CORPORATION BANK vs FILMALAYA PVT. LTD.

THIS is an appeal against the order dated the 15th February, 1991 passed by the State Commission of Maharashtra in dispute between M/s. Filmalaya Private Limited and the Corporation Bank.

THE respondent-complainant had opened two Current Accounts of No. 16 in 1979 and No. 162 in 1985 with the appellant bank. From 18th August, 1986 to 31st August, 1987 the respondent lost a sum of Rs. 2,42,021/- through misappropriation from both the accounts : according to complainant the misappropriation by his employee (Cashier) was made possible due to act of negligence and deficiency in service by the Officials of the Bank. According to the State Commission there were three lapses on the part of the Appellant which led to: 1. misappropriation of Rs. 39,060/- through forged cheques which were passed by the Bank; 2. misappropriation of a sum of Rs. 13,765/- made possible by the Bank debiting the cheques to a" wrong account viz. Account No. 162 against Account No. 16 which did not have adequate balance; 3. misappropriation of a sum of Rs. 1,89,20950p by short depositing cash in both the accounts. The appellant was heard at length. We have also taken on record the brief summary of the points submitted by the appellant on 30.11.1991.,

The appellant could not and has not explained as to how the Bank encashed the forged cheques. The amounts in figures might have been capable of alteration and remaining undetected. But this could not be said about amounts indicated in words.

AGAIN how the cheques debitable to Account No. 16 were debited against Account No. 162 as the cheque books, of the two accounts bore distinctive cheque numbers? In fact it transpired that the Account No. 16 did not have adequate balance and therefore the cheques appeared to have been debited to Account No. 162 to avoid the Account No. 16 showing a minus balance, which would have given an immediate signal that the cheques were not encashable. The non-encashability of cheques for want of funds was camouflaged by debiting the cheques to the wrong account. There is no doubt that encashment of such cheques was born of gross negligence at best and collusion between the employee of the respondent and the officials of the appellant. Clearly there was deficiency in service on the part of the appellant.

IN regard to the sum of Rs. l,89,209-50p short deposited the Bank submitted a compilation of records at the hearing. According to the appellant, the amount was misappropriated by the employee of the Respondent complainant by altering the depositors counterfoil of the "Pay-in-slip" after the pay-in-slip had been accepted by the Bank. Here again the appellant could not satisfactorily explain the subsequent manipulation or change of the amount indicated in words or the absence of the amount in words in the counterfoil indicating the amount in figures only which may be capable of manipulation. The form of the pay-in-slip requires the amount to be indicated both in words and figures. During the hearing the Counsel for the respondent submitted that there were 13 deposits only as against 56 deposits said to have been made by the Respondent; the depositors'' counterfoils in respect of the two deposits of 21.2.1987 for Rs. 2,000/- and 19.6.1987 for Rs. 1,500/- only could not be produced by the Respondent. However, the Bank had accepted that a sum of Rs. 38,700/- only as having been short deposited in the appellant''s account against a claim of short deposit amounting to Rs. 1,89,209-50p. The State Commission had come to the conclusion that the complainant was put to a loss of Rs. 1,89,209-50p on account of negligence in the service of the Bank. As the Counsel for the appellant pointed out at the hearing, the Bank passbook was in the custody of employee of the respondent and was therefore open to manipulation by him. It is from this Bank passbook that the short deposit of Rs. 1,89,209/- has been arrived at. The Bank passbook is not a reliable piece of evidence to establish the fact of short deposit especially when it was in the custody of the employee of the respondent who was convicted of forgery and fraud in this case. The short deposit has to be established on the basis of the amounts indicated in the depositor''s counterfoils of the pay-in-slips. The liability for short deposits can also not be fixed on the appellant Bank even if in its written objections it did not specifically deny the allegations regarding short deposit or did not dispute any particular amount of short deposit.

IT was for the respondent complainant to have established conclusively on the basis of depositor''s pay-in-slip counterfoils and the amount of Rs. 1,89,209/- he claims to have deposited in the Bank. This he has failed to do.

AT the hearing in appeal also the counsel for the Respondent reiterated that short deposit was established by the failure of the Bank to dispute the amounts claimed to have been short deposited. We cannot accept this contention of the respondent. It was for him to have established the amounts short deposited on the basis of pay-in-slips and not on the basis of the Bank passbook in the custody of the employee of the respondent who was guilty of misappropriation. We are, therefore, satisfied that on the evidence placed before us and in the light of pleadings and Bank''s admission the appellant Bank can clearly be responsible for short deposit to the extent of Rs. 38,700/- only. We order accordingly : The Order of the State Commission will stand modified to the extent of reducing the amount payable by the appellant to the respondent on account of short deposit to Rs. 38,700/- only as against Rs. 1,89,209-50p fixed by the State Commission. In other respects the order of the State Commission is confirmed.

Before we hand over the Order, the Commission would like to remove the impression of the appellant that Commission is disinclined to examine the facts of a case in detail where it has taken cognizance. It is needless to say that it is open to the Commission to examine and decide whether a complainant has a fit case for availing of this additional remedy under C.P.A. or he should seek redress through the Civil Courts. It is also not correct that the Commission did not have time to hear the oral submissions of the appellant. In fact each item of dispute was examined in detail and the parties were heard at length. Order accordingly.