IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of July, 2016
Filed on 02.12.2013
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.368/2013
between
Complainant:- Opposite Parties:-
Sri. Sreekumar 1. The Manager
Sreerangath Veedu Federal Bank Ltd.
Thamallakkal, Thekkum Muri Haripad Branch
Kumarapuram P.O.
2. The Manager
Federal Bank Ltd.
Thakazhi Branch
(By Adv. Cheriyan Kuruvila –
for opposite parties)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
Smt.Bindhu, Vimalalayam, Thakazhi borrowed Rs.80,000/- from the complainant and gave a cheque dated 25.5.2013 of Federal Bank at Thakazhi branch. Thereafter complainant presented the said cheque before the Federal Bank at Haripad branch on 28.5.2013 Complainant made frequent enquiries regarding the cheque presented for encashment. But the opposite party failed to give any reply regarding the same. The opposite party had collected Rs.135/- towards collection charge from the account of the complainant. The opposite deliberately did not return the cheque to the complainant under the influence of Smt. Bindhu. The non return of the cheque to the complainant caused financial loss of Rs.80,000/- and that amounts to deficiency in service on the part of the opposite party. Hence the complaint filed.
2. The version of the first opposite party is as follows:-
The bank account No.8298 of Smt. Bindhu with the Federal Bank at Thakazhy was opened in the year 2006 and was closed on 7.5.2011. The complainant presented the cheque for encashment on 3.1.2006. After the introduction of the core banking system those cheques are not in trade. It is gathered that Smt. Bindhu never borrowed any amount from the complainant and she had no debt or liability towards him. She had no financial transaction with the complainant. Several years back, her husband had certain financial transaction with the SNDP Micro Finance and as security for the said transaction, he had entrusted two blank cheques signed by his wife with SNDP branch. One amongst those cheques bearing No. 351644 reached the hands of the complainant by illegal manner and he presented it for encashment for wrongful fiscal gains. The other cheque bearing No. 351643 was presented for encashment by one Mr. Rajappan and on return of the cheque unpaid; he filed a complaint under the NI Act against Smt. Bindhu before the Court of the Judicial First Class Magistrate, Ambalappuzha as CC/No.779/2009. After the trial, the accused Smt. Bindhu was acquitted by the trial Court with a finding that there was no financial transaction between the complainant and the accused Smt.Bindhu leading to the issuance of the cheque. The cheque presented for the encashment was sent to the Federal Bank at Thakazhy branch and it reached there on 31.5.2013 and return unpaid since the bank account of Smt. Bindhu was closed. Then the unpaid cheque was handed over to the complainant on 15.7.2013, when he came to the bank to withdraw the cash from his account. An amount of Rs.113/- was debited from the bank account of the complainant towards collection charge and the complainant was aware of it. There is no deficiency in service on the part of the opposite parties.
3. The complainant was examined as PW1. Documents produced were marked as Exts.A1 and A2. The first opposite party was examined as RW1. Smt. Bindhu was examined as RW2.
5. The points came up for considerations are:-
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get relief and cost?
6. The complainant is a person who had an account with the first opposite party the Federal Bank Ltd., Haripad branch. The complainant presented for collection a cheque issued to him dated 25.5.2013 bearing cheque No.351644 by one Bindhu, in her account with the Thakazhy Branch of the Federal Bank Ltd., for an amount of Rs.80,000/- to the first opposite party. The said cheque was presented for collection on 28.5.2013 through the first opposite party, thereafter the complainant did not get the cash by the collection of the cheque and the collection charge. The first opposite party by neither return the cheque along with dishonour memo stating the reasons for dishonour of cheque nor did pay the cheque amount. According to the complainant, since the cheque entrusted with the first opposite party for the collection was not encashed, and the first opposite party failed to return the dishonoured cheque along with the dishonour memo, he had lost his opportunity to proceed against the person who had issued the cheque for realizing the cheque amount. The opposite parties admitted the entrustment of the cheque and according to the opposite party, the cheque was sent to the Thakazhy branch for encashment on 31.5.2013, and returned unpaid and sent back to the branch at Haripad and received at Haripad on 25.6.2013. According to the opposite party, the said cheque was returned to the complainant on 15.7.2013. In the light of the above fact, from the admissions contained in the version of the opposite parties, the allegation in the complaint that the cheque was entrusted with the first opposite party for collection is proved. Then the next question to be decided is whether the cheque was returned to the complainant or not. According to the opposite party, the same was returned to the complainant on 15.7.2013. The Branch Manager of the first opposite party was examined as RW1, in this case who was when cross examined about the usual procedure followed when the dishonoured cheque is returned to the customer, his answer is that, “ …........................................” RW1 further stated that since the complainant is a familiar customer no acknowledgement 3as obtained from him for the return of dishonoured cheque.
7. In the light of the strong objection from the part of the complainant regarding the return of the cheque the said explanation is not satisfactory. Moreover the RW1 stated in his deposition that the dishonoured cheque was returned to the complainant by one Fazil, staff of the bank. Even though his name was given in the witness schedule, Mr. Fazil was not examined as a witness by the opposite party for the reason best known to them. Hence the opposite party being a responsible Financial Institution is expected to follow all procedural formalities in its strict sense in its official dealings especially in the money matter and in the instant case the opposite parties committed negligence, in dealing with the cheque and resulted in deficiency in service by not returning the cheque.
8. The opposite party examined as their witness RW2 who is none other that the person who is alleged to have issued the cheque and in the cross examination, she admitted the signature in the cheque, but stated it was not issued in favour of the complainant, but to the SNDP Pallana branch along with another cheque and on the basis of the other cheque a criminal case was filed by one Rajappan but the same was dismissed. In the cross examination, the RW2 was asked whether she had taken any effort to get back the other cheque she answered ‘No’. Hence the examination of RW2 did not help in any way to substantiate the contention raised by the opposite party. It can’t be expected from RW2, in the given circumstances that she will own any liability towards the complainant as per the disputed cheque. The RW1 admitted that at the time of presentation of the cheque itself the bank was aware of the fact that the account remains closed, but the further explanation given for the acceptance of such a cheque that, “ …..................................................” is quite unbelievable. The opposite party admittedly has levied an amount of Rs.113/- towards collection charge from the complainant in the above deal.
8. In the light of the above discussion we are of the considered opinion that this is a case in which the first opposite party had dealt with the matter so negligently flouting the primary principles of banking which amounts to defect and deficiency in service, causing substantial loss for the complainant curtailing his legitimate right to proceed against the person who had issued the cheque for the realization of the cheque amount. Hence this is a case in which the complainant can claim damages on account of the defect and deficiency in service for the gross negligence from the part of the bank in dealing with the cheque and also on account of the substantial loss caused to the complainant equal to the amount of consideration shown on the cheque or the cheque amount itself. But in the instant case, the complainant did not take any initiative to prove the consideration for the lost cheque, especially in the light of the denial of issuance of cheque by the RW2. Had the complainant proved consideration for the cheque in addition to the compensation for the non-return of cheque, the cheque amount also could be granted. But the consideration for the cheque is not proved by the complainant. In the light of the above discussion, we are of the constrained opinion that a compensation for non-return of the dishonour memo and cheque can only be granted and an amount of Rs.10,000/- is awarded as compensation without prejudice to the complainant to take appropriate legal action against the person who has issued the cheque.
In the result, the complaint is partly allowed. The opposite parties are directed to give Rs.10,000/- (Rupees ten thousand only) towards compensation and Rs.2,000/- (Rupees two thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 30th day of July, 2016.
Sd/- Smt.Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Sd/- Smt. Jasmine. D. (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Sreekumar (Witness)
Ext.A1 - Copy of the cheque of Rs.80,000/-
Ext.A2 - Receipt for Rs.80,000/-
Evidence of the opposite parties:-
RW1 - Behanan.M.P. (Witness)
RW2 - Bindhu. V.T. (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
