SYNDICATE BANK vs Brij Kapoor

THIS revision is directed against the order of the Delhi State Commission dated 12.03.2010 resulting in dismissal of appeal preferred by the petitioner Bank.

BRIEFLY stated, the facts relevant for the disposal of the revision petition are that respondent no.1 / complainant filed a consumer complaint against the petitioner bank and respondent no.2 bank alleging that her husband had issued a cheque of Rs.1,40,000/ - in her favour. The cheque was drawn against account no. 5445 with the petitioner bank. The complainant deposited said cheque to be credited in her account no. 17474 in respondent no.2 bank and obtained duly stamped deposit slip. The amount, however, was not credited in the account of the complainant. Later, on inquiry, the complainant came to know that amount of aforesaid cheque had been withdrawn by some unknown person on 18.02.2014 by cancelling the crossing of the cheque under the forged signatures of the account holder of Pardeep Kumar Kapoor, by presenting the said cheque with the petitioner bank. According to the complainant, the Punjab National Bank committed deficiency in service by negligently or otherwise allowing the third party to get hold of the cheque and the petitioner Syndicate Bank committed deficiency in service by allowing encashment of crossed cheque as a borrower cheque despite of the fact that crossing of the cheque was cancelled by forging the signatures of the account holder Kuldeep Kapoor.

BOTH the banks resisted the complaint. According to the PNB, the cheque was never presented to them for collection of the amount. It was pleaded that deposit slip pertaining to the cheque is a fabricated document. The Syndicate Bank took the plea that complaint is not maintainable for the reason that there was no privity of contract between the complainant and the Bank. On merits, it was pleaded that since the crossing of cheque was duly cancelled under the signature of account holder Shri Kuldeep Kapoor, the bank rightly paid cheque amount to the bearer. District Forum on consideration of the pleadings and after hearing counsel for the parties, allowed the complaint against both the Banks.

BEING aggrieved of the order of the District Forum, petitioner as well as Punjab National Bank filed separate appeals challenging the order of the District Forum. State Commission on consideration of record, allowed the appeal of PNB and set aside the complaint against them. State Commission vide a common order dispose of both the appeals with the following directions: "In the result, the appeal of the PNB is allowed and the complaint against PNB shall stand dismissed. The appeal of Syndicate Bank is dismissed and they are held liable to reimburse the complainant Rs.1,40,000/ - plus Rs.20,000/ - as compensation including Rs.10,000/ - foisted on the shoulders of the PNB, because the Syndicate Bank alone is held liable. Rs.5,000/ - will further be paid as cost of appeal by the Syndicate Bank."

COUNSEL for the petitioner has assailed the impugned order on two counts; firstly, it is contended that State Commission has committed a grave error in failing to appreciate that there was no privity of contract between the complainant and the petitioner bank. In order to appreciate this contention, it would be useful to have a look on the definition of "consumer" in relation to the service availed as provided in section 2 (1) (d) (ii), which is reproduced as under: d) "consumer" means any person who (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ''hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes."

ON reading of the above, it is clear that the consumer means any person who hires or avails of service for consideration and it also included the beneficiary of those services. Undisputedly, the subject cheque was issued in favour of respondent no.1 complainant. Therefore, she being the beneficiary of the cheque is covered under the definition of ''consumer'' and as such, she has rightly maintained the consumer complaint.

COMING to the merits of the case. On perusal of the impugned order, we find that the State Commission has concluded that the cheque amount has been withdrawn by some unknown person by forging the cancellation of crossing on the subject cheque. The conclusion of the State Commission is based upon comparison of signatures of Kuldeep as a drawee on the cheque and also his signatures regarding cancellation of crossing of cheque on the front as well as back of the cheque. The said comparison has been done on the basis of the signatures on the photocopy of the cheque produced on the record. The aforesaid approach adopted by the State Commission is fallacious. Undisputedly, Kuldeep Kapoor, account holder was the best witness to tell whether or not he had actually cancelled the crossing of the cheque and directed the bank to pay the cheque amount to the bearer. The complainant has also failed to produce Kuldeep Kapoor as a witness to prove said fact. Even his affidavit in this regard has not been filed. It is not the case of the complainant that at the relevant time, her relationship with her husband was strained and she is not in a position to produce him as a witness. Thus, it is clear that the complainant had withheld the best evidence which could have proved forgery. Thus, we are constrained to draw an adverse presumption that had Kuldeep Kapoor been produced as a witness, he would not have supported the version of forgery. Thus, in our view, findings of the foras below based on comparison of signatures on photocopy of the cheque is not sustainable.

IN view of the discussion above, we are of the opinion that the impugned orders cannot be sustained. Therefore, revision petition is allowed, impugned order is set aside and the complaint is dismissed.