Rajendra Prasad Choubey vs State Bank Of India & 3 Ors

Dr. Inder Jit Singh, Presiding Member

The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 of Consumer Protection Act, 1986, against the order dated 17.08.2018 of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.A/504/2017 in which order dated 31.03.2017 of District Consumer Disputes Redressal Forum, North 24 Pgs., Barasat (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 669 of 2015 was challenged, inter alia praying for setting aside the order dated 17.08.2018 passed  by the State Commission in First Appeal No. A/504/2017.

While the Revision Petitioner (hereinafter also referred to as Complainant) was Appellant and Respondents (hereinafter also referred to as OPs) were Respondents No. 1 to 4 before the State Commission, the Revision Petitioner was Complainant and Respondents were OPs before the District Forum in the CC No. 669 of 2015. Notice was issued to the Respondents on 02.03.2020.  Parties filed their Written Arguments/Synopsis on 14.08.2023.

Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:

i. the Petitioner, who is a retired railway employee, deposited his money with the State Bank of India, Kanchrapara Branch, A/c No. 11210612287. On 09.12.2014, an amount of Rs.8,00,000/- was debited and transferred from the account of the Petitioner and the same was credited in Account No. 32330561350 of the State Bank of India, Saker Bazar Branch of Behala vide Cheque bearing No. 74787, alleged to be issued by the Petitioner.  It is contended in the Revision Petition that the cheque in question, bearing No. 74787 of Rs.8,00,000/-  was  neither issued by the Petitioner/complainant to anyone nor was it signed at any point of time by the Petitioner.  It is also contended that neither a confirmation call was ever received by the Petitioner nor any tele-message was sent by the OP/Respondent herein in lieu of the transaction. On 10.04.2015, the Petitioner came to know for the first time about the fraudulent transaction of Rs.8,00,000/-, thereafter, the Revisionist asked his son to inquire about the same from the bank authorities, since he was in Chhattisgarh, however, his son was not entertained.

ii. On 05.06.2015, the Petitioner contacted Ms. Kajal Kanti Dey, Chief Manager, State Bank of India, Kanchrapara Branch regarding the said fraudulent transaction.  It was informed that a cheque No. 74787 of account No. being 11210612287 was presented for clearing and the same was debited from his account and further credited in the account of the payee being account holder of account No. 32330561350 of the State Bank of India, Saker Bazar Branch of Behala.  When the Petitioner checked his Cheque Book, it was found that a cheque leaf No. 74787, which has been fraudulently used for the misappropriation of Rs.8,00,000/- was missing from the middle of the cheque book.

iii. On 15.06.2015, the Petitioner gave a written Tehri at Bizpur Police Station, Kanchrapara, North 24-Parganas, West Bengal, for the unauthorized withdrawal of Rs.8,00,000/-.  On 19.06.2015, a written complaint was filed by the Petitioner before the Chief Manager, State Bank of India, Branch Kanchrapara, West Bengal, for the fraudulent transaction.  On 19.06.2015 itself, the Chief Manager directed the Branch Manager of the Bank to investigate the matter as raised by the Petitioner.  On 02.07.2015, the Petitioner submitted a written complaint before the Commissioner of Police, Barrackpore for looking into the matter and ordering strict investigation in the same.  Vide letter dated 02.07.2015, in reply to the letter dated 19.06.2015 of the Petitioner, the Chief Manager though admitted that no confirmation call or transaction system generated message was ever sent by the bank to the Petitioner, however, took no responsibility of the fraud transaction being committed in complete disregard to their own norms.  Vide letter dated 03.07.2015, the Chief Manager, State Bank of India requested the Petitioner  to examine the documents, i.e. Cheque and the deposit slip and asked for his opinion.

iv. On 06.07.2015, the Petitioner sent a Legal Notice to the Chief Branch Manager, State Bank of India, Kanchrapara Branch.  No reply to the Legal Notice was received by the Petitioner.  On 06.07.2015, an Examination of Documents Report was submitted by Shri Purushottam Chatterjee (Document Examiner), S.B.I. to the Chief Manager S.B.I., giving a Report that the cheque has been signed by the Petitioner only.  In fact by the naked eye could be perused that the signatures are not similar and done by the same person.  Moreover, before conducting such signature verification no specimen signatures were obtained from the Petitioner.  On 03.12.2015, the Petitioner filed a Consumer Complaint before the District Forum.

Vide Order dated 31.03.2017, in the CC No. 669 of 2015 the District Forum dismissed the complaint.

Aggrieved by the said Order dated 31.03.2017 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 17.08.2018  in FA No. A/504/2017 has dismissed the Appeal and affirmed the order of the District Forum.

Petitioner has challenged the said Order dated 17.08.2018 of the State Commission mainly on following grounds:

(i) that the State Commission’s order is bad in the eyes of law, since the same is silent on the reasoning of deficiency in service. The Fora below though admitting to the irregularity by the Respondents, has failed to appreciate that there has been deficiency in service on the part of the Respondent. The irregularity committed by the bank being an admitted position, the Fora below failed to appreciate the Petitioner being a consumer is left without any efficacious remedy.  The State Commission erred in not appreciating that the case of the Petitioner  is filed under Consumer Protection Act for the deficiency in service by the Service Provider, whereas, in the present case admittedly the Respondent failed to send SMS to the Petitioner and also failed to obtain the drawers confirmation in case of Non-home branch payment, which is an intentional action of deficiency in service and unfair trade practice.

(ii)  The State Commission erred in holding that the Petitioner is at fault as did not check the cheque book immediately on receipt of the same, without being prejudice even if it is assumed that the Petitioner is at fault as per say, then too the factum of deficiency in service by no sending SMS or by not doing counter verification before the transaction could not be ruled out, which is also an admitted case of the Respondent Bank. The State Commission erred by holding that the Petitioner has not been able to establish its case by preponderance of probability, whereas in fact it is the Revisionist who discharged his part of onus and the Respondent has failed to discharge their exclusive that there is no deficiency in service on their part.  The State Commission erred in dismissing the appeal in contra to the materials as available on record and are sufficient to prove the deficiency in service and unfair trade practice, further the irregularity as committed by the Respondent bank, regarding the transaction of the disputed cheque.  The State Commission failed to appreciate that the Criminal Courts are concerned with the Penal provisions, whereas the Consumer Court is concerned with the speedy disposal of grievances of the consumers for deficiency in services on the part of service provider and there is no bar of jurisdiction to decide the consumer dispute when the matter is pending before the criminal court.

(iii) The admission of Respondent categorically proves the deficiency in service on the part of the Respondent due to which, the Petitioner remained completely unaware of the fraudulent transaction.  Hence for this alone both the Fora below ought not to have rejected the Appeal/complaint of the Petitioner.

(iv) The State Commission erred in not appreciating that the Respondent in in his written statement at para 5 has admitted that cheque No. 74787 was produced at the branch office of State Bank of India, Saker Bazar, was neither signed by the Revisionist nor delivered to anybody for withdrawal and the entire transaction is out.

(v)  The State Commission erred in not appreciating that the bare perusal of the signatures of Petitioner -Mr. R.P. Choubey, on the photocopy of the Cheque No. 74787 do not tally in the form of signature or the formation of the alphabets of the signatures of the Petitioner on cheque No. 74777 and 74779 and signatures on letter dated 19.06.2015, however, still the said disputed cheque was cleared by the Respondent Bank, thereby without issuing any counter verification or sending any SMS with effect to the said transaction.  Such casual approach of the Bank, while not following their own norms in providing services to the customers, is deficient nature of service and unfair trade practice  therefore, the case is covered under the Consumer Protection Act.  The State Commission erred in not appreciating that the signatures of the Petitioner ought to have been compared, in terms as provided under section 73 of the Evidence Act and shall have drawn its own  conclusion, since the signature on the photocopy of the disputed cheque does not tally with the signature of the Petitioner. The State Commission erred in not appreciating that as per the report of the document examiner Sh. Purshottam Chatterjee, he admits that the signatures have been made with some variation, however, still it is similar to the sample signature. In view of this it is an admitted case of the document examiner of S.B.I. that the signatures do not tally, that of the Petitioner, then in complete disregard to the essential norms of the bank, the cheque was not stopped by the Respondent and the same was cleared in complete fraudulent nature, whereas for the same transaction, neither any counter verification was done nor any SMS was sent.

(vi) The State Commission erred in not appreciating that the cheque numbers 74779 & 74777 which are genuine cheques as the signatures on the said cheques are of Petitioner and in comparison of the two cheques, prove and establishes the fact that the signature on the disputed cheque does not tally with the standard signature of the Petitioner.  Despite the said glaring distinguishment of the signatures which can be perused from naked eyes also, the Respondent Bank without following the standard norms cleared the said cheque thereby defrauding money of the Petitioner and also failed to make any counter verification or any SMS in lieu of the said transaction. The State Commission erred in not appreciating that the report as submitted by Mr. Purushottam Chatterjee, is not reliable but fixed and biased in favour of Respondent No.4 for the reason that there is no juxtaposed photographic chart to illustrate the finding as done in document examination and Mr. Chatterjee is not a Government Examiner and is a hired person of Respondent No. 4.  The Xerox copies are unfit for comparison, however , the alleged document examiner used Xerox copies for comparison, which cannot be sustained in the eyes of law.  The report also admit that there is pen lift in the disputed signature and there is consistence in connection which are sure sign of forgery and the alleged documents examiner simply passed favourable opinion which is self-contradictory.

(vii) The State Commission erred in appreciating the admission letters of Respondent No. 3 as well as the absence of any authentic proof for not sending any SMS, absence of verification of drawers signature for non-home payment and also the non-tallying of the signature of the Petitioner with the signature on the disputed cheque, are the acts of the Respondents in deficiency in service and unfair trade practice in addition to forgery.

Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7.1. the Petitioner in addition to repeating what has been stated under the grounds, has contended in its written arguments that the admission letters of the Respondent No. 3 as well as the absence of any authentic proof for not sending any SMS, further absence of verification of drawers signature for non-home payment and also the non-tallying of the signature of the Petitioner with the signature on the disputed cheque, are the acts of the Respondents in gross deficiency in service and unfair trade practice in addition to forgery by miscreants and the revisionist is entitled to his deposited money with compensation.

7.2  On the other hand, the Respondents contended that the complaint filed by the Petitioner is false, illegal and mischievous and was rightly dismissed by the District Forum vide its order dated 31.03.2017.  Thereafter, the State Commission rightly dismissed the Petitioner’s Appeal vide order dated 17.08.2018.  The Petitioner purposely signed the cheque with some variation so that he could deny his own signature afterwards.  It is further contended that all cheques are paid by the Respondent Bank after proper verification and high value cheques are subjected to critical examination before payment.  It is also stated that in all cases, where SMS alert facility is registered, alerts are sent to customers for every transaction without exception.  The disputed cheque was a genuine one and it was in customer’s custody. The issuance of cheque book goes through multi-tier procedure, right from issuance to dispatch and the Complainant/Petitioner came up with baseless allegation in this regard.  The document examiner’s report confirmed the fact that the cheque was signed by the complainant.  The cheque in disputed for Rs.8,00,000/- was issued by the complainant and duly signed by the complainant and the same has been encashed on 09.12.2014.  No fraudulent transaction was made.  The complainant got message for the transaction of Rs.18959/- on 25.12.2014, 10.04.2015 and 30.04.2015 before paying the high value cheques a critical examination is made vide letter dated 02.07.2015. The message dated 25.12.2014 containing respective credit/debit amount and also available balance in the amount was sent.  The complainant was well aware of the balance in the account.  The complainant now cannot deny that vide letter dated 25.06.2015, if any non-delivery of SMS is detected that may be some occasion where due to network congestion at telecom operator’s end for which banks are not responsible.  The said cheque was encashed on 09.12.2014 and the complaint was made on 15.05.2015, 19.06.2015 and 02.07.2015. The story of going to Chhattisgarh in connection with a Court case is false.  It is impossible that the Cheque Book was issued without 1st page of cheque No. 074787 to the complainant.  The issuance of cheque book goes through several multi-tier procedure right from issuance to dispatch.  Complainant filed a criminal case being M.P. Case No.-1543 of 2015 before the ACJM, Barrackpore without revealing any details as to the status of the said case.  The two parallel proceedings cannot be continued. The present Revision Petition with costs for being false, misleading and mischievous.

We have carefully gone through the orders of the State Commission, District Forum, other relevant records and the rival contentions of the parties.  In this case, there are concurrent findings of both the Fora below that the complainant has not been able to prove his case and establish deficiency of service on the part of OPs.  Both the District Forum and the State Commission have given a well-reasoned order and we find reason to interfere with the order of the State Commission.  As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577]  held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.” We find  no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld.  Accordingly, the Revision Petition is dismissed.  Parties to bear their respective costs.

The pending IAs in the case, if any, also stand disposed off.