IMPORTANT POINT
Commercial account holders cannot file consumer complaint.

K.S. Chaudhari, Presiding Member

M.A. No. 580 of 2011 for dismissal of complaint:

Complainants filed complaint against opposite party for recovery of Rs.1,09,03,212/- along with interest @ 18% p.a. and damages.

2. Brief facts of the complaint are that complainants are carrying on business of builders and developers. Complainants opened Current Account No.1211 in the year 2004 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 willfully 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.

3. 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. Oral and documentary evidence is required to be led which is not possible in this summary jurisdiction as the matter is to be decided within time bound schedule. It was further alleged that there are disputed question of facts whether signatures of Directors of the complainants on the cheques which were honoured by opposite party are forged or genuine and whether employees of the opposite party had been negligent in their duty to compare the signatures on the cheques which requires elaborate evidence and Consumer Forum cannot decide this issue in summary jurisdiction. It was further alleged that complainants were actively operating the accounts and from time to time requested for overdraft facility and complainants being aware of the withdrawals made from its accounts, complainants cannot be allowed to file present complaint for its own negligence, hence, complaint may be dismissed as being not maintainable.

4. In reply to the application complainant submitted that opposite party moved application after allowing application filed by the complainant under Section 13 for summoning the Additional Chief State Examiner of Documents, C.I.D., Maharashtra State, Mumbai for filing evidence by way of affidavit. It was further alleged that Additional Commissioner of Police (Crimes) sent all the forged and fabricated cheques to State handwriting examiner of documents and after obtaining his opinion application under Section 13 was moved. It was further alleged that merely because recording of evidence is required or some question of fact and law arise which would need to be investigated and determined cannot be a ground for shutting the doors of any forum under the Act. On the ground of summary trial, complainant cannot be directed to approach Civil Court as procedure provided under the Code of Civil Procedure has been made available to this Forum and if such procedure is followed strictly, it will not delay the proceedings. Affidavit of expert can be taken on record and the National Commission can evolve procedure to per