Liability of the bank for deficiency in service and the availability of remedy under the Consumer Protection Act despite the pendency of criminal proceedings.

Mr. Justice K.C. Bhargava, President—This is an appeal against the judgment and order dated 26.11.1993 passed by District Consumer Forum, Faizabad in Complaint Case No. 626/1992.

2. The facts of the case stated in brief are that the complainant deposited a sum of Rs. 5,500/- in her Saving’s Bank Account No. C-1951 in the State Bank of India, Chowk Branch, Faizabad. A Pass-book was issued on 4.9.1991. Thereafter the complainant went to draw the amount from her pass book on 14.10.1992, it came to her knowledge that the amount which has been entered in the pass book has not been shown in the ledger. The amount was not paid to her on account of which she suffered mental tension. The Bank refused to pay the amount, hence she filed a complaint for recovery of Rs. 5,500/- alongwith Rs. 20,000/- as compensation on account of mental tension and Rs. 1,000/- on account of cost. She has also prayed for interest on the deposited amount.

3. The opposite party in its written version admitted the opening of her account on 4.9.1991. It was intimated that at present only a sum of Rs. 224/- was in balance in her account on 15.10.1992. It has been admitted that the complainant gave an application on 15.10.192 in which it was mentioned that she has deposited amount from time to time in her account total amounting to Rs. 7,500/- out of which the amount was withdrawn from time to time leaving with a balance of Rs. 5,500/-. It has also been indicated in the application which was moved by the complainant that the departmental enquiry was set-up which is still pending. A F.I.R. in this regard was also lodged with the Police Station which is also pending for investigation. The amount has not been deposited by the complainant and all the entries in the pass book have been done by Kumari Vineeta Pandey employee of the Bank who has been suspended. She was working on the Saving’s Bank counter as a clerk prior to 13.4.1992.

4. The parties led evidence in support of their respective contentions. The learned District Forum after considering the case of the parties, came to the conclusion that the complainant had deposited the amount in the pass book and there is deficiency on behalf of the State Bank of India. It, therefore, directed that a sum of Rs. 5,000/- be paid to the complainant along with interest which has been fixed from time to time. The complainant was also awarded a sum of Rs. 500/- as cost and a sum of Rs. 2,000/- on account of mental torture, tension etc.

5. Aggrieved against this order, the appellant, State Bank of India has come in appeal and has challenged the correctness of the order passed by learned District Consumer Forum.

6. We have heard the learned Counsel for the parties and perused the file. The learned Counsel for the appellant has argued that the complainant has not produced the deposit slips. According to the learned Counsel, criminal proceedings are pending, hence the case cannot be filed before the learned District Consumer Forum. On the other hand, the learned Counsel for the opposite party/complainant has argued that an action has been taken against the employee which shows that the amount was deposited by the complainant. According to him the pendency of criminal proceedings will not bar the maintainability of the complaint. In the present case it has been mentioned in the judgment that the criminal case was pending before the Criminal Court. This was the position when the judgment was delivered in the year 1993. It has not been indicated by either of the parties whether the said criminal case is still pending or not. Moreover the pendency of the criminal case has nothing to do with the trial of this case. In the present case the complainant has alleged that deficiency in service is on behalf of the State Bank of India and has claimed the refund of the amount deposited by her along with compensation. The learned Counsel for the appellant has further argued that this relief cannot be given to the complainant in the Con