not been received by Respondent No.2bank. He immediately informed Ms Jasvinder Kaur about the incident. The complainant being under bonafide impression that the cheque had been misplaced by the officials of Respondent No.2 bank, immediately went to Respondent No.1 and made a request for stopping the payment of the aforesaid cheque. She was shocked to know that the said cheque had already been cleared on 21.6.09 itself against cash payment of Rs.2.5lacs to an unknown man and woman before arrival of the complainant. The complainant was shown the CCTV footage which clearly showed the face of a man and woman who got the said cheque encashed. She was shown the original cheque and the complainant alleged that account payee cheque was tampered by the said unknown person by converting the same to bearer cheque by canceling the crossing of the cheque by making a noting that is crossing cancelled pay cash and signature of the complainant was forged on the said cheque. The said persons had also used some bank identity papers of the sister of the complainant but those papers were not verified by the officials of Respondent No.1 before releasing the cash against the said cheque. On the same day complainant made a written complaint at police station Janak Puri. However, no FIR was recorded on DISMISSED PAGE 3 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 the basis of said complaint. Thereafter complainant made a complaint to DCP EOW Crime Branch, New Delhi on 23.5.07. On 26.6.07 she made a complaint to Respondent No.1 bank for taking action against its employee who had encashed the cheque wherein signature of the complainant was forged. Similarly, complaint was also made to Respondent No.2 on 19.7.07. A complaint was made to banking ombudsman but nothing was done in the matter on the ground that matter was being investigated by the police and it was not appropriate to take any action before any conducive findings being given by the investigating agency. On 8.8.08 formal FIR was recorded by the police. Hence, she approached this Forum requesting that a sum of s.2.5lacs be paid to her alongwith interest and damages of Rs.2lacs."
2. The District Commission after taking into consideration the material available on record passed the order dated 10.06.2014, whereby it held as under:
"Preliminary objection was raised that complaint was barred by limitation. The cheque in dispute was misplaced/stolen on 21.6.07 whereas the present complaint was filed on 11.8.09 beyond the period of limitation which is two years from the date of cause of action. There is no dispute on fact that cheque was issued on 19.6.08 and complainant came to know on 21.6.07 that the money was withdrawn by some unknown person from her account after tampering with the cheque and forging her signature. The complaint was admittedly filed on 11.8.09. There was a delay of about 52 days in filing this complaint. In rejoinder complainant submitted that she kept on pursuing the matter with the respondent DISMISSED PAGE 4 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 bank and the banking ombudsman and as such the cause of action was subsisting on the date of filing of the complaint. he received last communication from the bank on 24.10.07 and 6.11.07 and the complaint was filed in the year 2009. Hence, it was within the period of limitation. We have carefully perused all the documents placed on record in this regard. It is admitted fact that complainant came to know of withdrawal of money from her account on 21.6.07 and the cause of action arose on that date only. Any communication between the complainant and the respondent bank or representation with the banking ombudsman does not extend the period of limitation. Even after raising of this objection, no application was moved by the complainant for condonation of delay in filing this complaint. Hence, on The face of it complaint is time barred. Case of the complainant is that she was maintaining account with Respondent No.1 bank, issued a cheque in favour of her sister on 19.6.07, which was deposited with Respondent No.2 bank as her sister was maintaining account with that bank. Her own case is that instead of dropping the cheque in the drop box, it was handed over to somebody who was sitting with the respondent's staff and gossiping, without receiving any acknowledgment. Respondent No.1 bank has denied having received this cheque. Considering the facts there is no negligence on the part of Respondent No.2 bank because there is no documentary proof of deposit of the cheque with Respondent No.2 bank. It is an admitted case that Sh. Davinder Singh, who went to deposit the cheque was in a hurry and required urgent clearing and for that purpose handed over the cheque to some unknown person. In the CCTV footage he was seen with an unknown person DISMISSED PAGE 5 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 and left the bank with that unknown person who after sometime came back to the bank and dropped a cheque in the drop box in the name of Ms. Jaswinder Kaur in the sum of Rs.2.5lacs, which was dishonoured on presentation due to insufficient funds. As there is no cogent proof of deposit of the cheque with Respondent No.2, we hold that there was no deficiency of service on the part of Respondent No.2.
The main allegation of the complainant herein is against Respondent No.1 where she was maintaining her saving bank account, she issued an account payee cheque which was tampered with and encashed across the counter and her signature were forged on the cuttings. The onus was on Respondent No.1 to prove that there was no tampering of the cheque and it bore the genuine signature of the complainant. The cheque was in possession of Respondent No.1 bank. The onus was on it to prove that cheque bore the genuine signature of the complainant. But till conclusion of the proceedings even a photocopy of the cheque was not filed by the Respondent No.1. Fresh opportunity was granted to the complainant and Respondent No.1 to file the cheque. The complainant was not in possession of original cheque so she was unable to file it. Respondent No.1 submitted that an FIR was lodged with the Economic Offenses Wing and the original cheque was in EOW cell As an additional evidence photocopy of the cheque was filed by Respondent No.1 but no documentary proof was filed regarding identity of the person who got the cheque encashed. In CCTV camera footage one male and female were seen having withdrawn the money on 21.6.07 across the counter. We have perused the photocopy of the cheque.
DISMISSED PAGE 6 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024
Case of the Respondent No.1 was that there was no tampering on the cheque. In the Photocopy it is clearly seen that a account payee cheque was issued in favour of Jaswinder Kaur and after cutting it, it was made a bearer cheque, the respondent has filed Photocopy of seizure memo showing cheque No.634731 dated 19.6.07 of account No.10314293587 was taken into possession by Ugesh Kumar sub- inspector police station, Janak Puri on 8th June, 2009. Almost after two years of this incident the respondent has not produced any report of the handwriting expert. Only deference is that the cheque bore the signature of the complainant and the amount was released after taking due care. Even no efforts were made by it to procure the original cheque from the police station or from EOW cell and also to procure the report of the and writing expert if any examined by the police/EOW cell during the course of investigation. Hence, an adverse inference is drawn against Respondent No.1 that the money was released by it without verifying the genuineness of the signature of the complainant on the cutting/ tampering of the cheque as it was a heavy cash amount of RS.2.5Lacs and an account payee cheque was being presented across the counter for encashment. It was the duty of the cashier to verify it from the complainant that whether she did the cuttings on the cheques or not. It also failed to produce the identity documents of the persons who withdraw the cash across the country. Hence, we hold that Respondent No. 1 was negligent as well as deficient in service and it released the payment on a tampered cheque bearing the forged signature of the complainant. In view of this we hold that the respondent No.1 was deficient in service and was liable to pay the cheque amount DISMISSED PAGE 7 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 to the complainant along with interest at the rate applicable to saving bank account from time to time.
In view of finding that the complaint is time barred, the complaint is hereby dismissed parties are left to bear their own cost of litigation."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Complainant has preferred the present Appeal, contending that the District Commission has wrongly held that the complaint was barred by limitation which is contrary to the law laid down by the Hon'ble Apex court in the case of "Travel Corporation of India Ltd. vs. Veljan Hydrair Ltd. reported as (2007) 3 SCC 142". Further, as per the Appellant, the last cause of action arose on 14.09.2007 and the complaint before the District Commission was filed on 11.08.2009, therefore, the complaint filed by the Appellant before the District Commission was not barred by limitation. Pressing the aforesaid submissions, Appellant prayed for the setting aside of the impugned order.
4. The Respondent no. 1, on the other hand, filed reply to the present appeal wherein, it denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
5. The Respondent no. 2 has also filed a separate reply to the present appeal wherein, it denied all the allegations of the Appellant and submitted that the Appellant has already filed an FIR bearing no. 228/2008 under section 420 of the Indian Penal Code, hence the present case is a criminal case which requires proper investigation of the evidences and is beyond the purview of the Consumer Protection Act, 1986. Pressing the aforesaid, the Respondent no. 2 prayed for the dismissal of the present Appeal.
DISMISSED PAGE 8 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024
6. During the course of proceedings, parties were directed to file written submissions. The written submissions on behalf of Appellant and Respondent no. 1 & 2 are available on record.
7. We have perused the material available before us and heard the counsel who appeared on behalf of the Appellant and Respondent no. 1 & 2.
8. On perusal of record, we find that the Appellant issued an Account Payee Cheque bearing no. 634731 dated 19.06.2007 for a sum of Rs. 2,50,000/- drawn on Respondent no. 1 bank in favour of Ms. Jasvinder Kaur, who handed over the cheque to Mr. Devinder Singh (Appellant's brother) for depositing the said cheque in the Respondent bank. However, the said cheque was deposited with an unknown person who pretended to be the employee of the Respondent Bank as he was sitting on the desk. Afterwards, the Appellant came to know that the said cheque has been cleared against the cash payment of Rs. 2,50,000/- to an unknown person. Further on inquiry, the Appellant came to know that the said Account Payee Cheque was tempered by the unknown person by converting it to the bearer cheque by cancelling the crossing of the cheque and by making a note i.e. crossing cancelled pay cash and the signatures of the Appellant was forged on the said cheque. From the above submission, it is clear that the present case involves the allegations of fraud or forgery.
9. Therefore, primarily, it has to be seen that whether the Consumer Commission is empowered to adjudicate the allegations of fraud or forgery as alleged by the Appellant.
10. We tend to rely on the settled law by the Hon'ble National Commission in the Consumer case no. 269/2017 titled as "Capital Charitable and Education Society Vs. Axis Bank Limited" decided on 09.12.2019, wherein, the Hon'ble National Commission, has held as follows:
"20. This Commission has taken a consistent view that the cases DISMISSED PAGE 9 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 related to fraud and/or forgery cannot be decided by the consumer forum as the proceedings in consumer forum are summary in nature. This Commission has held in the following case that the matter relating to fraud and forgery cannot be decided under the proceedings under the Consumer Protection Act, 1986."
11. We further deem it appropriate to refer to the settled principle wherein this similar expression has been dealt by the Hon'ble National Commission in "P.N. Khanna Vs. Bank of India" reported at (2015) CPJ 54 (NC), wherein it has been discussed as follows:
"6. Learned State Commission rightly observed as under:-
In Bright Transport Company Vs. Sangli Sahakari Bank Ltd., MANU/CF/0171/2012 : II (2012) CPJ 151 (NC), it was held by the National Commission that the complaints which are based on the allegations of fraud, forgery, etc. and trial of which would require the leading of voluminous evidence and consideration thereof cannot be entertained by the Consumer Fora. In Oriental Insurance Company Ltd. Vs. Munimahesh Patel MANU/SC/8485/2006 : 2006 (2) CPC 668 (SC), decided by the Hon'ble Apex Court; Reliance Industries Ltd. Vs. United India Insurance Co. Ltd., MANU/CF/0134/1997 : I (1998) CPJ 13, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and M/s. Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank III (1992) CPJ 50, a case decided by a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided, by a Consumer Fora, proceedings before which, are summary in nature."
DISMISSED PAGE 10 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024
12. Further, we deem it appropriate to refer to the Consumer Case No. 10 of 2011 titled as "Sheenam Raheja vs. State Bank of India" decided on 19.05.2023, wherein the Hon'ble National Commission has held as follows:
"11. The matter clearly has issues of a criminal nature involved warranting a proper investigation under the relevant sections of the Indian Penal Code. Such issues cannot be deal with under the Consumer Protection Act or in a Consumer Court which is required to dispose of matters through summary proceedings. A matter of forgery of cheques and requisition slips cannot be dealt with in this Commission for this reason. A consumer complaint alleging deficiency in service on the part of the Bank cannot be adjudicated until the nature of deficiency is prima facie established. As is manifest in the instant matter, until the FIR before the EOW, Delhi Police get finalised and the charge sheet before the appropriate court of law is finalised, it would not be possible for this Commission to adjudicate the matter."
13. From the aforesaid dicta, it is clear that if a consumer case involves the issues of a criminal nature which requires a proper investigation, the same cannot be dealt by the Consumer Commission under summary procedure. As the present case involves primary question of fraud or forgery which does not fall under the jurisdiction of the Consumer Commission. Also, a FIR bearing no. 228 dated 08.08.2008 was filed under PS Janak Puri, Delhi which shows that proper appreciation of evidences is required in order to decide the present case on merits. Therefore, the parties are directed to present their case to the proper court having jurisdiction to adjudicate and decide the matter on merits.
14. Consequently, we tend to set aside the order dated 10.06.2014 passed by the District Consumer Disputes Redressal Commission-III, 150-151, DISMISSED PAGE 11 OF 12 FA NO./817/2014 MS. HARVINDER KAUR VS. SBI D.O.D.: 17.09.2024 Community Centre, C-Block, Janakpuri, New Delhi-110058 for the want of jurisdiction to adjudicate the same as per the provisions of the Consumer Protection Act, 1986.
15. Accordingly, the present Appeal stands dismissed with no order as to costs.
16. Before parting with the judgment, it is necessary to clarify that we have not gone into the merits of the case since the same has to be decided before a court having the requisite jurisdiction to adjudicate.
17. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
18. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
19. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
17.09.2024 LR-AJ DISMISSED PAGE 12 OF 12