ADV. RAVI SUSHA, MEMBER.

            The averments  in the complaint can be briefly summarized as follows

          Complainant was the Asst. Manager, State Bank of India, Kayamkulam ad now he is retired from service that on 21..12..2005 one Adv. Chidambaram from Kollam has sent a legal notice to the complainant alleging that the complainant issued a cheque bearing No.0081641 dated 10..10..2005 of State Bank of India,  Palai Branch  to one George Kurian, Chempadiyil, No.41, Asramam Garden, Kollam in lieu of an amount of Rs.1,52,000/- borrowed from him by the complainant on 5..9..2005.  On 27..12..2005 the complainant handed over that notice to the opp.party for sending a reply notice to Adv. Chidambaram.   The complainant explained the entire facts behind the issue of that cheque to one C.G. Kurian who was an employee worked with the complainant at Kollam Branch of State Bank of India.   The complainant borrowed Rs.30,000/- from the said C.G. Kurian for interest at the rate of 36% and issued the said cheque as security for the money borrowed.   The entire amount was repaid on 18..12..2005, and when demanded the cheque, it was agreed by C.G. Kurian that the cheque will be returned on 20..12..2005.  But instead of returning it, he made entries in it and forged the name of C.G. Kurian, written  in the instrument, as George Kurian and then sent it to the bank for collection and then sent the legal notice to the complainant.  On enquiry it was learnt that George Kurian is the son of C.G. Kurian and he is a student and has no source of income to lend Rs.1,52,000/- to the complainant.   So the cheque is forged by them and then the complainant directed the opp.party to sent the reply notice stating the entire true facts explained by him.   The opp.party demanded Rs.500/- as his remuneration for sending the reply notice and hence the complainant gave Rs.500/- to the opp.party immediately, that the opp.party was introduced to the complainant by Mr.B. Ramakrishnan, Member of 19^th ward of Thodiyoor Grama Panchayath..  There after the complainant was under the impression  that the opp.party would have sent the reply notice in time.  But on 23.1.2006 the said George Kurian filed a complaint against the complainant U/S. 138 of Negotiable Instrument Act before the Judicial 1^st Class Magistrate Court-1, Kollam as C.C.No.1047/06 and the court sent summons to the complainant directing him to appear before court on 25..9..06, on that day the complainant filed vakkalath and took bail on 22..2..2007. It is understood from the copy of the complainant that no reply notice was sent by the opp.party to the legal notice, as entrusted to him by the complainant.   So on 6..10..2006 the complainant sent a registered letter to the opp.party demanding to get the copy of reply notice and postal  receipt and acknowledgement for producing before the Magistrate Court.   As a reply to that letter the opp.party sent an envelope on 30..10..2006 to the complainant in his office address and it was received on 31..10..2006.  Immediately in the presence of his co-workers Sathyan and Bhasuran it is seen that a white blank folded paper only in the envelope without any other document.  That envelope is sent by the opp.party deceptively to make an impression that he has already sent the papers sought by the complainant through his letter dt. 5..10..2006 .   As a reply to that deceptive demeanor of the opp.party, the complainant sent another registered letter to the opp.party on 1..11..2006 explaining the contents in the envelope and alleging the deficiency of service and cheating committed by the opp.party by not sending the reply notice after accepting the remuneration from the complainant.  It is a dereliction of duty of a legal practioner which is statutory also.  Moreover to that on 16..1..2006 that the Regional  Manager State Bank of India issued a memo to the complainant seeking explanation regarding the dishonour of cheque No.0081641 for Rs.1,52,000/- for want of funds.  That information was flourished in the bank and it caused much disgrace to the complainant for his reputation and honesty.  So the opp.party alone is liable for the cheque amount of Rs.1,52,000/- and also liable for the compensation and cost to the complainant if any punishment is imposed.  Hence filed this complaint.

          Opp.party filed version contending interalia, that the complaint is not maintainable either in law or on facts.  The complainant handed over the legal notice to the opp.party for sending a reply notice to Adv. Chidambaram is utter false and hence denied.   The complainant had visited the residence of the opp.party  on 27..12..2005 on being introduced by Mr.B. Ramakrishnan, a Panchayat member and friend of the opp.party.   The complainant had sought a legal opinion regarding the Legal Notice received by him.  On hearing the facts narrated by him, the opp.party advised that he should  issue a detailed reply notice or else it may be detrimental to his case.   The complainant was directed to come to the office of the opp.party with the Legal Notice and other records.   The complainant also requested for some time to check the counterfoil of the Cheque which he had issued.   Thereafter the complainant did not turn  up to the office of the opp.party.  He did not even contact the opp.party by any means.  It is utterly false that the complainant directed the opp.party to send a reply notice stating the entire true facts explained by him.  It is utter false that the opp.party demanded Rs.500/- as  remuneration and that the complainant immediately paid the same.   The opp.party did not demand the Legal fee as the complainant was directed to come to the office the next day with the Notice and records.   The opp.party purposefully do not receive Legal fee from, clients unless they come to his office with relevant records for issuing a legal reply notice.  Moreover, the present complainant was introduced to the opp.party by one of his close friends.  It is only after a long lapse of about ten months during October 2006that the complainant issued a Registered letter to the opp.party demanding a copy of reply notice and postal records.  It was actually a surprise to the opp.party.  The acts of the complainant are not that of a common prudent man.  If at all the complainant had entrusted the opp.party to issue a reply notice on his  behalf , the complainant ought to have contacted the opp.party as soon as he received the summons of the case from the court.  In the present case, the complainant never contacted this opp.party after 27..12..2005 and he engaged another counsel and gave Vakalath and appeared before the court on 25..9..2006 .  This is not a normal human conduct.   The complainant is not illiterate or a common man.  He is a retired Assistant Manager of the State Bank of India.  His averments itself reveal that he did not contact the opp.party after 27..12..2005.  He admits that he was under the impression that the opp.party would have sent the reply notice, which proves that he did not even care to peruse the contents of the reply notice which ought to have been sent on his behalf.   The subsequent conduct of the complainant would reveal that the allegations raised by him are part of a cooked up story to defend his case in the criminal proceedings against him.   This opp.party has enough reasons to believe that the complainant has issued the Registered Letter dated 6..10..2006 to the opp.party as part of a defense to be adopted in his case before the Judicial I Class Magistrate’s Court, Kollam.   The opp.party issued a reply on 30..10..2006  to the Registered letter stating the actual facts and denying the entrustment of issuing a reply notice.   The allegation that the envelope contained only a white blank folded pager is raised only to suit the complainant’s case and is utter false.   The averments that he opened the envelope in the presence of his co-workers etc are only preplanned stories to create false evidence in this case.   This opp.party has not committed any dereliction of duty as alleged.   The opp.party is not the person who caused the issuance of the Memo to the complainant by the Regional Manager of
State Bank of India.   Admittedly the Memo is  issued seeking explanation of the dishonour of a cheque issued by the complainant.   The situation arose only due to the dereliction of the complainant in not receiving back a signed blank cheque from the person to whom he issued it, when he allegedly settled the monetary transactions.   The nature of the complainant who is also a retired Assistant Manager of State Bank of India in dealing with a cheque in such a manner is sufficient to expose his malafide in this case.  Now the complainant has no qualms in shifting the burden to someone else.  If any disgrace is caused to the complainant for his reputation and honesty.  It is only due to his own acts  and deeds. The complainant is making false allegations and averments  against this opp.party without getting sufficient legal advice on proceedings under the NI Act.  The opp.party is unnecessarily dragged into this case for achieving the aims of the complainant.   The complaint is filed knowing fully well that it is not maintainable and it is filed only to be used as a piece of evidence in the Criminal proceedings faced by the complainant.    The complainant should explain before the Hon.’ble Forum as to the situation if he is given an acquittal in the Criminal proceedings.    Therefore it is clear that the complaint is part of an abuse of the process of this Hon’ble Forum.   The opp.party is entitled  to get compensatory costs from the complainant.  Hence the opp.party prays to dismiss the complaint. 

Points that would arise for consideration are:

1.     Whether the complaint is maintainable?

2.     Whether there is any deficiency in service on the side of opp.party?

3.     Reliefs and cost.

For the complainant PW.1 was examined and  Exts.P1 to P16 were marked.

For the opp.party DW.1 was examined and marked Exts D1  and D2

THE POINTS:

          The complainant’s case is that the complainant has approached the  opp.party on 27..12..2005 for sending a reply to the legal notice received by him from Adv. Chidambaram.   Then the opp.party has received Rsa.500/- as remuneration from the complainant for sending the reply notice.  But after getting a summons from the Judicial 1^st Class Magistrate Court I, Kollam in C.C.No.1047/06, the complainant  reliably got knowledge that the opp.party did not send reply notice.  Hence filed this complaint.

          For proving the case from the side of complainant.  PW.1 the complainant himself and PW.2 were examined and Ext.p1 to P11 were marked.

          The first point to be decided is whether the complaint is  barred by limitation.  Because as per the complaint the complainant entrusted the opp.party to issue reply notice on 27..12..2005 and the complainant got knowledge of the non issuance of the reply  notice just two weeks after the alleged first visit ie during January 2006 itself.   The complaint is filed only on 30..7..2008 which is after a lapse of two years.  Hence the complaint is barred by limitation.

 On evidence it is seen that after knowledge of non-issuance of the reply notice on January 2006, the  complainant sent  letter to the opp.party on 6..10..2006 [Ext.P2] and also sent another letter on 1.11..2006 [Ext.P6].  This shows that  the cause of auction continuous upto 1..11..2006 .  Hence the case is not barred by limitation.   The point found accordingly

          The next point of the opp.party is that the complainant is not a consumer of this opp.party.   According to the complainant the deposition of PW.1 and 2 shows that on 27..12..2005 both of them went to the house of the opp.party and entrusted the original of Ext.P10 notice to the opp.party for sending a reply to it and the story behind the issue of the alleged cheque were explained  to him and the opp.party received Rs.500/*- from the complainant for  sending the reply notice.    The opp.party has  denied the entrustment of any case by the complainant so as to be duly bound to issue reply notice and also denied the alleged payment of Rs.500/- 

The opp.party admits that on 27..1.2..2005  the complainant approached him, for  sending the reply notice and the complainant was introduced by one Ramakrishnan [PW.2].  According to opp.party when the complainant came to his house, he directed the complainant to come to the office on the next day with notice and records but the complainant did not turn up to the office of the opp.party.  Moreover if the complainant had entrusted to reply notice on his behalf, the complainant ought to have contacted the opp.party as soon as he received the summons of the case from the court.   Here complainant never contacted the opp.party after 27..1.2..2005 and he engaged another counsel for conducting the case.  PW.1 in his proof affidavit stated that on enquiry  he got information, that the opp.party has no office of his own and was not attached to any other office also.  In cross-examination of PW.1 he says he never said that the opp.party does not have  an office of his own.  He deposed that the opp.party has Advocate office at Karunagappally and when he came to the office, he could not see the opp.party.   So he went to the house of the opp.party.  Complainant has no such case as per the complaint.  Moreover the complainant’s case ios that he explained in detail to the opp.party about the contentions for sending the reply notice.  But during deposition he says that “ Sn sN¡v Magistrate  tImS-Xn-bn h¶-Xn\pv tijw  Rm³ I­n-«n-Ã.  Sn sN¡v ImWm-sX-bmWv AXn  C¶ C¶ letter correct sNbvXXv F¶v samgn sImSp-¯Xv/  AXv  F\n¡v a\-Ên-em-bn.    Ext; P11   cheque se ‘C’ F¶ A£cw F§s\ A{]--X-y£ambn F¶pv hni-Zo-I-cn-¡p-hm³ Ign-ªn-«n-Ã.  C§s\ hy-à-amb defence   t]mepw CÃmsX OPsb reply notice  Ab-¡p-hm³ Npa-X-e-s¸-Sp¯n F¶pv If-hmbn ]d-bp-I-btà ? If-h-Ã.

        Then the complainant’s case is that he explained in  detail to the opp.party about the contentions for sending the reply notice, cannot  be believed.   With regard to PW.2, he stated that he came as witness before the Forum on information from Karunagappally police and also stated that Karunagappally Police directly informed him that there is a warrant against him.  But as per records warrant was not issued against PW.2.  More over his explanation regarding the contents of legal notice is also not correct.   From the deposition as a whole, of PW.2 , we are of the opinion that he is not a reliable witness.  Through  PW.2 complainant could not prove that the complainant entrusted the advocate notice to the opp.party and paid Rs.500/- as legal fee..  According to the complainant after receipt of summons from Judicial 1^st Class Magistrate Court I, Kollam the complainant tried many times to contact the opp.party..  Thereafter the complainant telephone the opp.party and demanded to get back the office copy of the reply notice and its postal receipt and acknowledgement.  But he did not turn up and then the complainant sent Ext.P2 letter to the opp.party demanding the same.  Instead of sending the copy of the reply notice the opp.party purposefully sent Ext.P5,  an envelope with an intention to make a proof that the opp.party has sent all the papers demanded by the complainant  as per Ext.P2 .   The  learned counsel for the  complainant argued that on precise watch of the blank paper, the impression of postal seal on the envelope can be seen.  But we could not see such a seal on the blank paper.  Opp.party’s contention is that Ext. D1 is the reply to the complainant’s counsel.   Complainant’s counsel  argued that if the opp.party has any bonafides, he would have sent Ext. D1 directly to the complainant, without an envelope as a reply to Ext.P6 letter   According to opp.party, since, no details were given to him, he could not sent the reply notice to Ext.P10 legal notice.  Opp.party contended that Ext. D1 is the reply sent by him to Ext.P2 letter.  On verification of Ext. D1 we are of the opinion that there is no reason to disbelieve the opp.party.

          According to the complainant  if the opp.party sent the reply notice stating the true facts explained to him by the complainant he would have succeeded in his case by exonerating him from making a payment of Rs.1,52,000/- claim with the support of a forged boyus cheque.  More over contented that the opp.party alone is liable for the  cheque amount of Rs.1,52,000/- and also liable for the compensation cost to the complainant if any punishment is imposed.  In Ext. P11  and P12 it is revealed that the Hon’ble High Court of Kerala and Judicial 1^st class Magistrates Court, Kollam found no merits or bonafides in the contentions of the accused that there is material alteration in the cheque.   The complainant did not produce the copy of cheque before the Forum also.   These facts shows that the contentions taken  by the complainant  is not the real fact, Ext.p12  judgment shows that mere issuance of a reply notice would not have saved the complainant from being found guilty.

From considering the entire evidence, we are of the view that the complainant failed to prove his case  that he entrusted the advocate notice to the opp.party for sending reply notice and paid Rs.500/- as legal fee.. 

In the result, the complaint fails and  is dismissed.  No cost is ordered.

Dated this the 28^th day of June, 2012.

                                                            List of witnesses for the complainant

PW.1. -  Sreedharan

PW.2. -  B. Ramakrishnan

List of documents for the complainant

P1. – Copy of complaint in C.1047/2006

P2. – Letter dated 5..10..06 to Adv. R. Pradeep

P3. – Postal receipt

P4. – AcknowledgmentcardP5. –

P5. – Acknowledgment cover

P6. – Copy of Reply letter dated1..1..06

P7. – Postal receipt

P8. – Acknowledgment card

P9. – Memo dated 16..1..2006

P10. – Copy of legal notice

P11. – Photocopy of  order in CMP No.213/2009

P12. – judgment in C.C.No.1047

List of witnesses for the opp.party

DW.1. – Pradeep

DW.2. – P.J. George

List of documents for the opp.party

D1. – Reply notice  dated29..10..2006

D2. – Postal acknowledgment

X1. – Letter dated 16..1..2006  sent by Manager SBI

X2. – Covering letter