DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

                C.C. CASE NO. _500 OF ___2014_

DATE OF FILING : 29.9.2014                 DATE OF PASSING JUDGEMENT: 30.05.2018

Present                                :   President       :  

                                                    Member(s)    :    Subrata Sarker  & Jhunu Prasad                                                                                                 

COMPLAINANT                          : Giasuddin Molla, son of late Joynal Abedin Molla of Akra, Krishnanagar, Kayal Para, P.S Maheshtala, Kolkata – 140.

- VERSUS  -

O.P/O.Ps                                             :  1.  Branch Manager, State Bank of India Panchur, CW-41/4, Rabindranagar, P.O Bartala, P.S Rabindranagar, Kolkata – 66.

                                                              2.    Mr. Moloy Bhattacharjee, son of late Murari Mohan Bhattacharjee of 125/122, Bhupen Roy Road, P.S Behala, Kolkata – 34.

________________________________________________________________________________

                                                                                J  U  D  G  M  E  N  T

JHUNU PRASAD, LADY MEMBER

Interference of this Forum has been sought for by the complainant contending gross negligence, deficiency and unfair trade practice in rendering service towards the complainant by the Opposite Parties.

The complainant’s case is that the complainant has a savings bank account vide no. 30361640639 of the State Bank of India, Pachpur branch, CW-41/4, Rabindra Nagar, P.O. Bartala, P.S. Rabindra Nagar, Kolkata- 700066.

The complainant deposited a cheque vide no.574923 dated 28.01.2013 amounting to Rs. 11,80,000/-  of PNB, New Alipur branch, Kolkate-700053,before the O.P. No.1 for encashment, which was given by the O.P. No.2 to the complainant, but the above mentioned cheque has been dishonored.

Thereafter the complainant several times visited the bank and requested to return back the said original unpaid cheque along with all original documents so that the complainant can file a case u/s 138 N.I. Act within the stipulated time. But in spite of repeated request the OP.No.1 did not pay any heed to return the said cheque in question along with original documents.

Thereafter the complainant sent a legal notice to the Opposite Party No. 1 on 01.04.2013. In reply of the said legal notice the Ld. Advocate of the O.P.No.1 stated that the said dishonored cheque was the custody of the O.P.No.1 and requested the complainant to take the same from the O.P.No.1. Due to such act by the O.P. No. 1 the complainant could not been able to file a case u/s 138 N.I. Act against the O.P.No.2. That’s why the complainant suffered financial loss, mental agony and harassment.

Therefore, the complainant filed this instant complaint before this forum for getting relief as prayed for.

Issued notices to the Opposite Parties to appear before this Forum.

Accordingly, after receipt the notices, both the Opposite Parties are appeared by way of filing separate written version to controvert and to refute the case.

The O.P-1 contested the case by filing written version, denying all the material allegations contending inter alia that the instant complaint is not maintainable and the case is barred by principles of estoppels, waiver and acquiescence and the instant case is misconceived, frivolous, malafide and baseless.

The case of the Opposite Party No.1 as a whole in a crisp is that, after dishonored of the said cheque in question the complainant collected the said cheque from them.

Therefore, the complainant has no prima facie case against the O.P. bank and the case should be rejected with cost.

In the written version, the OP. No. 2 admitted that he has given the said cheque in question to the complainant and subsequently the said cheque has been dishonored. The other statement as stated by the complainant, the OP. No. 2 did not controvert. 

POINTS FOR DECISION:-

1) Is the complainant a consumer or not?

2) Is there any deficiency of service on the part of the OP?

 3) Whether the complainant is entitled to get any relief as prayed for.

DECISION WITH REASONS:-

At the time of argument the complainant and the Opposite Parties have filed affidavit –in- chief, BNA, and some Xerox copies of documents to support of their claim.

          All points are taken up together for consideration for the sake of convenience and brevity.

 We have carefully considered the submissions made before us by the Ld. Advocate for the complainant and also the Ld. Advocate for the O.P. no. 1 and the Ld. Advocate for the O.P. no. 2, and also critically perused all the material documents on record.

On overall evaluation of the argument advanced by the Ld. Advocate of all the parties, appeared and contested, and on critical appreciation of the case record, it is evident that, admittedly the complainant deposited one cheque of Rs.11,80,000/- of PNB, New Alipur branch, Kolkata-700053 vide cheque No.574923 dt.28.1.2013 which had been issued by the OP. No 2 in favour of the complainant. The drawer of the cheque vis. the OP. No. 2 also admitted about the said dishonored cheque.

Manifestly, it is not clear that whether after dishonored of cheque in question the complainant approached the OP. No. 2 and whether the OP. No. 2 made necessary arrangement for payment of the cheque value.

Fact remains, that the OP.No.1 bank in their written version submitted that after dishonor of cheque necessary intimation has been given to the complainant and the complainant collected the cheque in question from the bank. But the complainant submitted that the OP. No. 1 bank failed to hand over the dishonored cheque along with endorsement slip and therefore, the complainant could not initiate criminal proceeding u/s138 N.I. Act against the OP. No. 2.

As the OP. No. 1 bank has submitted about collection of the dishonored cheque  by the complainant from the bank’s custody, therefore, onus heavily lies upon the OP.No.1 bank to prove with evidence that the complainant collected the said dishonored cheque in question from the bank’s custody. But except mere statement not a single paper/document is forth coming from the OP.No.1 bank in respect of any acknowledgment of the complainant to show that the complainant received the cheque in question from the OP. No. 1 bank and therefore, in this matter we cannot accept the plea taken by the OP.NO.1 bank.

In light of the above analysis it can be concluded that as the OP. No.1 bank has failed to prove their defense regarding acceptance of cheque by the complainant so, it can be presumed that the OP. 1 No. bank might have been misplaced the said dishonored cheque from their custody .   

Therefore, such acts and conducts of the OP. No. 1 amounts to gross deficiency in service which is within the per view of section 2(1)(g) of C.P. Act 1986 and the OP.No.1 is amenable and liable under the provision of C.P. Act 1986.

It is bearing in our mind that for realization of the money from the OP.No.2 either through criminal or civil proceedings the cheque instruments is necessary to place before the court as evidence. But fact reveals that the OP.No.1 failed to hand over the dishonored cheque to the complainant for which the complainant could not initiated any legal proceeding against the OP. No. 2.

Fact also remains, that, in spite of the fact the OP.No.2 through the written version has admitted about the dishonor of the cheque in question which may help the complainant to take legal step against the OP.No.2 for the realization of money, but the complainant is suffered.

In  light of the above analysis, we are of the opinion that the complainant have successfully proved his case and is entitled to get the relief from the O.P no.1. Therefore, the O.P.No.1 is liable to pay compensation to the complainant.

However, the complainant can initiate necessary legal steps against the OP.No.2 for realization of money of the said dishonored cheque in question.

 In short, the complainant deserves success.

In the result, we proceed to pass                                             

                                                                       ORDER

That the complaint be and the same is allowed on contest against the O.P no.1. with cost of Rs.10,000/-

That the O.P no.1 is directed to pay compensation of Rs.2,00,000/- to the complainant within one month from this order and also pay of Rs. 10,000/-  as litigation cost to the complainant for mental agony and harassment within one month from this order, failing which the O.P no.1 is directed to pay  @9% interest against the total decreetal amount of Rs.2,00,000/- + Rs.10,000/- =Rs.2,10,000/- from the date of default till its realization.

Let copy of this order be supplied to the parties free of cost when applied for.

                                                    Member                                                                         Member                                                                                             

Dictated and corrected by me

                                          Member