By Smt. Padmini Sudheesh, President:
The case of complainant is that the complainant is maintaining a savings bank account with the first respondent as account No.018001509118. An amount of Rs.1,07,900/- is due to the complainant from one Shibu residing at Kannur District. Towards the discharge of that liability Shibu had issued a cheque No.0450161 to the complainant for Rs.1,07,900/- drawn from the account maintained by him with the 2nd respondent Bank. Then on 6.5.06 the complainant has presented the cheque before the first respondent for encashment. After a few days the complainant has noticed that the amount covered by the cheque is not credited in his bank account. Then the complainant has approached the first respondent and enquired whether the cheque is encashed or not. But the first respondent has directed the complainant to approach the bank after a week. When enquired it was submitted that the cheque is dishonoured. But the dishonoured cheque not yet reached the bank. The complainant went to the first respondent office at least for 15 times. On 28.6.06 the first respondent has told that cheque is lost in transit. An instrument worth Rs.1,07,900/- is lost due to the negligence of the employees of the first respondent. Since the cheque is lost from the hands of the first respondent amount covered by the cheque is not credited in the account of the complainant and the complainant has lost his chance to initiate legal action under Section 138 of Negotiable Instruments Act. Every chances to claim and recover the money covered under the cheque are curtailed. The conduct of the first respondent is a clear deficiency in service towards the consumer. So on 1.7.06 complainant sent a registered lawyer notice to the first respondent and the first respondent did not reply to the notice till this date. Hence the complaint.
2. The counter of first respondent is that it is true that the complainant presented the cheque for collection on 6.6.06. The said cheque was forwarded for collection. But the cheque was dishonoured due to insufficiency of funds in the account of the drawer of the cheque. Normally an out station cheque will take at least 30 days time for clearing. The intimation regarding dishonour from 2nd respondent alone reached to this respondent. This intimation slip was promptly given to the complainant. Suppressing the same complainant filed this complaint. The averments that when the complainant approached this respondent did not give any clear answer and directed the complainant to approach the bank etc. are false and denied. The averment that the cheque is lost from the possession of this respondent is false and denied. Since cheque is dishonoured due to insufficiency of funds this respondent is not bound to credit the said amount to the account of complainant. It is also false that the complainant lost his opportunity to initiate legal action. There was no negligence or deficiency in service from this respondent. As far as the collection of cheque is concerned this respondent is an agent of complainant. The cheque was promptly sent for collection. The 2nd respondent failed to forward dishonoured instrument to this respondent. For the acts and omissions of 2nd respondent this respondent is not liable. The cheque was not returned to this respondent and it might have been lost in transit. Hence dismiss.
3. The 2nd respondent remained exparte.
4. The points for consideration are:
(1) Was there any deficiency in service from the respondents?
(2) If so, reliefs and costs.
5. The evidence consists of Exts. P1 to P4 and the oral testimony of PW1. First respondent submitted no evidence.
6. Points: By this complaint the complainant seeks the amount with interest stated in the cheque which was alleged to be lost in transit. It is the case that an amount of Rs.1,07,900/- is due to the complainant from one Shibu residing at Kannur and towards the discharge of that liability Shibu had issued a cheque for the same amount. The complainant being a savings bank account holder of first respondent Bank presented the cheque for encashment. The amount is not credited and the cheque also not returned to complainant. So the complainant stated that there was negligence and service deficiency on the part of first respondent. According to the first respondent there was no service deficiency on their part and they forwarded the cheque for collection promptly and it was dishonoured due to insufficiency of funds in the account of the drawer of the cheque. They further stated that the intimation regarding dishonour was promptly given to complainant.
7. The complainant produced Exts. P1 to P4 documents in which Ext. P1 is the pay in slip issued from first respondent. The complainant is examined as PW1 and he deposed that the cheque which was presented to first respondent Bank is not returned. He admitted that the first respondent bank has intimated him that the disputed cheque was lost in transit. Even if no intimation is produced there is no challenge to this answer given by PW1. It is true and admitted fact that the cheque which was presented for collection to first respondent Bank was lost. In the counter the first respondent contended that as far as the collection of cheque is concerned this respondent is an agent of complainant. According to them, the cheque was promptly sent for collection. The complainant also has no case that it was not sent for collection. It is the case of complainant that the first respondent has told to the complainant on 28.6.06 that the cheque is lost in transit. Since there is no other evidence this version is to be believed that the cheque is lost in transit.
8. The first respondent stated that the cheque was dishonoured for insufficiency of funds. But there is no evidence produced by first respondent to show that the cheque was returned by the said reason. There is no evidence at all to show that there were sufficient funds in the account of drawer of the cheque. Even if there was sufficient funds there will be no realization of amount to complainant since the cheque is lost. The complainant has no case that some other persons have collected amount. If there was sufficient fund the complainant can very well demand the same from Shibu, the drawer of the cheque and he has no case that he had made an attempt to get another cheque and Mr. Shibu denied the same. There is no loss of amount from the drawer’s account. So the complainant is not entitled to get the cheque amount from the respondents.
9. The Counsel for complainant filed a detailed argument note and we have gone through the same. In the notes it is stated that the first respondent has not produced cheque return register to prove their case that the cheque is actually returned due to insufficient funds. It is true and already discussed. But the complainant failed to take steps to call for the document from the first respondent. It is true that there was deficiency in service on the part of first respondent but they are not liable to pay the cheque amount to complainant. In the argument notes it is also stated that non-return of cheque and memo of return raise a prima facie case of negligence against the first respondent which stands unrebutted. We fully agree with the version of this but for the reasons already discussed above the first respondent is not liable to pay the cheque amount but compensation only. The Counsel for the first respondent produced the copy of reported ruling of Honourable Supreme Court of India and we have perused the same. For the reasons discussed above we find that the complainant is only entitled for compensation.
9. In the result, the complaint is partly allowed and the first respondent is directed to pay Rs.10,000/- (Rupees ten thousand only) as compensation to the complainant with costs Rs.500/- (Rupees five hundred only) within a month from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 2nd day of December 2010.
