Complaint No: 139 of 2019.
Date of Institution: 12.04.2019.
Date of order: 01.03.2024.
Sunil Aggarwal Son of Sh. Kulwant Rai, resident of Old Anaz Mandi, Gurdaspur.
…..Complainant.
VERSUS
Central Bank of India, G.T. Road, Gurdaspur, through its Branch Manager.
….Opposite party.
Complaint U/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.Rohit Gupta, Advocate.
For the Opposite Party: Sh.Pankaj Tiwari, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sunil Aggarwal, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Central Bank of India (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the complainant is an account holder of the opposite party and using the services of the Bank through its A/c No. 3451826282. Hence, the complainant is a consumer to the opposite party. It is pleaded that the complainant makes regular transactions from the above said account number and avails the services of the opposite party. On dated 18.02.2019, the complainant deposited the cheque of Allahabad Bank of bearing Cheque No. 010715 for Rs.18,000/- to opposite party. The complainant kept waiting for many days for the clearance of the above said cheque. However, the opposite party sent no message to the complainant for the clearance or non-clearance of the cheque. The complainant visited the opposite party’s bank many times to know the status of the above said cheque, but all the time bank official replied to wait as they said that it’s under process. It is further pleaded that on dated 11.03.2019 when the complainant again visited the branch of the opposite party, then the opposite party returned the cheque alongwith bank memo where the opposite party mentioned the reason of "Instrument Mutilated" for not clearing the cheque. It is further pleaded that the opposite party returned the cheque after the period of twenty two (22) days which proves the deficiency in services on the part of the opposite party / bank and because of this delay / deficiency in services, the validity of cheque got expired. It is further pleaded that the complainant lost his right to file a criminal complaint under “Negotiable Instrument Act” as the validity of the cheque got expired. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to pay the above said cheque amount of Rs.18,000/- alongwith Rs.10,000/- for litigation expenses to the complainant, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint filed by the complainant is not maintainable as there is no cause of action to file the present complaint. It is pleaded that the complainant presented the cheque in question on dated 06.03.2019 and the cheque was in manifolds. The official of the bank asked the complainant that the cheque in question was not in proper condition to present for clearance, but the complainant insisted the officials of bank to present the cheque for clearance as the complainant is regular customer of the bank, so the bank on repeated requests of the complainant despite the cheque in question on dated 06.03.2019. The opposite party obtain the signature of the complainant in the register against the entry dated 06.03.2019 vide which the complainant deposited the cheque in question. It is further pleaded that the cheque in question was presented on dated 06.03.2019 and the same was sent for clearance on next day and 09.03.2019 and 10.03.2019 were bank holidays and the cheque was returned on dated 11.03.2019 which was working day of the bank with memo in which the reason was mentioned “Instrument Mutilated” as the cheque presented by the complainant was not in proper condition as mentioned in above, as such the question of waiting for many days for the clearance of cheque in question as alleged by the complainant does not arise. It is further pleaded that there is no deficiency in service on the part of the answering opposite party / bank. The complainant cannot take advantage of his own wrong and the complainant has lost his rights due to his own negligence.
On merits, the opposite party has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Sunil Aggarwal, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-4.
5. Learned counsel for the opposite party has filed reply.
6. Rejoinder filed by the complainant.
7. Written arguments not filed by the parties.
8. Counsel for the complainant has argued that complainant is account holder with the opposite party bank and on 18.02.2019 complainant had deposited cheque Ex.C3 vide depositing slip Ex.C2 and the complainant had enquired about the clearance of the cheque but complainant was surprised by the bank authority and ultimately on 11.03.2019 the cheque was returned unpaid vide memo Ex.C4 and when the cheque was returned the validity of the cheque had already expired and in this way complainant was unable to file complaint U/s 138 of Negotiable Instrument Act and act of the opposite party amounts to deficiency in service.
9. On the other hand counsel for the opposite party has argued that infact cheque in question was in mutilated condition and the bank officials had refused to accept the same and infact cheque was deposited on 06.03.2019 and was returned to the complainant on 11.03.2019 with memo Ex.C4 instrument mutilated and as such there is no deficiency in service. Counsel for the opposite party has also relied upon one photocopy of one register wherein cheque has been received by the complainant on 11.03.2019 and deposited on 06.03.2019.
10. To prove his case complainant has placed on file his affidavit Ex.C1, copy of cheque deposit slip Ex.C2, copy of cheque Ex.C3, copy of memo Ex.C4 whereas opposite party has not placed any evidence.
11. It is admitted fact that cheque Ex.C3 drawn on Allahabad Bank was deposited by the complainant with the opposite party bank. It is further admitted fact that cheque was returned to the complainant on 11.03.2019 vide memo Ex.C4 instrument mutilated. The only plea of the complainant is he was deprived of his right to file complaint U/s 138 of Negotiable Instrument Act as the validity of the cheque was for three months which expired on 21.12.2019 but it is not denied by the complainant that cheque was in mutilated condition and we are of view that if the cheque Ex.C3 was dishonored vide memo Ex.C4 with remarks "Instrument Mutilated" in that case also no offence U/s 138 of NIA is made out and the remedy available with the complainant was to file suit for recovery, but instead of filing suit for recovery against drawer of the cheque, the complainant has found short cut and filed the present complaint before this Commission. Even the cheque deposit slip Ex.C2 does not bear endorsement of any bank officials to prove this fact that cheque was deposited on 18.02.2019. Moreover, the bank has not dishonored the cheque being out dated. Accordingly, from the facts and circumstances on record no deficiency in service is proved against the opposite party bank.
12. Accordingly, present complaint being without merit is ordered to be dismissed with no order as to costs.
13. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
14. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March 01, 2024 Member.
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