Complaint is filed on 29-06-2009
Compliant disposed on 11-11-2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM::AT:: KARIMNAGAR
PRESENT: HON’BLE SRI K. DEVI PRASAD, B.Sc., LL.B., PRESIDENT
SMT. E. LAXMI, M.A.,LL.M.,PGDCA (CONSUMER AWARENESS), MEMBER
SRI. K. CHANDRA MOHAN RAO, B.Com., LL.B., MEMBER
THURSDAY, THE ELEVENTH DAY OF NOVEMBER, TWO THOUSAND TEN
CONSUMER COMPLAINT NO. 101 OF 2009
Between:
- Cherlapally Hanmandlu, S/o. Chinna Anjaiah, Age 30 years, Occ: Agrl., R/o. Metpally village and mandal of Karimnagar district is the power of Attorney holder for Sundaragiri Raja Mallaiah, S/o. Lingam, Age 26 years, Occ: Labour, R/o. Aathmakur village of Metpally mandal of Karimnagar district, now resident and working at Mascow Tech Services, LLC, Post Box No.26311, Sharjah, UAE.
- Merugu Shankar Goud, S/o. Narsa Goud, Age 32 years, Occ: Toddy Taper, R/o. Peddapur village of Korutla Mandal of Karimnagar district.
… Complainants
AND
- The Branch Manager, Andhra Bank, Metpally Branch, Metpally town and mandal of Karimnagar district.
- The Branch Post Master, Peddapur Post Office, Via, Metpally, District Karimnagar – 505 325.
…Opposite Party no.1 & 2
This complaint is coming up before us for final hearing on 22-10-2010, in the presence of Sri G. Sai Kumar and K.Narsagoud, Advocates for complainant and Sri A. Srinivas, Advocate for opposite party no.1 and opposite party no.2, and on perusing the material papers on record, and having stood over for consideration this day, the Forum passed the following:
:: ORDER ::
1. This complaint is filed under Section 12 of C.P.Act, 1986 seeking direction to opposite parties to pay the sum of Rs.1,64,000/- covered under the cheque bearing no.286873 with interest, compensation towards mental agony and costs.
2. The brief averments of the complaint are that the complainant no.2 brother-in-law of Sundaragiri Rajamalliah who made efforts to send him to Sharjah by investing Rs.2,00,000/-. Sundaragiri Rajamalliah joined in Moscow Rech Services LLC at sharjah, UAE and saved Rs.1,64,000/- in lieu of his debt to complainant no.2 and sent a cheque bearing no.286871 Dt: 27.6.2008 drawn at Andhra Bank, Metpally Branch with his NRI Account No.SBNRE/51484 for an amount of Rs.1,64,000/- with a letter addressed to complainant no.2 and his wife who is own sister of Sundaragiri Rajamalliah with identity proof, a copy of his Title Deed and Ration Card with his signatures in Telugu. But opposite party no.1 refused to honour the cheque as it does not bear the signature of Sundaragiri Rajamalliah. The opposite party no.1 kept with him the copies of Title Deed and Ration Card containing the signatures in Telugu of complainant no.2 and advised him to get another cheque from Sundaragiri Rajamalliah for which the complainant no.2 has informed the same on phone to Sundaragiri Rajamalliah who is in Sharjah. He again sent a cheque bearing no.286873 Dt: 4.7.2008 to the complainant no.2 by post. But the Post Master of Peddapur Branch Post Office and the Manager of Andhra Bank, Metpally Brach colluded with each other and they themselves presented the said cheque in Andhra Bank Metpally Branch and withdrawn the amount of Rs.1,64,000/- covered under the said cheque without informing and summoning the complainant no.2. After waiting for the cheque of Sundaragiri Rajamalliah, the complainant no.2 reminded him by phone. But Sundaragiri Rajamalliah informed the complainant no.2 that he had already sent a cheque. Again the complainant no.2 approached opposite party no.1, but to his utter surprise the opposite party no.1replied that the amount is already withdrawn. Then the complainant no.2 informed the same to Sundaragiri Rajamalliah by phone. Immediately Sundaragiri Rajamalliah came back to India and made enquiry with opposite party no.1 & 2 and received the same reply from them. Thereafter Sundaragiri Rajamalliah gave complaint at P.S. Metpally against the opposite party no.1 & 2 and waited for some days and he went back to Sharjah by giving a General Power of Attorney to the complainant no.1 on his behalf.
3. The complainant no.1 & 2 vexed with the attitude of opposite party no.1 & 2 got issued a Legal Notice Dt: 10.3.2009 through his counsel. After receiving the notice the opposite party no.1 & 2 neither replied nor paid the amount covered under the cheque. Hence, complainants filed this complaint as there is no other way except to approach this Forum.
4. Opposite party no.1 filed counter denying the allegations made in the complainant and submitted that the customers will approach the counters concerned for remittance and withdrawal of money and presenting the cheque before the Branch Manager does not at all arise. It is illogical to say that when a cheque is presented in the bank without the signature of the drawee, the question of asking for I.D. Proof of documents by the banker does not arise. The above allegations itself goes to show that the complainants leveled the said allegations falsely. Further submitted that the complainants failed to mention the stage and result of the complaint they filed before the Police, P.S. Metpally. Opposite party no.1 denied that they have not replied for Legal Notice. As per the advice of competent authority they have furnished the information to the Account Holder instead of Third Party by registered post to Sharja and also addressed a letter Dt: 18.3.2009 to counsel for complainants by RPAD who received the same on 20.3.2009 and another reply Dt:4.4.2009 by RPAD which was received by Advocate on 11.4.2009 at 5.00PM.
5. Opposite party no.1 further submitted that the cheque presented in the Bank is a simple bearer cheque, which payable to the bearer who presented across the counter and the drawee has not specifically instructed to pay the amount only to the drawer by striking “or bearer”. Therefore, it is not necessary to obtain the I.D.Proof or any other document for payment of the above cheque. It is the duty of Account Holder to take necessary precautions to see that, the payment should be made to specific person and the cheque ought to have issued by crossing as “payee’s A/c only” or “A/c payee only” or atleast by striking “or bearer” on the instrument. The Banks usually pay the bearer cheques to the persons who present it in the day to day business in the banks. The complainants have failed to mention the mode of sending the instrument/cheque by post to the complainant no.2. It is also not mentioned or any documentary proof has been filed regarding sending of the cheque by post explaining its mode. It is for the A/c holder, complainants and the opposite party no.2 to explain, as to the disbursement of cheque to whom and under which circumstances. Opposite party no.1 suspects collusion between the A/c holder and the complainants and also the opposite party no.2 in filing the above case against the opposite party no.1.
6. Opposite party no.1 has acted and responded promptly to the correspondence of the complainants from time to time as such there is no deficiency of service on his part. There is no cause of action to file the complaint against the opposite party no.1 and the complaint is barred by limitation. Therefore, this opposite party is not liable to pay anything to the complainants. Hence, prayed to dismiss the complaint against him with exemplary costs.
7. Opposite party no.2 filed counter stating that the case seems to be of misuse of a cheque sent through ordinary post. The delivery work is done by delivery agent and there is no rule to maintain the record of delivery of ordinary letters. The delivery of work entrusted to E.D.D.A. and whether he delivered it or not is beyond the scope of Branch Post Master. Opposite party no.2 asked that the Forum should furnish the rule under which the Branch Post Master should maintain a record of delivery of ordinary letters and in the absence of it no purpose will be served by the appearance of him. Opposite party no.2 further submitted that such cheques would of account payee only. The Opposite party no.1 is alone responsible as he has violated the banking rules in withdrawal of said cheque. Hence, he requested this Forum to decide the case based on this counter as he restrained to leave his office and come to the Forum.
8. The complainants filed their proof affidavit reiterating the averments made in the complaint and filed documents which are marked as Ex.A1 to A9. Ex.A1 is the original Savings Account Pass book of Sundaragiri Rajamallaiah bearing A/c.No.SBNRE/51484 of Andhra Bank, Metpally Branch Dt: 10.08.2006. Ex.A2 is the original cheque bearing no.286871 Dt: 27.6.2008 for an amount of Rs.1,64,000/- with a letter addressed to complainant no.2 by Overseas Postal Cover. Ex.A3 is the attested copy of letter by opposite party no.1 forwarding the copy of cheque to Sundaragiri Rajamallaiah Dt: 4.7.2008. Ex.A4 is the photo copy of cheque bearing no.286873 Dt: 4.7.2008. Ex.A5 is the office copy of Legal Notice Dt: 10.3.2009 issued to opposite party no.1 & 2. Ex.A6 is the photo copy of Title Deed. Ex.A7 is the photo copy of Ration Card with signatures of complainant no.2 in Telugu. Ex.A8 is the original General Power of Attorney Dt: 11.11.2008. Ex.A9 is the photo copy of Circulars issued by Reserve Bank of India from the Department of Banking Operations and Development Central Office, Bombay Dt; 28.7.2010 issued by Information Officer of RBI,
9. The opposite party no.1 filed his proof affidavit reiterating the averments made in the counter and the documents filed by him are marked as Ex.B1 to B6. Ex.B1 is the letter from opposite party no.1 addressed to Sri K.Narsa Goud Advocate Dt: 18.3.2009 in response to information sought under Right to Information Act. Ex.B2 & A3 are one and the same documents. Ex.B3 is another letter from opposite party no.1 addressed to Sri K.Narsa Goud Advocate Dt: 04.04.2009 in response to information sought under Right to Information Act. Ex.B4 is the letter from opposite party no.1 addressed to complainant no.1 in respect of information about SBNRE A/C 51484 of Mr.S.Rajamallaiah. Dt: 9.5.2009. Ex.B5 & B6 are postal acknowledgement cards addressed to Sri K.Narsa Goud Advocate.
10. The point for consideration is whether there is any deficiency of service on the part of opposite parties, if so, what relief can be awarded to the complainants?
11. A perusal of records and documents reveal that the complainant no.1 sent a cheque no.286873 Dt: 4.7.2008 for Rs.1,64,000/- to complainant by ordinary post for which opposite party no.2 could not file any document with regard to its receipt and delivery in defence of which he states that no record is maintained in respect of ordinary letters according to rules of postal department, which is reliable. Had it been sent under registered post opposite party no.2 would have been held responsible for it’s delivery. Ordinary letters are not accountable letters and they do not have any track record. As such opposite party no.2 is absolved of his liability.
12. Opposite party no.1 submits that the said cheque was enchased and the amount mentioned in it was paid to the person who presented it at the counter of opposite party no.1 duly obtaining the signature of the bearer on the reverse of the cheque.
13. But the complainants alleged that opposite party no.1 & 2 colluded with each other and withdrew the amount fraudulently by forging the signature of complainant no.2 on the cheque without obtaining the proof of identity in contravention of backing rules mentioned in Ex.A9.
14. Opposite party no.1 contends that for payment of bearer’s cheques which are uncrossed or without advice of account payee, requirement of address or ID proof is not mandatory and adds that such condition came into force after November 2009 vide notification no.13/2009/F.No.6/8/2009-ES Dt: 12.11.2009 amending the Principal Rules of July 2005 as contained in Ex.A9.
15. A copy of circular furnished by opposite party no.1 discloses that a notification was issued by Ministry of Finance (Department of Revenue) Dt: 12.11.2009 publishing rules on 1.7.2005 and subsequently amended on 13.12.2005 and again amended on 24.5. 2007.
The amended Rules though said notification Dt: 12.11.2009 are as follows:
In the Principal Rules, in Rule “9” -
(a) for sub rules (1) and (2), the following sub rules shall be substituted, namely
(1) Every banking company, financial institution and intermediary, as the case may be, shall –
(a) at the time of commencement of an account-based relationship, identify its clients, verify their identity and obtain information on the purpose and intended nature, of the business relationship and
(b) in all other cases, verify identity while carrying out:
(i) transaction of an amount equal to or exceeding rupees fifty thousand, whether conducted as a single transaction or several transactions that appear to be connected, or
(ii) any international money transfer operations.
16. Prior to the amendment it was not mandatory for the bank officials to insist for identity card and address proof. In the instant case the transaction took place in June 2008 whereas the amended rules came into force on 12th November in 2009. Therefore, it was not mandatory for the bank to insist for production of ID Card or proof of address from the drawer. Therefore, no liability can be fixed on opposite party no.1 that there was deficiency of service on its part.
17. Though it is contended by the learned counsel for the complainant that this rule of furnishing proof of ID was introduced in 2007 i.e. before this transaction in the instant case, the complainant failed to file any copy of amendment made in 2007. Therefore, it is difficult to accede the contention of learned counsel for complainant that it is mandatory on the part of the Bank officials to insist for producing proof of ID or address at the time of withdrawing the amount since the rule is amended in 2009 whereas the transaction took place in 2008. Consequently we are unable to hold that the amount was fraudulently withdrawn under the cheque Ex.A4.
18. Opposite party no.1 submits that the complainants have no locus standi to file this complaint. This contention is not tenable because Sundaragiri Rajamallaiah who sent the cheque said to have been staying abroad is legally represented by complainant as his GPA holder under Ex.A8. Under these circumstances both the complainants are consumers within the meaning of C.P.Act.
19. For the reasons stated above the complaint deserves to be dismissed.
20. In the result the complaint is dismissed with no order as to costs.
Dictated to Stenographer and transcribed by her after correction the orders pronounced by us in the open court this the 11th day of November, 2010.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE
FOR COMPLAINANT:
Ex.A1 is the original Savings Account Pass book of Sundaragiri Rajamallaiah bearing A/c.No.SBNRE/51484 of Andhra Bank, Metpally Branch Dt: 10.08.2006.
Ex.A2 is the original cheque bearing no.286871 Dt: 27.6.2008 for an amount of Rs.1,64,000/-.
Ex.A3 is the attested copy of letter by opposite party no.1, Dt: 4.7.2008.
Ex.A4 is the photo copy of cheque bearing no.286873 Dt: 4.7.2008.
Ex.A5 is the office copy of Legal Notice Dt: 10.3.2009 issued to opposite party no.1 & 2.
Ex.A6 is the photo copy of Title Deed.
Ex.A7 is the photo copy of Ration Card with signatures of complainant no.2 in Telugu.
Ex.A8 is the original General Power of Attorney Dt: 11.11.2008.
Ex.A9 is the photo copy of Circulars issued by Reserve Bank of India from the Department of Banking Operations and Development Central Office, Bombay Dt; 28.7.2010 issued by Information Officer of RBI,
FOR OPPOSITE PARTIES:
Ex.B1 is the letter from opposite party no.1 addressed to Sri K.Narsa Goud Advocate Dt: 18.3.2009.
Ex.B2 & A3 are one and the same documents.
Ex.B3 is another letter from opposite party no.1 addressed to Sri K.Narsa Goud Advocate Dt: 04.04.2009.
Ex.B4 is the letter from opposite party no.1 addressed to complainant no.1 Dt: 9.5.2009.
Ex.B5 & B6 are postal acknowledgement cards addressed to Sri K.Narsa Goud Advocate.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
