NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
Mittal Education Society —Complainant
versus
Indian Overseas Bank —Opp. Party
Consumer Case No.646 of 2017
Decided on 6.11.2017

IMPORTANT POINT
Question of facts and law are not determinable in summary proceedings under Consumer Protection Act 1986.

Headnote:Consumer Protection Act, 1986—Section 21—Banking—Deficiency in service—Forgery of cheque—It is case of complainant that OP Bank has miserably failed to discharge its duty towards customer and there has been deficiency in services by OP Bank on account of which complainant has sustained a loss of Rs.9,09,42,934/- involving more than 100 forged cheques/transactions—More than 100 cheques are involved which are stated to have been forged and payment received—Criminal case has already been filed by complainant society and charge-sheet has been filed against accused—When question of facts and law are not determinable in summary proceedings under Consumer Protection Act 1986, consumer forum may treat complaint as non-maintainable before it—Complaint also suffers from defect of non-joinder of necessary parties—On these grounds complaint is not liable to be admitted before National Commission—However, complainant given liberty to move to civil court having jurisdiction over the matter for redressal of his grievances.

       Held: It is important to note that in the present case more than 100 cheques are involved, which are stated to have been forged and payment received. The criminal case has already been filed by the complainant society and the chargesheet has been filed against the accused Mr.Gaurav Aggarwal and chargesheet is likely to be filed against some more accused. This Commission in Bright Transport Co. Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC) has observed the following:—

        “3. Yet another reason why we would discourage the complainant from approaching this Commission is that as per the complainants there are several acts of forgery for which a criminal trial is pending. The said case is yet to be decided and the decision of the criminal cases may have a bearing on the claims made by the complainants in these complaints. This Commission has consistently taken the view in the past that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by this Commission.”

        The above observations of this Commission are equally applicable to the facts and circumstances of the present case. This Commission in Bright Transport Co. Vs. Sangli Sahakari Bank Ltd. (supra) has further observed the following:—

        “7. It also appears to us that filing of present complaints before this Commission are nothing but an attempt to misuse the jurisdiction of this Commission only with a view to save on the Court fee payable in a suit before the Civil Court.”

        It is also astonishing to note that most of the cheques have been drawn allegedly by making signatures of Ms. Sunita Mittal, who is also the treasurer of the complainant society. As per the complaint, the cheques have allegedly been drawn by Mr. Gaurav Aggarwal within the period of May, 2013 to September, 2015. It is not clear that Ms. Sunita Mittal, who was the treasurer and under whose forged signatures the money was withdrawn, could not know the fact of withdrawal of money in the initial months of fraud happening. It is not easily digestible that she did not have any knowledge about the huge amounts being withdrawn without her knowledge and signatures. As treasurer she must be finalising the accounts annually, if not monthly. When the fraud was committed in 2013 itself, the withdrawals would have been reflected in the balance sheet and profit and loss account of the complainant society and the same should have been definitely known to the complainant society at the end of financial year 2013-2014. If withdrawals were not with their permission, why no action was taken at the start of financial year 2014-2015, rather, the society allowed Mr. Gaurav Aggarwal accused to carry on further fraud and withdrawals through forged cheques. Similar state of affairs continued till 2015-2016. As the criminal case is already under progress in the competent court, this Commission would desist from making any further observation in this regard.

       The total amount which has been allegedly taken away through withdrawal of forged cheques or RTGS forms is Rs.9,09,42,934/- as given in the complaint and many cheques are involved. Thus, this complaint involves complicated questions of facts and law and voluminous evidence would be required to reach to any conclusion and the same is not possible under the summary proceedings under the Consumer Protection Act, 1986. In a case of fraudulent cheque withdrawals, this Commission recently in the matter of The Tax Publisher Vs. Chairman & Managing Director, UCO Bank and ors., FA No.106 of 2014, decided on 31.08.2017 (NC)., has although accepted the deficiency on the part of the bank, but has simultaneously observed:—

        “12. In CCI Chambers Coop. Hsg. Society Ltd. (supra) the Hon’ble Supreme Court highlighted the same principle as enunciated in Dr. J.J. Merchant (supra) to determine the question whether adjudication on the issue arising in the Complaint require a detailed and complicated investigation of facts, incapable of being undertaken in a summary and speedy manner. It was observed that the decisive test is not the complicated nature of the questions of fact and law arising for decision – the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of detailed and complicated method of recording evidence.”

        From the above, it is clear that when the question of facts and law are not determinable in the summary proceedings under the Consumer Protection Act 1986, the consumer forum may treat complaint as non-maintainable before it. In the above referred case there were only two cheques involved in the matter. However, in the present case there are more than 100 cheques involved totalling to Rs.9,09,42,934/-. From the enormity of canvas of the complaint involving huge number of transactions through forged cheque and RTGS forms, this can be easily understood that adjudication of this complaint would involve enormous evidence which would not be possible in the summary proceedings under the Consumer Protection Act, 1986 before this Commission.

       It is also observed that the complainant has not made Mr. Gaurav Agrawal the accused a party in the case who was a necessary party. Thus, the complaint also suffers from non-joinder of necessary parties.

       From the above examination, it is quite clear that the matter in the complaint involves fraud and forgery, which are beyond the scope of the proceedings under the Consumer Protection Act, 1986. Looking at the huge amount involved and the number of transactions being more than 100 including forged cheques and RTGS forms, The examination of this complaint would involve voluminous evidence and the same is not possible under the summary proceedings before this Commission. The complaint also suffers from the defect of non-joinder of necessary parties. On these three grounds this complaint is not liable to be admitted before this Commission. However, the complainant will be at liberty to move to the civil court having jurisdiction over the matter for redressal of his grievances. With this liberty, the consumer complaint No.646 of 2017 is dismissed at the admission stage. (Paras 22 to 28)

       Result: Complaint dismissed.