MR. PRABODHA KUMAR DASH, PRESIDENT:-                  

                         The Case is taken up today for order. This case being a year old case since dt. 13.09.2019 & already the same have been posted for 44 dates. We are disposing the same on priority basis keeping in view the mandate under the Act.

Brief Fact:-

                        The Complainant is a consumer vide S/B A/C No. 11718186761 with the Op(SBI, Tikirai Branch, Mahakalpada, Dist- Kendrapara), the received a cheque bearing No. 038008 from Pravakar Mishra of Rs. 4,00,000/-. The Complainant presented the said cheque before the Op & the same was bounced due to insufficient fund. The Op sent the bounced cheque to the Complainant by post but the same has not been received by the complainant.

                     It is further alleged by the Complainant that, the non-receipt of bounced cheque and alongwith cheque return memo the payee could not able to resubmit the cheque and also not able to prosecute against the drawer under the N.I. Act. The Complainant suffered financial loss to a tune of Rs. 4,00,000/- due to the negligence of Op. The Complainant further prayed due to non availability of alternative efficiencies remedy available to him compelled to file the present C.C.Case for a direction to the Op to pay the cheque amount of Rs. 4,00,000/- & for mental agony suffered and so also litigation cost.

                    Having heard the both sides & after scrutinizing the record of the present case, we find that the following issues would arise for just adjudication of the case.

Points to be Determined:-

1. Whether the complainant is a consumer under the C.P.Act,2019?
2. Whether there was/is any deficiency in service on part of the Op?
3. Whether the C.C.Case  has been filed within the prescribed limitation period?
4. Whether the Op committed any deficiency in service for non-delivery of bounced cheque with return memo to the Complainant?
5. Whether non-receipt of bounced cheque with return Memo, the Complainant could not avail the remedy available under the N.I.Act ?
6. If the Complainant suffered any financial loss due negligence of the Op, then to what extent?
7. Whether the complainant entitled to any relief as prayed for ?

Issue No.1:-

                    That, the Complainant is a bonafide customer of the Op having his S/B A/C No. 11718186761 & for which he is consumer under the C.C.Act,2019.

Issue No.2:-

                    That, the Adv. notice On behalf of Complainant sent to Op on 02.08.2019 due to non-receipt of bounced cheque with return memo for which the Complainant entitled and same not acted upon by the Op and the case has been filed within the prescribed limitation period i.e, 13.09.2019.

Issue No.3:-

                    Complainant is a consumer under the Op because of having saving Account. Therefore, the same duty of Op coming under the Sect-2(42) of C.P.Act,2019.

Issue No.4:-

                    As per the RBI guidelines the concerned Bank/Op duty bound to return the bounced cheque with return memo to the complainant & the Op failed to comply such duty cast upon the op which is well within the intent of the language prescribed U/S-2(11) as deficiency in service by the Op.

Issue No.5:-

                    The op failed to deliver the bounced cheque with return memo to the Complainant for which the complainant could not took appropriate legal action under the N.I.Act against the drawer, for non-receipt of cheque amount.

Issue No.6:-

                    The complainant could not take appropriate legal remedy against the Op available under the N.I.Act. As a result the money which could have been received under the bounced cheque remained unpaid to the Complainant, thereby suffer irreparable monetary loss.

Issue No.7:-

                   The question of relief claimed by the Complainant well decided by reported case by Honbl’e Apex Commission in Manager, Bank of Baroda vs Chitrodiya Babudi Dirandi 19thJuly, 2019 has dismissed the revision petition filed by the bank after finding it guilty of having lost a customer’s cheque. The Honbl’e NCDRC holding the Bank liable ordered it to pay an amount, worth the cheque. It was the Bank’s case that the cheque deposited by Complainant was dishonored and well sent to his regd. Address alongwith cheque return memo by Regd. Post with A/D. The same was returned to bank unserved, and thus there was no deficiency in its service. But the Complainant alleged that, he persistently pleaded the bank to return his cheque.  He even visited the bank personally to collect his cheque but invain. DCDRC partly allowed the complaint to pay Rs. 15,000/- to complainant only at compensation. The State Commission order dt. 20.02.2016 directed the bank to pay the full amount of the cheque i.e, Rs. 3,60,000/- to the Complainant. NCDRC held that, the bank had lost the cheque due to which the complainant lost his right to file a case under Sec. 138 of N.I. Act, 1881 against the drawer. Complainant had to suffer a loss of Rs. 3,60,000. The Honbl’e NCDRC up held the order of Honbl’e SCDRC Gujarat by ruling that “When the cheque in question had been lost by the Bank, it is the responsibility of the Bank to compensate the loss”. The case cited above is squrely applicable to the facts and laws involved in the present case in hand before us.

                      Ld. Counsel on behalf of Op submitted that, this C.C.Case is not maintainable & liable to be dismissed. Complainant has no cause of action, locus stadi against the Op and the facts are false & imaginary. Complainant not a consumer for collection of cheque in his account. The drawer of the cheque had no sufficient fund for which the cheque was bounced. The Op is not liable for insufficient balance of drawer of the cheque. The bounced cheque along with a return memo sent to complainant as per the register shown as ordinary course of business in favour of Complainant address, Further Op was under the impression that Complainant must have received the same cheque & memo. The Op further contended that complainant made several transaction from the date of presentment of cheque to the date of advocate notice & aware of the no-credit of cheque amount. Op stated that bank is not liable for non receipt of bounced cheque & return memo complainant could taken legal action under civil as well as criminal proceeding against the drawer not against the Bank. Op Bank further cited Honbl’e NCDRC reported judgement where it was held delayed intimation regarding dishonouring cheque, the same can’t be adjudicated in summery jurisdiction by this Commission, since complex question of both law & fact involved in the recording of the evidence in required. The cited case of Op decided by Honbl’e SCDRC, Jammu & Kashmir, it was held that even if the cheque was sent by the courier service then it must be considered that due care & caution has been taken in sending the cheque & no fault on part of the bank. Further contended that Op-bank has acted due diligently in discharging its duty& also provided the required service to the Complainant. The bounced cheque with return memo was sent through reliable Indian Post thereby it can’t be said that, Op committed deficiency in service and the complaint petition should be dismissed.

                  The Ld. Counsel on behalf of Op also cited the principle in State Bank of Patiala vs Rajendra Lal Honbl’e NCDRC in Revision Petition No. 2510/2002 where it was held cheque lost in transit Complainant is at liberty to file proceeding under N.I.Act so also liable for reasonable compensation.

                 The Ld. Counsel on behalf of Op further cited the decision of Honbl’e SCDRC, Jammu & Kashmir and so also Honbl’e West Bengle, where both the Commission held that, the Complainant is at liberty to initiate proceeding under N.I.Act but the Bank is liable only to the compensation but not for the cheque amount. Further it was contended by the Op this Commission has no jurisdiction to decide the cheque bounce case and also the cheque lost in transit.

                 We have gone through all the cited cases of the Op and the principle decided on facts & law not tenable with the case in hand. On contrary the principle set forth by Honbl’e NCDRC in deciding the case in hand answering the point in Issue No.7 well established in the case in hand to just decide the Issue No.7.

                Therefore, the averments made in the written statement are not tenable so also the cited cases not applicable, acceptable to us. Resultantly denied by this Commission.

                                                            ORDER

                Taking into the consideration of the above facts & circumstances as discussed above, we are of the opinion that, the Op is liable to compensate the Complainant & the Op is directed to pay the cheque amount of Rs. 4,00,000/-(Four Lakhs) with cost of the litigation of Rs. 5,000/-  to the Complainant within one month from the date of receipt of this order, failing which there shall be @6% P.A. shall payable till its realization. The complaint petition is allowed & no order as to cost.

                     Issue extract of the order to the parties for compliance.                  

                 Pronounced in the open Court, this the 3rd day of August,2022.             

                                             I agree

                                               Sd/-                                      Sd/-

                                         MEMBER                             PRESIDENT