Dinesh Singh, Member
1. This case relates to deficiency in service alleged against the State Bank of India (SBI) for alleged fraudulent withdrawal of an amount of Rs. 3,00,000/- averred by the complainant to have been deposited by him with the Bank.
2. The District Forum vide its Order dated 14.05.2014 had allowed the complaint. The State Commission vide its Order dated 25.10.2017 had concurred with the District Forum in its findings of deficiency in service on the part of the SBI while partially modifying the award made by the District Forum. This revision petition has been filed by the SBI against the said Order dated 25.10.2017 of the State Commission.
3. On 24.08.2018, after hearing arguments in part and after perusing the record, this Commission had passed the following interim Order:
Partly heard the learned counsel for the parties.
Perused the record.
We are of the view that in this case a detailed report on the whole matter shall be furnished by the chief executive of the petitioner bank or a senior responsible officer indicated by him within a period of two months through counsel.
In case the chief executive indicates that a senior responsible officer shall furnish the requisite report on the whole matter, the level of that officer should be atleast two levels higherthan that of the officer with whose approval this revision petition was filed.
List the matter for final arguments on 02.04.2019.
(emphasis supplied by us)
4. In compliance of the above - quoted interim Order a report dated 19.03.2019 was filed by the Regional Manager of the SBI, which reads as below:
I, Manmaya Pandab S/o Shri S. Pandab working as Asst. General Manager & Regional Manager, RBO-IV, Zonal Office Howrah, State Bank of India, have gone through the factual aspects and records placed before me pertaining to the complaint lodged by Shri Sunil Kumar Maity and after going through the same I submit as under:
1. A complaint was lodged by a customer on 18.12.2013 (marked as Annexure-A) namely Sri Sunil Kumar Maity, S/o Late Dhirendra Nath Maity maintaining Saving Bank Account a/c no. – 01190010167 with our SBI IOC Township Branch since January 2000. The said customer has alleged that he came to deposit an amount of Rs. 500/- on 15/09/2012 with his friend Mr. S. N. PAL in his a/c no. – 01190010167 but according to him the dealing staff of the bank asked him to deposit the said amount to a/c no. – 32432609504 which was also alleged to be noted over his passbook by the dealing staff.
2. The said Sri Sunil Kumar Maity has further alleged that on 16/01/2013 he came to deposit a cheque no – 670013 of Rs. 3,00,000/- in a/c no. 32432609504(the account no. which is alleged to be noted by the dealing staff) issued by Mr. Prabir Pradhan having account no. – 30608507950.
3. The said Sri Sunil Kumar Maity has further alleged that on 11/12/2013 he came to update his passbook and he was surprised to notice that only Rs. 59/- is lying in that account although he had not withdrawn any amount in that account. Later, according to him (customer), it has been revealed that the alleged dealing assistant on 15/09/2012 had noted the a/c no. – 32432609504 of a different Sunil Maity S/o Late Nani Gopal Maity.
4. It is the allegation of the said Sri Sunil Kumar Maity that the dealing staff of the bank had noted the wrong account no.(32432609504) over the passbook which was of another customer namely Sunil Maity and based on that wrong account number, Sri Sunil Kumar Maity alleged to have deposited the amount in wrong account number.
5. So far as the above allegations of the said Shri Sunil Kumar Maity (Customer) are concerned, I wish to submit before this Hon’ble Commission as under:
a) The allegation of the said Sri Sunil Kumar Maity with regard to noting of wrong account number (32432609504) of another customer namely Sunil Maity over his passbook is not correct and the same is not acceptable. It is evident and self explicit that the passbook upon which such alleged wrong account no. appears is handwritten whereas all the entries in the passbook are computer printed and such insertion of handwritten a/c is neither authenticated by any initial / signature of branch staff nor bears the seal of the branch. Inabsence of such authentication of initial signature of the branch staff with seal of the branch, the version of the said Sri Sunil Kumar Maity can not said to be correct that the said wrong account number was mentioned by any bank’s staff and thus no liability can be fastened upon the bank for such alleged credit of amount into alleged wrong account number. So far as the account number about which Shri Sunil Kumar Maity is alleging to be wrongly given by the bank staff is concerned, I submit that an account bearing number 3243609504 standing in the name of Shri Sunil Maity, S/o Late Nani Gopal Maity which was opened on 17/07/2012 with our IOC, Township Haldia, Branch which is KYC complaint and genuine account and was opened as per Bank’s norms. The said account was operational till 12.07.2013, thereafter there is no transaction in the account by Shri Sunil Maity (A/c Holder) and now the said account has become inoperative in terms of RBI guidelines. The copy of the Screenshot showing the account details along with copy of the statement of account is enclosed (marked as Annexure-B) herewith for kind perusal of this Hon’ble Commission. The bank have every reason to believe that wrong account no. is intentionally inserted by the said Sri Sunil Kumar Maity himself by pen or by some other known person of the complainant for the reasons best known to the complainant or on account of negligence by the customer himself by not keeping the passbook in his safe and proper custody and thus the said Sri Sunil Kumar Maity himself is responsible for the said alleged loss / credit of amount in alleged wrong account number. The copy of the said passbook is already on records of the Hon’ble Commission and is also enclosed herewith and marked as Annexure-C for the kind perusal of the Hon’ble Commission.
b) On scrutiny of the documents (marked as Annexure – D) it is observed that the changed a/c no. – 10140478732 from a/c no. – 01190010167 is due to migration to CBS from bank master (a software used by Bank) has been duly updated and recorded in the passbook on 24/02/2010 by way of computerized print. Thus Sunil Kumar Maity has not onlyduly informed of the change of the account no. but also the same has been recorded in his passbook much prior to 15/09/2012. Hence, the said Sunil Kumar Maity was already aware about his changed account number i.e. 10140478732. Moreover, after having the knowledge of change of his account no., he had also withdrawn Rs. 3,500/- on 26/03/2010 by withdrawal slip (marked as Annexure–E) from the newly changed account no. – 10140478732 accompanied by a written declaration in Bengali that he has not operated the account for a long time and requested for necessary arrangements so that he can withdraw money from his account. Thus, the version / claim of said Shri Sunil Kumar Maity that he is not aware of the new account no. when the same has been duly informed and recorded in his passbook and moreover he has done a transaction in that newly changed account no. is nottenable and the same is not correct. The said version / claim of Shri Sunil Kumar Maity is per-se contradictory in view of receiving of updated passbook and doing transactions in the changed account by him.
c) He has also claimed that he has deposited Rs. 500/- on 15/09/2012, the day on which the dealing assistant has noted the wrong account no. in his passbook and according to him this error committed by the dealing assistant, induced him in eventual deposit of Rs. 500/- on 15/09/2012 and a cheque of Rs. 3,00,000/- on 16/01/2013. But on scrutiny of the branch’s book of records (marked as Annexure – F) of 15/09/2012, I have observed that it is not Sunil Kumar Maity but some body else, which can not be deciphered from the initial of the depositor, has deposited Rs. 500/- on 15/09/2012. Moreover, the apparent tenor of the deposit slip in our naked eye reveals that the signature as recorded in the deposit slip dated 15/09/2012 is not of Sunil Kumar Maity since it differs as per bank’s recorded signature in a/c no. -10140478732 and it is neither the handwriting of Sunil Kumar Maity as evidenced in the withdrawal slip (Annexure – E) by which he has withdrawn Rs. 3,500/- on 26/03/2010. This lead us to believe that the complainant in connivance with third parties have hated the entire complaint to put the Branch into loss and injury.
d) Thus, I believe that the bank / branch has discharged its responsibilities without any negligence and without any kind of omission and has exhibited due diligence and has not committed any deficiency of service. The complaint by Shri Sunil Kumar Maity has been filed with motive to extort the public money and liable to be be dismissed in the interest of justice and to safeguard the public money.
6. It is further submitted that I am the controller and officer (SMGS-V) two level higher than the officer (MMGS-III) by whom the Revision Petition No. 438 of 2018 was filed before the Hon’ble Commission and hence, eligible and competent to submit the instant report as directed by the Hon’ble Commission.
7. It is therefore humbly prayed that the Hon’ble Commission may be pleased to accept this Report in compliance of the solemn order dated 24.08.2018 passed by the Hon’ble Commission.
(emphasis supplied by us)
5. On 07.06.2019, after hearing the final arguments, and after perusing the entire material on record, including, inter alia, specifically, the report dated 19.03.2019 of the Regional Manager of the SBI, we passed the following Order:
Dated: 7th June 2019
Heard the learned counsel for both sides.
Perused the entire material on record, including, inter alia, specifically, the report dated 19.03.2019 of Regional Manager of the revisionist State Bank of India furnished in compliance of this Commission’s earlier Order dated 24.08.2018.
The revision petition is allowed. The complaint is dismissed, with liberty to the complainant to approach a competent civil court as per the law.
It goes without saying that, if the complainant chooses to bring action in a civil court, he is free to file an application under section 5 of the Limitation Act, 1963, and, in such contingency, the chronological facts and proceedings in the consumer protection fora would be material and relevant towards making such application.
Learned counsel for the revisionist State Bank of India submits that it will not press the issue of limitation if action is brought by the complainant in a civil court.
Reasoned judgement to follow.
6. We are giving our reasons hereinafter.
7. We, first, note the report dated 19.03.2019 of the Regional Manager of the SBI (quoted, verbatim, in toto, in para 4 above), and note in particular its extracts where emphasis has been supplied by us.
8. Though in no way letting the merit, per se, be in any manner affected by this, we but also note that the SBI is a scheduled nationalized public sector bank. Its officers are accountable, both to the bank hierarchy, and to the CVC. Its accounts are subject to audit. A categorical reasoned report, explaining its position on the basis of the Bank record, has been filed by an officer external and superior to the Branch Manager and two levels higher than the officer by whom the revision petition was filed before this Commission. While explaining its position (on the basis of its record), malafide and motive to extort public money have been alleged against the complainant.
9. Considering the facts of the case and the allegations/averments and counter-allegations/counter–averments that are evident from the entire material available on the case file, we find that the two fora below have erred in not undertaking the requisite in–depth appraisal of the case that was required and warranted in the facts of the case and the allegations/averments and counter–allegations/counter– averments inherent therein.
10. Revisional jurisdiction of this Commission under section 21(b) of the Act 1986 has a defined purview and ambit, which but does allow for (and also requires) interference if grave misappreciation of evidence or superficial appraisal of a case is discernible on the part of the two fora below. (Deficiency in service cannot be determined by in itself a deficient appraisal.)
11. We do not affirm the concurrent finding of the two fora below.
12. Further, noting the facts of the case, and noting the specificities of the allegations/averments and counter–allegations/counter– averments inherent therein, and as particularly brought forth from the report dated 19.03.2019 of the Regional Manager of the SBI, in our considered view, this case, for apt adjudication on merit, requires recording of oral evidence and proving document
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ary evidence as per the provisions of the Indian Evidence Act, 1872 and adherence to the substantive and procedural provisions of the Code of Civil Procedure, 1908, best undertaken in a civil court. In other words, we do not find the facts of the case, and the specificities of the allegations/averments and counter–allegations/counter– averments inherent therein, to be such as can be aptly adjudicated on merit in summary proceedings by quasi - judicial consumer protection tribunals established under the Act 1986. 13. In the light of the above discussion, the impugned Order dated 25.10.2017 of the State Commission as well as the Order dated 14.05.2014 of the forum of original jurisdiction i.e. the District Forum are set aside. 14. The revision petition is allowed. The complaint is dismissed, with liberty to the complainant to seek remedy in a competent civil court as per the law. 15. It goes without saying that, if the complainant chooses to bring action in a civil court, he is free to file an application under section 5 of the Limitation Act, 1963, and, in such contingency, the chronological facts and proceedings in the consumer protection fora would be material and relevant towards making such application. Learned counsel for the revisionist State Bank of India submitted that it will not press the issue of limitation if action is brought by the complainant in a civil court. 16. So disposed.