National consumer disputes redressalcommission new delhi


REVISION PETITION NO.  2546 OF 2013



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REVISION PETITION NO.  2546 OF 2013

(From the order dated 20.03.2013 in First Appeal No. A/11/482 of the Maharashtra State Consumer Disputes Redressal  Commission, Mumbai )

WITH I.A. No. 7304 OF 2013

(for modification of order)

M/s Basant Parvati C.H.S. Ltd. Worli Sea Face, Worli, Mumbai 400018

                                       … Petitioner


                                        Versus


The Manager, State Bank of India Samudra Tarang, Worli Sea Face Branch, Mumbai 400018

                                       … Respondent

 BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER


          HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner :  Ms. Amrita Mishra, Advocate with Ms. Ankita Jain, Advocate

 For the Respondent    :  Mr. Siddharth Sangal, Advocate

 Pronounced on : 14th July, 2014


O R D E R 

JUSTICE J. M. MALIK, PRESIDING MEMBER 

1.      The complainant, Basant Parvati C.H.S. Ltd. has alleged that the State Bank of India cleared its forged cheque in the sum of Rs.70,000/- on 15.9.2004. Thereafter, the watchman reported the matter after a lapse of about three months that the above said cheque has been forged.  The relevant letter dated 16.12.2004 runs as follows:

                    “To,

The Senior Inspector,

Worli Police Station,

Worli, Mumbai 400 025

Dear Sir,

Yesterday about 1.30 pm the Society watchman Rohidas Patil informed me that a cheque of Rs.70,000/- (Rupees Seventy thousand Only) dated 15.9.2004 of State Bank of India, Worli Sea Face Branch, has been encahsed by one Dilip Sonekar under forged signatures.  I immediately went to the Bank and met the lady Manager there and asked her to show the instrument which has been encashed.  The cheque was shown to me.  The manager then told me that my signature are forged on the cheque but other signature of the treasurer appear to be genuine.  I pointed out to her that other signature also appear to be forged.  Thereafter, Society’s watchman Rohidas Patil and Banker’s Iqbal went to the house of Deepak Waikeranother watch man of Society residing at Worli Koliwada.

I again contacted the lady Manager on Phone in the evening who asked me to wait till today when the watchman Deepak is expected to come.

Today at about 12.30 PM Deepak who is on leave came to my residence with his wife and another man and told me that he has not done any thing.

I have talked to the Mrs. Prem Adukia treasurer of the society and her husband Mr. Surendra Adukia who informed me that she has not signed thecheque.

Please investigate & do the needful in the matter.”

 

2.      The complainant filed a consumer complaint with the District Forum.  The District Forum allowed the complaint and passed the following order:


“In view of the above discussion, there is no hesitation in our minds that the Opponent.  Bank is clearly deficient in their services as well as guilty of unfair trade practice for allowing encashment of a bearer cheque without verifying the signatures on the said cheque with the specimen signatures.  We therefore, feel that not only the opponent bank but all other banks should follow the procedure laid down by the RBI etc. and refrain from such practices which are to the serious prejudice of its customers.  We are further of the view that the complainant Society was so much so constrained that the redressal of its grievances it had to knock the doors of this Forum and therefore, needs to be compensated for the same.  Hence the following order:

                                                                   ORDER

The complaint No. 33/2007 is allowed in the following terms which are as follows:

1.   Opponent is directed to reimburse the complainant Society to the tune of Rs.70,000/- alongwith interest @9% w.e.f. 15.4.2009 till realization.

2.   Opponent is directed to pay to the complainant Society Rs.5,000/- towards the cost of litigation.

3.   Opponent is directed to comply the order within 4 weeks from the date of receipt of this order, in default 18% interest would be applicable.”

 

3.      Aggrieved by that order, an appeal was filed by the State Bank of India before the State Commission.  The State Commission accepted the appeal and came to the following conclusion:


“4. An expert opinion of handwriting expert-cum-document examiner was sought in the instant case from Mr. Haresh T. Gajjar.  Said opinion is referred by both the parties.  The relevant part of it reads as under:

VII. Further I have observed that the disputed signature marked (Y-1) on the document marked X/1 without the aid of various optical instruments, under different illuminating sources and without the aid of photo enlargements of the disputed as well as Standard Signatures can be passed erroneously as genuine one in Rapid, Routine, Limited Cursory Examination, usually followed by the passing officer of various banks in India.

(5)  Thus, it is revealed from the hand writing expert’s opinion that forgery could not be detected in normal course.  Therefore, the opinion of the hand writing expert corroborates the case of the bank that due diligence was shown while clearing the cheque.  If it is so, then, certainly it cannot be said that while clearing the cheque in question, the official concerned acted negligently and failed to show due diligence vis-à-vis there is a deficiency in service on the part of his part and for which the Bank can be held vicariously liable.”

         

4.      Learned counsel for the respondent, State Bank of India, vehemently argued that under these circumstances, no negligence can be attributed to the respondent.  The alleged bearer, one, Shri Dilip Sonekar had signed the receipt of Rs.70,000/-.  It is contended that the case is barred by time because the amount was disbursed on 15.9.2004 whereas the complaint before the District Forum was filed in the year 2007.

5.      The FIR was also lodged after three months on 16.12.2004.  The cheque leaf was signed by the Secretary and Treasurer of the Society bearing their official seals.  Again the FIR was filed against Mr. Deepak Waiker, who was on leave on that day.  The FIR was not filed against the concerned watchman.  The complainant was well aware that its cheque has been misplaced.  It is contended that the possibility of collusion between certain persons cannot be ruled out.

6.      Learned counsel for the respondent has cited few authorities in support of his case.  In UCO Bank vs. S. D. Wadhawa III (2013) CPJ 523 (NC), it was held by this Commission:

“It is an admitted fact that the respondent failed to keep the cheque book under lock and key.  It is clearly established that the respondent had failed to take due care of his cheque book due to which his own staff could access the same and withdraw the money fraudulently from the Bank account.  He came to know the same on updating his pass book. Bank cannot be held liable for deficiency in service in this regard.

“Complaint regarding forged cheque and fraudulent withdrawal from bank account involves complicated and complex questions which require elaborate evidence including documentary and oral testimony, which is not possible to adjudicate in summary jurisdiction, and thus the complaint is not maintainable in the Consumer Forum.  It is the civil court which is the appropriate form to decide such cases.”

7.      In another authority reported in Tara Chand Lal Chand v. Oriental Bank of Commerce IV (2009) CPJ 220 (NC), this Commisison held:

“… the complainant Firm was required to keep cheque book in safe custody.  There was no question of doubting genuineness of apparent tenor of instrument, because it contained stamp of firm, besides the complainant himself was negligent in giving the cheque book to a binder for binding and on return not checking it.  The complainant has not even followed instructions given in cheque book.  The bank is exonerated of liability to pay for the forged cheque.”       

 

8.      Learned counsel for the respondent further placed reliance on the judgment reported in Prempreet Textiles Industries Ltd. vs. Bank of Baroda &Ors. III (2006) 218 (NC) wherein it was held:



“It was the duty of the Director to have ensured that the cheque book was kept under lock and key at a safe place.  From the apparent tenor of the cheque, there was hardly any occasion for the respondent Bank to have doubted the genuineness of the signaturs on the cheque in question.  If any embezzlement was made by the employee of company the respondent bank cannot be held responsible for it.  Respondent Bank had, thus, been rightly exonerated of the liability arising out of the cheque in question by the State Commission in terms of the aforesaid order dated 1.2.2006 which does not call for any interference in revisional jurisdiction under Section 21(b) of the C.P. Act, 1986.  Dismissed.”

9.      We find force in his argument in a measure.  The clear picture emerged after the investigation of the police came to an end.  The cause of action started therefrom.  The Bank itself asked to complainant to wait for the outcome of the police investigation.  By no stretch of imagination it can be said that the case is barred by time.

10.  Again, there are two handwriting reports.  The report of Shri Haresh Gajjar was filed by the Bank itself.  That report pertained to Mrs. Prem Adukiya only.  It did not examine the signatures of Mr. Kyal.  There is another report of Chief State Examiner C.I.D., who opined that both the signatures were forged. The learned counsel for the petitioner/complainant rightly commented that this is a case of contributory negligence.   She admitted that the petitioner could not keep his cheque book in safe custody but on the other hand, it was the bounden duty of the bank to check and compare the signatures with the specimen signatures affixed on the account opening form.  At the request of the parties, we had requisitioned the file of the District Forum.  Learned counsel for the petitioner also invited our attention to the specimen signatures of the Honorary Secretary of the Society.  It is contended that there is a marked difference in the signatures. We have perused the record.  In the specimen signatures, there is some space left between the three words but in the cheque the space is narrow and the word ‘G’ is long in the admitted signatures than in the disputed signature and these do not appear to be the signature of the same person.  A close scrutiny done meticulously of the signatures clearly show the difference.      Learned counsel for the petitioner has cited authorities in respect of contributory negligence, reported in  N. Venkanna vs. Andhra Bank 2006(2) UC 1024 and Canara Bank vs. Canara Sales Corporation & Ors. 1987 (2) SCR 1138

11.    In this case, the above quoted above letter dated 16.12.2004 creates a doubt about the complainant case itself.  The respondent is a Society.  There are number of office bearers and the members.  The above said letter is crucial.  It mentions that watchman Rohidas Patil informed Shri Gopiikrishna Kyal that acheque in the sum of Rs.70,000/- dated 15.9.2004 of State Bank of India was encashed by one Mr. Dilip Sonekar under forged signatures.  The statement ofRohidas Patil is crucial.  That is the source of knowledge about it.  The complainant was so careless that it could not take care of its bearers cheque.  The same was not kept in custody.  It must be borne in mind that the cheques leaves of bearer’s cheque are more vulnerable than the crossed cheques.

12.    The possibility of few employees of the complainant and the bank official/clerk working in cahoots cannot be rule out.  The information of the forgery was furnished to the Secretary by a watchman.  It itself covers the story with a veil of suspicion.  They slept on for three months.  They did not maintain the record ofcheques.  It appears to be a collusion between Bank employee, complainant’s employee and the forger.

13.    The Apex Court in Canara Bank vs. Canara Bank Corporation and Ors. (supra) was pleased to observe that assuming that there was fault on the part of the customer, the same would still not take away the responsibility of the Bank with regard to clearing the cheque.  We, therefore, fasten the liability on both the parties.  The Bank is liable to reimburse Rs.35,000/- to the complainant with interest at the rate of 4% p.a. from 15.9.2004 within 45 days from the receipt of this order otherwise it will carry interest at the rate of 10% p.a.  The said amount be deducted from the salary of the clerk/official who cleared thecheque.

14.    The revision petition is disposed of.


.…..……………Sd/-……………

(J. M. MALIK, J)

PRESIDING MEMBER

.…..………Sd/-………………

(DR. S. M. KANTIKAR)

MEMBER

Naresh/13


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 




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