ICICI BANK LTD. & ANR. vs SHIPRA SARKAR

The present revision no. 151 of 2015 has been filed against the judgment dated 15.12.2014 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (''the State Commission'') in First Appeal no. 80 of 2013.

The facts of the case as per the respondent/ complainant are that the respondent took credit card no. 4902 4710 0010 5001 from petitioner/ Bank (in short ''the Bank'') upon payment of all requisite fees and after observing all formalities and after getting credit card the respondent started using the said credit card and paid the due amount according to the bill generated by the Bank. On 03.02.2009 and 08.02.2009 the son of the respondent paid Rs.80,000/- and Rs.70,000/- respectively in cash to one Mr Ajay Sinha claiming himself as one of the collection agents of the Bank against the aforesaid credit card. The said Ajay Sinha, who was the representative of one recovery agency namely ''Unique Marketing'', has issued two money receipts being nos. 078581575 and 078583753 to the respondent against the payment made by the respondent. Unfortunately in the next month''s statement, which was generated on 17.02.2009, the aforesaid payment was not reflected.

In spite of making payment of Rs.1,50,000/- as aforesaid by the respondent, the Bank are still claiming Rs.3,82,509.26 from the respondent. On 01.03.2009 the Bank issued a credit card statement in favour of the respondent and illegally, without showing any payment, claimed Rs.3,92,800.32 and not only that in this statement a cheque return of Rs.10,000/- was also reflected against the respondent, which has never issued by the respondent in favour of the Bank.

Being aggrieved and dissatisfied, the respondent got sent a legal notice through an advocate on 17.03.2009 stating all the facts and requested to waive of the said outstanding dues as it was not legal and binding upon the respondent but in vain. Hence, the case was filed by the respondent with the following prayer:

(a) An order directing the Bank to waive or withdraw the card statements claiming and charging illegally and negligently a false and fictitious amount as outstanding due in the credit card amount of the respondent and also directing the Bank to show the payment made by the respondent and also directing the Bank to send all statements and copy of agreement and other relevant documents regarding card account;

(b) An order directing the Bank to pay Rs.50,000/- to the respondent as compensation for causing mental harassment and agony and also for deficiency in services and negligence on the part of the Bank in rendering their services to the respondent;

( c) All litigation cost of the case; and

(d) Other relief/ reliefs as entitled to in law and equity.

The Bank entered their appearance in this case by filing written version and denied all the material allegations levelled against them and prayed for dismissal of the case. The counsel for the Bank during the course of argument submitted that the case has got no merit and the same was liable to be dismissed.

The District Consumer Disputes Redressal Forum, Unit - I, Kolkata vide its order dated 19.11.2012 while allowing the complaint gave the following order: "The case is allowed on contest with cost against the OPs. OPs are jointly and/ or severally directed to credit Rs.1,50,000/- only as against the credit card no. 4902 4710 0010 5001 standing in the name of complainant along with interest @ 9% per annum from the date of payment till realisation and are further directed to pay compensation of Rs.10,000/- only for harassment and mental agony and litigation cost of Rs.5,000/- only within 45 days from the date of communication of this order, i.e., an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realisation".

Aggrieved by the order of the District Forum, the petitioner/ opposite party filed an appeal before the State Commission. The State Commission vide its order dated 15.12.2014, while dismissing the appeal observed as under: "The materials on records, particularly the Written Version filed by the Appellants/Ops-Bank before the Ld. District Forum, as available on records, do not reflect any challenge to the aforesaid Money Receipts bearing the logo of the Appellants/Ops-Bank, through which the Respondent/Complainant substantiated her payments by cash of Rs.1,50,000/- on 03.02.2009 and 08.02.2009 against the outstanding dues of the Appellants/Ops-Bank. Absence of such challenge against the Money Receipts concerned on the part of the Appellants/Ops coupled with the facts of bearing, by the Money Receipts concerned, of the logo of the Appellants/Ops-Bank and also of absence of any proof of counterfeiting of the said Money Receipts, would convince even a man of ordinary prudence about the bonafide of payment of Rs.1,50,000/- by the Respondent/Complainant towards the outstanding dues of the Appellants/Ops-Bank. In view of the foregoing discussions we find substance in the submission of the learned Advocate for the Respondent/ Complainant and find no ground to interfere with the impugned judgment and order.

In the result, the Appeal is dismissed. The impugned judgment and order stands affirmed."

Hence, the present revision petition.

We have heard the learned counsel for the parties and have gone through the record. Learned counsel for the petitioner has contended that the State Commission erred in not appreciating that the money receipts dated 03.02.009 and 08.02.2009 relied on by the complainant were fake and forged. The State Commission acted with material irregularity in failing to appreciate that the petitioner Bank had specifically denied and disputed the authenticity of the money receipts dated 03.02.2009 and 08.02.2009 relied by the complainant in its written version and additional written version and evidence affidavit. The date of second receipt, i.e., 08.02.2009 showed it was issued on a bank holiday (Sunday). As such this prima facie establishes a fact that the money receipts relied on by the complainant are fake and forged. The State Commission erred in not appreciating that the burden of proof was on the complainant to establish that he had made the alleged payment of Rs.1,50,000/- in cash against money receipts dated 03.02.2009 and 08.02.2009. The State Commission fell in grave error of law in not appreciating that no evidence was led by the complainant or son of the complainant to show the source of such payment or corresponding debit entry from a bank account corroborating the allegation that payment was made against such fake receipts. Mere production of money receipts, whose genuineness is in question, does not prove payment of dues by the complainant. The Bank had duly contested the validity of money receipts dated 03.02.2009 and 08.02.2009 in its pleadings as well as by placing on record the copy of the police complaint dated 28.03.2011 lodged with PS Tollygunge, Kolkata about fake money receipts issued on behalf of the petitioner Bank. The State Commission acted with material irregularity in not appreciating that the petitioner Bank had specifically contended that it had no authorised collection agency by name and style of "unique marketing'' or any authorised collection agent namely Mr Ajay Sinha. The State Commission acted with material irregularity in not appreciating that the money receipts were prima facie forged / fake and were counterfeited in the light of the following facts: 1. All money receipts issued by petitioner Bank are valid till the last date of the money, i.e., March 31, 2009, whereas the said money receipts dated 03.02.2009 and 08.02.2009 shows validity till March 30, 2009;

All the money receipts issued by the appellant Bank contain 12 digits starting with an alphabet and 11 numbers whereas only 9 digits are printed in the said money receipts which is not consistent with the format followed by Bank;

All money receipts issued by the petitioner bank started with an alphabet which denotes concerned product, i.e., C Credit Card, L Loans, O - Issued by operational Branch whereas in case if any agency collects payment of dues against credit cards, the receipt number should start with ''C'' in case of credit card.

All money receipts issued by the Bank denotes the money and year of issuance in the first 4 numbers, i.e., 0809 which denotes August 2009 whereas the said receipt denotes 7858 which has not relevance to the period of issuance which isnot consistent with the format followed by the petitioner Bank;

Most significantly, the actual service tax number of ICICI Bank Ltd., is AAACIII95HST001 whereas in the said receipt annexed by the complainant the Service Tax number is printed as FFFCII285HST021. This clearly evidences the fact that the money receipts were forged.

Learned counsel for the respondent on the other hand has argued in favour of the impugned order and stated that it should be maintained.

It is an admitted fact that the respondent/ complainant had taken credit card no.4902 4710 0010 5001 from the petitioner. As per the petitioner, she was a defaulter. The respondent has herself admitted that her son, to clear outstanding dues, had paid Rs.80,000/- and Rs.70,000/- respectively, in cash to one Mr Ajay Sinha who claimed himself to be one of the collection agents of the opposite party working with the recovery agency namely, Unique Marketing. The respondent has placed two money receipts being nos., 078581575 and 078583753 on record. As per the pleading as also the additional written statement of the opposite party, the opposite party neither had any recovery agency named ''Unique Marketing'' nor did they have any representative named Ajay Sinha who was associated with the ICICI Bank. The petitioner after due investigation and verification of the said two payments receipts came to know that the said receipts were not genuine and had been manufactured by some unknown miscreants with malafide intentions in using the goodwill of the Bank for their personal wrongful gain. The respondent further, owed Rs.4,12,448.90 as on 16.09.2009 and has filed this complaint to avoid payment. Their stand regarding Unique Marketing is supported by an FIR, placed on the record of the District Forum filed on 28.03.2011 with the Station House Officer, Tollygunj Police Station, Kolkata, stating as as under:

"It is submitted that one fine day, customer had approached the bank and informed that she had paid total amount of Rs.1,50,000/- and mentioned the details of payment as (i) amount of Rs.80,000/- paid vide receipt number O 78583753 on February 3, 2009 and (ii) amount of Rs.70,000/- paid vide receipt number O 78581575 on February 9, 2009. It is submitted by the customer that he/ she had deposited the said amount to Mr Ajay Sinha who had visited his/ her residence and introduced himself as a representative of ''Unique Marketing'' and the customer had submitted copy of the said collection receipts to bank for reference.

It is submitted that when we had checked the said receipts then it was revealed that said receipts were not issued by the ICICI Bank and said receipts were fake and forged. Further, we have checked the record and found that neither ''Unique Marketing'' is an authorised collection agency of ICICI Bank nor the said Ajay Singh is associated with ICICI Bank, therefore, contention of the customer cannot be corroborated.

It is submitted that believing on the contention of the customer as mentioned herein above, it appears that unknown person had defrauded the customer and cheated him. It further appears that unknown person impersonated himself as an authorised representative of the Bank and cheated the customer and issued a fake receipts after taking an amount of Rs.1,50,000/- as allegedly communicated by the customer, thereby committed an offence of forgery and cheating.

Being a responsible bank, feels it incumbent to bring this matter to your information for taking necessary action. That offence, committed by the accused person are cognizable in nature and cognizance of the same is required to be taken. Detailed investigation is required in the said matter, to unearth the truth, to apprehend the guilty person and to prosecute against them. That the accused person may take further attempt to defraud the public/ financial institution at large. Hence, this complaint.

We undertake to extend all possible co-operation as and when may be required during the course of the investigation."

In view of the above, we find that the State Commission in their impugned order have erroneously come to the conclusion that " as available on records, do not reflect any challenge to the aforesaid Money Receipts bearing the logo of the Appellants/Ops-Bank, through which the Respondent/Complainant substantiated her payments by cash of Rs. 1,50,000/- on 3.2.2009 and 8.2.2009 against the outstanding dues of the Appellants/Ops-Bank. Absence of such challenge against the Money Receipts concerned on the part of the Appellants/Ops coupled with the facts of bearing, by the Money Receipts concerned, of the logo of the Appellants/Ops-Bank and also of absence of any proof of counterfeiting of the said Money Receipts, would convince even a man of ordinary prudence about the bonafide of payment of Rs. 1,50,000/- by the Respondent/Complainant towards the outstanding dues of the Appellants/Ops-Bank."

We are of the view that the onus to prove that payment was made to Ajay Sinha of Unique Marketing was the collection agent of the petitioner Bank was that of the respondent/ complainant. The respondent has failed to prove that Rs.1,50,000/- was paid in cash to the petitioner towards their dues and has also failed to give any evidence to support their contention/ allegation that Unique Marketing of whom Ajay Sinha was the representative, was the authorised collection agency of the petitioner. She has also failed to prove that the two money receipts in her

possession are genuine. To prove her case she has failed to implead Unique Marketing and Mr Ajay Sinha.

In view of the foregoing discussion we find substance in the revision petition and allow the revision petition, set aside the orders of the State Commission and the District Forum and dismiss the complaint.