Heard learned counsel for the appellant. None appears for the respondent.
2. This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.
3. The factual matrix leading to the case of the complainant is that the complainant was the Managing Director of the Mini Bank (LAMPS), Kalimela. According to him while he was discharging his duty as Managing Director on 9.1.2009, he in his official capacity presented a cheque bearing No. 156422 for encashment of Rs.3,00,000/- but he OP dishonoured the cheque on the ground that drawer’s signature is not valid. Due to bounce of cheque the complainant could not pay the money to the customer of Mini Bank. Thereafter, he was transferred. So, alleging about deficiency in service on the part of the OP for not honouring the cheque, the complaint was filed.
4. OP filed written version stating that complaint is not maintainable. The complainant is working under the OP and as such the allegations being against the employer are not maintainable. Moreover, it is stated that when the complainant has alleged the matter arising out of his official capacity, the consumer complaint is not maintainable. Apart from this, the OP has alleged that there is case of misappropriation of cash against the complainant and for that he was transferred. Therefore, he submitted to dismiss the complaint.
5. After hearing both the parties, the learned District Forum passed the following order:-
“xxx xxx xxx
The OP/Branch Manager K.C.C.Bank, Malkangiri, is directed to pay Rs.10,000/- (Rupees Ten thousand) only towards compensation and Rs.2000/- (Rupees Two thousand) only the cost of litigation expenses to the complainant within 30 days on receipt of this order.
The complaint is allowed.”
6. Learned counsel for the appellant submitted that the learned District Forum committed error in law by not considering the written version with proper perspectives. According to him the complainant after receiving the transfer order on the allegation of misappropriation of cash did not hand over the charge, but sent the cheque of Rs.3,00,000/- without approval of the OP. He also submitted that the same issue was also pending before the Registrar of Co-operative Societies, who has already passed order against the complainant. The complainant in order to divert the attentions has filed this complaint case to harass the OP. So, he submitted to set aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant and perused the DFR including the impugned order.
8. It is admitted fact that the complainant was Managing Director of Mini Bank, Kalimela during the relevant time. It is also not in dispute that the complainant was an employee under the OP. It is also not in dispute that the cehque was presented by the complainant on 9.1.2009 before the OP – Bank. It is also not in dispute that the cheque was dishonoured on the ground that the drawer’s signature does not tally. The only question arises whether the complainant has presented the cheque in official capacity and has proved deficiency in service on the part of the OP.
9. The onus lies on the complainant to prove the deficiency in service on the part of the OP. The impugned order itself shows that there is already proceeding for misappropriation of money against the complainant and there is order of Registrar, Co-operative Societies to take action. The only question arises whether in official capacity he presented the cheque and there is deficiency in service of OP. It appears from the impugned order that the complainant was suspended due to disobedience the order of transfer and he has approached the Registrar of the Co-operative Societies who passed the order on 5.12.2008 to maintain status quo and accordingly the OP allowed him to continue in the same Bank. Thereafter, on 9.1.2009 he sent the cheque. Thus, he has discharged his duty on official capacity.
10. Next question arises whether the dishonour of cheque under the N.I.Act can be decided by the Consumer Forum to prove the deficiency in service on the part of the OP. OP has been working as Banker and guided by Negotiable Instrument Act. The drawer’s signature does not tally is ground for dishonouring cheque under N.I.Act. When the cheque has been bounced due to defect in the drawer’s signature, same can be rectified by the OP under N.I.Act but the complaint would not lie showing deficiency in service. Moreover, for any dispute under N.I.Act section 138 of N.I.Act can be attracted before the appropriate authority. Therefore, we are of the view that the impugned order is liable to be set aside and is set aside.
11. The appeal stands allowed. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
