(Delivered on 03/10/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member

1.      The  instant  appeal  is filed  against the order of the District Forum,  Chandrapur passed in  complaint No. 71/2007 dated 13/11/2007 granting the complaint  partly and directing the  opposite party (in short O.P.) No. 1 to provide  the  tri monthly  interest at the rate of 9% p.a.  on the  deposited amount  of Rs. 2,00,000/- from April- 2007,  within  one month from the date of  the receipt of the order.

          Further  the learned Forum  cancelled  the  amount  of Rs. 6,634/- to be taken  from the complainant  by the O.P.No. 1 and  further directed   the O.P. Nos. 1&2 to provide Rs. 1,000/-  each as  physical and mental harassment  and Rs. 500/- each as cost  to the  complainant  in the span of 30 days from the date of the order.

2.      The  complainant in short  alleged  under,

a.      The complainant is a  well educated  senior citizen  and with intention  to keep fixed deposit in senior citizen  saving scheme of O.P. No. 1  gave  Rs. 2,00,000/- by cheque  and Rs. 50,000/-in cash  together  to O.P.No. 2 the agent.  Accordingly  the O.P.No. 1 on 11/07/2005 opened the fixed deposit  account of complainant  and gave the pass book through  O.P.No. 2 with entry  to provide  tri monthly  interest of  Rs. 5,625/- upon  the deposited  amount of  Rs. 2,50,000/-. The amount  deposited  in the said senior  citizen saving  scheme  was to be   matured  on 11/07/2010.

b.      The O.P.No.1 provided  quarterly  interest  till February- 2007. However,  then  sent a letter  claiming that  the complainant   had only  deposited  Rs. 2,00,000/- for which  the quarterly interest was only Rs. 4,500/- However, by mistake  the deposited  amount  was  thought  to be  Rs. 2,50,000/- and was paid  the interest of  Rs. 5,625/-. Hence, the extra amount of interest  totaling to Rs. 6,634/- was directed to be  surrendered back. When  the complainant  went to make the enquires  he was  threatened  of  Police complaint and  his  interest amount from April-2007 is held up.  The complainant therefore, holding that  the  O.P.  showed  Rs. 2,00,000/- when  Rs. 2,50,000/- were deposited  and  did not maintain  proper  record and  disbursed  the interest,  gave notice  on 21/05/2007 but received  no reply. Hence,  filed a complaint  with a request  to direct the O.P.  to provide him  the defined  quarterly interest of Rs. 5,625/-  from  April-2007 regularly and to  provide him  the deposited amount of Rs. 2,50,000/- at the end of the term. Further provide him Rs. 10,000/- for  physical and mental harassment and  a cost of Rs. 5,000/- by declaring the O.Ps. to have given  deficient   service and  resorted  to  unfair trade practice.

3.      On notice  the O.P.No. 1 countered the complaint by written version in brief  as under:

          The complainant  deposited  by cheque Rs. 2,00,000/- on 06/07/2005 which was  in cashed  on 11/07/2005 upon which  a regular  fixed deposit account was opened. However, due to  clerical  mistake  an entry of  Rs. 2,50,000/- was made  with  quarterly interest at the rate of 5,625/- rupees. However, when  it came to the notice  that  only Rs. 2,00,000/- were deposited, the complainant was given  an appropriate  letter  to surrender the extra amount.  The O. P. No. 1 claimed  that as per the rules of  finance department,  the amount  above rupees  1,00,000/- has to be deposited by cheque. Hence,  there cannot be any reason  to accept  that the  complainant   deposited the amount of Rs. 50,000/-  by cash and cheque.

4.      The O.P.No. 2 by filing  written version  submitted that  the complaint  is false  and requested  to dismiss it. He submitted that  he is a  saving agent  from the year 1996.  The complainant  on 06/07/2005 gave him  Rs. 2,00,000/-  for depositing   in to  senior citizen saving  scheme of  O.P. No. 1. He got the form filled  by the complainant  who gave  the cheque of Rs. 2,00,000/- which  he deposited  in the  Post Office of O.P.No. 1. The  O.P.No. 2  gave him  the pay in slip  of  Rs. 2,00,000/-. The O.P.No. 2 stated that  the clerical mistake in the office of the O.P.No. 1 resulted in the entry of Rs. 2,50,000/- in the pass book with entry of quarterly interest.  However, as  the complainant  gave only Rs. 2,00,000/-, the complaint  is false

5.      The learned Forum below   considered the contentions of  both  the parties and perused the evidence filed  through  documents  by  both the  parties. Forum below  held that  the O.P.No. 1 is a  government department and  would not accept a cheque and  a cash together  and would  open the account after  encashment of cheque by  maintaining  the  amount  with them.  Hence,  from the record it clearly shows that the complainant  deposited  only Rs. 2,00,000/- by cheque with O.P.

6.      The learned Forum further  analyzed  the documents submitted  by  both  parties and  held that the complainant  being  a well educated  person would not sign on the blank paper. Also  the  depositing of  extra cash of  Rs. 50,000/- would positively  get  noticed  in the  account maintenance of  the O.P.  As  no such  discrepancy was noticed by the  O.P., on the day  the amount was deposited and  on the day  on which  the  cheque was  enchased.  Also  the complainant   has filed  his income tax return, where  his fixed  deposit  amount  would have been Rs.  15,50,000/- had he  deposited  Rs. 2,50,000/- with  O.P.No. 2. But  it does not appear  so.

7.      The learned Forum therefore, held that  it is not possible  to deposit  Rs. 50,000/- in cash  along with  Rs. 2,00,000/- by cheque. Therefore, the  complainant’s  contentions  of  depositing  Rs.  2,50,000/-  cannot be  believed.

8.      However, the learned Forum held that the O.P.No. 2 is a agent who is  supposed  to see that  the forms  are properly  filled and  are  properly submitted and proper  entries are made on the pass book  which  he must check at the time of giving the passbook to the  client.  Therefore,  when the mistake took place by the clerk of O.P.No. 1 he should   have noticed it  and  should  have  got it corrected before handing  the passbook to the complainant.  Hence,  the O.P.Nos. 1& 2 has committed deficiency in service.

9.      The learned Forum therefore,  passed the  order  supra cancelling  the  direction for surrender of extra paid amount.

10.    Aggrieved against the order the complainant filed the appeal through  advocate Mr. Kullarwar. Hence,  is referred as  appellant.  The original O.P.No. 1 is referred as respondent No. 1 and advocate Smt. Choube appeared on behalf of  it.  The original O.P.No. 2 is referred as respondent  No. 2 and advocate Shri Tikle  remained present for   him. The respondent Nos. 1&2 filed their respective notes of written argument.

11.    On the day of hearing  as  both  respondents  were absent and  appeal being  too old we decided to hear  the appellant  and closed the case for judgment.

12.    The advocate for the appellant  relied on the following  judgments.

i.        National Commission  Judgment passed in Union Bank of India Vs. Naresh Bhai Raichand Bhai Prajapati, published at III (2006) CPJ 330 (NC). Wherein  the  Hon’ble Commission held that  there is  no reason to disbelieve  the complainant that  he handed over pass book in good faith to respondent No. 2. Hence,  directed to pay Rs. 18000/- with interest along with cost.

ii.       Haryana State Commission  order passed in  United India Insurance Co. Ltd. Vs. Durga Plastics  published at III (2006) CPJ 330, wherein  the Hon’ble Commission held that  when affidavits  are filed  after  complaint , cross examination  was essential. However, request was  wrongly declined  & thus  Forum committed  patent  illegality. Hence,  order was set aside.

13.    The advocate  for the appellant submitted that the  appellant  is a  well educated  person  and  the passbook given to him by the respondent No. 1 clearly shows that  on 11/07/2005 Rs. 2,50,000/- were deposited  with  quarterly interest of Rs. 5625/-. He is paid  the interest of Rs. 5020/- in September-2005 and  Rs. 5625/- in December-2005 and then  regularly  till February -2007, which shows that the appellant deposited  Rs. 2,50,000/- in the form of  a cheque of Rs. 2,00,000/- and  a cash of Rs. 50,000/- through  the respondent No. 2.  The slip  of deposit  is filled by the  respondent No. 2 which is blank from behind  which needs to be filled  by the respondent No. 1.  The application form  shows   over writing  on the figure of Rs. 2,00,000/- showing it Rs. 2,50,000/- which  shows that  the  appellant  had deposited  Rs.2,50,000/- with the respondent No. 1 and was well assured that the amount was deposited. Accordingly because of entries of the passbook  which  he had received from the respondent No. 1, he  was assured  of his Rs. 250,000/- deposited with respondent No. 1. However, he was shocked after receiving the letter from the respondent No. 1 dated 24/04/2007 to surrender the extra amount paid. He argued that   the appellant  has no reason  to raise any false grounds of claiming  to have deposited  extra amount. He had  positively deposited  the amount  by  cheque and cash  being unaware and unsuspecting   of   respondent No.2. He therefore, submitted that the  learned Forum wrongly came to the conclusion that  the appellant   deposited  only Rs. 2,00,000/- . When it was so there was no reason for the learned Forum to  direct the  non recovery of  extra paid amount. Therefore, the learned Forum has not  appropriately  evaluated the evidence before it and came to the wrong conclusion hence, is the appeal which needs to be confirmed.

14.    The respondent No. 1 countered  the appeal on the ground that it is not possible to accept the cash and cheque together. The passbook was prepared  after the  encashment of cheque. However, it is a mistake  on the part of the clerk to have wrongly  made a entry of rs. 2,50,000/- on the passbook when only Rs. 2,00,000/- were received as per the pay slip. Hence, the action taken by the respondent is  proper which is rightly held by the  learned Forum.

15.    The respondent No. 2 has  submitted that  the complaint is totally false. He works  as  small saving  agent  and had received only  a cheque of 2,00,000/-  on 06/07/2005 which  he deposited  and  when got the passbook handed it over to the  appellant.  The appellant did not give Rs. 50,000/- in cash.

16.    We considered the  contentions of aforesaid  parties. We find that  it would not be possible for the respondent No. 1 to  hold the cash  from 06/07/2005 till  11/07/2005 when the  cash from the  encashed  cheque  would have  been received by the  respondent No. 1. Then the respondent No. 1 would have issued the passbook.  We also find that  the paying slip has a clear entry of Rs.2,00,000/-. We therefore find that  there is no reason to hold that  the  appellant  deposited Rs. 2,50,000/- by  Rs. 50,000/- in cash along with  Rs. 2,00,000/- in cheque.  We therefore, find that  the learned Forum  has  evaluated  the evidence  in  a reasonable manner  and  has passed  the order correctly. We find that  the learned Forum  allowed the amount paid excess to the appellant  only to  save him  from the hardship of returning the amount. The Forum below has rightly considered the evidence  and passed the correct order which does not  deserve to be  quashed  or modified. Hence, the order below.

ORDER

i.        The appeal is dismissed.

ii.       The order of the learned Forum is confirmed.

iii.      Parties to bear their own cost.

iv.      Copy of the order be provided to both the parties, free of cost.