Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  16.10.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to credit the cheque bearing no. 109856 dated 04.02.2011 of Rs. 18,167/- ( Rs. Eighteen thousand One Hundred Sixty Seven only )
2. To pay Rs. 50,000/- as compensation.
3. To pay Rs. 5,000/- as litigation costs.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant is a consumer of opposite party no. 1, State Bank of India Danapur Branch and having saving account no. 31202234430.
2. The complainant has deposited her salary cheque bearing no. 109856 dated 04.02.2011 of Rs. 18,167/- in the branch of opposite party no. 1 on 09.02.2011. However till today opposite party has not given credit of the said cheque of Rs. 18,167/-.
3. Despite repeated request and reminder by the complainant, the officials of the opposite party has returned the said cheque unpaid on 07.03.2011.
4. The officials of the opposite party has deliberately kept the said cheques for about twenty seven days and never represented the said cheque again to the clearing and so opposite party has committed serious deficiency in services.
5. It is pertinent to mention that on 07.02.2011 the complainant was seriously injured due to accident by motorcycle and so complainant was in need of money for treatment. However due to non availability of money in bank account, the complainant suffers a lot.
6. Under the facts and circumstances stated above it is clear that opposite party is involved in unfair trade practice amounts to deficiency in service.

3. The Opposite Party no. 1 in his written statement has submitted as follows :-

1. This complaint petition is not maintainable against the opposite party no. 1 either on the facts of the case or under the law & rules and the same is fit to be dismissed against the opposite party no. 1.
2. This complaint case is bad for non – rejoinder of necessary party. complainant has not impleaded “Bihar State Beverage Corporation Ltd.” who issued the cheque in question in favour of the complainant and also P.N.B., main road Buxar (Bihar) Branch where the cheque was payable and on this score only this complaint petition is liable to be dismissed.
3. It is important to mention same facts to clarify the position of the opposite party no. 1 and which will also show that opposite party no. 1 is no where in the picture and has done nothing wrong to claim any compensation against opposite party no. 1.

1. The complainant deposited a cheque in her favour bearing no. 109856 dated 18,167/- of PunjabNational Bank, main Road Buxar Branch in her SB account in SBI Danapur Branch (Opposite party no. 1) on 09.02.2011 for collection in “Drop Box” for collection and the Danapur Branch sent the cheque for clearing to concerned Punjab National Bank Branch which returned the cheque unpaid with returned memo by giving reason “Not acknowledge” and the amount of Rs. 18,167/- which was credited by the opposite party no. 1 on 11.02.2011 in the SB A/c of the complainant in anticipation of credit by P.N.B. was debited on 12.02.2011 and Rs. 100/- was also recovered by way of cheque return charge from the complainant’s account. The complainant received back her returned unpaid cheque on 04.03.2011 from the counter.

It is further submitted that the complainant made withdrawal from ATM on 14.02.2011, 18.02.2011 and 03.03.2011 before the complainant received back her returned cheque from opposite party no. 1 Bank counter. It is important to mention that on each & every withdrawal by the ATM a fresh ATM transaction slip is issued by the ATM in which there is mention of clear balance and MOD balance, cheque return etc. and all these go to show that the complainant has knowledge that her cheque has been returned unpaid by the PNB (opposite party no. 2) and the complainant should have collected the returned cheque more earlier. Normally and generally the bank waits for 20 days to 25 days for the customer to receive back returned cheque and after 25 days the returned cheque is sent to customer by post.

4. The complainant is customer of the opposite party no. 1 and her SB A/c no. is 31202234430.
5. It is submitted that it is true that cheque no. 109856 dated 04.02.2011 of Rs. 18,167/- was deposited in the cheque drop box of the opposite party no. 1 and the opposite party no. 1 sent the same in clearance for credit to concerned branch of the PNB who was to credit the cheque but the cheque was returned unpaid and as such it was the duty & obligation of the opposite party no. 2 to credit the said cheque and not that of the opposite party no. 1 and the opposite party no. 1 has no fault in whole of the episode and contrary claim and allegations against opposite party no. 1 are false & baseless.
6. It is submitted that the complainant had full knowledge that her cheque has been returned by the opposite party no. 02 (PNB) unpaid by the ATM withdrawals made on 14.02.2011, 18.02.2011, 26.02.2011 & 03.03.2011 by the complainant since ATM issues transaction slip at the time of each withdrawal showing clear balance, MOD balance, cheque return etc. but the complainant did not collect her return cheque from opposite party no. 1 knowingly & deliberately to drag the opposite party no. 1 unnecessary in this litigation.

It is further submitted that it was not the duty of the opposite party no. 1 to represent the cheque for payment to PNB (opposite party no. 2) who had returned the cheque unpaid without written request of the complainant or without redeposit of the said cheque by the complainant in her SB A/c maintained in the opposite party no. 1 bank, so much so Rs. 100/- is debited/charged for each representation which the opposite party no. 1 could not do without request of the complainant. Under the circumstances these claim and allegations of the complainant against the opposite party no. 1 are totally & baseless.

7. It is submitted that the opposite party no. 1 is not at all responsible in any way for the alleged fact that complainant was in need of money to treat her injury met in motorcycle accident. The cheque was returned unpaid by the PNB (opposite party no. 2) and the opposite party no. 1 could not represent the represent the cheque suomoto. The complainant wants to attribute (shift) the wrong committed by the opposite party no. 2 to opposite party no. 1 forcibly and without any basis and occasion and also which is against the rule & regulation of the banking transaction. Under the circumstances the opposite party no. 1 was not at all responsible for non availability of money in her bank account.
8. It is submitted that opposite party no. 1 is not at all involved in any way in unfair trade practice amounting to deficiency in service as alleged by the complainant for the reasons and facts as stated and submitted in the preceding Paras of this written statement and any claim or claim contrary to these facts are denied in toto as baseless & wrong.
9. The complainant has not suffered any physical and mental agony by any acts of the opposite party no. 1 and any allegations or claims against the opposite party no. 1 is totally false & baseless.
10. It was not the duty of the opposite party no. 1 to credit the cheque in question and as such the opposite party no. 1 has not committed any unfair trade practice amounting to deficiency in service as alleged by the complainant and as such any claim for compensation and costs of litigation by the complainant against opposite party no. 1 is totally false, baseless and fictitious.
11. The opposite party no. 1 has not committed any deficiency in service and hence no question of any compensation to complainant.

4. The Opposite Party no. 2 in his written statement has submitted as follows :-

1. At the very outset it is stated that the present complaint case as filed by the complainant is not sustainable against the answering opposite party for any deficiency with the complainant.
2. On 12.02.2011 inward clearing the answering party received a cheque no. 109856 dated 04.02.2011 for sum of Rs. 18,167/- in favour of complainant from State Bank of India.
3. While passing the said cheque the system raised caution that the cheque not acknowledged because the account holder did not give acknowledgement to the branch when received the cheque. It is apparent to mention that Bihar State Beverages Corporation Ltd. is a consumer of answering party and complainant is being in job in the said corporation. The answering party/ paying branch cannot ignore the such caution as it is a fraud prone matter and as it was done in the interest of account holder/ their consumer to avoid any fraud in the account. ( Annexure – 1)
4. Due to the said caution raised by the system the cheque was returned mentioning the reason in the returning memo dated 12.02.2011 that the cheque not acknowledge which cause in order to avoid any fraud in the said account. ( Annexure – 2)

5. The complainant in her rejoinder has submitted as follows :-

1. The complainant is the account holder of S.B. account no. 31202234430 of State Bank of India, Danapur Cantt. Branch Patna. Thus she is customer of State Bank of India. Banking means acceptance for the purpose of lending or investment of deposit of money from the public, repayable on demand or otherwise. The intention of the Consumer Protection Act is to protect Consumer of such services rendered by the banks. Banks provide or render service/facility to its customer or even non customer. They render facilities or services such as remittances, accepting deposits, providing for lockers facility, for discounting of cheques, collection of cheques, issue of bank draft etc. In Vimal Chandra Grover case, AIR 2000 sc 2181, the Hon’ble Supreme Court had held that banking is business transaction between the bank and the customer, such customers are customers within the meaning of section 2(1) (d) (ii) of the Consumer Protection Act.
2. It is respectfully submitted that the complaint has been preferred by the complainant before this court for redressing her genuine and bonafide grievance. Here the opposite party totally failed in performing its duty or discharging its obligation as required by the law. Here the complainant was prevented to avail the service of the bank. Thus, the complaint preferred by the complainant is maintainable, in the eye of law.
3. It  is submitted that the allegation in the complaint regarding short coming in service on the part of bank, constitute a consumer dispute within the meaning of the word under section 2 (1)(e) of the Consumer Protection Act. The dispute raised against the bank concerning its alleged failure to perform its duty as required by the law is Consumer dispute as defined under the Consumer Protection Act. here the complaint is having no any grievance against ‘Bihar State Beverage Corporation Ltd’. Thus Bihar State Beverage Corporation Ltd. is not necessary and proper party in this case.
4. It is submitted that the complainant has deposited her salary cheque bearing cheque no. 109856 dated 04.02.2011 of Rs. 18,167/- in the branch of State Bank of India situated at Danapur Cantt., Patna on 09.02.2011. the complainant regular visited the branch of SBI and requested the opposite party no. 1 to take step from his own level so that the amount of Rs. 18,167/- is to be credited in her account without committing unnecessary delay because there is urgent requirement of money, but except giving assurance no any step has been taken to protect and safeguard the interest of the complainant. No any information has been given by the bank to the complainant that the said cheque has been returned with remark ‘Not acknowledge’. It is duty of the bank to inform the complainant that the cheque deposited by the complainant is returned back by PNB. Here the bank totally failed to perform its duty or to discharge its obligation as required by the law. The officer of the opposite party no. 1 has returned the said cheque on 04.03.2011 but no any reason has been disclosed/communicated for making unnecessary delay in returning unpaid cheque to the complainant.

It is further submitted that it is primary duty of a bank is to safeguard and protect the interest of their customers. If some inconvenience were caused to customer due to the omission, negligence on part of the bank. The customer is entitled to get the compensation for deficiency in service on the party of the bank. It is relevant to mention that it is primary duty of the bank to inform the complainant by sending notice/ letter that the cheque bearing 189856 dated 04.02.2011 for Rs. 18,167/- is returned back by PNB with remark ‘Not acknowledge’ so that she will take legal step against drawer.

It is stated that in a fresh ATM slip issued by the ATM cheque return, clear balance and mode balance etc. are generally mentioned which is not fully correct and true. It is necessary that on each and every withdrawal by ATM a fresh ATM slip is issued and delivered by the ATM along with cash at the same time.

5. It is submitted that the bank totally failed to perform the duty of the required by the law also failed to protect the right and interest of the complainant. Thus, the bank is liable to compensate the complainant for deficiency in service committed by the bank.
6. It is submitted that delay in giving the information regarding the cheque returned unpaid due to error on the part of the bank officials, amounting to deficiency in service and the complainant is entitled to compensation under section 14 of the Act. the clause (d) of sub section 1 of section 14 is extracted below:

“to pay such amount as may be awarded by it as compensation to consumer for any loss on injury suffered by consumer due to the negligence of the opposite party”.

Each of these expressions used in the sub section are of wide connotation and are fully comprehended both in common and legal sense. Here the bank is negligent in discharged of its duty and liable to pay compensation for omission, negligence or default of the bank. The claim against the opposite party no. 1 is not false, concocted baseless fictitious.

The facts of this case asserted by the parties concerned have been narrated in the foregoing paragraphs. However at cost of repetition some facts are again reproduced to enable us to record our findings.

It is the case of the complainant that he has deposited the cheque in “Drop Box” on 09.02.2011 for the value of Rs. 18,167/- in the drop box of opposite party no. 1. It has been further asserted that despite repeated request and reminder the aforesaid cheque was returned to the complainant on 04.03.2011 after keeping the same for 27 days. The complainant has asserted that it was duty of opposite party no. 1 to inform him about the notice of returning of his cheque by opposite party no. 2 which was not done. Opposite party no. 1 has asserted that the said cheque was sent for clearing to concerned Punjab National Bank Branch which returned the cheque unpaid with return memo by giving reason “not acknowledged” and hence the amount of Rs. 18,167/- which was credited by opposite party no. 1 on the account of complainant on 11.02.2011 in anticipation of credit was debited on 12.02.2012 and Rs. 100/- was also recovered. It has been also asserted that Bank waits for 20 to 25 days to receive back return cheque and after 25 days the cheque is sent to customer by post. Opposite party no. 2 has asserted that on 12.02.2011 in ward clearing the aforesaid cheque was received from State Bank of India but while passing the cheque the system raised caution that the cheque is not acknowledged because the account holder did not give acknowledgement number to the branch while receiving the cheque.

It is needless to say that the cheque of the complainant was immediately processed by opposite party no. 1 and 2 but the opposite party did not pass it for want of acknowledgement as have been asserted in para – 3 of the written statement filed by the opposite party no. 2. It was duty of the complainant to intimate the bank ( opposite party no. 2) about the receiving of the aforesaid cheque but he himself has failed to do so resulting in return of cheque by way of caution.

It is worth mention that bank have laid down certain parameters to prevent forgery and Fraud and the aforesaid parameters are fed in computer system and hence no any employee of the bank is supposed to pass any cheque if a caution is raised by computer.

So far conduct of opposite party no. 1 is concerned the very fact that after receiving the aforesaid cheque, the cheque amount was credited in the account of complainant shows the intention and efficiency of opposite party no. 1 and in our opinion opposite party no. 1 rightly debited the aforesaid amount with penalty of Rs. 100/- after the aforesaid cheque was returned by opposite party no. 2.

The facts asserted by opposite parties also shows that after submission of aforesaid cheque there is ATM facilities and it goes without saying that after money is withdrawn through ATM a slip usually come out in which the Balance amount is mentioned. The complainant has used ATM and must have knowledge of the Balance amount. Opposite party no. 1 has asserted that unless instruction in writing is received from consumer, the cheques are not re - presented and the said cheque after waiting 20 to 25 days is sent to the customer through general post. The aforesaid fact asserted by the opposite parties have not been controverted by cogent materials. With due regards we find that the judgment of the Hon’ble Court cited by the complainant are not applicable in facts and circumstances of the case.

For the reason stated above we find no deficiency on the part of the opposite parties and hence this complaint petition stands dismissed for want of merit but without costs.

                                        Member                                                                   President