HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT
This appeal has been directed against the judgment and order dated 28/09/2012 passed by Ld. DCDRF, South 24-Pagans in CC 70/2009 where the Forum concerned while disposing of the complaint case by way of passing the decree in favour of the complainant with cost of Rs. 8,000/- (Rupees eight thousand) and directed the Bank/OP therein to repay an amount of Rs. 1,80,000/- (Rupees one lakh eighty thousand) along with the interest @ 9% per annum from the date of debit within one month from the date with a further direction to pay the sum of Rs. 50,000/- (Rupees fifty thousand) as the compensation for harassment and mental agony to the complainant to be paid within one month from the date failing which the entire amount shall carry interest @ 10% Per annum till realization.
Being aggrieved by and dissatisfied with the said judgment and order dated 28/09/2012, the present appeal has been preferred by the Bank (Senior Manager, Syndicate Bank, Buita Branch).
The case of the complainant in brief was that the complainant maintained a current account with the OP/Bank having cheque facility for operation of the bank transaction. The complainant is the proprietor of a timber company and for the purpose of his business he was in the habit of withdrawing money in lieu of cheque from the said bank but in the month of September, 2005 i.e. on 26/09/2005 the complainant had withdrawn an amount of Rs. 60,000/- (Rupees sixty thousand) by cheque no. 989062 dated 26/09/2005 but the bank authority in an illegal manner showed withdrawal of money of Rs. 1,60,000/- (Rupees one lakh sixty thousand) and by another cheque no. 989063 a sum of Rs. 80,000/- (Rupees eighty thousand) were withdrawn from the bank account by the complainant himself and another Rs. 80,000/- (Rupees eighty thousand) on 19/11/2005. Since the bank authority was not in a position to clarify the situation with regard to withdrawal of amount from the Bank concerned, despite repeated request on his part, forced the complainant himself to take recourse of the court seeking redress in terms of his prayers of CC/70/2009.
The OP/Bank filed a written version before Ld. Trial Forum, denied cause of action of the instant complaint case it was positive defence of the OP/Bank that the complainant withdrew the amount by presenting cheques on different dates including the disputed cheques and the Bank authority prayed for dismissal of the complaint case, the same being based on unfounded allegations. Upon consideration of the facts and circumstances of the case and the documents produced before it, the Ld. Forum concerned passed a decree in favour of the complainant as indicated above and being aggrieved by and dissatisfied with the said order, the present appeal has been preferred. Now the point for consideration is whether Ld. Trial Forum while justified and passing the decree with the complaint case.
It is not a disputed that the complainant had a current savings account before the Syndicate Bank, Buita Branch/i.e. the OP herein. From the Statement of Accounts, as submitted by the bank authority (which is at page 47 of the file)it appears that the self drawing cheque to the tune of Rs. 1,60,000/- (Rupees one lakh sixty thousand) was presented on 26/09/2005 and another cheque of Rs. 80,000/- (Rupees eighty thousand) was presented on 19/11/2005. Two copies of the cheque dated 26/09/2015 and 07/10/2005 amounting to Rs. 1,60,000/- (Rupees one lakh sixty thousand) which are at pages 44 & 45 of the file respectively clearly reflect that on 26/09/2005 the self drawing cheques were issued to the Syndicate Bank for withdrawal of a sum of Rs. 1,60,000/- (Rupees one lakh sixty thousand) and on 19/11/2005 the cheque dated 07/10/2005 being cheque no. 989063 was encashed by one Pradip Kumar Mondal in whose favour this account payee cheque was issued. It is not the case of the complaint that he did not issue any cheque either in favour of Pradip Kumar Mondal or self drawee cheque as pointed out earlier but only dispute with regard to the amount withdrawn by those cheques. The complainant claimed, that he was in the habit of transaction and was vigilant about taking up to date statements of his bank account then one question may arise what prevented him to take recourse of the court after a lapse of four years from the date when the cause of action arose. On the other hand if we take into account the line of defence as taken by the Bank authority/OP it appears that the cheques and the statement of accounts coming from the custody of the Bank proved otherwise and the entry of the cheque no. 989062 and 989063 found entry in the relevant register in proper place without having any over -writing or subsequent insertion to create suspicion in the mind of the court with regard to its correctness.
Hence, after a careful consideration of the materials on record as indicated above, in the light of the analysis of evidence given in the BNA which is at page 52 of the file we firmly conclude that the complainant filed this complaint before the Forum concerned to take a chance to collect money from the Bank authority and the Ld. District Forum was not justified in passing the decree in favour of complainant.
Having regard to the facts of the case and on the strength of the documents produced before us coupled with the arguments as advanced by Ld. Forum for the parties we firmly conclude that Ld. Trial Forum was not justified in passing the decree in favour of the complainant and the same is liable to be set aside.
Hence, it is ordered that the appeal is allowed on contest against the respondent and the order passed by Ld. Trial Forum stands set aside. Parties do bear their respective costs of Appeal.
