Dhinendra Nath Basak vs UCO BANK

THIS revision petition has been filed by the petitioner against the order dated 24.7.2009 passed by the W.B. State Consumer Disputes Redressal Commission, Kolkata (in short, ''the State Commission'') in Appeal No. 148 of 2009 Sri Dhirendra Nath Basak Vs. The Branch Manager, UCO Bank and Ors. by which, appeal filed by the complainant was dismissed and order of District Forum allowing complaint partly was upheld.

BRIEF facts of the case are that Complainant/Petitioner maintained Current A/c. with OP/respondent. Complainant went to withdraw Rs.10,000/ - from his Account by a self -drawn cheque, he was informed that withdrawal cannot be permitted as complainant had no sufficient fund in the account. Complainant checked his Account and ascertained that there was sufficient balance in the Account. On request to OP, his Account was opened and it was found that Rs.2,33,000/ - had been withdrawn from his Account by forged cheques on different dates. He approached to ombudsmen cell, but could not get relief. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that out of 23 cheques issued from 10.11.2001 to 8.7.2005 two cheques were drawn as self and 21 cheques were received by his closed relatives. It was further submitted that alleged fraud should have been brought to the notice of Police. It was further submitted that from 2001 to 2005, complainant must have finalized balance sheet of his firm and did not dispute aforesaid withdrawal; hence, there was no deficiency on the part of OP and prayed for dismissal of complaint. Learned District forum after hearing both the parties, allowed complaint partly and directed OP to pay Rs.25,000/ - as compensation and Rs.10,000/ - as cost of litigation. Appeal filed by the complainant was dismissed by learned State commission vide impugned order against which, this revision petition has been filed.

HEARD learned Counsel for the parties and perused record. Learned Counsel for the petitioner submitted that inspite of proof of honouring forged cheques by OP, learned District Forum committed error in not allowing refund of Rs.2,33,000/ - and State Commission further committed error in dismissing appeal; hence, revision petition be allowed, impugned order be set aside and complaint be allowed. On the other hand, learned Counsel for the respondent submitted that there was no negligence on the part of OP and order passed by learned State Commission does not call for any interference; hence, revision petition be dismissed.

LEARNED Counsel for the petitioner submitted that amount was withdrawn from complainant''s account by forged cheques. Complainant has not produced forged cheques before me for perusal. Learned District forum observed that complainant failed to establish that impugned cheques were forged one. Ombudsman in its order dated 25.8.2006 observed as under "In view of the discussion above, the conflicting and confusing signals emanating from the developments, it is not possible to arrive at a conclusive decision in the matter. This would require elaborate oral and documentary evidence for which this forum is not appropriate. In the circumstance, I reject the complaint under clause 19 (2) of the Banking Ombudsman Scheme 2002".

THUS , it becomes clear that complainant has not proved that amount has been withdrawn from his Current A/c. by forged cheuqes. Merely because OP has not challenged order of District Forum, it cannot be presumed that OP honoured forged cheques. Learned Counsel for respondent placed reliance on judgment of Hon''ble Apex Court in Bank of Maharashtra Vs. Automotive Engineering Co., 1993 2 SCC 97 in which it was observed that as Bank was not provided with ultraviolet ray lamp, petitioner cannot be held negligent in passing cheques by not scrutinizing the cheques under the ultraviolet ray lamp.

ADMITTEDLY , cheque book was in possession of the complainant. He was supposed to explain how alleged forged cheques went in other persons hand. As per written statement, only two cheques were drawn as self and rest of the cheques were credited in complainant''s relatives account. In such circumstances, without strict proof it cannot be inferred that amount was withdrawn by forged cheques.

LEARNED Counsel for the petitioner has placed reliance on judgement of this Commission in M/s. Basant Parvati C.H.S. Ltd. Vs. The Manager, State Bank of India, 2014 3 CPR 474 in which 50% of the withdrawn amount by forged cheque was allowed as compensation. He also placed reliance on judgment of this Commission in Post Master, Head Office and Ors. Vs. Sanjay Gupta and Anr, 2014 4 CPR 338. in which revision petition was dismissed against allowing complaint by State Commission on the basis of comparison of specimen signatures of the complainant with specimen signatures on withdrawal form and State Commission came to the conclusion that signatures did not tally. In the case in hand, original cheques by which amount was withdrawn have not been produced for comparison of signatures and unless a finding is recorded that amount was withdrawn by forged cheques, complainant is not entitled to get refund of withdrawal amount on the ground of deficiency on the part of OP. Learned Counsel for the petitioner has also placed reliance on judgment of Hon''ble Apex Court in Canara Bank Vs. Canara Sales Corporation and Ors., 1987 2 JT 491 in which it was observed as under: "44 . We have seen that there is no duty for a customer to inform the bank of fraud committed on him. of which he was unaware. Nor can in -action for a reasonably long time in not discovering fraud or irregularity be made a defence to defeat a customer in an action for loss". I agreed with the above observation, but it is not applicable to the facts and circumstances of present case because it cannot be presumed that complainant has not gone through statement of his Current A/c. for such a long period while preparing balance sheet and other accounts for 3 to 4 years and has failed to prove that signatures on cheques were forged.

IN the light of above discussion, I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed

CONSEQUENTLY , revision petition filed by the petitioner is dismissed with no order as to costs.