SANJAY CHOPRA vs Manager, Punjab National Bank

COMPLAINANT Sanjay Chopra challenges in this appeal order of the District Forum, Ludhiana dated 14.2.96/4.3.96 whereby a complaint filed by him was dismissed and he was relegated to his remedy in the Civil Court. Facts in brief are as under:

SANJAY Chopra, complainant had a Savings Bank Account No. 16717 with the Punjab National Bank, Model Town, Ludhiana Branch. He has a balance amount to the aforesaid account Rs. 40,993/- on 4.2.91 when he was transferred from Ludhiana to Chandigarh. He went to the Bank for getting his account transferred to Punjab National Bank, Sector 22, Chandigarh Branch. At the counter, he was attended by Shri Surinder Bhatia, who obtained his signatures on different papers including a withdrawal slip. He was assured that the account would be transferred to Chandigarh Branch. He again visited the Bank to know if the account had been transferred. Surinder Bhatia told him that the account had been transferred on 11.2.91. Subsequently, he came to know that a sum of Rs. 40,000/- had been withdrawn from his account on 4.2.91 in connivance with the Manager and the staff members of the Bank. He lodged the complaint with the Bank Manager of that branch as well as to the Zonal Manager of the bank. When no reply was received, he sent a complaint in writing to the Chairman of the Bank, New Delhi. Having failed in his attempt to get the amount, he lodged the present complaint. On notice of the complaint, the Bank filed reply inter alia asserting that no application for transfer of the account was received in the Bank and a sum of Rs. 40,000/- was withdrawn by the complainant against a withdrawal slip. There was no negligence on the part of the Bank and the liability could not be fastened on the Bank. Both the parties produced evidence on affidavits and documents. The District Forum vide the impugned order came to the conclusion that since the allegations of fraud was levelled by the complainant, the same require volumenous evidence to be led and could not be gone into in the summary proceedings under the Consumer Protection Act. In support of the decision reliance was placed on decision of the Punjab State Commission in M/s. Kishan Poultry Farm v. National Insurance Company Limited & Ors., III (1995) CPJ 357=1995 (3) CPR 156. The contention of learned Counsel for the complainant atleast is that the Agencies established under the Consumer Protection Act are not required to shed their responsibility of deciding a consumer dispute merely on the ground that a plea of fraud has been taken in the pleadings. Elaborating it, it has been argued that it depends upon the facts of each case as to whether such a plea of fraud can be proved by summary evidence, documents or from circumstantial evidence and it is only in the case where several entries are required to be examined or volumenous evidence is required to be recorded that the agencies established under the Consumer Protection Act should relegate the complainant to seek remedy in the Civil Court. There is force in this contention. No readymade formula can be laid down that as and when plea of fraud is mentioned in the pleadings, the Agencies under the Consumer Protection Act should keep their hands away from the case. The matter has to be examined in the light of the evidence produced that it is only thereafter that it can be decided as to whether such a question of fact can be adjudicated by the Agencies established under the Act or not. No decision can in such circumstances be followed as precedent. The decision in Kishan Poultry Farm is distinguishable on facts. The question involved in that case was as to whether the insured was playing a fraud upon the Insurance Company by making a claim of more than Rs. 7 lacs suffered on account of fire in the Poultry Farm destroying about 20,000 birds. In that case, no direct or positive evidence was led by the complainant to prove that the shed which was alleged to have got fire and insured could housed 20,000 birds. Further more, in view of the plea that the complainant did not possess sufficient funds in the Bank to honour its cheques. The plea of fraud taken by the Insurance Company could not be considered by the Commission as it required volumenous evidence to be produced. Before making any further comment on this aspect, it is considered appropriate to refer to the plea as well as evidence produced in the case to determine as to whether some facts stand proved or not. If on proved facts, a finding can be recorded with respect to deficiency in the matter of rendering service by the Bank, the complaint could be disposed of. It is in the matter of determining the question of deficiency in service rendered by the Bank that incidentally the plea of fraud that a stun of Rs. 40,000/-was withdrawn by Surinder Bhatia in connivance with the Manager and other employees of the Bank is required to be considered. Even if this plea is not established by cogent evidence, on other facts proved, if finding can be recorded that the Bank was deficient in rendering service, the complaint can be disposed of on merits.

The case of the complainant as set out in the complaint be recapitulated. On 1.2.91, the complainant approached the Bank where he had Saving Bank Account and met Surinder Bhatia at the counter doing Bank''s business of making entries in the ledger and attending to the customers. The complainant approached him with the request to get his account transferred to Chandigarh branch. At that time Surinder Bhatia got certain papers signed from him, one of them happened to be a withdrawal slip. At that time, Bank pass book was also handed over to Mr. Bhatia. Subsequently, when he came to know that his amount of Rs. 40,000/- has been withdrawn on the basis of the withdrawal slip, he reported to the Bank Manager of the fraud committed upon him by Surinder Bhatia and the employees of the Bank. Subsequently, he submitted complaints to the Zonal Manager as well as to the Chairman of the Bank as stated. The Bank in its reply remained silent with respect to Surinder Bhatia, manning the counter making entries in the Bank register, ledgers or having obtained documents including withdrawal slip. The stand taken up by the Bank appeared to be simple that on the basis of the withdrawal slip, a sum of Rs. 40,000/- was withdrawn from the complainant''s account on 4.2.91. The Bank was not aware of anything happening inter se between the complainant and Surinder Bhatia. In the preliminary objections, it was asserted that Surinder Bhatia was not impleaded as a party though he was a necessary party. The complainant submitted his affidavit to corroborate his version as given in the complaint. He produced Ex. PX copy of the FIR lodged by the Bank Manager at the Police Station against Surinder Bhatia and others in respect of fraud played by Mr. Bhatia from the customers of the Bank. This report also contains an item of withdrawal of Rs. 40,000/- from the account of the complainant. It was also asserted by the complainant in para 8 of the affidavit that the Bank got the matter investigated from Shri Beri, Inspector of the Bank who submitted his report to the Bank observing that Surinder Bhatia was allowed by the Bank to make entries in the ledgers and deal with the public and he had been committing frauds in connivance with the Bank Manager and his colleagues. To this assertion in the affidavit, neither in the reply nor in the affidavit filed by Subhash Chander Bhardwaj, Senior Manager of the Bank and reference was made. In the affidavit of Shri Bhardwaj, it was asserted that Surinder Bhatia was not an employee of the Bank. He was only a mini deposit collector. As per Bank records, the complainant himself withdrew Rs. 40,000 / - from his account on 4.2.91 through a duly signed withdrawal slip which contained one signature on its face and two on its Bank indicating that the payment was received by him. Ex. R 1, photo copy of the withdrawal slip was relied upon. It was denied that the Bank employees in connivance with the Manager withdrew the aforesaid amount of Rs. 40.000/-. Lodging of the report to the police was admitted in this affidavit but it was sought to be clarified that assertion regarding complainant''s case was made as asked by him. Complainant produced other documents i.e., his complaints P 1 to P 3 made to the Manager of the Bank concerned. Zonal Manager. Copy of a letter from the Bank dated 14.5.93 was also produced which was in response to his complaint indicating for the first time that the amount was withdrawn on the basis of the writhdrawal slip signed by the complainant and thus denying liability of the Bank. It may be observed that in the three complaints referred to above, the stand of the complainant had been consistent as given in the complaint as to how he was deprived of a sum of Rs. 40,000/- by the Bank employees in connivance with Surinder Bhatia.

AT the outset, it may be stated that the evidence of the complainant given on affidavit with respect to connivance with the Bank Manager and employees in the matter of withdrawal of Rs. 40,000/- from his account is merely the apprehension of the complainant or his assumption and can hardly be treated as evidence. There is no direct or indirect evidence produced by the complainant of connivance of Surinder Bhatia with the staff members of the Bank. Since, no evidence in this respect has been produced on the plea of fraud committed on the complainant by the Bank Manager or employees of the Bank in connivance, no such finding can be recorded in favour of the complainant. The crucial point for consideration is as to whether Surinder Bhatia was in fact manning the counter of the Bank, attending to the customers, making entries in the registers and ledgers of the Bank on the relevant date. This fact stands amply proved from the affidavit of the complainant himself which finds corroboration from the three complaints made by him to the Bank immediately after he came to know about withdrawal of the amount of Rs. 40,000/- from his account. Since the Bank did not specifically deny in their reply that Surinder Bhatia was not manning the counter making entries in the ledgers and registers and Shri Bhardwaj in his affidavit also did not controvert this allegation of the complainant, there is no reason why the stand of the complainant in this respect should not be accepted. It may further be observed that the complainant in his affidavit specifically asserted that an enquiry was conducted by the Inspector of the Bank who had also found that Shri Bhatia was manning the counter and making entries in the ledgers and registers of the Bank. No counter affidavit in this respect was produced by the Bank. The report of Shri Beri, Inspector of the Bank was not produced. In the grounds of appeal also a specific reference was made to this report calling upon the Bank to produce it. The Bank has not done so. In the circumstances as stated above, it can be inferred that if produced, this report would not support the case of the Bank. Thus on the discussion of the evidence produced in this case it is held that the Bank had allowed Surinder Bhatia who was mini deposit collector to work at the counter of the Bank and make entries in the registers and ledgers and attend all the customers. Likewise, he attended to the complainant on the relevant date, and obtained from him the withdrawal slip, pass book and his signatures on the other documents for getting the account transferred from Ludhiana to Chandigarh Branch.

THE complainant has specifically taken up the stand that he had not withdrawn the amount of Rs. 40,000/-. This plea was denied by the Bank. However, the Bank did not produce any evidence of any witness even on affidavit that actually the amount was paid to the complainant. Only reliance placed is on the withdrawal slip which no doubt and admittedly was signed by the complainant. All the ledgers and registers of the Bank are available with the Bank. It was easy for the Bank to take up the stand and support it that atleast on the relevant date when the complainant is alleged to have contacted the Bank for transfer of his account, somebody else a regular employee of the Bank was deputed at the relevant counter and that it was not Surinder Bhatia. THE affidavit of that employee that entries made in the register on that day were in his hand and not in the hand-writing of Mr. Bhatia could have been produced. When the Bank has allowed an unauthorised person as is the plea of the Bank, to work at the counter of the Bank during business hours, it was not expected of the customers to verify about the nature of the employment of the person on the other side of the counter of the Bank who attended. THE Bank would be liable for the negligent act of their employees whether regularly appointed or otherwise deputed to work at the counter on behalf of the Bank. Otherwise no sanctity can be attached to the relations of the Banker and the customers, if the Bank is not to be responsible for the acts of the persons acting on their behalf at the Bank. Before the District Forum, the complainant relied upon the decision of Maharashtra State Commission in Filmalaya Pvt. Ltd. v. Corporation Bank & Ors., I (1992) CPJ 117. That was a case where Bank employees misappropriated the amount given to him by the customer for deposit. It was alleged that the misappropriation was a result of gross negligent and glaring dereliction of duty by the Bank official. Since the complainant was put to loss due to negligence of the Bank which amounted to deficiency in rendering service, the complainant was to be compensated. Learned Counsel for the Bank while making reference to the decision of the State Commission in Bank of Baroda and Another v. Chander Kiran of Karnal, 1993 CPC 326 argued that on account of any fraud committed by an employee of the Bank, the liability on the Bank cannot be fastened. In that case, the employee was entrusted with an amount to be deposited in the Bank and he did not deposit the entire amount, with the result that later on a cheque issued by the complainant was dishonoured. It was observed that such an employee was not posted on cash duty and was thus not authorised to accept the cash. The other decision referred to is of the National Commission in N. Shivaji Rao v. M/s. Daman Motor Company & Ors., I (1993) CPJ 88 (NC). In that case, the State Commission had declined to adjudicate the complaint because of complicated question regarding fraud and cheating raised therein. The National Commission rejected the appeal filed against the order of the State Commission observing that prima-facie it was a case of fraud and cheating as alleged by the complainant himself which had to be established first before the Consumer Forum could arrive at a finding of deficiency in service. On the other hand, learned Counsel for the complainant has referred to the decision of the National Commission in Corporation Bank & Anr. v. Filmalaya Pvt. Ltd., I (1992) CPJ 163 (NC). This was a same case from Maharashtra where an employee of the Bank with whom substantial amount was entrusted for deposit in complainant''s account misappropriated part thereof and there was a short deposit. The State Commission came to the conclusion that the complainant was put to loss due to negligence in service of the Bank and that order was challenged in the appeal. Though on merits, the order was modified with respect to the quantum, however, with respect to fastening liability on the Bank is concerned, the decision of the State Commission was affirmed. This decision was rendered by the President and three Members of the National Commission. It will be noticed that this decision was not noticed by the Haryana Commission while deciding the case of the Bank of Baroda referred to above. Likewise this decision was not noticed by the National Commission while deciding the case of N. Shivaji Rao which decision was rendered by the President and two Members of the National Commission. In our view decision of the National Commission in Corporation Bank''s case would continue to hold to be followed.

FOR the reasons recorded above, this appeal is allowed. The order of the District FORum is set aside and the complaint is allowed with the direction to the Bank, the opposite party to pay the sum of Rs. 40,000/- with 18% interest thereon with effect from February 4,1991 till payment or credit it in the account of the complainant and thereafter to transfer the entire amount to Punjab National Bank, Sector 22, Branch Chandigarh under intimation to the complainant. The Bank will pay costs of Rs. 1,000/- to the complainant as litigation expenses. Appeal allowed with costs.