Consumer Protection Act – Section 13 – banking service -overdraft account – withdrawal of amounts through forged cheques – whether complaint maintainable – Held, No.
Brief facts
Complainants opened Current Account with the opposite party and the said account was operated by Naresh Jain and Abdul Wahid Abdul Gafoor Khatri. On scrutiny of Company’s record on 8.11.2008 it was found that Companies account was debited for various amounts which were suspicious entries on the basis of forged and fabricated signatures of the authorized persons/partners without any consent, knowledge and information to the complainant by the opposite party, the opposite party’s concerned officers have intentionally and wilfully encashed and honoured about 53 cheques mentioned in paragraph 4 of the complaint without verifying signatures which were prima facie forged. The cheques shown to be debited in their account have neither been issued nor signed by them and concerned officers of the opposite party having been in collusion and conspiracy with the erring persons forged cheques have been encashed. Complainants filed criminal complaint against the opposite party on 8.7.2009 and the same is under investigation by Oshiwara Police Station. Opposite party is service provider and on account of deficiency in service, complainants have claimed aforesaid amount from the opposite party. Opposite party filed written statement. Opposite party moved an application M.A. No. 580 of 2011 and alleged that complaint filed by the complainants needs to be dismissed solely on the ground that fraud as alleged to have been committed by the bank officials of the opposite party does not come under the purview of the Consumer Protection Act as the complaint involves complicated question of facts and law.
Decision : Complaint dismissed.
REASON
Basis of complaint is encashment of forged and fabricated cheques by the opposite party which were not issued by the complainant or their authorized signatories. Record also contains opinion of Addl. Chief State Examiner of Documents C.I.D., Maharashtra State, Mumbai, but without any reasoning for the purposes of proving a document genuine or forged. Handwriting expert has to take photos of the documents and has to compare them with the genuine signatures and has to give reasons for proving signatures to be genuine or forged. This opinion neither contains reasoning for similarities/dissimilarities nor contains photos of any document. Detailed examination in chief as well as cross-examination of handwriting expert will be required. All the cheques were required for examination about their genuineness/forgery. For this, it will require too much time and in such circumstances, the matter cannot be decided in summary nature.
After going through the pleadings if complicated question of facts and law arise, complaint should be returned to the complainant to approach Civil Court or any other Forum. Perusal of pleadings clearly reveals that forgery/genuineness of cheques is in issue which involves complicated question of facts and law and involves lot of evidence and detailed enquiry, which cannot be decided in a summary way and in such circumstances application filed by the opposite party should be allowed and complaint should be returned to the complainant. Perusal of paragraph 4 of the complaint clearly reveals that most of the cheques have been encashed by way of overdraft, thus, it becomes clear that prima facie overdraft facility was provided by opposite party to the complainant. Complainant, in reply to the application submitted that overdraft facility was granted against fixed deposit receipt, but it is very much clear that complainant’s current account was having facility of overdraft. As current account with overdraft facility was for commercial purpose, prima facie, complainant does not fall within the purview of consumer under the Consumer Protection Act and complaint is not maintainable.