ORAL

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal No. 365 of 2000

Union Bank of India, Patrakarpuram Branch,

Lucknow through its duly authorized officer,

Mr. Ashok Kumar Agarwal.                                ...Appellant.

Versus

Arun Kumar Srivastava, R/o B-3/37, Vinay

Khand-3, Gomti Nagar, Lucknow.                 .…Respondent.

Present:-

1- Hon’ble Sri Sushil Kumar, Presiding Member.

2- Hon’ble Sri Vikas Saxena, Member.

Sri Rajesh Chaddha, Adovate for the appellant.

Sri Sanjay Kumar Kuntal, Advocate for the respondent.

Date 15.12.2021

JUDGMENT

Per Sri Sushil Kumar,  Member- This appeal has been directed against the judgment and order dated 21.1.2000 passed by the District Consumer Forum-II, Lucknow in complaint case no.330 of 1999, Arun Kumar Srivastava vs. Union Bank of India, whereby the complaint was allowed and appellant is directed to pay Rs.165000.00 alongwith interest and compensation.

          As per allegation of the complainant in his complaint he maintained account no.1517 in Union Bank of India, Patrakarpuram Branch, Gomtinagar, Lucknow. The complainant received a cheque book numbering 701 to 720 and signed all the cheques of the cheque book and put up in the bank for payment time to time. The complainant withdrew the amount from the bank on 16.5.1998, 14.7.1998, 14.7.1998 and 18.7.1998. When the complainant visited the bank to get the entries of transactions in the pass-book then he found that cheque no.0000705 amounting to Rs.165000.00 was encashed by the bank officials. The complainant never withdrew this amount from the bank. It is further mentioned in the complaint that while the complainant put the cheque

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no.704 before the bank officials for encashment, by mistake he put the cheque no.705 also with the cheque no.704 and some one after making false handwriting regarding the amount mentioned in the cheque withdrew the amount of Rs.165000.00. It is further mentioned that Rs.365000.00 was mentioned in the cheque  while this amount w as converted into Rs.165000.00 and made the false signature of the complainant. Then the complainant made a request to the bank officials for providing a photocopy of the cheque, so he may decide further cause of action against the bank. It is further mentioned that alteration in cheque amount  comes under the category of material alteration land according to the provisions of N.I. Act instrument becomes void and not to be honoured. Therefore, the complaint is filed against the bank officials for relief of payment of Rs.165000.00 alongwith interest.

          The bank admitted this contention that the complainant got issued the said cheque-book in ordinary course of business but pleaded that rest allegations are false, fake and wrong. Cheque no.705 amounting to Rs.165000.00 was present by the complainant himself on 9.10.1998 and after tallying the signature with the specimen signature payment was given to him only.

          The ld. District Forum opined that  the bank is failed to produce the cheque before the District Forum, so the District Forum concluded that the bank is responsible, therefore passed the impugned order.

          The instant appeal filed on the ground that the District Forum failed to exercise its jurisdiction by not referring the matter to the hand-writing expert and passed the judgment on the photocopies of the documents. Ld. District Forum failed to examine the fact that the complainant himself is responsible for his act. He failed to explain why he kept  silence or not reporting the matter to the police authorities. It is also mentioned in the memorandum of appeal that the complainant made the allegations of fraud, forgery and manipulation of amount which cannot be decided on the basis of affidavit.

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          We have heard Sri Rajesh Chaddha, ld. counsel for the appellant and Sri Sanjay Kumar Kuntal, ld. Counsel for the respondent and perused the record.

          As per allegation of the complaint, this fact is established that the complainant alleges fraud, forgery and manipulation on the part of the bank and its officials. As per the complainant’s allegation bank or its officials or any third person entered the cheque amount and signed it by making forged signature of the complainant. Therefore, this is a clear cut case of fraud, forgery and manipulation.

          Ld. Counsel for the respondent filed a ruling Abdul Razak & anr. vs. South Indian Bank Ltd., III(2003) CPJ 20 (NC). In this case bank issued a cheque book to imposter who encahsed the cheques. Hon’ble National Commission held that bank failed to verify the signatures on these instruments and held that there is deficiency in service on the part of the bank. In the present case, allegation of fraud, forgery and manipulation made by the complainant himself in his complaint. Therefore, finding of this case is not applicable in the case in hand.  

          Ld. Counsel for the respondent filed another ruling N. Venkanna vs. Andhra Bank, I(2006)CPJ 132 (NC). In this case money was withdrawn through forged signature, pass-book was misplaced by the complainant. Expert opined that signature was forged. Hon’ble National Commission held that the deficiency in service is proved but in the present case the complainant signed the cheque himself and produced the cheque before the bank. No expert report was produced regarding the fake signature of the complainant, hence, the finding of this case is not applicable in the facts of the present case.

          Counsel for the respondent filed another ruling Polmann India Ltd. vs. Central Bank of India, IV(2018) CPJ 202 (Maha). In this case complainant filed the opinion of the hand-writing expert which was considered reliable and acceptable. Signature on the alleged 23 cheques were forged and still those cheques were honoured and payments were made against them by opponent bank which establish negligence and deficiency in service. But in this case it  was also held that cheque is not cleared by bank if there are over writing without counter signatures or initials on it. In the case

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in hand, there is counter signature of the complainant on the over-writing. The complainant himself failed to produce the opinion of hand writing expert, therefore, complainant cannot get the advantage of this judgment and findings.

          Copy of disputed cheque is available on record. There are counter signature/initials find place as, ‘Aurn’ on the over  writing. Although there is no expert opinion available on this point but prima-facie both admitted and disputed word “Arun” appears to be written by the same person. Initial amount mentioned on the cheque is Rs.365000.00 on correction the amount is Rs.165000.00. Both figures, admitted and altered appears to be written in same hand writing. If the complainant alleges that there was forged, fake, fabricated or manipulated signature and amount on the cheque then he should have initiated criminal proceedings against the bank and its officials. He should have lodged an  information before the bank authorities in time that the cheque no.705 is lost and bank should not make the payment against this cheque.

          Annexure ‘1’ account statement of the complainant reveals that on 7.10.1998, there was a bank balance of Rs.211007.00 only. After withdrawl of Rs.165000.00 remaining amount was 46007.00 only. On 19.10.1998 complainant deposited Rs.75000.00 and on 18.11.1998 he withdew Rs.31900.00 while he made complaint on 12.12.1998 and no complaint to the police Station regarding fraud and manipulation was made.

          In 1986-99 Consumer 4165 (NS), Arum Kumar Lal Gupta vs. Unit Trust of India, it was held that if there is allegation of fraud, forgery and manipulation then the Consumer Forum have no jurisdiction to decide the consumer case. Hence, the complaint case was not maintainable before the District Consumer Forum. The ld. District Consumer Forum decided the complaint out of jurisdiction which deserves to be set aside. 

ORDER

          Appeal is allowed. The judgment and order dated 21.1.2000 passed by the District Consumer Forum-II, Lucknow in complaint case no.330 of 1999 is set a side. Since the complaint is out of jurisdiction, hence dismissed.

          The stenographer is requested to upload this order on the Website of this Commission today itself. 

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          Certified copy of this judgment be provided to the parties as per rules. 

        (Vikas Saxena)                                (Sushil Kumar)

              Member                                  Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to record.

        (Vikas Saxena)                                (Sushil Kumar)

              Member                                  Presiding Member

Jafr, PA II

Court 2