BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                                     MANGALORE

                                                                      Dated this the 23^rdNovember 2016

PRESENT

 SRI. VISHWESHWARA BHAT D :HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR: MEMBER

ORDER IN

C.C.No.149/2012

(Admitted on 17.05.2012)

Smt. Shobha S Naik,

W/o Sri. S.N.Naik,

Age.49, years,

R/at ‘Sananguly House’,

Derebail, Konchadi,

Mangalore.

                                          ….. COMPLAINANT

(Advocate for the Complainant: SRS)

VERSUS

1. The Branch Manager,

State Bank of Mysore,

Bejai, Kapikad Branch,

Mangalore.

2. The Branch Manager,

    State Bank of Mysore,

Hampankatta Branch,

    Mangalore  575001.

                                                  ….............OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1: Sri. RPS)

(Advocate for the Opposite Parties No.2: Ex parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

The complainant contends she hasmaintained a Savings Bank account with opposite party No.1 on 06.07.2010.  She credited Rs.5,050/  to her Savings Bank Account through State Bank of Mysore, HampankattaBranch and on the same day a cheque for Rs.5,050 was presented before H.D.F.C, branch office at Punja Arcade for crediting to the account of Naveen N Iliger towards hand loan borrowed by her.  Later she came to hersurprise opposite party No.1 wronglydishonoured the cheque for reason shown as Insufficient Funds as per return memo dated 7.7.2010 contending that despitesaving bank account balance on 7.7.2010 showing a balance of Rs. 8,050/ opposite party No.1 have to dishonoured the cheque. Contending that she received a legal notice on 10.8.2010 under section 138 of N.I.Act. fromNaveen N Iligar had for payment of the cheque amount and another Rs.10,000/ being balance of hand loan amount within 15 days.  When complainantcontacted Naveen N Iligar and tried to appraise of the facts he continued threatening prosecution under section 138 of N.I.Act or else to pay sum of Rs. 50,000/ as compensation. Then the matter was settled for Rs.40,000/ as per DD dated 27.1.2011 drawn on State Bank of India, Lalbagh branch, Mangalore for this 40,000 /  Contending that the complainant had to suffer the ignominies of legal notice and threat of criminal prosecution for the commission and omission is on the part of opposite party seeks payment of Rs.40,000 paid by complainant to have  as Rs.75/- cheque bounce charges,direct Rs.1,00,000 as compensation towards loss, mental agony, humiliation, stress and hardship of complainant with interest at 15%, cost of Rs.5,000 and notice charge of Rs. 1,000/

II.  opposite party on entering appearance filed written version, admitting the Saving Bank account maintained and being operated by complainant with opposite party No.1 and sum of Rs.5,050 credited on 6.7.2010 to the said account and cheque for payment of one Naveen N Iligaron 7.7.2010 came through clearing.  As per circular and as per condition of SB Account the account holder must keep minimum balance of Rs.500/ and if not done the bank as right to collect Rs.125 as penalty for every quarter.  The complainant had no sufficient balanceas such the cheque was dishonoured.  Before itsdishonoured complainant was informed about the same.  There is no negligence or deficiency in service by opposite party No.1 nor honouring the cheque.  The alleged crediting of a sum of Rs. 3,000/  subject to the dishonour and hence nothing todo with transactions as at the time when the cheque came for payment through clearing there was not sufficient balance in the account.It further the allegation of complainant Hand loan of 50,000 by Naveen N Iligar and of legal notice and payment of Rs.50,000/ as compensation are denied.  Legal notice that issued by complainantalleging there is no deficiency in service seeks dismissal.  In support of the above complainant Mr. Suraj Kumar, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex C1 to C12 detailed in the annexure here below.  On behalf of the opposite parties Mr. Valerian Aranha (RW1) Branch Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex.R1 to R6 detailed in the annexure here below. 

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainantis entitled for any of the other reliefs claimed?
3. What order?

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

Point No. (i): Affirmative 

Point No. (ii): Negative

 Point No. (iii): As per the final order.             

                                                                                               REASONS

IV.      POINTS No. (i):In this case complainantis accountHolder with opposite party No.1 and as such a consumer with opposite party No.1 as service provider of banking facility and thatadmittedly the cheque issued by complainant on dated6.7.2010 bounced with the certain points raised by the complainantas to availabilityof balance or otherwise are cleardirections to show the existence of the dispute as contemplated under the C P Act.  Hence point No.1 answered in the affirmative.

POINTS No. (ii):The short question in the case is whether at the time when the cheque issued by complainant on 7.7.2010 at opposite party No.1s branch through clearing whether there was sufficient to balance and whether opposite party No.1 was justified in not clearing the cheque even though there was balance of Rs. 5,050/ and whether opposite party No.1 intimated complainant about insufficient fund in her account to honour the cheque. Opposite party produced the copy of the application form given by complainant for opening the Savings Bank Account in opposite party No.1s branch this document is produced along with writtenarguments of opposite party No.1.  For sake of convenience it is now marked as Ex.A1. At Ex.A1 the phone number including mobile numberis hand written on page 2. The learned counsel for complainant during the course of oral arguments, after verifying with the complainant by taking 5 minute leave of the Forum confirmed this mobile number as of complainant.  This is relevant in as much as it is specific case of opposite party No.1 before dishonouring the cheque the complainant was informed over phone Ex. R5 is the details of STD/ISD of call list ofpertaining to SBM issued by BSNL DK Telecom District. Itis seen at Ex.R5 on 7.7.2010 at 11.18.28 call was made to 9845790034 and spoke for 40.1 (seconds).Opponents produced another document Ex.R6 the time log oftransactions pertaining to account no 54055206462 of complainant on 7.7.2010.  As seen from Ex.C6 there is mention made that as per the extract the timing of the credit of Rs.3000/ with journal No.537116 is 12.42 ( in 24hr format).  Thus from this it can safely be decided that the credit of Rs.3000/ to complainants account was at 12.42 hrs. Learned counsel for complainant referring to Ex.R6 argued that the attached time log of the transactions does not contain the details as to the time as there are slashes of columns and they were not explained.  However it is to be noted the time log is of 7.7.2010 hence further details on that count considering the credit of Rs.3000/  on that date by way of cash forming closing balance of Rs. 8,050 of that date is not at all disputed. Before proceeding further it is essential to note it is the duty of the complainant the cheque came for clearance before opposite party No.1 on 7.7.2010 she had sufficient balance and that the credit of Rs.3,000 by way of cash was done before the phone call as per Ex.R2 was made to complainant by the concerned bank official. But evidently that is not done by complainant. It is necessary to note from Ex.R2 it is clear, phone call was made by opposite party No.1 to complainant. Hence the courtesy was extended by opposite party to his esteemed customer the complainant of insufficient funds to honour the cheque issued by her for Rs.5,050/ It was argued by learned counsel for complainant the complainant instead of returning the cheque for insufficient funds should have waited till the end of the day’s transactions.  However as mentioned opposite party No.1 did show the courtesy to inform the complainant of informing over phone.Ex.R1the statement of account pertains to complainants account from 5.6.2009 produced in the case on 6.7.2010 in the case the closing balance on 6.7.2010 was Rs. 5,050/with a credit of Rs.5,050/ by way of cheque by oneSuraj. On 7.7.2010 there is another entry of deposit by transferor Rs.3,000 through deposited by cheque by making balance of Rs. 8,050 and then another entry of debit of Rs.75/ that making closing balance of Rs.7,075/ It may not out of the place to note here it self from Ex.R1an amount of Rs.98/ for not keeping minimum balance was charged  leaving balance as zero as on 30.6.2010.  Ex.R4 is general circular dated 12.9.2007 of State Bank of Mysore service charges in respect of non maintenance of minimum balance differential rate it mention in respect of rural and Non rural for saving account with cheque facilityat Rs.150/ The learned counsel for complainant argued that even according to opposite party No.1 when the cheque came for clearance on 7.7.2010 there was balance of Rs. 5,050 as the cheque was also for Rs.5,050 hence there was nojustification for opposite party No.1 to dishonour the cheque instead of passing it for payment.  The learned counselrelied on a reported judgment of State Consumer Disputes Redressal Commission, Chennai, bench 2  inM.K. ThiruvengadamVs the General Manger ICICI  Bank Ltd., the facts of the reported case of such the complainant issued for cheque for Rs. 25,000 dated 16.12.2006 when on 20.12.2006 the cheque was presented before the bank and on 21.12.2006 even though there was sufficient balance available of Rs.25,012.81 the cheque was returned for insufficient funds for clearance. Infact on 21.12.2006 itself the complainant remitted Rs.5,400/ with cash at 2.52 pm  making the total balance after deposit as Rs.30,412.  Further the minimum balancerequired to maintain in savings Bank account towards Rs.10,000 in the reported case and that if done Rs.250/ has to be deducted by the bank from the account of complainant.   It was held in the reported case considering these set of facts that the bank should have honoured the cheque even when the available balance of Rs.25,000 it was observed that the bank could have informed the complainant over smsregarding the deficiency in funds in maintaining the balance amount.  By observing that was not done it has been observed could have been dishonoured for want of minimum balance instead of mention as insufficient of funds and thereby the State commission therein formed an opinion of deficiency in service. However in the facts of the case on our hand even though from the records in the Ex.R2 it is clear the opponent No. 1 did intimate complainant about insufficient funds no immediately arrangements were made by complainant credit the amount.  Instead after the phone call at 11.18 deposit was made at 12.42hrs facts of the reported case as one on hand are different. It was further argued for complainant that the memo issued while dishonouring the cheque was insufficient funds and instead of mention as want of minimum balance.  It was argued the opponent No.1 could have mentioned in the memo for reason for dishonour for want of minimum balance instead of insufficient funds. That is theexact reasonassigned in the above reported judgment to conclude that there was deficiency in service on the part of the opponent bank. However it is to be noted opposite party No.1 intimated the complainant. Over phone as to the available balance. Earlier in this account of complainant reached zero at30.6.2010 after charged of Rs.98/ for not maintaining minimum balance in the account.  In the circumstance weare of the view that in the facts and circumstances of the case opposite party No.1 was justified in dishonouring the cheque for insufficient balance and opposite party cannot be attributed deficiency in service for this dishonour of complainants’ cheque. Theleanedcounsel for complainantargued this dishonouring of cheque lead to a legal notice to complainant on behalf of the holder of chequeNaveen N Iligarand then settlement of his claim for Rs.40000 to avoid criminalprosecution.  However it is to be notedsection 138 of N. I. Act required a legal notice to be issued within a specified period of intimation of dishonour of cheque.   Then thereafter giving time provided under that provision to make payment to the person who demanded payment of amount of the cheque.  Ifthat payment is not made within the statuaryperiod of 15 days then only the question of criminal prosecution could arise.   There is no explanation by complainant why he had not paid the amount of the chequeto Naveen N Iligarwithin   the statuaryperiod in respect of bounced cheque.  When that is not made the story built up by the complainantofademency of Naveen N Iligarand he demanding Rs.50,000 and then in January 2011 complainant settling the claim of Naveen N Iligarfor Rs.40,000 by way of DD cannot be accepted as genuine.As such we are of the opinion that there are no justified grounds to agree with claim made by the complainant of deficiency in service.  Hence point no.2 answer in negative.

POINTS No. (iii):Wherefore the following order:

ORDER

                                                                             The complaint is dismissed.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 11 Dictated to the Stenographer typed by her, revised and pronouncedin the open court on this the 23^rdNovember 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Suraj Kumar

Documents marked on behalf of the Complainant:

ExC1:                     Notarised copy of the pass book Maintained with opposite party No.1by the complainant.

ExC2:07.08.2010     copy of the notice issued by the Mrs. Kavyashree H advocate Bangalore on Behalf of her client Naveen N Iligar

ExC3:copy of the latter issued to Naveen N. Iligar

ExC4: Speed post receipt for having sent the Letter to Naveen N. Iligar

Ex.C5:                     Counter foil of the challan

Ex.C6: 27.01.2011    Xerox copy of the D.D bearing No.6545445 Drawn on State Bank of India, Lalbagh Branch, Mangalore

Ex.C7: 06.07.2010    Original cheque issued to Naveen Iligar by the Complainant towards part payment of handLoan amount, which was

                                   Subsequently bounced

Ex.C8: 07.07.2010    Bank s Memo

Ex.C9: 07.07.2010   computer generated advice memo issued by H.D.F.C bank Mangalore

Ex.C10: 07.09.2010   official copy of the legal notice issued to Opposite parties

Ex.C11: 06.10.2010   Reply notice issued by opposite party No.1

Ex.C12: 20.07.2012   Original G.P.A executed by complainant Appointing Mr.Suraj Kumar as her agent 

Witnesses examined on behalf of the Opposite Parties:

RW1:  Mr. Valerian Aranha, Branch Manager

Documents marked on behalf of the Opposite Parties:

Ex.R1:                    True copy of the S.B. Account extract of the Complainant

Ex.R2:                     True Copy of the cheque return register File relevant page

Ex.R3:                    True copy of the cheque dishonor memo(already produced)

Ex.R4:                    circular of State Bank of Mysore for SB Account

Ex.R5: 3.09.2010     True extract of BSNL Bill for the period from 1.7.2010 till 31.7.2010

Ex.R6:                    True extract of the Time log of transaction Issued by computer Data Center, Mumbai  

Document marked by Court:

Ex.A1: Xerox copy of the Account opening form.

Dated:  23.11.2016                             PRESIDENT