DOF.30.4.2009

DOO.10.5. 2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy              : Member

Dated this, the 10^th   day of May  2011

CC.107/2009

B.Mohammed Navas,

Bachikkantavida,

Kannothumchal,

Chovva.P.O.Kannur.

(Rep. by Adv.K.Krishnan)                                     Complainant

1. The Branch Manager

    Syndicate Bank,

    Manipal, Karnataka.

2. The Manger,

    Syndicate Bank,

    Main Branch,

    Plaza Junction, Kannur.

   (Rep. by Adv.T.Ramakarishnan)                      Opposite parties                                                         

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay an amount of  `25,000 as compensation with cost of this proceedings.

          The facts set up in the complaint in brief are as follows: The complainant is an account holder of Savings Bank account under 2^nd opposite party and as on 24.12.08 there was a balance of `1668.20. A cheque for `1,356 issued was rejected by opposite party stating that fund insufficient. There was sufficient amount in the account. The rejection is illegal and unauthorized. The 2^nd opposite party had collected an amount of `56 as handling charge for the returned cheque. Further due to the dishonour of cheque the complainant was compelled to pay default charge in payment to the Bajaj Finance also. Complainant suffered a lot both mental and monetary loss . Opposite party is liable to compensate the complainant. Complainant issued registered lawyer notice dt.5.2.09, opposite party issued a letter on 10.2.09 contending that the alleged cheque was dishonoured since the cheque has come for clearance before the deposit by the complainant. It is incorrect and baseless. The entries in the pass book are evident that it is false and baseless. Hence opposite parties are liable to compensate the complainant.

          Pursuant to the notice opposite parties entered appearance and filed version jointly denying the main allegation of complainant. The contentions of opposite parties in brief are as follows: The alleged cheque was dishonoured since the cheque has come before the deposit of the complainant. The record of the bank will show the same. Entries in the pass book will not show the time of transaction. On 24.12.08 at 10 a.m the actual balance was an amount of  `268.20. The complainant was continuously a habitual defaulter in maintaining the minimum balance which is mandatory. The balance in the account of the complainant when cheque was presented for payment by  Axis Bank on  24.12.08 at  1 pm was  268.20. As per the order queue,  the time for  data entry for the cheque  of the complainant happened to be 01:39:58 pm, which  is recorded by computer  as per the computer record. Since there is insufficient fund in the account the data entry in effect overdrew the account showing minus balance of  `1097.80 and this debit to the account is an evidence that the  dishonoured cheque is presented by the  Axis bank prior to payment of  1400 at 02:08:39. Since the account is overdrawn due to the debit because of insufficient balance the cheque was returned recrediting  `1366 debited to the account to evidence timing of receipt of the cheque. This can be verified from the statement of account of the party on 24.12.2008 where computer has shown an account overdrawn entry for  `1097.80. The complainant paid `1400 at 02:08:39 pm which is also entered in the statement of account by computer which is after the return of the cheque is entered and recorded. The complainant did not suffer any loss and there is no deficiency on the part of opposite parties.Hence to dismiss the compliant.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for the relief as prayed in

     the complaint?

3. Relief and cost.

The evidence consists of oral testimony of PW1, DW1, Exts. A1 to A6 and B1 to B6.

Issue Nos.1 to 3

          Admittedly complainant is an account holder of the opposite party bank. Complainant’s case is that the balance amount in the account on 24.12.08 was `1668. But the cheque  for an amount of `1366 was rejected by 1^st opposite party on the day stating that  “fund insufficient”.

          Opposite parties on the other hand contended that the cheque was dishonoured since the cheque has come for clearance before the deposit by the complainant. What is the exact amount in the account of the complainant at the time of presenting the alleged cheque which was rejected is the important point that is to be discussed before going deep into the subject matter. Ext.A5 is the pass book which shows

          The above entry gives detailed position of deposit amount, cheque amount and balance amount. Ext.B6 gives the details of the entries appeared in the pass book of SB account 42002200002740 of Mr.Mohammed Navas. It is made clear that on verification they have observed that the cheque No.507014 is returned in clearing on 24.12.08 at 13:39:56 hours and the cash deposit to the account No.42002200002740 at 14:08:39 hours. True copy of the details of transaction with time stamp in the account 42002200002740 on 24.12.08 gives the details as shown below.

          It can be seen that the balance in the account when cheque was presented for collection at  1 pm was `268.20. Ext.B2 shows the opening balance `268.20.

          As far as the above case  is concerned  the time factor with respect to the return of cheque as well as deposit of amount played the significant role for the determination of the fate of the case. The specific case of the opposite parties is that the cheque was presented for payment by Axis bank at 1 p.m that happened to be entered at 01:39:58 pm on 24.12.08 and deposit of the amount of  `1400 was made at 2:08:39. DW1, Bank Manger deposited in his oral evidence that cheque was returned 01.39 pm and cash deposit at 02.08. DW1 deposed in cross examination that “Statement (B3 ) t\m¡n-bm cheque reject sN¿p-¶-Xn\p ap³t] account sufficient ]W-T-D-­m-bn-cp-¶nÃ. 24.12.08\v B3{]Im-cT opening balance 268cq] 20  ss]k-bm-bn-cp-¶p.-AXv 1.39 \mWv cheque entersNbvXXv  . B5 bank Â\n¶v issue  sNbvX-Xm-Wv. CXp-{]-Im-cT   24.12.08se  opening balance 268cq]  20 ss]k-bm-bn-cp-¶p. 24.12.08 \v1400 cq]  passbook  enter sNbvX-Xmbn ImWpT . Pass book   ka-bT enter sN¿m-dn-Ã.

          It can be seen that complainant has kept silent regarding time of the deposit both in complaint and in affidavit evidence. In oral evidence in an evasive manner he has stated “ account  ]WT D¨¡v ap³t] deposit sNbvXn-cp¶p”. He did not feel that the time is an important factor.In the chief affidavit, he kept totally silent at what time he has deposited the amount ignoring the specific contention of opposite party raised in the version that the amount was deposited at  02:08:39.  On going through the oral evidence and perusal of documents we are of opinion the complainant could not succeeded in challenging the contention that the cheque was presented for collection before the deposit was made by the complainant. Though opposite parties raised the contention  write from the  very beginning that the cheque  was presented prior to the deposit complainant did not take care to  disprove  this contention  where as opposite parties could place materials to prove that deposit was made later to the presentation of the cheque that happened to be returned. Hence complainant failed to establish deficiency in service on the part of opposite parties.  So issues 1 to 3 are found against complainant.

          In the result, the complaint is dismissed no order as to costs.

                            Sd/-                    Sd/-                   Sd/-                         

President              Member                Member

APPENDIX

Exhibits for the complainant

A1. Copy of the lawyer notice sent to OP

A2 & 3.Postal receipt and AD cards

A4.Reply notice

A5.Pass book issued from Syndicate Bank

A6.Manorama daily dt.2.2.2009

Exhibits for the opposite party:

B1. & B2.Staement enquiry (Account details)

B3.  Copy of extract of SB account of the complainant

B4.Copy of identity card of V.Chandran

B5.Authorisatin letter

B6.Copy of the Fax dt.5.7.10 from OP’s Bangalore branch

      with details of transaction of complainant

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1.V.Chandran                             

                           /forwarded by order/

                     Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.