SARITA DEVI PRAKASHCHAND JAIN & ORS. vs RAMCHANDRA SHAMBU CHAUDHARI & ANR.

The purpose of a Bank is to serve the people. It is not for them to lead the gullible people up the garden path. Any omission or commission done by the Bank, its employees or its agents, the Bank will be bound by it by virtue of the principle of vicarious liability. It cannot wriggle out of the liability on the ground that the pigmy agent who is appointed and controlled by it, has committed some criminal offence, forgery or criminal misappropriation. The people repose faith in the Banks. Any lapse on their part affects the national economy.

Ramchandra Shambu Chaudhari, the complainant had a daily deposit account with the OP Bank, i.e., Saritadevi Prakashchand Jain, Chairperson, S.M.Tatiya and Anil Champalal Kochar, OPs 1 to 3, of the Shahada People''s Cooperative Bank, w.e.f. 01.06.2004. He deposited an amount of 2,29,000/- with the above said OPs, during 1 st June, 2004 till 24 th May, 2005, through OP1''s pigmy agent, Sh. Shailesh Shirishchandra Shroff, OP4.

On enquiry, it transpired that only a sum of 1,10,500/- was deposited as against the sum of 2,29,000/-. The Pass Book entries filled up by its agent, however, revealed that this was for a sum of 2,29,000/-. The complainant issued a legal notice to the OPs 1 to 3 demanding the balance amount of 1,18,500/-. He also filed a police report. The OPs 1 to 3 averred that their bank is totally computerized from the year 2004 and the pigmy agents including OP4 were provided with pigmy data machines which used to take the daily entries made and accepted by each pigmy agent. It was alleged that the complainant hatched a conspiracy while working hands in gloves with OP No.4.

OP4, however, admitted that he had collected the entire money from the complainant and handed over the same to the OPs 1 to 3 for depositing the same in the complainant''s account.

The District Forum allowed the complaint and directed that all the OPs are jointly and severally liable to pay an amount of 1,18,500/-, along with interest @ 4% p.a., from 24.05.2005 to 19.09.2007. The District Forum also awarded a sum of 10,000/- towards mental and physical harassment. It was further ordered that the said amount be paid till 19.10.2007, otherwise all the amounts would carry interest @ 18% p.a., on all the above said amounts, till realization of the entire amounts.

The State Commission dismissed the appeal filed by the OPs 1 to 3.

We have heard the counsel for the petitioner, at the time of admission of this case. The arguments urged by him have the following four prongs. First, he submitted that the Bank was not arrayed as a party and the case was filed against the personal names of its employees. He cited a judgment of this Commission reported in Kishore Shriram Sathe Vs. Vivek Gajanan Joshi, CPR-2013-4-45/NCDRC-2013-0-68 in revision petition No.1953 of 2011, wherein it was held that no consumer complaint for want of hiring of any service of the opponent in his individual capacity would lie against the opponent.

We are of the considered view that this argument is bereft of merit. The case was not filed against the OPs in their individual capacity. It was filed in the name of the Chairperson, Manager and Accountant of the Shahada People''s Cooperative Bank, Shahada, Branch Taloda, Taluk Taloda, District Nandurbar. All of them were sued not in their personal name(s) but as per their position in the bank. Consequently, this argument must be eschewed out of consideration.

The second submission made by the counsel for the petitioner was that fraud, forgery, etc., have been alleged in this case. Thirdly, a criminal investigation is pending in this case, before the police.

In this respect, he has also invited our attention towards investigation report. The relevant para of the investigation report, runs as follows :- "During investigation, Accused No.4-Shailesh Shirischandra Shroff told that while working in the bank in the year 2004, he collected Rs. 10/10 thousand four times, i.e., total Rs.40,000/- on interest @ 2% per month, which amount could not be repaid by him. Hence, the complainant claimed arrears of Rs.60,000/- from him by charging interest @ 10% on the aforesaid amount. He could not give that much amount. In June/July 2005, the complainant threatened him that he should return the amount within 7 days otherwise he will beat him. If he cannot repay the amount then make entry in his pass book. On his say, he made false entries of Rs.60,000/- in the passbook of the complainant of different dates on one day only. The entries have been taken due to the fear of complainant. Prior to the Diwali of 2005 the complainant took him in the office of Tahsildar, Taloda and forcibly got executed an affidavit on the stamp paper purchased from one stamp vendor by obtaining his signature before the Attesting Officer of SETU executing the affidavit mentioning therein that Ramchandra Sambhu Chaudhari gave amounts to him for the purpose of depositing and he handed over the amount in cash to the Bank Manager and the Accountant, who instead of depositing the same in his account, committed misappropriation. He has executed the affidavit out of his own fear and the fear of his children. The said affidavit is false. He never deposited any amount with the Bank Manager Tatia, Accountant or the President. They are not at fault. Ramchandra Sambhu Chaudhari has made a false complaint against them". The report, further submits, as under :-

"From this, it appears that Accused Shailesh Shirishchandra Shroff has taken the said false entries at one time on account of the fear of the complainant.

Thus, from the investigation, it reveals that the complainant Ramchandra Sambhu Chaudhari by preparing false documents against the accused has filed a false complaint against the bank for the purpose of cheating the bank. Hence, the original papers of investigation are submitted in the Hon''ble Court for sanction of "B" Summary in this crime.

Respectfully submitted".

Counsel for the petitioner lastly stated that the original Pass Book was never produced before the State Commission and the order was passed on the Xerox copy of the Pass Book, filed by the complainant before it.

We are unable to countenance the arguments urged by the counsel for the petitioners. He has admitted in no uncertain terms that the offence was committed by Shri Shailesh Shirishchandra Shroff. He could not deposit the amount and the Bank was involved for nothing.

We have gone through the criminal investigation report which has no bearing on the civil law. The main point is, whether, the OPs 1 to 3, are vicariously liable or not?. OP4 is their pigmy agent, employed by them. It is surprising to note that the petitioners/OPs 1 to 3 have not filed any report against their agent, on the contrary, the report had to be filed by the complainant. The investigation of the police clearly goes to show that they were under the influence of the petitioners/OPs . They did not take any action against the OP4. They also did not conduct any enquiry against the Accountant for the above said misappropriation. The pigmy agent OP4 is under the control and supervision of the Bank. The Bank is liable for their omissions and commissions. It is surprising too note that the above said investigation report has neither head nor tail. This report is vague, evasive and leads us nowhere. The police has preferred to place reliance upon a niddle noddel accused. The flip-flops of OP4 has baffled the Commission. His story involving loan of 40,000/-, 60,000/- was never investigated. On the contrary, blame was put on the complainant. A vigilant, honest and active police can solve half of the problems. Above all, OP4 has never called into question the findings of District Forum. The protection extended by OP Nos. 1 to 4 casts a film of doubt over their bonafide. Under these circumstances, the possibility of the OPs 1 to 3/petitioners, on the one hand and the OP4, on the other hand, acting in cahoots with each other, cannot be ruled out.

The people cannot be taken for a ride. The Bank is supposed to keep/appoint its employees and its agents whose character is cleaner than a laundry. The Revision petition is, therefore, dismissed, with costs in the sum of 30,000/- , out of which a sum of 15,000/- be deposited by the petitioners by way of a demand draft drawn in favour of Pay and Accounts Officer, Ministry of Consumer Affairs, New Delhi, within one month from the date of receipt of the order. The said demand draft shall be deposited with the Consumer Welfare Fund established by the Central Government under Section 12 (3) read with Rule 10 (a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944, and the remaining sum of 15,000/- be paid directly to the complainant, by way of demand draft drawn in favour of Ramchandra Shambu Chaudhari, within said 30 days, otherwise, the said amounts will carry interest @ 9% per month, till its realisation. To make things easy, the Petitioners shall hand-over the first demand draft to the Registrar of this Commission, who will in turn transmit the same to the Ministry concerned, and shall submit a report about its compliance or non-compliance thereof to the Commission, immediately thereafter, after expiry of said one month. The second demand draft may be sent to the complainant directly under his receipt.