THE TAX PUBLISHER v. CHAIRMAN & MANAGING DIRECTOR, UCO BANK & ANR.

IA No. 8690 of 2014 & 12645 of 2016 In the absence of any resistance to the Applications, these are allowed and the additional documents are taken on record. FA No. 106/2014

1. By this First Appeal, under section 19 of the Consumer Protection Act, 1986 (for short the Act), the Complainant calls in question the correctness and legality of the order dated 08.01.2014, passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur (for short the State Commission) in Original Complaint Case No. 1 of 2011. By the impugned order, the State Commission has dismissed the Complaint filed by the Appellant against UCO Bank, through its Managing Director and the Manager of the concerned Brach, Opposite Parties No. 1 and 2 respectively, alleging deficiency in service on their part in clearing two cheques bearing forged signatures. The Complaint has been dismissed on the ground that the issues raised in the Complaint cannot be adjudicated in summary proceedings under the Act. The Complainant has thus, been relegated to Civil Court.

2. The material facts, relevant for the disposal of this Appeal, are as follows:- 2.1 The Complainant, a proprietorship concern, named and styled as The Tax Publishers, engaged in the business of publication and selling books, journals and CDs, had opened a Cash Credit Account with Respondent No.2, a Branch of the UCO Bank at Sardarpura in Jodhpur. One Vimal Sharma was working in the said concern as Accountant for the past many years. He was, , responsible for maintaining the accounts. On 03.03.2009, the Complainant gave ainter alia cheque-book of the aforesaid Account to him for making necessary entries in the records. The cheque-book had 13 blank unsigned leaves. After doing the needful, the Accountant returned the cheque-book to the Complainant, who kept the same in drawer in routine, without suspecting any foul play. The Accountant did not attend the office from 04.03.2009 onwards. On 08.03.2009, the Complainant discovered that two unsigned cheques, i.e. Cheques No. 492299 and 492296, were missing from the said cheque-book. The Complainant informed the Bank about the missing cheques. Upon checking its record, the Bank intimated the Complainant that the two cheques had been used on 04.03.2009 and 05.03.2009 for withdrawal of 11,76,438/- and 19,52,407/- respectively, totalling 31,28,845/-. In fact, by means of the cheques in question the said amounts were got transferred by the Accountant to his concern viz. M/s V.S. Enterprises. The Complainant lodged FIR with the local Police at Jodhpur. Simultaneously, the Complainant also requested the Bank for credit of the said amounts to his account. However, the Bank expressed its inability to immediately credit the amount to his account as the matter was under investigation by the Police and its Zonal Office. 2.2 Armed with the report received by the Complainant from the Government Forensic Science Laboratory under the RTI Act on 05.03.2010, in which it was opined that there was no similarity between the specimen signatures of the Complainant with the Bank and those found on the cheques in question, the Complainant again requested the Bank to restore the amounts so withdrawn from his account. 2.3 In the meanwhile, the Complainant got some documents from the Bank under the RTI Act, which, showed that a domestic enquiry had been conducted by the Bank; a report, datedinter alia, 23.03.2009, was prepared; while passing the aforesaid cheques, a fraud had taken place because of negligence on the part of the concerned officers of the Bank, who flouted all the norms, procedures and regulations while clearing the cheques; and the Committee, formed by the Bank, had rejected restoration of defrauded amounts on two grounds, viz. (i) there were two independent reports regarding signatures on cheques and both were contrary to each other; and (ii) the alleged culprit Vimal Sharma had not yet been chargesheeted by the Police. While pleading that the two grounds on the basis of which the said Committee had arrived at the aforesaid conclusion, were factually wrong, inasmuch as there was only one independent report of the Government Forensic Science Laboratory in respect of the signatures on the cheques and the Accountant had already been chargesheeted for the offences committed and the Competent Court had also taken cognizance thereof, the Complainant kept on pressing its request to the Bank for credit of the aforesaid amounts to his account. 2.4 Thereafter, on 13.09.2010 the Complainant sent his representation to the Chief Nodal Officer of the Bank at its Head Office in Kolkata, in terms of Citizen Charter of the Respondent Bank, which provides for an in house mechanism for redressal of Customers Grievances, under Chapter IV thereof. The representation did not find favour with the designated Authority. Accordingly, vide letter dated 17.01.2011, Complainants claim for restoration of the amounts withdrawn was rejected on the following grounds: (a) the matter was sub-judice and the case against fraudster Vimal Sharma was pending before Jodhpur Court; (b) the bank had also filed an FIR with ADG (Crimes) Rajasthan and the investigation thereunder was pending; and (c) the complainant had not taken full care regarding custody of the cheque-book. 2.5 In the said background and left with no other option, alleging deficiency in service on the part of the Bank, the afore-noted Complaint came to be filed before the State Commission, wherein the Complainant prayed for a total compensation of 96,20,000/- under different heads, mentioned in the Complaint.

3. Upon notice, the Bank contested the Complaint, by filing its Written Version. While admitting that the Complainant had a Cash Credit limit of 80.00 lakhs with it and an internal enquiry had been conducted by its Chief Officer, who concluded that the signatures on the cheques in question differed with the specimen signatures of the account holder, it was averred that the said Chief Officer was not an expert; On 07.03.2009, in the night at 10.15 p.m., the Proprietor of the concern Shri Avadhesh Ojha, reported the matter to the Branch Manager; on verification/scrutiny of the account on 08.03.2009, the Complainant informed the Bank that Cheque No. 492296, dated 02.03.2009, for 19,52,407/-, and Cheque No. 492299, dated 01.03.2009, for 11,76,438/-, both issued in favour of M/s V.S. Enterprises, were not issued by him; thereafter, the account of M/s V.S. Enterprises was also scrutinized, from which, besides certain other transactions, it transpired that the proceeds of both the cheques in question were credited in the account of the said concern maintained with Banks Branch; thereafter sums of 11,50,000/- and 9,52,000/- were withdrawn in cash from the said account by Vimal Sharma, the Accountant of the Complainant; The account of M/s V.S. Enterprises, of which Vimal Sharma was the Proprietor, was introduced by the grandson of the Complainant in the year 2008, which fact was within the knowledge of the Complainant; as mentioned on the covering page-2 of the cheque-book, the Complainant was required to keep the same in safe custody but he did not take due care when the cheque-book was returned by Vimal Sharma, inasmuch as at the said time, had he counted the leaves and not kept the cheque-book negligently, the attempt to steal the cheques in question could have been detected; since the account of M/s V.S. Enterprises was operative since 2008, there was no reason to suspect the transactions therein; with regard to cheques in question on 17.03.2009 Banks Branch (Respondent No.2) obtained opinion of a handwriting expert, Shri R.K. Thakur, who opined that the signatures on the disputed cheques and the specimen signatures were made by the same person and hence there may not be any forgery on the said cheques and on 09.03.2010, the Complainant made a representation to the Bank, requesting for restoration of 31,28,845/- with interest. It was also pleaded that since on 31.03.2010, the Bank had reduced the Cash Credit limit of the Complainant, being unhappy, he shifted the said account/facility to Axis Bank, Jodhpur Branch on 10.06.2010, after clearing the amount outstanding against him in his account with the Bank through the new Bank account. It was stated that the case against the Accountant was pending trial in the Court, wherein the Banks staff was appearing as witness and no charge-sheet was filed against any of the staff members of the Bank and hence, in view of uncertainty about the genuineness or otherwise of the signatures on the cheques in question, the Bank was not in a position to pay any amount to the Complainant till the facts were clear beyond doubt.

4. On evaluation of the material placed on record by the parties, while repelling the stand of the Bank that the Cash Credit limit had been sanctioned to the Complainant for his business in the publication of books, which was a commercial activity, and as such he was not a Consumer within the meaning of Section 2(1)(d) of the Act, the State Commission, as noted above, dismissed the Complaint, with liberty to the Complainant to file a Civil Suit before the Competent Civil Court for redressal of his grievances observing thus:-

11. For the aforesaid reasons, we are of the view that when the matter pertaining to the alleged forged signatures of the complainant on the disputed cheques is under inquiry and scrutiny by a Criminal Court and the outcome of the trial is still awaited, then it would be premature to hold that the Bank is liable for any deficiency in service in passing the two alleged forged cheques. It is pertinent to mention here that though an internal inquiry report dated 23.03.2009 (Annex. 10) concluded that there had been procedure lapses on part of the officers of the Bank in passing the disputed cheques and the Bank also punished Mr. S.R. Meena, the concerned officer vide order dated 19.03.2012 in a departmental inquiry, but at the same time the Bank in its reply submitted that the signatures on the disputed cheques apparently tallied with that of the specimen signatures of the complainant available with the Bank. So, looking to the facts and circumstances in the matter, the present matter cannot be adjudicated upon in summary proceedings by this Commission and it has to be dealt with only by a Civil Court. The complainant shall be free to move to the Civil Court for proper redressal in the matter. For the aforesaid reasons, the present complaint is liable to be dismissed with a direction to the complainant to pursue the matter before the competent Civil Court.

5. Hence, the present Appeal.

6. We have heard Ms. Shilpa Singh and Ms. Ruchi Singh, Learned Counsel for the Complainant and the Bank respectively.

7. Learned Counsel for the Complainant strenuously urged that in the light of clear findings by the enquiry officer in the departmental proceedings to the effect that delinquent officer of the Bank had failed to follow all the requisite norms before clearing the said high value two cheques and the report of the Government Forensic Science Laboratory, obtained by the Police, which is admissible in evidence under Section 293 of the Code of Criminal Procedure, 1973, as against the report of a private expert, relied upon by the Bank, the State Commission has committed material illegality in holding that the issues raised in the Complaint were of complicated nature which could not be adjudicated upon in summary procedure under the Act and thus, relegating the Complainant to Civil Court. In support of the proposition that a mere complication, either of facts or of law, cannot be a ground to relegate a Complainant to Civil Court, reliance was placed on the decisions of the Honble Supreme Court in Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (2002) 6 SCC 635 and CCI Chambers Coop. Hsg. Society Ltd. Vs. Development Credit Bank Ltd. (2003) 7 SCC 233. It was asserted that the observations of the Enquiry Officer in his report is sufficient to hold that there was deficiency in service on the part of the Bank in clearing the two subject cheques and therefore the Complainant was entitled to the claim made by him in the Complaint. The decision of the Honble Supreme Court in Vijaya Bank Vs. Gurnam Singh (2010) 13 SCC 775, was also pressed into service to buttress the proposition that the account holders/the Complainants are entitled to just compensation which could be equivalent to the actual loss suffered by them on account of such lapses on the part of the Banks.

8. Learned Counsel for the Bank, while supporting the conclusion arrived at by thePer contra, State Commission, submitted that apart from the fact that there was contributory negligence on the part of the Complainant in not keeping the cheque book at a secured place, the two conflicting reports by the hand-writing experts and conspiracy angle in the two transactions, require a full-fledged trial which is not within the domain of a Consumer Fora, constituted under the Act with limited jurisdiction. In support of the proposition, Learned Counsel relied on the decision of this Commission in III (2014)Oriental Bank of Commerce Vs. Shankar Chawal Udyog & Anr. CPJ 38(NC).

9. Having bestowed our anxious consideration to the rival stands, in the light of the pleadings and evidence led by both the parties by way of Affidavits; report dated 17.03.2009 by the hand-writing and finger print expert, namely Rakesh Kumar Thakur and the report dated 21.05.2009, by the State Forensic Science Laboratory, Jodhpur, Rajasthan, obtained by the Superintendent of Police, Jodhpur city in FIR No. 73/09 under Sections 408, 419, 420, 467, 468,

471 and 120B of the Indian Penal Code, 1860, we are of the opinion that the decision of the Fora below in non-suiting the Complainant, on the ground that the case involves complicated issues requiring recording of evidence, is unsustainable.

10. The issue whether or not complicated questions of facts can be decided in summary proceedings, as visualized under the Act, vis--vis Civil Court, came up for consideration before a three Judge Bench of the Honble Supreme Court in (supra). Referring to theDr. J.J. Merchant statutory provisions, prescribing the procedure for disposal of the Complaint filed under the Act, the Court rejected the contention that complicated questions of fact cannot be decided in summary proceedings, observing thus:- In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided.

11. In that case, involving alleged negligence in the matter of rendering services by a medical practitioner, the Court rejected the plea raised on behalf of the Doctor that complicated question of law and facts in the case, depending upon medical experts opinion, summary procedure was not a proper remedy for deciding such issues and hence the Complainant should be directed to approach the Civil Court, observing as follows:- It is true that it is the direction of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which provides that in every case, theinter alia examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.

12. In (supra) the Honble Supreme Court highlightedCCI Chambers Coop. Hsg. Society Ltd. the same principle as enunciated in (supra) to determine the question whetherDr. J.J. Merchant adjudication on the issue arising in the Complaint require a detailed and complicated investigation of facts, incapable of being undertaken in a summary and speedy manner. It was observed that the decisive test is not the complicated nature of the questions of fact and law arising for decision the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of detailed and complicated method of r e c o r d i n g e v i d e n c e .

13. It is thus, well settled that the procedure prescribed under the Act for disposal of the Complaint is adequate to decide cases involving complicated questions of the law and fact as well , the issues which, in the opinion of a Consumer Fora, cannot be decided without lengthyalbeit evidence, not envisioned under Section 13 of the Act.

14. Hence, the question falling for consideration is whether the issue raised in the Complaint is so complicated or complex that it cannot be decided without recording lengthy evidence, not permissible under the scope of a summary trial under the Act?

15. In our opinion, findings of the enquiry officer, returned by him in the departmental enquiry, ordered by the Bank on receipt of the complaint by the Complainant and the report of the Government Forensic Science Laboratory, Jodhpur are sufficient enough to reach to the conclusion that there was deficiency in service on the part of the Bank in clearing the two cheques in question, resulting in loss, mental harassment and agony to the Complainant. In our view, as against the report of the Government laboratory which was, pertinently obtained by the Police and not the Complainant, the report obtained by the Bank from a private hand-writing expert was not sufficient to raise doubt about the authenticity of the report by a Government expert, and hence the question of two conflicting reports, as pleaded by the Bank did not arise. In his report, dated 21.05.2009, the Assistant Director (Doe) RFSL Jodhpur had clearly opined that from the characteristics, highlighted in the report, the dissimilarities in disputed and in standard signatures are sufficient and significant. Additionally, as stated above, the Chief Manager of the Bank, who had conducted the enquiry had found that both the cheques had been cleared without proper scrutiny of the cheques i.e. without putting initials on the signatures verified stamp; without comparing the signatures on the cheques with specimen on record; the cheques being of large amounts, without obtaining confirmation on phone or otherwise from the account holder; the cheques were passed in spite of the fact that the signatures on cheques did not tally to that of specimen signatures on records; the cheques had been paid in spite of the fact that the payee (proprietor of the Firm) is working as Accountant in the drawer Firm; there are no such high value transactions in the account of the drawer of cheques and there are negligible transactions in the account of payee Firm having balance of below minimum always.

16. In our view, the said enquiry report by Banks own senior official and Government hand writing Experts opinion were sufficient enough to hold that there was deficiency in service on the part of the Bank in clearing the two cheques in question. The Banks private hand-writing Experts opinion to the effect that signatures on the cheques were tallying with the specimen signatures of the Complainant on Banks card, in our view, did not create an acute dispute on facts requiring recording of lengthy and extensive evidence in order to adjudicate upon the dispute in the Complaint. In our opinion, therefore, the State Commission fell into an error in relegating the Complainant to Civil Court. Consequently, we set aside the order impugned in this Appeal and, on the basis of the pleadings and evidence already adduced by the parties in support of their respective stands, hold that clearing of the two cheques in questions and debit of the afore-noted amount to the account of the Complainant, being without his mandate, tantamounts to deficiency in rendering of service by the Bank to the Complainant, squarely falling within the ambit of Section 2(1)(g) of the Act.

17. Having arrived at the said conclusion, the question surviving for consideration is as to what compensation the Complainant is entitled to?

18. In the Complaint, the Complainant had prayed for a total compensation of 96,20,000/-, under different heads, including the value of the two cheques viz. 31,28,000/-. However, in his synopsis, filed during the course of hearing, he has prayed for a compensation of 1,55,76,672/-. We find that neither in the Written Version nor in its evidence filed by way of an Affidavit, except for the bald assertion that it is not liable to compensate the Complainant for the losses and damages suffered by him, as these are based on surmises and conjectures, the Bank has not specifically contested the claims made under different heads. Under the circumstances, we are of the view that since the Bank was opposing the Complaint only on merits of the allegations levelled therein, in the interest of justice, an opportunity deserves to be granted to the Bank to have its say on the amount of compensation payable to the Complainant against each of the heads, noted in the Complaint. Accordingly, we permit the Bank to file additional evidence, by way of an Affidavit in respect of the relief claimed by the Complainant, within four weeks of receipt of a copy of this order, if so advised. It will be open to the Complainant to file his response to the said Affidavit, if considered necessary, within four weeks of the receipt of Banks Affidavit.

19. In the result, the Appeal as well as the Complaint is allowed on merits, save and except to the extent of quantification of the compensation payable to the Complainant. For the said limited purpose, the Complaint is remanded to the State Commission. The Complainant will be entitled to costs quantified at 15,000/-

20. Since the Complaint was filed sometime in the year 2011, we request the State Commission to take the final decision on the issue under remand, as expeditiously as practicable, but not later than four months from the date of receipt of a copy of this order. The parties/their Counsel are directed to appear before the State Commission on 24.10.2017 for further proceedings. Costs shall be paid before the State Commission.

21. The Appeal stands disposed of in the above terms. ......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER