IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /55/2014.
Date of Filing: 26.05.2014. Date of Final Order: 24.11.2016.
Complainant: Dipayan Dey, S/O Pulakendu Dey, Vill.& P.O. Satitara, P.S. Barwan
Dist. Murshidabad.
-Vs-
Opposite Party: 1. Branch Manager, H.D.F.C. Bank, Berhampore Branch,
37/A, R. N. Tagore Road, Laldighi, P.O.& P.S. Berhampore, Dist. Murshidabad.
Pin- 742101.
2. Branch Manager, H.D.F.C Bank(Baguihati Branch), H/J 2, Rajarhat Road,
Baguihati, Kolkata-52.
3. Jiaul Rahaman, Director of ARIN Rice Husking Mill Pvt. Ltd, (A company registered
under Indian Companies Act) having office at
Vill & P.O. & P.S. Barwan, Dist. Murshidabad, Pin: 742132.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for payment of Rs.6.9 lac and compensation of Rs.50, 000/- for harassment and Rs.25, 000/- towards cost.
The complainant’s case, in brief, is that the complainant gave Rs.6.90 lacs to his friend OP No.3 towards accommodation loan on his approach. To repay the same the OP No.3 gave a Cheque No.000019 of OP No.2 Bank of Rs.6.9 lacs to the complainant who deposited the said cheque with Op No.2 branch on 17.4.14 for speedy encashment and the same was encashed and credited in favour of the complainant in his bank A/c lying with OP. No.1 Berhampore Branch but the same was received on the basis of the intimation of stop payment by OP No.3. The said illegal reverse entry after encashment in collusion with OP No.3 is deficiency in service and unfair trade practice on the part of OP No.1&2. The complainant is entitled to get back the same being deficiency in service. Hence, the instant complaint case.
The written version filed by OP No.2, in brief, is that there is no deficiency in service on the part of this OP-Bank. The disputed cheque was issued by OP No.3 who is the A/C holder of this OP No.2 Bank Branch and the same was deposited by the complainant with OP No.2-Branch and immediate after encashment SMS was auto-generated and getting that message OP No.3 approached this OP and asked for stop payment as the impugned cheque was misplaced and fraudulently used by the complainant and lodged GD with Burwan P.S. and being called for by that P.S.and this –bank enquired the matter and found discrepancy in the document, the seal of OP No.3 on the impugned cheque differs from the seal of OP No.3 already on record and he immediately make reverse entry in favour of OP No.3 and submitted report to the said P.S. There is no collusion in between this OP No.2 and OP No.3 and Op No.2 has rightly made reverse entry. There is no illegality and for that the complaint is liable to be dismissed. Hence, the instant written version filed by the OP No.2.
The written version filed by OP No. 3, in brief, is that this OP No.3 has denied the complainant’s case. There is no relationship in between the complainant and this OP No3 who never took any amount from the complainant. The impugned cheque No. 000019 was lost from this OP and on 22.3.14 he lodged a G.D. with Burwan P.S. and also informed the same to its Banker and for that the Bank, OP No.2 cannot encash such cheque. He lodged Burwan P.S. Case No. 282/2014 on 26.6.14 u/s 406, 409/420 IPC and the same being under investigation, this case is not maintainable before this Forum and for that this case is liable to be rejected. Hence, the instant written version filed by OP No.3.
Considering the pleadings of all the parties the following points have been raised for the disposal of the case.
Points for Decision.
1. Whether the complaint is maintainable in its present form and law?
2. Whether the complainant is a consumer under C.P. Act, 1986?
3. Whether the case is barred by law of limitation?
4. Whether the complainant is entitled to get relief as prayed for?
5. To what other relief/reliefs the complainant is entitled to get?
Decision with Reasons.
The instant case is praying for payment of Rs.6.9 lac and compensation of Rs.50, 000/- for harassment and Rs.25, 000/- towards cost
The complainant’s case mainly is that for repayment of accommodation loan the OP No.3 gave a cheque of Rs.6.9 lakh to the complainant who deposited the same with OPNo.2 Branch for speedily encashment and immediate after encashment when OP No.3 got SMS to that effect rushed to the OP No.3-Bank Branch and informed that the impugned cheque was misplaced and fraudulently used by the complainant and asked for stop payment and then the OP Nos. 1&2 in collusion with OP No.3 made reverse entry in the bank A/c of the complainant lying with OP No.1 Branch and the same is deficiency in service and unfair trade practice Act. Hence, the instant complaint case.
On the other hand the OP No.1&2 ‘s case is that the OP No.3 getting SMS immediate after encashment of the impugned cheque approached the OP No.2 for stop payment and lodged G.D. entry with Burwan P.S. to the effect that the impugned cheque was misplaced and fraudulently used by the complainant and the OP No.2 being called for by Burwan P.S. asked OP No.2 to enquiry into the matter and on enquiry OP No.2 found that the seal of OP No.3 on the impugned cheque differs from the seal of OP No.3 already on record and he immediately make reverse entry in favour of OP No.3 and submitted report to the said P.S. There is no collusion in between this OP No.2 and OP No.3 and Op No.2 has rightly made reverse entry. There is no illegality.
Also, the OP No.3’s case in brief, is that OP No.3 has denied the complainant’s case. There is no relationship in between the complainant and this OP No3 who never took any amount from the complainant. The impugned cheque No. 000019 was lost from this OP and on 22.3.14 he lodged a G.D. with Burwan P.S. and also informed the same to its Banker and for that the Bank, OP No.2 cannot encash such cheque. He lodged Barwan P.S. Case No. 282/2014 on 26.6.14 u/s 406, 409/420 IPC and the same being under investigation, this case is not maintainable before this Forum.
To prove the case the complainant has adduced evidence on affidavit and adduced the relevant documents in support of his case. Those are as under:
1. The bank statement of the complainant of OpNo.2 Branch showing encashment of Rs.6.9 lakhs and reversal entry of the same on the same day i.e 17.4.2014 and one counter foil d t. 17.4.14 showing deposit of this same amount of Rs.6.90 lakhs in the name of the complainant.
2. One letter dt. 17.4.2014 of Op No.3 requesting reverse transaction on the ground that the said cheque was misplaced and issued fraudulently.
In this regard the ld. Lawyer for the complainant has advanced argument that once the impugned cheque amounting to Rs.6.9 lakhs was encashed the same cannot be stopped by reverse entry. The plea of misplaced and fraudulently transaction is self-contradictory statement. He has also argued that in this case specific case of fraud in detail has not been pleaded.
He has also argued on the point of return back of the cheque on the ground of misplaced and the same has been issued fraudulently that both plea of fraud and misplace is a self destructive plea and the same cannot be taken together at a time.
He has argued that fraud is to be pleased categorically and at the same time the same is to be proved.
On the other hand, in this case OP No.3 himself has adduced evidence on affidavit and OP Nos. 1&2 Bank has filed Written Version as well as written argument separately and all those OPs have categorically denied the complainant’s case.
The main argument of the ld. Lawyer for the complainant is that the OP-Bank cannot stop payment of the impugned cheque by reverse entry where the same has already been encashed unless fraud has been established.
The root of the question of encashment of the impugned cheque of Rs.6.9 lakhs is for repayment of accommodation loan of Rs.6.9 lakhs given by the complainant to OP No.3 and the same has been denied categorically by OP No.3 himself by adducing evidence on affidavit.
Thus, the complainant is to prove categorically by cogent evidence that complainant gave accommodation loan of Rs.6.9 lakhs to OP No.3.
In the complaint the alleged accommodation loan has been mentioned as Rs.6.90 lakhs .
On the other hand the case of OP No.3 reveals from the Written version and evidence of OP No.3 by affidavit that the complainant lodged a complaint to O.C. Burwan P.S. stating that the OP took loan of Rs.12,00,000/- from the complainant but there was a contradictory statement in the petition that the Cr. Misc. Case No. 3678 /3678/2014 was allowed or that as P.S. Case No. 282/14 dt. 26.6.14 u/s 406/409/420 IPC is under investigation. So, the case is not maintainable and this OP never took any amount from the complainant and cheque No. 000019 was lost and lodged G.D. with Barwan P.S. to that effect.
Thus, the primary onus is upon the complainant to prove that the complainant gave loan of Rs.6.90 Lakhs to the OP No.3 because the OP No.3 has categorically denied the alleged loan and the OP’s main case is that the impugned Cheque No. 000019 was lost and lodged G.D to that effect and OP filed a criminal case No. 3678/14 u/s 438, Cr.P.C which was allowed and Barwan P.S case No. 282/14 u/s 406/409/420 IPC was started.
Though the documents relating to above criminal case have not come before this Forum and the same being OP’s case, the primary onus is upon the complainant that the complainant gave accommodation loan of Rs.6.90 lakhs to OPNo.3 and to repay the same the impugned cheque No. 000019 dt. 16.4.2014 was issued in favour of the complainant by OP No.3 and the same was deposited by the complainant on 17.4.2014 in the Op No.2 Branch at Kolkata and encashed on the same day and reversed entry was also made on the same d ay.
But the complainant has failed to adduce any iota of evidence as to payment of alleged loan of Rs.6.90 lakhs to Op No.3 which has been categorically denied by the Op No.3.
Also, from the Xerox copy of the letter dt. 02.06.2014 written by OP No.2 to S.I. of Baguihati P.S. as asked for by their letter dt. 25.5.14 it is clear that OP No.3 approached OP No.2-Bank immediate after getting auto-generated SMS as to debit of the disputed amount with the allegation of misplaced and fraud relating to the impugned cheque and thereafter verification the OP No.2 Bank got discrepancy in the rubber stamp of the OP No.3 Co. used on the disputed instrument having a gap in the word ARINRICE as ARIN with gap RICE and then the amount was reversed to safeguard the financial interest of their a/c holder.
Though the copy of FIR and any other documents relating to criminal case relating to their disputed cheque have not come before this Court but it is clear that criminal case has already been started in this regard.
This forum is only to decide whether there is any deficiency in service on the part of the OP-Bank where there is clear denial of receipt of alleged loan of Rs.6.9 lakhs given by the complaint to the OP No.3.
The same being not proved by the complainant we have no other alternative but to decide that at this stage the complainant is not entitled to get any relief from the OP Nos. 1&2and as such the case is liable to be dismissed.
Considering the above discussions as a whole we can safely conclude that at this stage the complainant is not entitled to get any relief in this case and as such the complaint is liable to be dismissed without any cost.
Hence,
Ordered
that the Consumer Complaint No. 55/2014 be and the same is hereby dismissed on contest without any cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member Member President
