JUDGMENT

1.         Heard Mr. Pallav Shishodia, Sr. Advocate, assisted by Mr. Saurabh Seth, Advocate, for the complainant and Mr. Ramesh Kumar, Advocate, for the opposite parties. 

2.         Public Health Foundation of India has filed above complaint for directing the opposite parties to (i) refund Rs.26/- crores, with interest @18% per annum, from the date of deposit till the date of refund; (ii) pay Rs.5/- crores, as compensation for loss to the projects, undertaken in public interest and could not be completed due to lack of fund; (iii) pay Rs.50/- lacs, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

3.         The complainant stated that Public Health Foundation of India (for short the PHFI) was a society, registered under the Societies Registration Act, 1860, on 08.02.2006 and formed with object to establish new institutes of public health, assist existing institutes for enhancing their capacity and output, promote research in prioritized area of public health etc. The PHFI was registered under Foreign Contribution (Regulation) Act, 1976 on 26.09.2008 and the contributions to the PHFI is exempted under Section 80G(5)(vi) of the Income Tax Act, 1961. The PHFI was granted recognition under Scientific and Industrial Research Organization, 1988. The PHFI was running its activities from the donations. At the initial stage of formation of the PHFI, Government of India, Ministry of Health and Family Welfare granted Rs.65/- crores towards corpus fund. Later on Rs.69.22 crores was contributed by Bill and Malinda Gates Foundation, U.S.A. and Rs.19.86 crores was contributed by Nand and Jeet Khemka Foundation. Till 31.03.2013, the PHFI received Rs.325.19 crores, from multiple donors. On 31.03.2013, the PHFI received Rs.219/- crores contribution towards its corpus fund. The PHFI used to receive donations for a particular project and held it as a trustee till the completion of that project. The funds received from the donors and the interest earned on it, were utilized for fulfilling the object of the society without any motive of profit. The PHFI opened Current Account No.0340992008, in Citybank NA, Connaught Circus Branch, Delhi, for receiving foreign donations and Saving Account No.05861110000013 in HDFC Bank Ltd. Green Park, Delhi, for receiving domestic donations. Governing Body of the PHFI took a decision in the year 2013-2014 to deposit 80% of the fund in “fixed deposits” with the public sector banks as keeping money in “fixed deposits” with the bank was safest mode for holding the money and utilizing it along with interest earned on it, in completing the project. Dena Bank, Malabar Hill Branch, Mumbai (opposite party-1) offered to deposit in “Samruddhi Deposit Receipt” scheme, in which interest @9.6% per annum was given. The Director Finance of the PHFI wrote a letter dated 12.02.2014 to opposite party-1 for opening account for “fixed deposit” of Rs.8/- crores and forwarded Account Opening Form, jointly signed by Amit Chaturvedi, Head Finance and Lt. Gen. Narayan Chatterjee, Advisor and other relevant documents. The Director Finance of the PHFI transferred Rs.8/- crores on 13.02.2014, from its Saving Account No.05861110000013 in HDFC Bank Ltd. through RTGS to the Intermediary Account No.00760050050002 of Dena Bank, Malabar Hill Branch, Mumbai. The Director Finance of the PHFI again transferred Rs.6/- crores on 13.03.2014, Rs.3/- crores on 19.03.2014, Rs.6/- crores on 22.04.2014 and Rs.3/- crores on 06.05.2014 from its accounts in HDFC Bank Ltd. and Citybank through RTGS to the Intermediary Account No.00760050050002 of Dena Bank, Malabar Hills Branch, Mumbai, for ‘fixed deposit’ for a period of one year. Dena Bank issued “Samruddhi Deposit Receipt” dated 13.03.2014, 19.03.2014, 25.04.2014 and 07.05.2014 of above amounts. The Auditors of the PHFI wrote a letter dated 14.04.2014 to Dena Bank, Malabar Hill Branch, for confirming the deposits in a proforma of Audit Certificate till 31.03.2013, which was provided by Dena Bank on 21.06.2014. The PHFI received an email dated 28.06.2014, from Senior Inspector, Economic Offences Wing, Mumbai, informing about large scale of embezzlement of Rs.58/- crores and during investigation it was revealed that an amount of Rs.14.50 crores was transferred to the account of SIES from the account of the PHFI. Senior Inspector sought for confirmation from the PHFI of that transaction. The PHFI, through email dated 02.07.2014, informed that no such amount was transferred by the PHFI to SIES. Senior Inspector, through email dated 02.07.2014, asked to check its accounts with the banks. The officials of the PHFI, firstly checked its fixed deposits with Punjab National Bank and Punjab & Sind Bank, where embezzlement had taken place. Amit Chaturvedi, Head Finance of the PHFI went to Malabar Hill Branch of Dena Bank on 07.07.2014 and met with Mr. Pritam Nagarkar, Chief Manager and inquired about its deposits in “Samruddhi Deposit Receipt”, who assured that the money of the PHFI would be refunded within 6-7 days along with interest. Mr. M.L. Bahera, Zonal Manager of Dena Bank, lodged a complaint with CBI on 10.07.2014, alleging that Pritam Nagarkar, Chief Manager in connivance of Vimal Barot, Showman Group and unknown persons of 7 organizations had embezzled approximately Rs.220/- crores of Dena Bank. Pritam Nagarkar absconded from the date of lodging the complaint. The PHFI wrote a letter dated 11.07.2014, to Dena Bank, Malabar Hill Branch to close its above 5 “Samruddhi Deposit Receipt” and transfer its money to the accounts as mentioned in it. Dena Bank, through its letter dated 16.07.2014, informed that 5 “Samruddhi Deposit Receipt” as supplied along with letter dated 11.07.2014, were not matching with Dena Bank’s record rather Current Account No.007611023867 was opened in the name of the PHFI and the amount transferred 13.03.2014, 19.03.2014, 25.04.2014 and 07.05.2014 were credited in Current Account No.007611023867. From where, the money was fraudulently transferred to various accounts and the matter had been referred to CBI for investigation. The PHFI wrote a letter dated 21.07.2014 to Fraud Monitoring Cell of Reserve Bank of India to investigate in above incident. The PHFI, vide letter dated 22.07.2014, denied opening of above Current Account No.007611023867 and requested Dena Bank to return its money. The PHFI also lodged a complaint with CBI on 28.07.2014, to investigate above fraud and recover its money. Dena Bank, vide letter dated 30.07.2014, informed that as fraud had been committed and the matter was referred to CBI for investigation, money could not be returned. The PHFI, vide letter dated 14.11.2014, sought for issue of certified copies of account opening forms, specimen signature cards and other details, which were necessary for opening the account and cheques books and transactions etc. The PHFI, vide letter dated 19.11.2014, informed that entire amount of Rs.26/- crores was transferred to Intermediary Account No.00760050050002 of Dena Bank, time to time by HDFC Bank and Citybank. Dena Bank, vide letter dated 22.12.2014, informed that original records relating to opening current account were seized by CBI. The PHFI also made complaint to Central Vigilance Commission, Department of Finance Services, Ministry of Finance and Reserve Bank of India in respect of above incidents. The President of the PHFI met with Managing Director of Dena Bank on 24.02.2015 and requested to return its money. Managing Director agreed to supply certified copies of all the documents relating to opening of current account and the transactions made from that account. In furtherance of assurance given in the meeting, the PHFI wrote a letter dated 03.03.2015 to Dena Bank for supply of certified copies of the documents. Dena Bank, again vide letter dated 04.03.2015, informed that they were waiting for permission of CBI. The PHFI received back its money of Rs.100690412/- from Punjab and Sind Bank during this period in its account with HDFC Bank and Citybank. CBI seized these accounts during investigation on the ground that this amount was also tainted. On the application of the PHFI, Special Judge, CBI Court, Mumbai, revoked the seizure of the accounts of the PHFI, vide order dated 06.08.2014. CBI submitted charge sheet against (i) Vimal Jadhavji Maluka @ Vimal Barot, (ii) Pritam Vidyadhar  Nagarkar, (iii) Devendra Suresh Bhogle and (iv) Rahul Mukesh Gohil on 23.06.2015. CBI, vide letter dated 22.12.2015, permitted for supply of the certified copies of all the documents relating to opening of current account in Dena Bank and the transactions made from that account. After receiving the documents, it was revealed that the amount of Rs.8/- crores transferred on 13.02.2014 was invested in “Samruddhi Deposit Receipt” No.1807117 on 13.02.2014, which was closed on 14.02.2014, on the instructions issued by the Manager and the amount was transferred into an account opened in the name of the PHFI with Bank of Maharashtra, Malad (W). Current Account No.007611023867 was opened in the name of the PHFI in Dena Bank, Malabar Hill Branch on 11.03.2014. The amounts of Rs.6/- crores transferred on 13.03.2014, Rs.3/- crores transferred on 19.03.2014, Rs.6/- crores transferred on 22.04.2014 and Rs.3/- crores transferred on 06.05.2014 by the PHFI from its accounts in HDFC Bank Ltd. and Citybank through RTGS to Intermediary Account No.00760050050002 of Dena Bank, Malabar Hill Branch, Mumbai, were credited in Current Account No.007611023867 as per Manager’s instruction. A cheque book, containing cheques No.788201 to 788225, relating to above account was issued and received by one Devendra Suresh Bhogle on 14.03.2014. Another cheque book, containing cheques No.790551 to 790575, relating to above account was issued and received by Devendra Suresh Bhogle on 05.06.2014. Using these cheques entire amount was syphoned to various accounts. During investigation, CBI, recorded statements of Ms. Preeti Javekar, Officer Scale-I, Jivtesh Singh, Probationary Officer, Sameer Parekh, Omprakash Singh, Single Window Operator, all of Dena Bank, who all stated that entire transactions were done on the instruction of Pritam Nagarkar, Chief Manager, Malabar Hill Branch. Reserve Bank of India has issued Circular dated 01.07.2013, with regard to opening of the account and verifying credential of the customers. Dena Bank also issued Manual of Instructions in terms of the circular of Reserve Bank of India. Under above guidelines the trustee/nominee of fiduciary accounts are identified as high risk accounts and it is mandated to take extra care in dealing with these accounts. Malabar Hill Branch of Dena Bank has not followed the guidelines issued by Reserve Bank of India and Dena Bank and committed deficiency in service; resulting syphoning of Rs.26/- crores of the PHFI. The PHFI has transferred money for fixed deposit for a period of one year but contrary to the instruction, money was fraudulently transferred by closing fixed deposit on the next day or by crediting money in current account. Then this complaint was on 27.04.2016, alleging deficiency in service.

4.         The opposite parties filed its written reply on 11.08.2016 and contested the complaint. The opposite party stated that the complaint raises complicated issues relating to fraud and misappropriation of money, which requires examination of voluminous evidence and examination/cross-examination of witnesses. These issues cannot be decided in summary jurisdiction of this Commission. The complainant has concealed the means, by which, the papers were transferred to Dena Bank, SDRs were received and current account was opened in Dena Bank and filed fabricated papers. SDR No.187098 dated 12.02.2014 (P-6) is fake document on its face, inasmuch as the amount of Rs.8/- crores was transferred to Dena Bank on 13.02.2014, while this SDR was issued one day before. All the SDRs filed along with the complaint are fabricated documents. The officers of the PHFI actively connived with the strangers and involved in all the transactions of syphoning the money in an organized manner and Dena Bank was not liable for refund the money. The PHFI, in its complaint filed before Central Vigilance Commission, has stated that Vimal Barot, introducing himself as an employee of Punjab National Bank, Worli Naka Branch, Mumabi & financial consultant of 5 different banks with one Smt. Amrita Mathew approached the officers of the PHFI in February-March, 2014 and solicited them to invest money in FDRs. Amit Chaturvedi, Head Finance, in his statement as recorded by CBI, stated that Vimal Barot had met him, in his office in first week of February, 2014. Narayan Chatterjee, Special Advisor, in his statement as recorded by CBI, stated that some middlemen had contacted with Finance Department of the PHFI and offered higher rate of interest in ‘fixed deposit’. Nirmal Pathak, Finance Officer, in his statement as recorded by CBI, stated that Vimal Barot had met with Amit Chaturvedi, Head Finance, in his office and introduced himself as financial consultant of 5 different banks and offered higher rate of interest, on investment, at some branches of those banks, including Malabar Hill Branch. From above statements, it is fully proved that Dena Bank had not quoted rate of interest or solicited investments. The PHFI did all the transactions of investing money in Dena Bank through the middlemen and handed over papers relating to opening of the account to them, making it easy for them to open current account in Dena Bank and Bank of Maharashtra and syphon the money from Dena Bank. Crores of money was transferred in a very negligent manner on assurance of middlemen, without verifying their identity, which shows collusion of the officers of the PHFI. Vimal Barot was mastermind of committing fraud with various public institutions. Even after coming to know about the fraud, when Amit Chaturvedi and Nirmal Pathak visited to Mumbai in July, 2014, they met with Vimal Barot, who assured them that their money would be transferred in 6-7 days. The persons authorized by the PHFI approached Dena Bank on 13.02.2014 for investment of Rs.8/- crores in fixed deposit for one year. Simultaneously money was transferred on 13.02.2014 through RTGS to Malabar Hill Branch. On which “Samruddhi Deposit Receipt” No.1807117 was issued on 13.02.2014, which was confirmed through email dated 13.02.2014, by Malabar Hill Branch to Vimal Barot. The PHFI closed that ‘fixed deposit’ on 14.02.2014 and on its instruction the amount was transferred into the account of the PHFI with Bank of Maharashtra, Malad (W). The PHFI sought for opening of ‘current account’ at Malabar Hill Branch of Dena Bank on 13.03.2014 and presented all the required documents including Minutes of Meeting dated 11.03.2014 of Board of Directors of the PHFI. After examining, the documents, Current Account No.007611023867 was opened in the name of the PHFI in Dena Bank, Malabar Hill Branch on 11.03.2014 and the signatures of authorized representatives were kept as “specimen signatures’. The amounts of Rs.6/- crores transferred on 13.03.2014 was credited into current account. The amounts of Rs.3/- crores transferred on 19.03.2014, Rs.6/- crores transferred on 22.04.2014 and Rs.3/- crores transferred on 06.05.2014 by the PHFI, were also credited in Current Account No.007611023867. It has been denied that the amounts transferred on 13.03.2014, 19.03.2014, 22.04.2014 and 06.05.2014 were transferred for ‘fixed deposit’. All the SDRs filed with the complaint in respect of these amounts are fabricated documents. The complainant has stated that these SDRs were sent through courier but no proof in this respect was filed, although it had given envelops relating to other communications to Central Vigilance Commission. The authorized signatories of the PHFI operated Current Account No.007611023867 and siphoned entire money of this account. The complainant has set of procedure with regard to investments and withdrawal of funds being a public charitable society entrusted with huge public funds. Hence, it was incumbent on the complainant to disclose the manner in which funds aggregating of Rs.139/- crores (including Rs.26/- crores transferred to Dena Bank) were invested as to who had initiated it, what instructions were given to Dena Bank in this regard, the manner in which funds were transferred, who had authorized to collect the alleged fixed deposit receipts from Dena Bank, whether the same were collected and the manner of collections thereof, safe custody thereof with the complainant, whether the complainant had the original ‘fixed deposit receipts’ by way of valuable security for refund of the amount with interest accrued thereon. As a matter of fact, the complaint is silent on these vital aspects which amount withholding material facts. In fact the complainant was victim of the fraud committed by the persons who were authorized to invest the money in Dena Bank by opening account. There was no deficiency in service or negligence on the part of the opposite parties inasmuch as all the precautions had been taken in dealing with the funds of the complainant. However, the authorized representative of the complainant who had been authorized to deal the funds and open the account, embezzled it. All the transactions, correspondence etc. which were carried out by the complainant for investing money are within special knowledge of the complainant which they are bound to disclose it. At the stage of submitting the papers for opening the account coupled with RTGS transferred to money, there was no reason for the office of Dena Bank to doubt the transactions as well as identity of the persons authorized by the complainant. Under the authorization of the complainant, the authorized persons have dealt with Dena Bank as all these relevant facts have been concealed by the complainant and the complaint is liable to be dismissed due to concealment of these facts. The complainant has further concealed the material fact that out of total amount of Rs.26/- crores, a sum of Rs.6.5 crores transferred from the current account of the complainant at Malabar Hill Branch on 01.07.2014, Rs.50332877 was credited to the account of the complainant in HDFC Bank at Delhi on 02.07.2014, Rs.5 crores was transferred to the complainant’s account with Punjab & Sind Bank, Mumbai on 03.07.2014, and Rs.50357535/- was credited to the account of the complainant in Citi Bank at Delhi on 04.07.2014. Thus, out of Rs.26/- crores Rs.100690412/- was credited to the account of the complainant before filing the complaint. But this material fact has not been disclosed and claim for full amount of Rs.26/- crores has been made in the complaint. The complaint has not been signed and verified by any authorized competent officer of the PHFI. It has not been disclosed who had authorized Jayanto Narayan Choudhury, Vice President (Operations) to file this complaint. Jayanto Narayan Choudhury has not signed any of the pages of the complaint. The documents filed as Annexure P-2 were fabricated document and not have been produced before the opposite party at the relevant time. From the statement of Amit Chaturvedi, Head Finance by CBI during investigation following documents were submitted to the opposite party:

            “a) Customer Relationship Form

b) Charter By laws of the Complainant

c) Society registration certificate issued by Registrar of Societies, NCT of 

    Delhi with the Complainant's Delhi Address

d) Board resolution dated 21.01.2013

e) Airtel Bill of the Complainant's Office Address

f) List of authorized signatories for Banking Operation

g) Change of Address letter signed by Registrar of Societies

h) Income Tax letter issued with PAN Number and PAN Card of the

    Complainant

i) PAN Card and Passport of Shri Amit Chaturvedi

j) Driving licence and PAN Card of Shri Narayan Chatterjee

k) Letters forwarding term deposit account with details of RTGS advice on

    maturity

l) Rent Agreement of PHD House at Delhi

      In fact the opposite party received following documents through Vimal Barot:

            “i) Customer Relationship Form (R-6 at I/3/117-128)

ii) Certificate of registration of the Complainant Society (R-1 at I/3/83)

iii) Letter dated 31.10.2011 (R-3 at I/3/114) of the Complainant to the

     Registrar of Societies regarding shifting of the registered office of the

     Complainant

iv) Certificate dated 04.10.2013 (R-4 at I/3/115) issued in favour of the complainant with regard to exemption under Section 197 of the Income Tax  Act, 1961

v) Extracts of the minutes of the Executive Committee of the Complainant dated 21.01.2014 (R-5 at I/3/116) with regard to authorized persons to operate the Bank accounts, investment of funds etc.

vi) Customer Relationship Form (R-6 at I/3/117-128)

vii) Signature Card (R-7 at I/3/129-130)

viii) Letter of the Complainant to the opposite party regarding change of  authorized signatories of the Complainant (R-8 at I/3/131)

ix) Letter dated 12.02.2014 (R-9 at I/3/132) of the Complainant enclosing the certificate of exemption under Section 197 of the Income Tax Act, 1961

x) Driving Licence of Lt. Gen. N. Chatterjee, Authorized Signatory (R-10 at  I/3/133)

xi) PAN Card of the Complainant (R-11 at I/3/134)

xii) PAN Card of Lt. Gen. N. Chatterjee, Authorized Signatory (R-11 at I/3/134A)

xiii) PAN Card of Shri Amit  Chaturvedi, Head Finance of the Complainant (R-12 at I/3/135)

xiv) Passport of Shri Amit Chaturvedi, Head Finance of the Complainant (R-13 at I/3/136-138)”

Vimal Barot gave an application on 14.02.2014 allegedly sent by the complainant for transfer of Rs.8/- crores to its account of with Bank of Maharashtra, Malad (West), Mumbai as such on his instruction SDR of Rs.8/- crores was closed and amount was transferred. The opposite party has not committed deficiency in service and the complaint is liable to be dismissed.

5.         The complainant filed Rejoinder Reply on 27.01.2017 and denied that any of the document attached along with complaint was fabricated document. So far as SDRs are concerned, it were sent by the opposite party who is now disputing its genuineness from which it is apparent with the fraud has been committed by the Chief Manager of Malabar Hill Branch of Dena Bank in collusion with Vimal Barot and other persons. The opposite party itself has filed criminal complaint against Pritam Vidyadhan Nagarkar, Chief Manager of Malabar Hill Branch of Dena Bank. The complainant has never engaged any middlemen for transacting with the opposite party. The complainant received a telephone call from Pritam Vidyadhan Nagarkar, Chief Manager who convinced for fixed deposit of the funds in his branch. On the details supplied by Pritam Vidyadhan Nagarkar, the money was transferred through RTGS in the alternate account of Dena Bank at Malabar Hill Branch with clear instruction to invest the money in ‘fixed deposit’ for a period of one year. The PHFI has never authorized Vimal Barot for doing any transaction. Ms. Preeti Javekar, Jivtesh Singh and Omprakash Singh (all employees of Dena Bank), in their statements as recorded by CBI stated that all the transactions relating to the funds of the complainant were done under the instruction of Chief Manager namely Pritam Vidyadhan Nagarkar. It has been denied that the officers of PHFI were involved in misappropriation of the funds and were in collusion with the actual fraudster. The complaint as given by Dena Bank to CBI had made no allegation against the employees of the PHFI in fraud committed in withdrawing the money from Dena Bank nor during investigation the any of the witness of Dena Bank has stated about complicity of the officer of the PHFI in any fraudulent transaction. It is admitted that the initial money of Rs.8/- crores transferred in the alternate account of Dena Bank, Malabar Hill Branch on 13.02.2014 was invested in “Samruddhi Deposit Receipt”. It is alleged that the current account in the name of the PHFI was opened in Malabar Hill Branch of Dena Bank on 13.03.2014. If the officers of the PHFI had involved in opening the current account then subsequent money transferred on 19.03.2014, 22.04.2014 and 06.05.2014 would have been transferred in the current account opened in the name of the PHFI and not in the alternate account of Dena Bank. The complainant never opened any account in Punjab & Sind Bank. When CBI has pointed out this fact by seizing the account then this account came to knowledge of the complainant. The complainant submitted application for fixed deposit on 12.02.2014; therefore, SDR receipt was carrying the dated 12.02.2014 which could not be noticed earlier. Registered address of the complainant as filled up in the account opening form was PHD House, Siri Fort, New Delhi whereas, the documents of the complainant with the Bank i.e. Memorandum of Articles and various other letter heads provide address of 88, Link Plaza, Near Oshiwara Police Station, Jogeshwari, Mumbai which could have been checked by the officers of the opposite party at the time of opening the account but Chief Manager Pritam Vidyadhan Nagarkar was actively involved the fraudulent activities, therefore, all the discrepancies were avoided.

6.         The complainant filed Affidavit of Evidence of Jayanto Narayan Choudhury, Vice President of the PHFI. The witness was crossed examined by the opposite parties on 10 consecutive dates. Then this Commission by order dated 11.03.2020 directed the opposite party to conclude cross examination on the next date and if cross examination was not concluded, then the opposite party was permitted to serve inventory. The opposite party cross-examined the witness on the next date and thereafter served an inventory on 28.08.2020, which was answered by the witness. The opposite party filed Affidavit of Evidence of Dharamshi Mavaji Patel, Chief Manager of Dena Bank, Malabar Hill Branch. Both the parties have filed their short synopsis of arguments.

7.         I have considered the arguments of the counsel for the parties and examined the record. The Consumer Protection Act, 1986 was enacted with an object to provide for better protection of the interests of the consumers. For that purpose, consumer council and other authorities for settlement of consumer disputes have been established. Consumer markets for goods and services have undergone drastic transformation since the enactment of the Consumer Protection Act, 1986. The modern market place contains a plethora of products and services. The emergence of global supply chains rise in international trade and the rapid development of e-commerce have led to new delivery systems for goods and services and have provided new options and opportunities for the consumers. Equally, this has rendered the consumer vulnerable to new forms of unfair trade and unethical business practices. Misleading advertisements, tele-marketing, multi-level marketing, direct selling and e-commerce pose new challenges to consumer protection and will require appropriate and swift executive interventions to prevent consumer detriment. The Consumer Protection Act, 2019, has been enacted, repealing the earlier Act to meet out new challenges, in which, false and misleading advertisement and manufacture and sale of spurious and adulterant have been declared as an offence. 

Section-3 of the old Act and Section 100 of the new Act, provide that the provisions of the Act are in addition to and not in derogation to the provisions of any other law. A consumer can avail remedy before civil court, before Arbitrator, if contract provides or any other tribunal/court constituted under the law. In the absence of any provision barring the jurisdiction of consumer foras, the question as to whether remedy available under consumer law is barred specifically or impliedly does not arise but doctrine of election is applicable and a consumer has right to choose the forum for redressal of its grievance.

A person is a ‘consumer’ who buys any goods paying consideration or avails service paying consideration, for his own uses and not for commercial purpose. The nature of the dispute which can be raised before consumer commission are defects in good, deficiency in service and unfair trade practice. Section-13(2)(b) of the old Act and Section-38 (6) of new Act requires to decide the complaint on the basis of affidavit and documentary evidence, which means that the Commission has to decide the complaint in summary manner. But at the same time, Section 13 (4) of the old Act and Section-38 (9) of the new Act, confers same powers upon the authorities under the Act, for trial of a consumer dispute, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) requiring the discovery and production of any document or other material object, producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of commission for the examination of any witness or document and (vi) any other matter which may be prescribed by Central Government. From these provisions it is clear that although under the Act, the jurisdiction of the authorities is limited to consumer dispute, but while deciding such dispute no limit has been fixed on adjudicatory power. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the old Act and Section 2 (47) of new Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail like a civil court or adopt summary procedure for decision of any complaint. A three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services, it being a benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (in paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. This view has been reaffirmed by three Judges Bench of Supreme Court, in IFFCO TOKIYO General Insurance Company Ltd. Vs. Pearl Beverages Ltd., 2021 SCC OnLine SC 309.

8.         The plea that complicated issues of fact are involved, which requires trial by Civil Court is always raised by the opposite party for harassing a consumer. In the present case, the opposite parties did lengthy cross-examination of the witness of the complainant. So far as the argument that the complainant has produced fake documents along with the complaint, is concerned, whichever documents were supplied by the PHFI to Dena Bank as well as the certificates, which were received from Dena Bank to the PHFI, were filed. If same documents are not available in the record of Dena Bank then Pritam Vidyadhan Nagarkar, Chief Manager of Dena Bank and his associate Vimal Barot are responsible for it and not the PHFI. Similarly, if these persons handed over fabricated “Samruddhi Deposit Receipts” to the PHFI, which are available in its office, same was filed in the complaint. It has been argued that consumer complaint has not been signed and verified by any person (except last page, which was signed by the advocate) but Jayanto Narayan Choudhury, Vice-President of the PHFI has filed his affidavit along with the complaint, in which, all the paragraphs of the complaint is verified by him. Preliminary objections raised by the opposite parties have no merit.

9.         The counsel for the opposite parties argued that Amit Chaturvedi-Head Finance, Narayan Chatterjee- Special Advisor and Nirmal Pathak- Finance Officer of the PHFI, who were involved in transfer of money to Dena Bank and had allegedly discharged the functions for investing the amount in ‘fixed deposit’ have not been produced as the witness. The complainant has withheld best evidence as such adverse inference is liable to be drawn. In this case, the opposite parties have also not filed any application for summoning of Amit Chaturvedi-Head Finance, Narayan Chatterjee- Special Advisor and Nirmal Pathak- Finance Officer of the PHFI. This argument is not liable to be accepted. Supreme Court in Sunita Vs. Rajasthan SRTC, (2020) 13 SCC 486, held that in civil proceedings the court is required record findings on the basis of evidence on record and rule of adducing best evidence is not applicable.

10.       In order to examine the correctness of the version of the parties the initial case setup by the opposite parties in its complaint filed before CBI is relevant. In the complaint filed before the CBI, the opposite parties have stated as follows:

“Dena Bank takes bulk deposits from Government Institutions to augment its business. Internal inquiries revealed that Pritam Vidyadhar Nagarkar, Branch Manager (presently Chief Manager) was posted at the branch since 25.08.2011. Malabar Hill Branch was not having any bulk deposit. Pritam Vidyadhar Nagarkar, therefore, tried to canvass bulk business. In this connection, he came into contact with Vimal Barot who introduced himself as custodian of government departments/corporations funds and was contacted with Showman group and posted there as Senior Vice President.

In order to facilitate Malabar Hill branch in mobilizing bulk deposits, Vimal Barot used to give information to Pritam Vidyadhar Nagarkar about the deposits available in a particular government organization/corporate. On the basis of that information Pritam Vidyadhar Nagarkar used to obtain interest rates from the Bank’s Treasury Department, Head Office and conveyed this to Vimal Barot. Vimal Barot reportedly negotiated with the organization/corporate which offered the deposits and canvassed deposits for Dena Bank. Later on Pritam Vidyadhar Nagarkar used to convey the interest rate, tenor of deposit, amount of deposit and IFSC code of the branch etc., to the concerned organization/corporate by way of email. The organization/corporate which offered the deposit used to remit the amount through RTGS, if the banks terms are acceptable.

‘Term deposit accounts’ were opened at the branch. The procedure to open ‘term deposit accounts’ are (i) KYC of the deposit account to be obtained by the branch by obtaining necessary documents like address proof, identity proof of the concerned organization duly verified with the original and signature of the authorized persons taken in bank officials presence (ii) The original deposit receipts are to be delivered to the authorized person of the organization under acknowledgement in the presence of bank officials. It is observed that Branch Manager has not followed the above procedure, rather the KYC documents were invariably received through Vimal Barot and other persons in all the suspected fraud accounts. Bank TDR receipts were delivered based on the organization's suspected fabricated authority letter brought by Vimal Barot or his associates.

Pritam Vidyadhar Nagarkar used to receive the loan application including original TDR Receipt duly discharged by the signatories who has signed in the documents given at the time of submission of KYC and also resolution of the organization/corporate on its letter head through Vimal Barot and associates instead of personally verifying the genuineness with the concerned organization/corporation. Hence, Pritam Vidyadhar Nagarkar has failed to do proper due diligence as a Branch Manager.”

11.       During investigation CBI interrogated Ms. Preeti Javekar, Officer Scale-I, Jivtesh Singh, Probationary Officer, Omprakash Singh, Single Window Operator, all posted at Dena Bank, Malabar Hill Branch, at the relevant time. All these officers have univocally stated that the entire money were transferred on the oral instructions of Pritam Vidyadhan Nagarkar, Chief Manager. From the above complaint as well as the statement of the various officers of Dena Bank recorded by CBI, it is proved that Pritam Vidyadhan Nagarkar has engaged Vimal Barot in order to facilitate Malabar Hill branch in mobilizing bulk deposits. Vimal Barot used to negotiate with the organization/corporate which offered the deposits and canvassed deposits for Dena Bank and inform to Pritam Vidyadhar Nagarkar about the deposits available in a particular government organization/corporate. On the basis of that information Pritam Vidyadhar Nagarkar used to obtain interest rates from the Bank’s Treasury Department, Head Office and conveyed this to Vimal Barot. Later on Pritam Vidyadhar Nagarkar used to convey the interest rate, tenor of deposit, amount of deposit and IFSC code of the branch etc., to the concerned organization/corporate by way of email. The organization/corporate which offered the deposit used to remit the amount through RTGS. Now the arguments of the counsel for the opposite parties that Vimal Barot was authorized representative of the PHFI is not liable to be accepted. An admission is best evidence which can be safely relied upon against that party, who made admission. The opposite parties have not given any explanation of these admissions.

12.       The opposite parties admitted receiving of (i) Customer Relationship Form; (ii) Certificate of registration of the Complainant Society; (iii) Letter dated 31.10.2011 of the Complainant to the Registrar of Societies regarding shifting of the registered office of the Complainant; (iv) Certificate dated 04.10.2013 issued in favour of the complainant with regard to exemption under Section 197 of the Income Tax  Act, 1961; (v) Extracts of the minutes of the Executive Committee of the Complainant dated 21.01.2014 with regard to authorized persons to operate the Bank accounts, investment of funds etc. (vi) Customer Relationship Form; (vii) Signature Card; (viii) Letter of the Complainant to the opposite party regarding change of  authorized signatories of the Complainant; (ix) Letter dated 12.02.2014 of the Complainant enclosing the certificate of exemption under Section 197 of the Income Tax Act, 1961; (x) Driving Licence of Lt. Gen. Narayan Chatterjee, Authorized Signatory; (xi) PAN Card of the Complainant; (xii) PAN Card of Lt. Gen. Narayan Chatterjee, Authorized Signatory; (xiii) PAN Card of Shri Amit  Chaturvedi, Head Finance of the Complainant; (xiv) Passport of Shri Amit Chaturvedi, Head Finance of the Complainant.

13.       Customer Relationship Form, which bears the date 13.02.2014 (pg-126 of the reply), was utilized for opening Current Account No. 007611023867, on 11.03.2014 (pg-250 of the reply). Letter head, on which, Minutes of Meeting of Board of Director of PHFI (pg.145 of the reply) for opening current account, bears the address “88, Link Plaza Comm. Complex, Next to Oshiwara Police Stn, Jogeshwari (W), Mumbai-400102”, while in Customer Relationship Form, (pg-127 of the reply), the address of the PHFI was mentioned as “14/2, PHD House, 2^nd Floor, SIRI, Institutional Area, New Delhi-110016”. Which was an apparent forgery, as the address of the PHFI was mentioned in Customer Relationship Form was not matching with address of the letter head, on which, Minutes of Meeting of Board of Director of PHFI dated 11.03.2014, was fabricated. On 11.03.2014, Dena Bank, Malabar Hill Branch had no money of the PHFI, then how this current account was opened. From these facts, it is proved that Customer Relationship Form, which was taken on 13.02.2014, for ‘fixed deposit’ was utilized for opening current account on 11.03.2014.

14.       The PHFI transferred Rs.8/- crores through RTGS on 13.02.2014 from HDFC Bank, Delhi to the intermediary account number 00760050050002 of Dena Bank, for which, Dena Bank issued “Samruddhi Deposit Receipt” No.1807117 of Rs.8/- crores on 13.02.2014. Dena Bank gave information of this deposit to Vimal Barot (pg.140 of the reply), in which, it has been mentioned that SDR for 365 days/1 year @9.71% effective from 13.02.2014, A/c Public Health Foundation of India. Although in “Samruddhi Deposit Receipt” No.1807117 (pg.223 of the complaint) rate of interest was mentioned as 0% but date of maturity was mentioned as 13.02.2015. Amit Ramjilal Chaturvedi and Narayan Chatterjee, were authorized to operate this deposit by their joint signature but “Application of Customer Funds Transfer under RTGS” (pg.141 of the reply) bears signature of Amit Ramjilal Chaturvedi alone. On that basis “Samruddhi Deposit Receipt” No.1807117 could not have been closed on next day i.e. 14.03.2014 but it was closed on that basis and money to siphoned.

15.       The PHFI again transferred Rs.6/- crores on 13.03.2014, Rs.3/- crores on 19.03.2014, Rs.6/- crores on 22.04.2014 and Rs.3/- crores on 06.05.2014 in the intermediary account of Dena Bank, Malabar Hill Branch. On receiving these amounts, it was duty of Dena Bank to follow the procedure to open ‘term deposit accounts’ i.e. (i) KYC of the deposit account to be obtained by the branch by obtaining necessary documents like address proof, identity proof of the concerned organization duly verified with the original and signature of the authorized persons taken in bank officials presence (ii) The original deposit receipts are to be delivered to the authorized person of the organization under acknowledgement in the presence of bank officials. But no procedure has been followed. Statement of Account of Current Account No. 007611023867 (pg.250 of the reply) shows that from 13.03.2014 to 10.07.2014, total Rs.523900000/- was credited and same amount was withdrawn. Apart from Rs.18/- crores of the PHFI, source of other credited amount are not clear and vague. The opposite parties have not given any explanation in respect of above forgeries in the documents of Dena Bank.

16.       The complainant stated by that all the amounts were transferred to Dena Bank, Malabar Hill Branch for investigating in ‘fixed deposit’ for a period of one year. According to the opposite parties, no authorized officer of the PHFI ever visited the Dena Bank, Malabar Hill Branch, Mumbai and presented the papers for fixed deposit. All the papers were handed over to the intermediaries in a negligent manner. The intermediaries who have been authorized by the complainant have presented fabricated papers of the Dena Bank, Malabar Hill Branch on the basis of which the fixed deposit dated 13.02.2014 was closed on the next date i.e.14.02.2014 and the money was transferred to another account in Bank of Maharashtra opened in the name of PHFI by the intermediary/authorized representative of the complainant. Similarly, the intermediary/authorized representative of the complainant opened Current Account No. 007611023867 in the Dena Bank, Malabar Hill Branch and the consequent amounts transferred on 13.03.2014, 19.03.2014, 22.04.2014 and 06.05.2014 were deposited in this current account and siphon time to time. The opposite parties, in paragraph 2 (xviii) of written reply, admit that the SDR No.1807117 dated 13.02.2014 for Rs.8/- crores was issued by Dena Bank, from which it is proved that if initial money was invested in SDR. Then, there was no reason for not investing the money transferred on 13.03.2014, 19.03.2014, 22.04.2014 and 06.05.2014 in SDR. If PHFI had opened Current Account No.007611023867 on 13.03.2013, then, there was not question to transfer subsequent amount in the intermediary account of Dena Bank. Supreme Court in Canara Bank Vs. Canara Sales Corporation, (1987) 2 SCC 666, held mere negligence of the customer will not prevent it in successfully suing the bank for recovery of the amount.

17.       From the above discussions embezzlement of the money of the complainant in complicity with Pritam Vidyadhar Nagarkar, Chief Manager, from Dena Bank, Malabar Hill Branch is proved. The opposite party did not make any allegation relating to complicity of the officers of the PHFI in the misappropriation of the amount before the CBI. Dena Bank Malabar Hill, Branch has committed deficiency in service in not taking proper care of the fund transferred by the PHFI to its branch which resulted in embezzlement. The subsequent version in the written reply is an afterthought and is not liable to be accepted. The Dena Bank is vicariously liable for the act of its employees and liable to refund the entire money of the complaint as held by Canara Bank Vs. Canara Sales Corporation, (1987) 2 SCC 666 and Pradeep Kumar Vs. Post Master General, (2022) 6 SCC 351. The Dena Bank has stated that during investigation, Rs.100690412/- has been recovered to the account of the complainant. This fact has not been denied by the complainant.

O R D E R

            In view of above discussions, the complaint is partly allowed. The opposite parties are directed to refund Rs.159309588/-, with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.