account without his permission. The bank took the complainant's pass-book in the year 2004, as the bank was going to be computerized and all the pass books of other account holders were also going to be computerized. So the complainant was not aware all the above transactions done from his account. The officers of the bank stated the complainant to close the previous account and open a new account in his name. So, the complainant has opened a new joint account in the name of Hari Ram Yadav and Dhanwati bearing a new account No. 0262000101219815 and Rs. 6,549.33ps. was transferred in the new pass book from the previous pass book. The complainant took statement of previous account pass book from the bank and then he came to know the fact that the amount of Rs. 1,30,000/- was withdrawn from his account without his consent by any bank employee. He wrote so many letters to the bank, but the opposite party did not refund his said amount. The complainant felt offended by the behavior of the bank-opposite party. This conduct of the bank-opposite party amounts to deficiency in service, which is in the jurisdiction of the District Forum, Udhamsingh Nagar, therefore, the complainant filed a consumer complaint before the District Forum, Udhamsingh Nagar.

3. The opposite party has filed its written statement before the District Forum. The bank has accepted that the complainant is a consumer of the bank bearing saving bank account No. 18473. The opposite party has further pleaded that the complainant has signed debit voucher of Rs. 90,000/- on 16.09.2002 and also a credit voucher and the bank was directed to transfer the amount in the account No. 17661 of Sh. Devki Nandan Yadav. On the direction of the complainant further two transactions for a sum of Rs. 20,000/- each on 06.03.2004 and 10.03.2004 were done with the consent of the complainant. It is wrong to say that the complainant's bank pass book was deposited by the complainant, on the direction of bank officers. The bank has closed the old account of the complainant and opened a new account after complainant's direction. The balance amount of previous account was transferred to the new account. It is also wrong to say that the complainant has not signed the transfer voucher and withdrawal forms. Report of hand writing and fingerprint expert, clearly shows that the debit and credit voucher of Rs. 90,000/- dated 16.09.2002 was duly signed by the complainant- Sh. Hari Ram Yadav and two other debit-credit vouchers for a sum of Rs. 20,000/- each on 06.03.2004 and 10.03.2004 were not matched by the complainant's signatures. The opposite party-bank was ready to compromise with the complainant on the basis of handwriting expert report to pay Rs. 40,000/- alongwith interest, but the complainant did not agree. The complainant wants to take advantage of fraud committed by the bank employee by refusing the compromise. So the consumer complaint filed by the complainant does not fall under the provisions of Consumer Protection Act, 1986. The case is of civil nature. The consumer complaint is time barred because the above mentioned voucher, for which this consumer complaint is filed, is for the period of 2002 while the consumer complaint is filed in the year 2007. So the consumer complaint is liable to be dismissed.

4. The District Forum on an appreciation of the material on record, allowed the consumer complaint vide its order dated 21.12.2011. Aggrieved by the said order, the opposite party- appellant has filed the present appeal.

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5. We have heard learned counsel for the parties and perused the record.

6. Learned counsel for the appellant has submitted that the District Forum has failed to appreciate the facts of the case. He has further argued that this case is barred by time. The present consumer complaint is filed on 13.09.2007 after five years from the said transaction. He has further submitted that the bank is ready to pay the amount, which had been fraudulently withdrawn by bank's employee, according to the hand writing expert's report.

7. Learned counsel for respondent has submitted that it is wrong to say that the respondent had ever signed the debit and credit voucher of Rs. 90,000/-. The consumer complaint is not time barred because the respondent came to know about the said disputed transactions from his account when he got a new pass book and the correspondence done by him with the bank in the year 2006 and 2007.

8. There is no dispute with regard to the fact that the complainant was having an account No. 18473 in the opposite party-Bank. The dispute is with regard to three credit-debit vouchers dated 16.09.2002 for a sum of Rs. 90,000/- and for voucher of Rs. 20,000/- dated 06.03.2004 and voucher of Rs. 20,000/- dated 10.03.2004 which were with-drawn from the complainant's account with complainant consent/signature or not. From the perusal of the evidence adduced by the complainant before the District Forum's record, it is evident that from the account of the complainant Rs. 90,000/- were transferred on 16.09.2002 and Rs. 20,000/- was withdrawn on 06.03.2004 (to self) and Rs. 20,000/- was withdrawn on 10.03.2004 (to self). The complainant has filed copy of the bank statement on paper No. 6/11 and 6/12 in the District Forum's record. A letter dated 21.06.2004 was sent to the Branch Manager of the opposite party, in which the complainant had requested to send bank statement of previous account No. 18473, as his old amount was not transferred in his new account (paper No. 6/5 in the District Forum's record). The complainant sent a reminder to Punjab National Bank, Kashipur as his amount was not deposited till 19.04.2007 in his account (paper No. 6/8 and 6/9 in the District Forum's record). Chargesheet filed by CBI against the accused Bhagwan Das Yadav is at paper No. 40/17 in the District Forum's record. An affidavit of Sh. Hari Ram Yadav-complainant is filed in which he has denied to sign on the debit voucher for a sum of Rs. 90,000/- on 16.09.2002 in favour of Sh. Devki Nandan Yadav. He further stated in this affidavit that it is a rule of opposite party bank that no one can withdraw more than Rs. 7,000/- through withdrawal voucher. He has submitted that the opposite party has set a CBI enquiry against this fraud. The bank employee Sh. Bhagwan Das Yadav was accused of embezzlement. Sh. Bhagwan Das Yadav confessed his crime before CBI and a charge sheet was filed by CBI against him. He has further submitted through his affidavit that the consumer complaint is not time barred.

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9. On the contrary, the Branch Manager of opposite party has filed his affidavit in which he has submitted that on the direction of the complainant a debit voucher for a sum of Rs. 90,000/- dated 16.09.2002 was transferred in the account of Sh. Devki Nandan Yadav (Account No. 17661). He has further stated that it is wrongly alleged by the complainant that due to computerization of the bank all pass-books were deposited and new accounts were provided. The complainant himself has directed the bank to close his old account and open a new account. The whole amount of the complainant's old account was transferred in the new account No. 0262000101219815. According to the handwriting expert report on the withdrawal voucher of Rs. 90,000/- dated 16.09.2002, it has been confirmed that the withdrawal voucher of Rs. 90,000/- was duly signed by the complainant. The signature of the complainant matched with the signature on the withdrawal form. Another two vouchers for a sum of Rs. 20,000/- each dated 06.03.2004 and 10.03.2004 were not matched with the complainant's signature. The consumer complaint is time barred. The Handwriting and Fingerprint Expert report dated 25.11.2004 is filed on paper No. 20 (in the District Forum's record).

10. After perusal of the reports, affidavits and oral submissions raised by the parties, we are of the view that the opposite party's employee Sh. Bhagwan Das Yadav has committed fraud with the customers by withdrawing their amount fraudulently. Sh. Bhagwan Das Yadav has confessed his crime before CBI and was punished in accordance with law. The only question remains about the disputed debit voucher for a sum of Rs. 90,000/- dated 16.09.2002, whether the said transaction was done by the complainant or not. The bank has not filed any affidavit of Sh. Devki Nandan and Smt. Mithlesh, in whose account Rs. 90,000/- were transferred from the complainant's account. The bank has also not filed any affidavit of handwriting and fingerprint expert to support the report of expert, therefore, report of expert has got no value. No objections have been filed against the statement of complainant that it is a rule of opposite party bank that no one can withdraw more than Rs. 7,000/- through withdrawal voucher. We did not consider the case time barred, because the CBI final report came on 23.02.06 and the cause of action arose from the date of investigation report.

11. Learned counsel for the respondent has cited the following decisions:-

1. Haryana Gramin Bank and Anr. vs. Jaswinder and Anr.; (2011) 1 CPR

(NC) 95

2. Bank of Baroda vs. Gitaben Baladevbhai Raval and Ors.; (2009) 2 CPR

(NC) 137

12. In the case of Haryana Gramin Bank and Anr. vs. Jaswinder and Anr., the Hon'ble National Commission has held that the bank was vicariously liable to adjust the amount in the accounts of the complainant as the fraud and embezzlement was committed by employees of

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the opposite party-Bank in the course of employment. This citation is fully applicable in the instant case. In the case of Bank of Baroda vs. Gitaben Baladevbhai Raval, the Hon'ble National Commission has held that the Bank Manager had acted within scope of his employment in order to make the bank vicariously liable for the acts of bank manager. The said citation is also applicable in the present case.

13. From the perusal of the evidences on record as well as the submissions raised by the learned counsel for the parties, we are of the view that the disputed amount was fraudulently withdrawn by the employee of the bank. So the appellant Bank is vicariously liable for the act of the employee. The impugned order passed by the District Forum does not suffer from any infirmity and is fit to be upheld. The appeal lacks merit and is liable to be dismissed.

14. For the reasons aforesaid, the appeal is dismissed. The impugned order dated 21.12.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 81 of 2007 is hereby upheld. No order as to costs.

[HON'BLE MR. D. K. Tyagi, H.J.S.]

PRESIDING MEMBER

[HON'BLE MRS. Veena Sharma]

MEMBER

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