SMT. RAVI SUSHA: PRESIDENT

Complainant filed this complaint U/S 12 of Consumer Protection Act 1986 against Opposite Party bank for getting an order directing the OP bank to pay an amount Rs.3,00,000/-  with interest @ 12 % per annum from 14/10/2016 till realization with Rs. 50000 towards compensation alleging deficiency in service  and willful negligence on the part of Opposite Party.

            The brief facts of complaint are

            The complainant sister employed on London is an NRI Account holder of OP bank.  For the expense for construction of house, sister of the complainant has sent two cheques for 3 lakhs, one bearing No. 10089541 for Rs. 1 lakh and the other one bearing No. 10089543 for Rs. 2 Lakhs in favour of the complainant drawn against her NRI account with the OP bank.  Information about the transaction of cheque by post was conveyed to the complainant by his sister.  Since the complainant did not receive the cheques he has enquired about the same with the OP on 31/10/2016.    Then it was learnt that both the cheques have been encashed as early as on 14/10/2016 from the OP bank.  The amount of 3 lakhs was disbursed by the OP to some other person without authority.  The OP in collusion with some other person disbursed the amount of 3 lakhs.  There is deficiency of service on the part of the OP in disbursing the amount of 3 lakhs covered by cheque No.10089541 and 10089543.  Hence filed this complaint for getting  the relief as claimed in the complaint.

After receiving notice OP entered appearance through counsel and filed written version.  In the version, it is stated that it is true that both the cheques were encashed to the bearer of the cheque on 14/10/2016.  Both the cheques in question were dated 10/10/2016; in that case it can be presented for encashment on or after 10/10/2016 for a period of three months by the payee or the holder in due course (bearer) as the case may be. U/s 85 of Negotiable Instrument Act, bank is liable to disburse the amount involved in the cheques either to the payee or to the bearer if the cheque is ‘bearer cheque’.  In this case both the cheques are not crossed or A/c payee cheques and it is bearer cheque.  In that case, bank is duty bound to disburse the amount to the bearer or the payee, who presented them.  The drawer drawn the cheque as ‘Bearer Cheque’ and it is not an A/c payee cheque.   In that case bank cannot deny the payment to the bearer who presented the cheque for payment.  As it is a bearer cheque, bank need not know the identity of the person who presented the cheque for payment.  Further there was no such occasion to suspect the genuineness of presentation also.  If there was any such doubt, then the official of the bank would ask for further clarification or to get the confirmation from the account holder before payment to the bearer.  In this case, the person who presented the cheque was properly presented which have not created any doubt in the mind of the official sitting in the counter.  Hence as usual procedure OP bank made payment to the person presented for payment.  There is no such collusion with anybody as alleged by the complainant in making payment to the cheques in question.  There is no deficiency in service on the part of the OP in making payment to a person, bearer of cheque, who prsented for payment.  If the signature is mismatched, or if there is any material alteration etc., or anything contrary to the NI Act, the bank would have denied the payment.  In this case, everything Is in order and hence bank has no other choice but to make payment to the bearer of the cheque.  Further, if the cheques were not received the complainant in a reasonable time after despatching the same, either the complainant or the account holder could have been given an instruction to the bank for ‘stop payment’ of those cheques, in this case that also not done by the complainant or account holder.  Hence it is prayed that this complaint is to be dismissed with cost.

            Complainant file his chief affidavit and was examined as Pw1. Ext. A1and A2 certified copies of disputed cheques were marked as documents on the side of complainant.  Branch Manager of OP bank filed his chief affidavit and was examined as Dw1.  Both witnesses were cross examined for the rival parties.  After that the learned counsels of both parties made oral argument before us.  We have perused Ext. A1 and Ext. A2 documents and considered the submissions of both Learned counsels.

            Complainants allegation is that the two cheques for 2 lakshs and for 1lakshs sent by his sister who is employed in London was disbursed by OP bank to some other person without authority and thus committed deficiency in service and willful negligence.

            On the other hand OP bank contended that since the cheques are “bearer  cheque” U/S 85 of Negotiable Instrument Act, bank is liable to disburse the amount involved in the cheques either to the payee or to the bearer, who presented the same.  OP further pleaded that if the cheques were not received to the complainant in reasonable time after dispatching the same, either the complainant or the account holder could have given instruction to the bank for ‘stop payment’ of those cheques.  But in this case that also was not done by neither of them.  According to OP bank there was no willful negligence or deficiency in service on their part.

            On perusal of Ext. A1 and A2 certified copies of cheque we can reveal that those cheques are not crossed or account payee cheques.  Both cheques are bearer cheques.  The Learned Counsel appearing for the OP submitted that the complainant has not stated in his complaint that whether the cheques sent to him by registered post or in ordinary post and also complainant has not filed any complaint to the postal authority for the wrong delivery of the article.  The learned counsel produced a decision of Honorable National Commission K V Sheeba Vs. Canara Bank and others revision petition No. 530/2012

            The facts in the above case are similar to this case.  In which the hon’ble National Commission held that the Hon’ble State Commission’s observation that as per section 85 of the NI Act, where a cheque payable to order purports to be endorsed by or on behalf of the payee the drawee is declared by Payment in due course and also where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof.  Further held that as the bearer cheque on behalf of the petitioner was presented before the OP bank, it was fully justified in making the payment against it and as such no deficiency can be attributed on the part of the OP bank”

            The Hon’ble National Commission held that the above findings of state Commission is correct.

            Since the facts and circumstances of this case is similar to the above said case, we are also of the view that the encashment made by OP bank in respect of Ext. A1 and Ext A2 cheques to the person who presented before them, cannot be blamed.  As such no deficiency in service can be attributed on the part of OP bank

            In the result complaint is dismissed.  No order as to cost.

Exts.

 A1and A2     - Certified copies of disputed cheques

                        (Cheque Nos.10089541 &10089543)

      Sd/                                                                                  Sd/                                                     Sd/

PRESIDENT                                                                 MEMBER                                              MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(min)

/Forward by order/

Senior Superintendent