Complainant Rajinder Saini has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to pay Rs.4,00,000/-, interest accrued on the amount @ 12% per annum from the presentation of cheques, since the date of payment. Opposite parties be further directed to pay Rs.25,000/- as damages for pain and suffering and harassment alongwith Rs.15,000/- as litigation expenses.

2.      The case of the complainant in brief is that he has Saving Bank Account No.027101517866 in ICICI Bank, Branch Dinanagar and as such he is consumer of the opposite parties. On 9.11.2015 he presented two cheques no.000021 and 000022 for encashment and adjustment in his account. The cheques were issued by Sh.Vishal Handa of Pathankot. Each cheque was of Rs.2,00,000/- to be drawn in the Bank of Baroda, Branch Pathankot. The ICICI Bank Branch Dinanagar sent both the cheques to Pathankot Bank Branch for clearance and the Bank of Baroda sent both the cheques to Gurdaspur Branch with the Memo “FUNDS INSUFFICIENT”. These facts have been admitted by the Branch Manager of the opposite party no.2. He has further pleaded that after presenting the cheques in ICICI Bank, Branch Dinanagar, he had been approaching the opposite parties for receipt of cheques and the memos but the opposite parties had been putting him off on one pretext or the other.  They had been assuring him that the cheques and Memos would be sent to him through post but he did not receive the cheques and Memos from the opposite parties. Inspite of repeated request made by him to the opposite parties, the opposite parties failed to handover the cheques and Memos to him although the Branch Manager of the opposite party no.2 admitted that the Bank has received the cheques and Memos but the same are not traceable. The opposite parties requested for some time so that the cheques and Memos can be traced and handed over to him but the entire efforts and requests went in vain and the opposite parties failed to trace out the cheques and Memos. Ultimately on 5.4.2016, he again approached the opposite party no.2 but he was told by the Branch manager that the cheques and Memos have yet not been traced out. Thus, cheques and Memos have been lost due to negligence of the opposite parties and deficiency in service. Hence this complaint.

3.       Upon notice, opposite parties filed their written reply through their counsel by taking preliminary objections to the effect that the complainant has no cause of action to file the present complaint and there is no deficiency in services on the part of the ICICI Bank. The complainant does not fall within the definition of Consumer as provided under Consumer Protection Act 1986; the complaint of the complainant is not within limitation and the complaint of the complainant is bad for non-joinder of necessary parties .On merits, it was submitted that the cheques were sent to Bank of Baroda. The cheques have been sent by the bank for clearance. After presentation both cheques in clearing got rejected from Bank of Baroda due to reason “Funds Insufficient”. Nobody come to get the cheques due to which it has been dispatched firstly through courier and afterwards registered post but both times received back undelivered, as the address  was not traceable and bank lost these cheques. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4    Complainant tendered into evidence his own affidavit Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C4 and closed the evidence. 

5.       Counsel for the opposite parties tendered into evidence affidavit of Harneet Singh Manager ICICI Bank Ex.OP-1, alongwith other documents Ex.OP-2 to Ex.OP-8 and closed the evidence.

6.         We have intently examined and thoroughly considered the evidence along with its supporting documents as available on ‘records’ of the proceedings in the backdrop of the arguments as put forth by the learned counsels for the participating litigants along with the scope of ‘judicial inference’ that may be statutorily as well as discretionarily determined on account of prime and collaterals including non-submission of other documentary evidence vital to resolve the dispute, in issue. We find that the present complaint pertains to the subsequent determination of the statutory and even otherwise valid ‘liability’ of the collecting Bank for the loss of instruments deposited for collection by the payee.

7.       We find that the complainant has firmly & repeatedly deposed (affidavit Ex.CW1/A) that the ‘2’ cheques lost by the OP Bank (allegedly in transit) were issued (subsequent to much persuasive efforts) for an aggregate amount of Rs.4.0 Lac (Rs.2.0 Lac each) along with ‘3’ other cheques for Rs .3.48 Lac as repayment of the loan of Rs.6.0 Lac availed of him in friendship, by the drawer Vishal Handa. All these cheques were deposited with the OP Bank for collection from the drawee Bank who returned these ‘unpaid’ with reason of ‘funds insufficient’. The complainant has further produced certified copies of his complaint (Ex.C3) U/s 138 of the NI Act’ 1981 & JMIC court’s summons (Ex.C4) to the accused drawer for the ‘3’ returned cheques so as to prove that procurement of ‘fresh’ cheques in lieu of the ‘2’ lost cheques from the drawer/accused shall not be an easy task because of the continuing litigation between them. Thus, the present complainant through his learned counsel has been repeatedly pleading that the OP Bank be directed to pay the full amount of the lost cheques along with cost and compensation since he has been deprived of all the available legal remedy towards recovery of the proceeds of the so lost ‘2’ nos of cheques. In order to support his above pleadings the learned counsel has also cited the judgment of honorable NCDRC, New Delhi in RP # 649/ 2012/Appeal # 3356/ 2011 titled ICICI Bank Ltd., vs. Sonnegowda & Ors 2012(2) CPJ 370; CPC 327 and CPR 319; wherein it was conclusively observed that ‘the complainant did neither receive back the bounced cheque nor the sum of the cheque thus he has been deprived of his legal right to file a case U/s 138 of the NI Act. Negligence and mistake has been committed by the petitioner Bank in not returning the cheque to the complainant then the petitioner Bank alone is liable to compensate the loss suffered. Order passed by the Fora below upheld. Costs of Rs.10,000/- be also awarded.’ However, we find that on account of divergent ratios the above cited judgment does not fully assist the complainant since in the instant case the unpaid returned cheque in question was inadvertently delivered to its ‘drawer’ whereas in the present case the cheques stand lost in transit and there has been no evidence as to its location.

8.       The learned OP Bank has in turn pleaded that the complainant has a legal right to procure cheques from the drawer in lieu of the lost cheques by virtue of section 45-A of the NI Act’ 1981 and also in line with the acceptable legal proposition by virtue of a plethora of senior court judgments. The learned counsel has cited following judgments supporting his above contention: i) PNB vs. Bhupinder Singh (PSCDRC) 2010(3) CLT 521; ii) SBOP vs. Hari Ram Garg (PSCDRC) 2007(1) CPJ 232; iii) SBOP vs. Rajender Lal (NCDRC) 2003(4) CPJ 53 and iv) Hari Ram Garg vs. SBOP (NCDRC) 2011(1) CPJ 30 that although the collecting Bank has committed professional mistake associated with serious negligence it shall be statutorily liable to pay cost and compensation to the payee/ complainant and not the amount of the lost cheque; since the complainant has legal remedy available in his favor to statutorily procure ‘fresh’ cheque from the drawer in lieu of the lost cheque and the collecting Bank shall fully assist him in the prescribed remedial process.

9.       In the light of the all above, we partly allow the present complaint and thus direct the titled OP Bank to pay an amount of Rs.50,000/- to the complainant as compensation for having suffered pecuniary loss and harassment on account of the lost cheques besides to pay him Rs.10,000/-as cost of the present litigation and future process of recovery of the proceeds of the ‘2’ nos of lost cheques in question. The OP Bank shall ensure compliance of the present orders within 30 days of receipt of its copy otherwise the awarded amount shall attract interest @ 9% PA from the date of the orders till actual payment.

10.     Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record.

                                                                   (Naveen Puri)

                                                                        President

ANNOUNCED:                                                 (Jagdeep Kaur)

November, 25 2016.                                         Member                   

*MK*