State Consumer Disputes Redressal Commission
Syndicate Bank vs Peter Melvin Dias, on 7 June, 2022
1
Appeal No.2442/2016
Date of filing: 22.09.2016
Date of disposal: 07.06.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 07.06.2022
PRESENT
Mr.K.B SANGANNANAVAR : JUDICIAL MEMBER
Mrs. DIVYASHREE M : LADY MEMBER
APPEAL NO.2442/2016
1) Syndicate Bank,
A Nationalized Bank constituted under the
Banking Companies Acquisition and
Transfer of Undertakings Act, 1970,
R/by its Chairman & Managing Director,
Head Office, Manipal,
Udupi District.
2) The Assistant General Manager,
Syndicate Bank, Regional Office,
5th Floor, K.M Marg,
Udupi - 576 101.
3) The Branch Manager,
Syndicate Bank, Byndoor Branch,
Yedthere, Byndoor, Kundapur Taluk,
Udupi District - 576 214. .....Appellant/s
(Advocate - Sri.B.M Baliga)
V/s
Peter Melvin Dias,
Aged about 37 years,
S/o Valerian Dias,
2
Appeal No.2442/2016
Yedthere, Byndoor Post,
Kundapur Taluk, Udupi District.
(Now working in 3, Alder Road,
Aylesbury Bucks, HP225E,
United Kingdom)
R/by his GPA holder, Brother,
Rudolf Dias S/o Valerian Dias. .....Respondent/s
(Advcoate - Sri.G Ravishankar Shastry)
ORDER
Mr.K.B SANGANNANAVAR, JUDICIAL MEMBER This is an appeal filed U/s.15 of C.P Act, 1986 by the OPs in CC No.58/2013 on the file of District Consumer Disputes Redressal Commission, Udupi, aggrieved by the order dated 27.07.2016.
2. Brief facts of the case are, complainant in the first instance issued a cheque bearing No.064547 dated 02.09.2013 for Rs.2,00,000/- dispatched from London to his sister-in-law Lavina Dias, residing at Byndoor within the jurisdiction of District Commission but it was not received by her. Hence he sent another cheque bearing No.064548 dated 28.09.2013 for Rs.2,00,000/- and when this cheque was presented on 28.09.2013 it was found there was no balance in his S.B account NRE No.01222040008019 maintained by OP-3 Bank and it was revealed that a sum of Rs.8,00,000/- had been withdrawn from his account presenting cheque No.064547 dated 02.09.2013 for Rs.2,00,000/- dispatched from London to his sister-in-law Lavina Dias by changing original date from 02.09.2013 to 04.09.2013, the amount from original 3 Appeal No.2442/2016 figure from Rs.2,00,000/- to Rs.8,00,000/-, the amount from original words from Rs. Two Lakhs to Rs. Eight Lakhs and by changing the payees name from Lavina Dias to Arvind Singh. The said altered cheque was presented on 10.09.2013 by one Arvind Singh at OPs Kaloor, Ernakulam Branch and sought to be transferred to his account at Udaipur Branch in Rajasthan and hence when the second cheque was presented by the payee Lavina Dias, it was returned unpaid as the balance available only Rs.60,000/-. On coming to know about the fraud committed by the said Arvind Singh, OPs Branch at Kaloor, Ernakulam gave a police complaint on 10.10.2013 which was duly registered and investigation was carried out and the case is still pending. In this regard complainant raised consumer complaint before Forum below U/s.12 of C.P Act, 1986, which was contested by OPs and the Forum below held an enquiry by receiving evidence of parties thereby passed impugned order directing OPs.1 to 3/Appellants herein jointly and severally to pay Rs.8,00,000/- along with interest @ 10% p.a from 10.09.2013 till payment and directed to pay sum of Rs.1,00,000/- towards compensation and Rs.10,000/- towards cost and litigation expenses within 30 days, failing which to pay further penal interest @ 2% p.a is now in this Appeal on the following grounds.
3. The complainant was negligent in issuing the said cheque and not enquiring about its receipt or non-receipt and having failed to issue a stop payment order to the OP Bank within reasonable time of one week to prevent the payment of such cheque. The Forum below ought to have held negligence was on the part of 4 Appeal No.2442/2016 complainant since the cheque reaches to the hands of third party Mr.Arvind Singh who is also the customer of the Bank at Udaipur Branch in Rajasthan State who presented and encashed the cheque online at Ernakulam, Kerala on 10.09.2013. The District Forum ought to have held alterations made in the said cheque were not visible or apparent when presented on 10.09.2013, therefore OP/Appellant Bank is protected Under Section 10 and 89 of N.I Act, 1881 and having paid the bonafide and not liable to the complainant and there was no deficiency of service. The Forum below has failed to appreciate all these facts passed impugned order contrary not only to the facts and law is liable to be set aside.
4. Having heard learned counsels on record and on examination of impugned order coupled with grounds of Appeal is only point that would arise for consideration of this Commission would be whether impugned order call for any interference U/s.15 of C.P Act, 1986.
5. It is an undisputed fact that complainant is a good hold account holder of OP/Appellant bearing S.B account No.NRE 01222040008019 since working in U.K. He alleged in his complaint a cheque No.064547 for Rs.2,00,000/- dated 02.09.2013 was dispatched from his London address to his sister-in-law Lavina Dias, residing at Byndoor a town situated within the territorial jurisdiction of Forum below since the said cheque was not received by her. He has sent another cheque bearing No.064548 for similar such amount dated 28.09.2013 it goes without saying that it was received by his sister-in-law Lavina Dias for presentation of the cash 5 Appeal No.2442/2016 counter of OP-3 which came to be returned unpaid as the balance available was only Rs.60,000/- and on coming to know about this fact, complaint came filed against Mr.Arvind Singh alleged to have committed fraud changing the original date from 02.09.2013 to 04.09.2013, amount from original figure of Rs.2,00,000/- to Rs.8,00,000/- both in words and figure by changing the payees from Lavina Dias to Arvind Singh through the Appellants branch at Kaloor, Ernakulam on 10.10.2013 which was duly registered and investigation carried out and case is still pending but facts remain from very such altered, forged, manipulated cheque the account holder Mr.Arvind Singh, could able to transfer Rs.8,00,000/- from the account of complainant to his account and it was done through online. In such circumstances, for the complainant with no option has constrain to raise consumer complaint before Forum below which is ended in passing impugned order with an observation Bank is for the general public as it is one of financial institution and any of the general public is not at all for the Bank. The Bank held public money and the interest of complainant is totally ignored or neglected while considering the cheque presented by the fraudester who is yet another account holder of the OP band and the cheque prima faice is a forged, altered, manipulated cheque. In this regard commission had benefit to examine the copy of the said cheque and even on knocked eyes can easily make out that it was manipulated, forged and altered, yet was considered by the OP bank. It is not that the complainant herein is a new customer or a new account holder. It has come in the evidence, normally he used to send cheque from London to his sister-in-law Lavina Dias, yet the OPs/Appellant being reputed nationalized Bank failed to exercise 6 Appeal No.2442/2016 its wisdom and failed to examine the forged, altered, manipulated cheque presented by the fraudster who could able to collect Rs.8,00,000/- through online solutions which is rightly decided by the Forum below by threadbare appreciation on each and every factual and legal aspect of the matter holding that either section 10 or 89 of N.I Act, 1881 has no application to the facts of case raised by the complainant. The Forum below found prima faice that at two places, two separate transparent stickers was put. Further the said cheque was over written, by using a carbon on its backside of the said cheque, when observed the said reverse version of the said item by using a mirror of its reflection. The Forum below observed many differences with each other from the said cheque. Once cheque is issued no need to affix the sticker on it. It is not the case of complainant that the said stickers were affixed by him and the OP/Appellant Bank failed to give proper explanation as to pasting of transparent sticker.
6. The Forum below sent Ex.R-7 and R-8 for scientific examination to truth lab. In so far as Ex.R-8 (a) is opinion drawn by truth lab as under:
1. "There are erasures and over writing found in the red enclosed portions marked Q1, Q2 and Q3. The original writings were erased and the present writings were over written. However the original writings could not be deciphered."
2. The person who wrote the red enclosed signatures marked 'S4 to S9' also wrote the red enclosed signatures marked 'Q4 and Q5'.
3. The red enclosed writings marked 'Q1 to Q3' are written with a different pen Compared with the red 7 Appeal No.2442/2016 enclosed signatures 'Q4 and Q5' and the date 'Q6'.
However no opinion can be given whether the same person who wrote 'Q4', 'Q5' and 'Q6' also wrote the writings marked 'Q1 to Q3'.
Thereafter, the same above factors have been assigned by the said truth labs with the reasons as follows:
The cheque was observed in video spectral comparator under ultraviolet, infrared, visible radiation and transmitted light etc. and its found that there are white patches visible underneath the writings 'Q1, Q2 and Q3' indicating erasures of previous writings.
The original writings could not be read. And also assigned other reasons and the said opinion has been drawn.
7. In view of the above such opinion formed by scientific examiner commission below has to be held right in accepting the experts evidence but facts remain, even in the absence of opinion of experts report even on knacked eyes one could form an opinion that the cheque presented by Mr.Arvind Singh could be said manipulated, altered and forged was not at all considered by Ops as a prudent banker which was rightly came heavily on the OPs/Appellant, since OPs Bank held public money in trust expects to act as a prudent banker but on facts their actions in transferring Rs.8,00,000/- from NRE account of complainant to the account of Arvind Singh through their own Bank situated one at Ernakulam, Kerala and Udaipur in Rajasthan, when came to their notice could have solved the issues at their level and could have lodged cyber complaint against the wrong doer. However, even after noticing the alleged fraud committed by fraudster, made the complainant to 8 Appeal No.2442/2016 raise complaint. It is found from the enquiry that a complaint came to be filed at Kaloor on 10.10.2013 with police was duly registered and investigation was carried out and the case is still pending.
8. In the above such circumstances it may not be difficult for the OPs/Appellant Bank to recover not only Rs.8,00,000/- but any amount from such fraudster, freezing the account at Kaloor, Ernakulam and his account at Udaipur in Rajasthan State as the case may be for which the complainant cannot asked to wait till filing of final report by Police and result there on. In this regard having been examined Ex.C-1 to C-9, R-1 to R-8 (a) (b), evidence of CW-1, RW-1 and on re-appreciation of all the materials placed on record, since the Forum below has taken much pain to record findings on all the three points in the Affirmative and rightly held OPs/Appellants are deficient in extending services to the complainant being good old customer of the Bank, since the OPs considered the altered, forged, manipulated cheque of their own account holder Arvind Singh without exercising due diligence has to be exercised by a Banker, before giving effect to such manipulated cheque and when it was brought to the notice of OPs Bank about commission of fraud by fraudster, though lodged complaint with Ernakulam Police, OPs/Appellant could have redressed the complaint raised by complainant by immediate crediting Rs.8,00,000/- to his account instead of justifying their lapses. In this regard it would be appropriate to make mention here RBI guidelines dated 06th July 2017 issued to all scheduled Commercial Banks as to the Customer Protection for Limiting Liability of unauthorized Electronic Banking Transaction to ensure 9 Appeal No.2442/2016 that a complaint is resolved as early as possible. The Appellants herein in the case on hand can easily resolve the complaint of the complainant since amount of Rs.8,00,000/- from the account of complainant was transferred through online banking solutions also through their own account holder through their own Kaloor Branch, Ernakulam and Udaipur branch in Rajasthan State to recover the said amount or any amount whatever the Bank has sustained through the complaint raised by the complainant herein but cannot ask the complainant to wait till submission of final report by Police or result thereon with such forming opinion of this Commission.
9. In view of the above such conclusion, from any angle it cannot be said findings recorded by the Forum below are either contrary to facts or law calls for any interference U/s.15 of C.P Act, 1986 but facts remain awarding interest at 10% p.a and Rs.1,00,000/- towards compensation and awarding penal interest @ 2% p.a required to be modified in considering the fact that the Ops are bankers. Accordingly we proceed to decide the Appeal in the following terms.
10. The Appeal is allowed in part. OPs.1 to 3 are directed to credit a sum of Rs.8,00,000/- along with interest at the SB rate of interest as on 10.09.2013 till further payment to his account No.NRE01222040008019 and do pay a sum of Rs.50,000/- towards compensation and Rs.25,000/- as cost of litigation expenses incurred by the complainant along with interest @ 6% p.a from the date of complaint till realization.
10 Appeal No.2442/201611. OPs are directed to deposit the remaining amount with due notice to complainant or to credit to his account with due notice to him within 60 days from the date of this order.
12. The amount in deposit is directed to transfer to the District Commission for needful.
13. Provide copy of this order to the District Commission and parties to the appeal.
JUDICIAL MEMBER MEMBER vln*