Date of Hearing the 17th Day of November, 2015
Date of Judgment Tuesday, the 22nd Day of December, 2015
JUDGMENT
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of Opposite Parties to impeach the Final Order dated 26.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj (For short, Ld. District Forum) in Consumer Complaint No.05 of 2012.
The sole Respondent herein being the Complainant initiated the Consumer Complaint under Section 12 of the Act alleging that he is a holder of two Accounts being Nos. O/D-70 and SB-2386 having cheque facilities lying with Opposite Party No.1. He was facing trouble to collect a big amount for the purpose of his business and as such, in the year 2010 a person namely Sri Palash Roy claiming himself as an Agent of the Axis Bank Ltd. assuring the Complainant that he would take all the responsibility for sanction of considerable amount of loan in favour of the Complainant and for that purpose 1 per cent of the loan amount was required to be paid. He asked the Complainant to issue a cheque for a sum of Rs.90/- in favour of Axis Bank Ltd. drawn on Bangiya Gramin Vikash Bank to verify the existence of the bank account. The Complainant on good faith issued the cheque being No.944750 dated 09.06.2010 in connection with his Account No.O/D-70 for Rs.90/- only. Subsequently, the Complainant came to know that an amount of Rs.80.900/- was withdrawn by the said cheque. Immediately the Complainant met the Branch Manager of the Bank and enquire the matter and came to know that in the said cheque figure of ‘Rs.90/-‘ was replaced by the figure of ‘Rs.80,900/-‘ and the name of ‘Axis Bank’ was replaced by the words ‘Akash Banik’ and figures ‘90’ only was replaced by the figures ’80,900’ only. It is alleged that someone in connivance with Opposite Party No.1 by manipulating the said cheque withdrew the said amount of Rs.80,900/-. Hence, the instant Complaint with prayer for following reliefs, viz. – (a) a direction upon the Opposite Parties to pay a sum of Rs.80,900/- which was withdrawn by cheque No.944750 dated 09.06.2010; (b) a direction upon the Opposite Parties to return back two original Sale Deeds and KVP Certificates etc.; (c) for compensation of Rs.50,000/- for mental pain and agony etc. (d) litigation cost of Rs.10,000/- etc.
The Opposite Party No.2 though appeared before the Ld. District Forum after receipt of notice but did not contest. However, Opposite Part No.1 by filing the Written Version asserted that the alleged cheque was duly issued by the Complainant for the amount of Rs.80,900/- and the Complainant in presence of authority concerned signed several cheques due to overwriting of the said cheque. The Opposite Party No.1 has also asserted that the Complainant in collusion with one Sri Narash Banik issued such type of cheque and duly signed in respect of overwriting but subsequently, to gain illegally he suppressing all the real facts has initiated this false case. According to Opposite Party No.1, Complaint should be dismissed with costs.
After assessing the evidence on record and having heard the Ld. Advocates appearing for the respective Parties, Ld. District Forum by the impugned order allowed the Consumer Complaint on contest against Opposite Party No.1 and ex-parte against Opposite Party No.2 with a direction upon the Opposite Parties to pay Rs.80,900/- only as an amount withdrawn by the cheque in question, awarded compensation of Rs.50,000/- for mental pain and agony and harassment and Rs.10,000/- as litigation cost.
Being aggrieved and dissatisfied with that Order, the instant appeal has been preferred.
Upon hearing Ld. Advocate for the respective Parties and on going through the materials on record it emerges that the Respondent herein being Complainant is the holder of an Account being No.O/D-70 having cheque facilities with Bangiya Gramin Vikash Bank, Raiganj Branch (Opposite Party No.1). The Complainant was engaged in the profession of Business and it reveals that on 09.06.2010 he issued a cheque of Rs.90/- only being Cheque No.944750 on 09.06.2010 in favour of Axis Bank Ltd. drawn on Bangiya Gramin Vikash Bank, Raiganj Branch.
In course of hearing of the appeal, Md. Mokaram Hossain, Ld. Advocate appearing for the Appellant placed a photocopy of cheque in question which indicates that the cheque was issued by the Complainant in favour of Narash Banik showing an amount of Rs.80,900/-. On the other hand Ld. Advocate for the Respondent has drawn our attention to a photocopy of the cheque issued by the Complainant on 09.06.2010 which indicates that only in respect of ‘Rs.90/-‘ cheque was issued by the Complainant.
On going through the rival contention of the Parties, it has come to surface that there is several overwriting over the cheque in question. It appears that the words ‘Axis Bank’ in favour of which cheque in question was issued was manipulated by inserting the words ‘Narash Banik’ using some of the letter written initially and adding some new letters. It also appears that the figure ‘90’ was manipulated by placing figures ’80,900’ in place of figures ‘90’ only. It also comes to surface that the figure Rs.90/- was replaced by adding figures ‘80’ before such figure ‘90’ and figure ‘0’ before the sign ‘/-‘.
Having a look to the cheque in question it would be palpably clear that by way of manipulation the original cheque of Rs.90/- was altered with ill motive and same was encashed.
Ld. Advocate appearing for the Appellants has submitted that within the knowledge of the Complainant the Cheque was encashed and as such, there are initials of the Complainant in the place where overwriting were made. However, the Appellants have failed to produce the R.B.I. Guideline or any other circular of the Bank where from it would be revealed that such huge overwriting in a cheque can be entertained by a bank. From our day to day experience we can safely say that in case of overwriting or interpolation the bank officials has got no authority to entertain a cheque rather they are under obligation to insist the customer to place a new cheque in place of disputed one. The non production of relevant banking circular certainly creates dent to defence of the bank.
Be it mentioned here that time and again the bank took time to mitigate the grievance of the Complainant but on account of transfer the then Manager, Sri Vijay Talukdar, the bank washed out their hand and tried to shark their responsibility for deficiency of service on the part of them.
The Complainant has already lodged one written Complaint with I/C, Raiganj P.S. on 14.09.2011 and as such one case being Raignaj PS case 553 of 2011 dated 14.09.2011 under Section 468/471/420/409 IPC initiated against two persons namely, (i) Sri Palash Roy and (ii) Sri Akash Banik. The Complainant has specifically alleged that Palash Roy claiming himself as an Agent of Axis Bank Ltd. to provide him loan asked him to issue a cheque of Rs.90/- in favour of Axis Bank Ltd. drawn on Bangiya Gramin Vikash Bank . Unless there is substance in the contention of the Complainant certainly he would not approach the Police to initiate action because if it is found that his allegation is false, there is every possibility on the part of him to face peril.
Ld. Advocate for the Appellant has drawn our attention to the Statement of Accounts stands in the name of the Complainant and submitted that on 09.06.2010 Complainant deposited 1,02,500/- in order to enable Narash Banik to withdraw the amount of Rs.80,900/-. Such a submission could not convince us because the disputed cheque was issued on 09.06.2010 and the sum was encashed on 10.06.2010 and had there been any intention on the part of the Complainant to make payment of Rs.80,900/- to Narash Banik he could obviously make payment of the said amount without taking any trouble by depositing the same with the Bank.
Therefore, on evaluation of the materials on record and having heard the Ld. Advocate for the respective parties we find clear deficiency on the part of the bank for which Complainant being a customer had been suffered much. It is quite difficult to swallow that holding responsible position of Manager of a branch the Branch Manager had no knowledge that such a cheque which is full of overwriting and interpolation should not be entertained.
In view of the same we do not find any merit in the appeal. Ld. District Forum has rightly observed that for the deficiency in service on the part of the Opposite Party Complainant suffered harassment and mental agony etc. and as such entitled the amount of cheque beside compensation and litigation cost. The Appellant had no occasion to prefer this appeal which is baseless one and as such, the instant appeal deserves dismissal with costs of Rs.5,000/-
For the reasons aforesaid, the appeal is dismissed on contest with costs of Rs.5,000/- to be paid by the Appellant to the Respondent i.e. Complainant of the case.
The Final Order dated 26.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj in Consumer Complaint No.05 of 2012 is hereby affirmed.
The interim Order of stay stands vacated.
