This appeal has been filed by the appellant Corporation Bank against the order dated 28.4.2015 of the State Consumer Disputes Redressal Commission, Uttar Pradesh (in short ‘the State Commission’) passed in Complaint No.35 of 2008.

2.      Brief facts of the case are that on 30.04.2002, respondent opened current account No.321 with appellant bank.  In July, 2007complainant/respondent herein received business enquiry from M/s. Global Trading Company, Uganda.  In July/August 2007, M/s. Global Trading Company, Uganda, placed order for supply of Samsung Colour Monitors.  M/s. Global Trading Company, Uganda, send cheque No.062949 dated 13.08.2007 forUS$61,285/- drawn on Premier Commercial Bank NA. On 23.08.2007, complainant/respondent herein deposited the said cheque in the current account No.321 maintained with OP Bank/appellant herein. On 14.09.2007, appellant bank received intimation from Foreign Exchange Branch at Moradabad that cheque in question has been cleared.  On 18.09.2007, OP Bank/Appellant herein credited a sum of Rs.24,67,747.00 in the current account of complainant/respondent herein. From 21.09.2007 to 05.10.2007, an amount of Rs.17,92,821/- was withdrawn for issuing bank drafts in favour of the party which supplied the monitors to the complainant. On 09.10.2007, Drawer debited cheque amount of U$61285/- to NOSTRO A/c of appellant bank and returned the said cheque with reasons “Forgery”.  On 15.10.2007, complainant /respondent herein deposited documents regarding export of goods to foreign buyer. On 18.10.2007,appellant bank sent a letter to complainant/respondent herein informing that the cheque has been returned for the reasons fraudulent and suspicious transaction and the amount of cheque called back by the Foreign Bank and requested respondent herein to deposit the balance amount in the account. On 05.11.2007, appellant bank sent letter requesting complainant/respondent herein to pay a sum of Rs.17,92,821/-.

3.      Aggrieved by the letter of the appellant bank, respondent/complainant preferred a complaint bearing No.35/2008 before the State Commission.  The complaint was resisted by the opposite party by filing written statement.  It was stated by the opposite party that the cheque was ultimately found forged and the  NOSTRO account of the opposite party bank was debited for U$61285/- and therefore, the opposite party bank was entitled to get this amount from the complainant because the opposite party bank has acted as an agent only in the matter.   The State Commission, however, allowed the complaint as under on 28.04.2015:-

 “Accepting the complaint partly it is ordered that opposite party Bank allow normal operation in the account in question and complainant is entitled to the amount lying in the account in question and the complainant is entitled to interest @12% p.a. simple during the period the account in question remained seized and opposite party is not entitled to recover Rs.17,92,821/- from the complainant and the demand of opposite party Bank is quashed and opposite party Bank is directed to comply with the abovesaid order within two months.  The parties shall bear their own costs.”

4.      Aggrieved by the above order of the State Commission, present appeal has been filed. 

5.      Heard learned counsel for the parties and perused the record.

6.      The learned counsel for the appellant stated that the complainant is not a consumer as he availed the services of the appellant bank for commercial purpose.  The complainant has written in the complaint itself that the complainant is in the business of export trading.  Therefore, the complainant cannot be considered as a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 as the explanation attached to this Section is not applicable to the present complaint.  To support its case, appellant referred to the following judgments:-

1. Shushma Goel Vs. Punjab National Bank, II (2011) CPJ 270 (NC). It has been held that:-

“7.       From this and the evidence produced on behalf of the Complainant before the Fora below, it is abundantly clear that the entire matter in the complaint filed by Smt. Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. The revision petition itself claims in para 3.1 that –

“Revisionist is engaged in business of the share trading and is an authorized agent of M/s Bonanza Portfolio Ltd (herein referred to as “Company”) a company incorporated under Companies Act 1956 having its registered office at 4353/4C, Ansari Road, Darya Ganj, New Delhi.

8.  By this admission, the complaint will fall within the exception clause contained in Section 2(1)(d)(ii) of the Consumer Protection Act, as amended in 2002. In terms of this provision, the RP/Complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986.”

2. Victory Electricals Ltd. Vs. IDBI, Bank Ltd. & Ors. I (2012) CPJ 55 (NC). It has been held that:-

“Consumer Protection Act, 1986- Sections 2(1)(C), 2(1)(d), 21(a)(i)- Banking and Financial Institutions Services – Jurisdiction – Complaint- Maintainability of- Consumer- Commercial Purpose- Letter of credit issued by OP/IDBI Bank- Bank failed to pay full amount under letter of credit- Hence, complaint- After going by nature of transactions between parties it is found that complainant had availed services of OP for purely commercial purpose- It cannot be said that services were availed by complainant for ancillary purpose- Complainant is not consumer within meaning of Act and not entitled to invoke jurisdiction of this Commission for redressal of its grievance—Present  complaint is misconceived and rejected.”

7.      It was further argued by the learned counsel for the appellant that under Section 72 of the Indian Contract Act, the bank is entitled to take back the amount wrongly credited into an account. 
The service of the bank was also a kind of contract, therefore, Section 72 of the Contract Act, is equally applicable to the present case to recover the amount paid to the complaint on the basis of the cheque that has been found to be fraudulent. In this regard the learned counsel referred to the judgment of Axis Bank Vs. Punjab National Bank & Anr., II (2015) BC 390 (DB) (Del.).  It has been held that:-

“20. With respect to the Ld. Single Judge, we disagree. As concluded by us in the case of M/s Panjwani Packaging Ltd. & Ors. v. Allahabad Bank (supra) through observations extracted above, the value of the demand drafts was remitted by the PNB to the Axis Bank for being credited in the account of the second respondent "by mistake", inasmuch as the demand drafts against which such remittances were made were forged and fabricated instruments in which respect PNB owed no liability to pay. The money having reached in the account of the second respondent, as a result of the remittance made by mistake, the credit obtained by the latter amounted to unjust enrichment. It is inconsequential whether the mistake occurred inadvertently or was a result of deliberate acts indulged in with intent to deceive or defraud. The credit for the money obtained from erroneous remittance being a wrongful gain, it is the liability of the person receiving it wrongfully to return it in terms of Section 72 of the Contract Act.”

  8.    Learned counsel for the appellant further argued that the appellant bank is only an agent.  The complainant deposited the cheque which was credited into account of the complainant, however, the same cheque was found to be fake and forged by paying bank and therefore, the NOSTRO A/c of the appellant bank was debited.  Accordingly, therefore, the appellant bank is entitled to debit the same amount to the account of the complainant.  The State Commission has not considered question of appellant being an agent as the appellant bank was not the entity drawing the cheque nor entity paying the cheque.  The appellant was only to provide the service of collection of the amount of the cheque from the paying bank and to credit same to the account of the complainant.

9.      It was further argued by the learned counsel that the main ground in the present appeal is that the State Commission has not considered the issue that the complainant was not a consumer and he utilised the services of the bank for commercial purpose.  The State Commission has not appreciated the provision of Section 72 of the Indian Contract Act and also not appreciated the fact that the appellant bank was only an agent. It was finally stated that when the appellant bank has not received the amount of the cheque, and the same has been debited to NOSTRO A/c of the appellant bank, how can the appellant bank keep the credited amount into the current account of the complainant intact?  It was further argued that the State Commission has allowed interest on the amount whereas no interest is admissible on the amounts kept in the current account.  Hence, there should be no question of any interest.

10.    On the other hand, learned counsel for the complainant/respondent stated that the complainant has proceeded step by step in the matter and there is no fault on the part of the complainant.  Therefore, why should the complainant suffer?  It was argued that after getting clearance from the international branch at Muradabad, the amount was credited to the current account of the complainant, on the information given by the Muradabad, office of the appellant bank that the cheque has been cleared.  It clearly means that the transaction was over and the amount that was required to be received from the paying bank was received by the appellant bank and that is why the amount was transferred.  Later on it is the case of the appellant bank that they received information that the cheque has been returned by the paying bank and amount has been debited to NOSTRO A/c of the appellant bank alleging that the cheque was forged and fraudulent.  So far as the complainant is concerned, the transaction and service was completed when the amount was credited to the account of the complainant.  The appellant bank should have taken up the matter with the concerned bank and authorities as the amount was already paid to the complainant.  It is not the case of the opposite party bank that the cheque was forged at the end of the complainant. The complainant shipped all the material to the foreign buyer and also submitted relevant documents to the bank.  Thus, complainant has suffered loss of goods as well.  The complainant has availed services of the appellant bank for collecting the amount of the cheque and transferring the same to the account of the complainant.  The contract of service was between the complainant and the opposite party bank only. What happens at the other end to which the complainant does not have any access, cannot disturb the agreement of service between the complainant and the opposite party bank.  Thus, on merits, it is quite clear that the contract between the complainant and the opposite party bank was completed when the amount was credited to the account of the complainant.  Had the complainant been involved in any fraudulent activity or if it was not a genuine export transaction, the complainant may have withdrawn all the amount in one go.  The complainant only utilised Rs.17,92,821/- for paying to the supplier of the material and the remaining amount remained in the account with the bank.  Learned counsel for the complainant/respondent further stated that the complainant has availed the service of the bank and therefore, the complainant is a consumer.  The collection of the amount of the cheque per se is not a commercial activity and that was the only service that was availed from the bank.  The complainant might have been involved in various commercial activities, but the service availed in the present case was not for commercial purpose as this was only related to the collection of cheque for amount of cheque for which the bank charges commission and therefore, the complainant is very well a consumer.

11.    The learned counsel for the respondent further stated that after receiving the information that the cheque was a fraudulent and forged cheque the opposite party bank filed an FIR with police against the complainant.  The police, after investigation had filed a final report in the mater wherein no aspersion has been cast against the complainant and he has not been found guilty.  Thus, it is clear that the complainant has no role in the fraudulent activity. The State Commission has considered all the issues raised by the appellant herein and has given its sound order in the complaint case.

12.    I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and perused the material on record.    First of all there is a delay of 6 days in filing the appeal.  As the delay is marginal, the delay is condoned on the ground mentioned in the application for condonation of delay.  It is clear in the present case that the cheque was originally cleared by the foreign exchange Branch at Muradabad of the bank and the money was credited to the current account of the respondent.  Later on when the amount of the cheque was debited from NOSTRO A/c of the appellant bank on the account of the cheque being forged, the bank  debited the same amount to the account in which the amount was earlier credited.  The bank has not credited the amount of Rs.24,67,747- from their own funds rather the bank has credited the amount after receiving the same in their account after clearing of the cheque.  If the foreign paying bank has found it to be a forged and has debited this amount to the NOSTRO A/c of the appellant bank, there seems to be no alternative for the appellant bank, but to debit the same to the account of the complainant.  It is understood that there seems to be no default by the complainant as the police has filed final report in the FIR lodged by the bank and no malafide has been attributed to the complainant in the investigation.  The complainant may have also suffered on account of the shipment of the exported goods.  However, it is not clear whether the goods were received and taken possession by the foreign buyer or not because the documents were deposited in the bank after the cheque was declared as forged.  No party gave clear picture as whether these documents were forwarded to the buyer or not.  Be that as it may, the bank cannot be asked to pay the amount of a forged cheque.  The deficiency on the part of the bank seems to be that once the cheque was declared clear and later when the cheque was declared as forged, what steps had the bank taken to get clarification and to make protest.  Though, ultimately, if the paying bank says that the cheque was forged, amount cannot be taken from that bank, however, the appellant bank has not placed on record any documents in respect of their efforts and protest as per the relevant rules of the international banking.  It is not clear whether the bank has resorted to the dispute resolution mechanism if any in this regard.

13.    The next question is regarding whether the complainant is a “consumer” ? It is seen that the complainant has a current account with the opposite party/petitioner bank, but service availed by the complainant is only for depositing the cheque and collecting the cheque amount.  Anybody having account in the bank can deposit a cheque and can expect its collection in the account of the applicant. From where the cheque is coming, or for what purpose the collected amount is utilised, are not the questions to be considered in this regard because the service of the bank remains the same.  As the bank charges the commission for collection of the amount, the service is covered under Section 2(o) of the Consumer Protection Act, 1986.

14.    In my view once the cheque was declared as forged the bank is not required to pay that amount. If the amount has been paid to the complainant, the complainant is liable to pay back the same amount to the bank as provided under Section 72 of the Indian Contract Act, 1872.  On the other hand, it is also true that the complainant has suffered loss not only the physical but mental and apparently there seems to be some deficiency on the part of the bank that the bank did not take any further steps and did not resort to the dispute resolution mechanism for such cases at the level of international banking.  

15.    It is now accepted view that if a cheque is lost in transit the amount of cheque is not required to be paid by the bank to the customer, rather consumer fora are awarding compensation of a reasonable amount in this regard to the complainant.  Just to give example this Commission in State  Bank of India Vs. Muntha Lakshmi Kumari, I (2009) CPJ 198 (NC) has held the following:-

“Consumer Protection Act, 1986- Sections 2(1)(g) and 14(1)(d)- Banking and Financial Services- Cheque lost in transit- Deficiency in service alleged- Payment of cheque amount directed- Hence appeal- Complainant failed to get duplicate cheque, in spite of being asked to do so- Cheque misused/encashed, not proved- Bank not liable to pay cheque amount- Order of State Commission set aside- Compensation for deficiency in service on part of Bank awarded.”

16.    Further this Commission in S. Ashok Kumar Vs. Andhra Bank & Anr., III (2009) CPJ 333. has observed the following:

“Consumer Protection Act, 1986- Section 2(1)(g) – Negotiable Instruments Act, 1881- Section 45A- Banking and Financial Services- Cheque lost in transit – No steps taken under Section 45A, Negotiable Act, or approach proper Forum for recovery of amount- Complaint filed against bank- No deficiency in service could be attributed to bank for loss of cheque by courier service- Cheque amount cannot be recovered from bank- Compensation and cost awarded- Order upheld in appeal.”

17.    On the same analogy in the present case, it is clear that the total amount of cheque cannot be paid by the appellant bank to the complainant.  However, some compensation for the problem and harassment faced by the complainant due to negligence to some extent on the part of the appellant bank in not pursuing the matter for redressal at the international banking mechanism.  Prima facie there is no deficiency on the part of the appellant bank so far as the credit and debit of the cheque amount to the current account of the complainant is concerned, but as examined earlier the complainant is entitled to some compensation for the problems and harassment suffered. In the facts and circumstances of the case, a compensation of Rs.3,00,000/- would be reasonable and justified in the present matter.

18.    Based on the above discussion, the appeal is allowed.  The order dated 28.04.2015 passed by the State Commission is set aside and it is held that the appellant bank is entitled to get back total amount of cheque from the complainant.  On the other hand, complainant is entitled to get a compensation of Rs.3,00,000/- from the appellant bank.  Accordingly, after making adjustment of Rs.3,00,000/- the appellant bank is entitled to recover Rs.21,67,747/- from complainant.  Accordingly, bank can take the remaining amount in the current account of the complainant and the complainant is also directed to deposit remaining amount in his current account so that the bank can recover a total amount of Rs.21,67,747/-. Both the parties to comply with this order within a period of 45 days.