CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.304/2008
SH. A.K. WADHWA, PROPRIETOR
A.K.W. ELECTRONICS
B-177, OKHLA INDUSTRIAL AREA-I,
NEW DELHI-110020
…………. COMPLAINANT
Vs.
JAMMU & KASHMIR BANK LTD.
THROUGH ITS MANAGER
9 LSC, 1ST FLOOR, OKHLA INDUSTRIAL AREA-II,
NEW DELHI-110020
…………..RESPONDENT
Date of Order:02.11.2018
O R D E R
A.S. Yadav - President
The complainant is the sole proprietor of the proprietorship concern A.K.W. Electronics and is the holder of current account No.SOD 484 being operated with OP-1 since 11.10.2005. It is stated that one Mr. S.S. Dass s/o Sh. Kulamani Dass r/o Village Baulang, Tehsil Pattanudai, Division Kadrapar, P.O. Chandan Nagar, Distt. Cuttak, Orissa was working as Cashier and Accounts Officer with the proprietorship concern of the complainant and had in his possession the cheque books and other accounts documents pertaining to the above said bank. The complainant being also involved in other business concern was unable to personally keep all the official and bank document in his personal custody all the time. The said Mr. S.S. Dass did not come to the office of the complainant on 03.05.2006 and informed telephonically in the complainant’s office that he was unwell. Thereafter he neither attended office nor contacted the complainant. On 10.05.2006 (day when salary was normally to be distributed to the firm’s employees), it was found that the cheque book with the unused cheques from serial No.603021 to 603050, meant for self drawing, was missing from the office.
It is further stated that on enquiry from OP on 10.05.2006, it was found that the said Mr. S.S. Dass or someone else had fraudulently after forging the signature of the complainant withdrawn Rs.88,200/- through cheque No.603021 on 03.05.2006, Rs.3,00,000/- through cheque No.603028 and Rs.2,50,000/- through cheque No.603029 on 04.05.2006. The Bank Manager of OP on 10.05.2006 has shown the bank records to the complainant whereupon the complainant saw his fabricated signatures on the three cheques which were used by the said Mr. S,.S. Das to make fraudulent withdrawal from the complainant’s bank account. The complainant on the same day i.e. on 10.05.2006 gave instructions to OP for stop payment of the remaining unused cheques and also filed a complaint against the said Mr. S.S. Dass with the local police station at Okhla Industrial Estate who had after preliminary investigations registered FIR No.548/2006 against Mr. S.S.Dass on 27.06.2006 u/s 408 IPC.
It is further stated that there was clear material differences in the signature of the complainant existing in the record of the bank and the fabricated signature on the said cheques. The said fabricated signatures on the cheques were so manifestly different that the difference in the signatures could have been detected by any person of ordinary prudence and skill and by the naked eye. Moreover OP had cleared for encashment two self withdrawal cheques of Rs.3 lakhs and Rs.2.5 lakhs on the same day i.e. 04.05.2006 and such big amount of money has never been withdrawn from the account of the complainant since the account was opened. The very presentation of two self withdrawal cheques of such big amounts should have itself made OP suspicious and the bank should have never allowed the withdrawal of the money by a non authorized person. OP had cleared the cheques for encashment with forged signatures without taking all reasonable and due precautions and safeguards at the time of clearing for encashment such large amount on a single day to a single person from a single account through two different transactions. OP had further deducted Rs.88/- on 03.05.2006 and Rs.550/- on 04.05.2006 towards “cash withdrawal tax” from the account of the complaint. The complainant sent legal notice dated 17.08.2006 to OP-1 and Op-2 to compensate the damages caused by them to the complainant and to make the payment of the defrauded amount of Rs.6,38,000/- with interest. OP instead of making the payment denied any wrong doing or negligence on their part. It is stated that OP bank as it had miserably failed to comply/act according to the laid down Banking Rules and Laws. Terming the action of OPs as deficiency in service, the present complaint has been filed whereby it is prayed that OPs be directed to pay a sum of Rs.6,38,000/- to the complainant and also pay compensation and litigation expenses.
OP in its reply stated that there was no negligence on the part of officials of OP. The complainant himself has been extremely negligent in taking care of some most important documents like cheque books etc. and rather than operating the cheques on his own, he on a continuous basis permitted and allowed his employee, representative and agent Sh. S.S. Dass to operate the account, carry out the banking transactions and encash self drawn cheques which had been signed by the complainant himself. In such a situation when the complainant himself has lodged an FIR for cheating, forgery of documents, using forged documents against the accused S.S. Das who was his own employee permitted by him to carry out the banking transactions then it does not lie in the mouth of the complainant to do a voite face and allege the bank of negligence in allowing encashment of cheques which the banks was under an obligation to do in view of the facts and circumstances. It is submitted that the complainant is guilty of concealing the material fact pertaining to filing of a civil suit against OP on the same cause of action pending adjudication before the civil court with the titled AK Wadhwa Vs J.K. Bank Ltd. bearing CS (OS) 230 of 2006. The present complaint is a verbatim reproduction of the plaint in the aforementioned civil suit and is nothing but an attempt to engage OP in a parallel litigation. The complainant is disentitled to maintain the present complaint. As such the present complaint is liable to be rejected on this score alone.
We have gone through the case file carefully.
The first point for consideration is whether the complainant is a consumer. Admittedly the complainant was running the business under the name and style of AKW Electronics and is proprietor of the same and was having current account with OP bank. It is not the case of the complainant that he is running business for the purpose of earning his livelihood rather the complainant has specifically stated in para 2 of the complainant that he being also involved in another was enable to keep all officials and bank documents in its personal custody of all the time. The complainant was having the current account as such the complainant was involved in commercial activities hence he is not a consumer. Reference is in this regard is placed on the judgment of Hon’ble National Commission in case of Hardesh Kumar Vs Chairman-cum-Managing Director, Allahabad Bank & Ors. – II(2016) CPJ 647 (NC) – decided on 24.02.16 – In that case the complainant was running business and availed cash credit facility. It was held by the Hon’ble National Commission that in the entire complaint, it was nowhere averred that the cash credit facility was taken by the complainant for the purpose of earning of his livelihood by means of self employment hence complainant is not a consumer. Similar view was taken by the Hon’ble National Commission in case of Shantha Projects Ltd. Vs State Bank of India - III (2016) CPJ 157(NC) – decided on 03.03.16.
This complaint was filed on 30.04.2008 and before filing the present complaint, the complainant has already filed a civil suit on 02.11.2006 in respect of same cause of action and this fact is concealed by the complainant.
It is a settled proposition of law that cases which involve complex and complicated questions and require detailed evidence and cross examination, the consumer forums would not be appropriate forum and civil court is appropriate court. The complainant has already filed the complaint in Civil Court but concealed this fact. The complainant also filed criminal complaint regarding this case and for that FIR No.548/06 was registered.
The point for consideration is whether the cheques were bearing signature of the complainant or they were forged? In fact the matter was finally adjudicated by the Ld. Civil Court vide judgment dated 28.08.2015 whereby the suit filed by the complainant was decreed for a sum of Rs.6,38,000/- with interest @ 6% p.a.
For the aforesaid reasons, the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
