THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 11th DAY OF OCTOBER, 2022
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
APPEAL NO.573/2013
M/s.Bank of Baroda,
Narayanpur Branch, … Appellant/s
Dharwad,
Represented by power of
Attorney Holder,
Sri.Siddaramaiah,
(By Sri/Smt. R.S.Rajesh, Adv.,)
V/s
M/s. Nectar Beverages Pvt. Ltd,
ADJ GTC Belgaum Road,
Dharwad, … Respondent/s
Reptd by its Manager, (HRD)
and Authorized Signatory
Sri.R.A.Bakale
(By Sri/Smt.Gangi Reddy, Adv.,)
O R D E R
BY SRI.RAVISHANKAR, JUDICIAL MEMBER
The Opposite Party in complaint No.425/2012 preferred this appeal against order passed by the District Consumer Commission, Dharwad which directed this appellant to pay cheque amount of Rs. 1,04,974-00 with interest @6% p.a. along with Rs.2,000-00 towards compensation and Rs.1,000-00 towards litigation expenses.
2. The brief facts of the complaint is that;
The complainant is an account holder of the appellant bank and regularly transacting with this appellant bank. It is the case, on 20-3-2009 the complainant tendered a cheque bearing No.0052359 for an amount of Rs.1,04,474-00 drawn on the State Bank of Mysore, Chickmagaluru branch for realization. This appellant bank has collected the cheque for realization on 20-3-2009 but it is surprise, the amount was not credited to the account of the complainant. The complainant repeatedly requested the appellant bank for credit of the amount, subsequently the complainant issued legal notice on 30-6-2009 with respect to the non-credit of the amount for which the Opposite Party/appellant bank and replied on 29-9-2009 stating that, the cheque was not honoured as the account holder has insufficient balance and the cheque was delivered to the complainant on 26-3-2009 itself. Immediately, after receipt of this letter, the complainant wrote a letter dated 15-10-2009 stating that he has not received the cheque on 26-3-2009 and requested to furnish the acknowledgement due in order to show the return of the cheque but, the Opposite Party bank promised to furnish the acknowledgement, so far the Opposite Party bank does not furnished any acknowledgement to show that the cheque was returned to the complainant. Finally the complainant wrote a letter dated 3-11-2012 to furnish the acknowledgement, for which on 20-11-2012 the respondent sent a letter with Xerox copy of the cheque returned register extract and stated that the said cheque was returned to the complainant. In fact, the register was manipulated by the Opposite Party bank, but the cheque was not received by the complainant. Due to which, the complainant suffered an opportunity to file the complaint under Negotiable Instruments Act for recovery of the said amount. Subsequently, the complainant filed the complaint before the District Consumer Commission alleging deficiency of service and sought for payment of the cheque amount. After trial, the District Consumer Commission allowed the complaint and directed the appellant bank to pay the cheque amount along 6% interest per annum from the date of complaint till realization and Rs.2,000-00 towards compensation and Rs.1,000-00 cost of the proceedings, against which, the appellant before this Commission.
3. Appellant is not present to submit their arguments. On the other hand, the respondent submitted his arguments.
4. On perusal of the certified copy of the order and memorandum of appeal, we noticed here that, the complainant was an account holder of appellant bank who tendered a cheque bearing no.0052359 on 20-3-2009 for realization to the tune of Rs.1,04,474-00 which was issued by the some third party. Instead of realization, the cheque was (as per the version of appellant) returned to the complainant on 26-3-2009. The complainant alleged that, he has not received any cheque and demanded for production of acknowledgement to establish the cheque was returned to the complainant. But the Opposite Party bank has not produced any acknowledgement to the complainant, instead of that and furnished the Xerox copy of the cheque leaf and copy of the cheque returned register extract not satisfied with the said the complainant alleged deficiency of service and filed the complaint before the District Consumer Commission. The District Consumer Commission allowed the complaint for reason that the signature in the cheque returned register extract was not tallied with any employees of the complainant and directed the Opposite Party bank to pay the said cheque amount to the complainant.
5. We noticed here that, the cheque was not realized for the reason “insufficient fund” from the drawer. The complainant instead of demanding for return of cheque would have asked the third person for another cheque for the same amount. Instead of that, the complainant demanded for production of acknowledgement to establish the bounced cheque was not returned. The complainant wrote a letter on 15-10-2009 to the appellant bank to produce the acknowledgement due, for which the appellant has produced cheque returned register extract, which goes to show that, the cheque was delivered to the complainant. The District Consumer Commission without appreciating the said cheque returned register extract and provided the reason that the signature was not tallied with the employees of the complainant. The District Consumer Commission has not referred the signatures to any laboratory for cross-check. In the absence of such, the District Consumer Commission cannot arrive for and opinion that the signature in the cheque returned register extract not tally with the staff of the complainant. The reason narrated in the order for awarding the complaint is not in accordance with law. We are of the opinion that, even though the cheque was lost in the appellant/Opposite Party bank, the complainant would have approached the person who has issued the cheque for issuance of another cheque to the same amount. Instead of that, he filed a complaint and alleging deficiency of service against the Opposite Party. Though the cheque was lost in the Opposite Party bank or returned to the complainant, the cheque amount cannot be paid to the complainant as because as per the cheque returned register extract it was returned to the complainant on 29-9-2009 itself. Whereas the complainant has filed the complaint in the year 2012 after long gap of three years, demanding for cheque mount. We noticed that, the appellant bank has advised the complainant to receive another cheque for realization from the third person who has issued the cheque, but the complainant has not made any attempt in this regard. The award passed by the District Consumer Commission lacks legality as because if the cheque was returned with an insufficient fund or account closed, the cheque amount cannot be paid to the bearer. As such the order passed by the District Consumer Commission is liable to be set-aside; consequently the complaint is liable to be dismissed. Accordingly, we proceed to pass the following:-
O R D E R
The appeal filed by the appellant is hereby allowed consequently, the complaint is dismissed.
The amount in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to the appellant.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
Member. Judicial Member.
