PER SHRI. G.H. RATHOD – HON’BLE MEMBER
1) As per the complaint, the Complainant has prayed to direct the Opposite Party to pay sum of Rs.2 Lacs being the compensation for deficiency in service, negligence & illegal act on the part of Opposite Party and for loss, damage & mental & physical agonies and pain suffered by the Complainant. He also prayed that cost of the complaint be awarded & any other relief as the nature and circumstances of the case may require.
2) According to the, Complainant, he is Proprietor of M/s. Rakesh Construction Co. and carrying his business at the address given in the title of the complaint and he was having his Current Account No.3149 with the Opposite Party. The said account was in the name of M/s. Rakesh Construction Co. It is submitted that in the month of Aug., 2003, the Complainant lost the cheques bearing No.600307 & 680308 and as those cheques were not traceable hence, he lodged written intimation on 18/08/2003 with the Opposite Party and requested the Opposite Party to stop the payment of the said cheques. The copy of letter is marked at Exh.‘A’ and Opposite Party acknowledged the said letter as per their certificate dtd.2nd March, 2005 which is marked as Exh.‘B’. The said fact was also admitted by Opposite Party in their evidence given in Case No.212/ss/2004 before Ld. 21st Metropolitan Magistrate’s Court at Bandra, Mumbai. The copy of evidence of Dinesh B. Thakur, Deputy Manager, in the above case is marked as Exh.‘C’. According to the Complainant, one Mr. Ramzan Bhati had deposited the cheque bearing No.7803308, dtd.13/09/2004 with his banker Bombay Mercantile Co.Op. Bank which was subsequently presented with Opposite Party for clearance on 16/09/04 and the said cheque was dishonored with the reason “Insufficient of Funds” It is alleged by the Complainant that clear intimation was given by him to the Opposite Party to stop the payment as the Complainant lost the said cheques. It is alleged by the Complainant that thereafter, the said Mr. Ramzan Bhati filed the complaint bearing No.212/ss/2004 u/s. 138 of Negotiable Instrument Act in the Court of Metropolitan Magistrate, Bandra, Mumbai.
3) It is alleged by the complainant that in the said case the officer of the Opposite Party Dinesh Thakur appeared before Metropolitan Magistrate as a witness and had confirmed the fact that on 18/08/2003 the instruction was received from the Complainant to stop the payment as the said cheques were lost. It is alleged by the Complainant that due to the act of Opposite Party the Complainant was convicted in the CC No.212/ss/2004. The copy of the judgment in the above case is marked as Exh.‘D’
4) The Complainant has further submitted that he preferred appeal against the order of the Ld. 21st Metropolitan Magistrate in C.C. No.212/ss/2004 before Sessions Court, Bombay and as per order dtd.28/06/2011 the Sessions Court quashed and set aside the order of the Ld. 21st M.M. and acquitted the Complainant of the offence punishable under Sec.138 of Negotiable Instrument Act. The copy of the said judgment is marked as Exh.‘E’. According to the Complainant, the Opposite Party is responsible for the loss and damages suffered by the Complainant. He therefore, issued notice through Advocate dtd.09/11/2006 and demanded compensation of Rs.2 Lacs. The copy of the said notice is filed at Exh.‘F’. The Opposite Party though received the said notice did not reply and therefore, the Complainant has filed this complaint for deficiency in service negligence and illegal act on the part of the Opposite Party. The Complainant has therefore, prayed that the Opposite Party be directed to pay compensation of Rs.2 Lacs and cost of this proceedings.
5) The Opposite Party filed written statement and contested the claim. It is contended that the complaint is barred by limitation as the cheque was retuned in the month of Sept., 2004 and the case was filed in the month of Dec., 2006. It is also contended that dispute involves complicated question of law and facts and therefore, this Forum has no jurisdiction to entertain it by summary procedure.
6) It is contended that even if the cheque was returned on the ground of stop payment as per the instructions of the Complainant the Complainant could have been held liable under Sec.138 of Negotiable Instrument Act. It is contended that the return of cheque on the ground of insufficient fund cannot be held as illegal act on the part of the Opposite Party. It is contended that there is no deficiency of service on the part of the Opposite Party the complaint therefore, be dismissed with cost.
7) The Complainant has filed his affidavit of evidence. The Opposite Party has filed affidavit of Ravindra Mali, Chief Manager of Mumbai Central Branch. Both the parties filed their written arguments. We heard the Ld.Advocate for the Complainant, Shri. Imtiyaz Patel, the Advocate for the Opposite Party vide pursis dtd.02/05/2012 submitted that written arguments on behalf of the Opposite Party should be treated as the oral argument of the Opposite Party.
8) The objection raised by the Opposite Party as regards the limitation in our view is not acceptable as the decision of the Sessions Court, Mumbai, as per Exh.‘E’ appears to have been delivered on 28/06/2006. The complaint is filed on 23/01/2007 i.e. within 2 years from the decision of the Sessions Court, Mumbai. In our view the cause of action for this complaint arose from the date of decision of Sessions Court. Even it is assumed that it arose from the decision of Metropolitan Magistrate from 15/10/2005 then also the complaint is filed within time. We therefore, reject the contention of the Opposite Party as regards the point of limitation. The contention raised by the Opposite Party that the dispute involves complicated question and therefore, it cannot be tried summarily under the provisions of the Consumer Protection Act, also cannot be accepted as the Complainant has only raised the point as regards deficiency of service and illegal act on the part of the Opposite Party as he had intimated about loss of two cheques in the year 2003. We therefore, hold that as in the present case the question of deficiency of service is required to be considered on the grounds alleged by the Complainant in the complaint, this Forum can decide it by summary procedure as laid down in the Act. We therefore, reject the said contention of the Opposite Party.
9) While deciding the factum of illegality, deficiency on the part of the Opposite Party it is necessary to be seen that the Complainant was tried before the Metropolitan Magistrate for the dishonor of cheque No.680308 for Rs.2,25,000/- under Sec.138 of the Negotiable Instrument Act. It is the fact the Complainant was convicted by the Ld. 21st Metropolitan Magistrate vide order dtd.15/10/2005. The complaint then preferred the appeal before the Sessions Court, Mumbai, and in the said appeal the Sessions Court set aside the judgement of the Metropolitan Magistrate and acquitted the Complainant of the offence punishable under Sec.138 of Negotiable Instrument Act. The Complainant in the present case, however, in para 4 of the complaint has specifically alleged that one Mr. Ramzan Bhati deposited the cheque bearing No.7803308, dtd.13/09/04 and it was dishonored by the Opposite Party for the reason of insufficient funds. According to the Complainant, the act on the part of the Opposite Party is illegal as he had given intimation to stop the payment of the cheques which he had lost in Aug., 2003. The Complainant in para 3 of the complaint has specifically mentioned the cheque Nos. which were not traceable to him in the month of Aug., 2003 bearing Nos.600307 & 680308. The intimation letter placed on record at Exh.‘A’ is also otherwise in which the blank cheques signed found missing by the Complainant are also not of the same numbers. In the said letter the Cheque Nos. are mentioned as 680307 & 680308. We therefore, hold that the case made out by the Complainant is totally inconsistent as referred above. According to the Complainant, the cheque bearing No.7803308, dtd.13/09/04 was wrongly dishonored by the Opposite Party. According to the Complainant, he was convicted for the said dishonor of Cheque No.680308 by the Ld. 21st Metropolitan Magistrate in C.C.No.212/ss/2004. Upon going through the judgment of the aforesaid Court and the pleadings in para 4 & 5 of this complaint are totally contradictory and it cannot be said that the Complainant was convicted for dishonor of cheque bearing No.7803308, dtd.13/09/04. The Complainant did not give any intimation of loss of cheque bearing No.7803308 to the Opposite Party. Furthermore, even assuming that he was convicted for the dishonor of cheque bearing No.680308 by the Ld.21st Metropolitan Magistrate. The said conviction was later on set aside by the Sessions Court on the ground that the Complainant in C.C.No.212/ss/2004, Ramzan Bhati did not produce the original cheque before the Metropolitan Magistrate and held that the presumption under Sect.139 of Negotiable Instrument Act, raised by the Ld. 21st M.M. in favour of Complainant Ramzan Bhati is wrong. Thus, the case made out by the Complainant that he was convicted for the dishonor of Cheque No.680308 due to the negligence and illegal act on the part of the Opposite Party also cannot be held proved on the basis of the documents placed on record by the Complainant. Furthermore, the Complainant has not proved as to how he is entitle for damages such as, whether he was defamed in the society or his reputation was diminished which could be compensated on payment of Rs.2 Lacs as claimed. In view of these facts and circumstances, we hold that the Complainant has failed to prove any deficiency on the part of the Opposite Party. The Complainant in our view is not entitled for any compensation as claimed in this complaint. In the result the following order is passed-
O R D E R
i. Complaint No.32/2007 is dismissed with no order as to cost.
ii. Certified copies of this order be furnished to the parties.
