Haryana

Karnal

CC/396/2023

Vikas Kumar Jain - Complainant(s)

Versus

ICICI Bank - Opp.Party(s)

Raman Gupta

04 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.396 of 2023

                                                        Date of instt.18.07.2023

                                                        Date of Decision: 04.11.2024

 

Vikas Kumar Jain son of late Shri Kanwar Bhan Jain, resident of Mandi Mani Ram Gharaunda, District Karnal, age 37 years, UID no.6130 0884 2694.

 

                                                                        …….Complainant.

                                              Versus

 

1. ICICI Bank, G.T. Road, Gharaunda, through its Manager.
2. Vaibhav Sharma, Manager, ICICI Bank G.T. Road, Gharaunda, District Karnal.
3. Shubham official, ICICI Bank G.T. Road, Gharaunda, District Karnal.

 

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Shri Parveen Kumar, counsel for the complainant.

                    Shri Amish Goel, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is having saving account with the OP no.1, bearing no.359901501057 for the last 5-6 years. One Balinder son of Ajmer, resident of Gagsina, Tehsil Gharaunda, District Karnal, in order to discharge his legal enforceable liability, issued cheque bearing no.001509 dated 28.12.2022, amounting to Rs.9,50,000/- and cheque no.001510 dated 28.12.2022, amounting to Rs.9,50,000/- both cheques drawn in ICICI Bank, G.T. Road Gharaunda of his account no.359951000156, in favour of the complainant. On 11.01.2023, the employee of the complainant namely, Gurmail presented the said cheques for encashment in the abovesaid account of the complainant. Gurmail Singh handed over the said cheques to the OP no.3, who issued receipt of the said cheques duly stamped with seal of the bank. Thereafter, when the cheques were not cleared, the complainant approached the OPs No.1 and 2 and thereafter on seeing the CCTV footage dated 11.01.2023, it reveals that Gurmail handed over the said cheques to OP no.3 at 10.30 a.m. and also obtained receipt of the same but OPs told to the complainant that the said cheques are not traceable, upon which complainant requested them to search out the said cheques for clearance of the same and OPs assured the complainant to do the same but after that OPs postponing the matter on one pretext or the other. Complainant requested the OPs, vide application dated 04.02.2023 to preserve the CCTV footage and to provide the CCTV footage to complainant but they refused to accede the genuine request of complainant. The said act of the OPs alongwith said Balinder have hatched up common criminal conspiracy with each other and OPs in order to cause wrongful loss to the complainant and to cause wrongful gain to the OPs and to deprive the complainant of his legal right to file a case under section 138/142 of Negotiable Instruments Act, against said Balinder, have stolen/misappropriated the cheques in the question, he was not having sufficient funds in his account for encashment of the cheques on the date of issuance/presentation of cheques. The complainant requested the OPs many times to return the said cheques to him, but OPs did not listen the complainant. Complainant also moved a complaint to the police of Police Station Gharaunda, vide complaint no.13231031072300283 dated 02.02.2023, but the police also did not take any legal action against the culprits. Then the complainant also moved an application to the SP, Karnal, vide complaint ID no.199309 dated 18.05.2023, upon which the police called the complainant several times, but the police in connivance with the culprits, did not take any action against them and the police also did not take the CCTV footage from the bank. It is the duty of the bank to safeguard the documents/property of the customer/consumer but OPs being bank employee/officials, to whom the cheque in question was entrusted, have hatched criminal conspiracy and have also criminally breached the trust and cheated the complainant and as such the OPs have committed offence punishable under section 379,380, 381, 406, 409, 506, 420, 120B IPC, for which the complainant reserves his right to file separate complaint. Due to the abovesaid act and conduct of OPs, complainant has suffered mental pain, agony and harassment as well as financial loss. Hence, complainant filed the present complaint seeking direction to the OPs to pay Rs.19 Lacs i.e. amount under the cheques alongwith @ 18% interest per annum  since the date of presentation of the cheques i.e. 11.01.2023 till the realization, to pay Rs.20,00,000/- as compensation for mental pain, agony and harassment and Rs.33000/- towards the litigation expenses.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant has a saving account no.359901501057 held with Gharaunda Branch, Karnal District Haryana. The account was opened on 21.03.2018. Balinder Singh  having a current account bearing no.359951000156 held with Gharaunda Branch, Karnal, District Haryana. The account was opened on 30.10.2021. On 11.01.2023, Branch has received two fund transfer cheques of Rs.9,50,000/- each on 11.01.2023 deposited by complainant but due to insufficient funds in the account, the cheque could not be processed. While processing the same and considering that cheques in question were high valued as part of standard process, the official of the bank found that funds were not sufficient in account no.359951000156, hence as per the Bank’s process, Bank official called to Mr. Balinder Singh, informing about the receipt of two fund transfer cheques and that funds are insufficient and requested to deposit the funds but aforesaid Balinder Singh visited the Bank and told that the official of the Bank that he wrongly issued the cheques. Believing on the version of said Balinder Singh, the bank official handed over the original cheques to Balinder Singh.  The branch officials tried to receive the cheques form Debit party but he was not ready to handed over the same. On 12.05.2023, Branch dispatched the letter dated 11.05.2023 on the registered address of Mr. Balinder Singh via speed post number EH005806354IN. It was delivered on 13.05.2023. OPs bank is always willing and ready to issue the memo/letter for the cheque in question which were fraudulently taken from the OPs by the drawer of the cheque Mr.Balinder Singh and the bank further ready to issue the memo/letter of the cheques in question, if the Hon’ble Commission directs so to do so. It is further pleaded that the issuer of the cheque is only liable to make the payment of the cheques in question the drawee. It is denied that there is no foul play of conspiracy and malafide intention on the part of the OPs. The complainant made no application to the OPs and no request was made to provide and preserve the CCTV footage. It is further pleaded that the complainant can file the complaint under section 138 of the Negotiable Instrument Act by leading the Secondary Evidence and the OPs are duty bound to provide all the available record with the Bank after getting the summons from the concerned Court. The complainant has his legal right to file the recovery suit also in the competent court of law. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of cheque no.001509 dated 28.12.2022 Ex.C2, copy of cheque no.001510 dated 28.12.2022 Ex.C2, copy of voucher receiving slip dated 11.01.2023 Ex.C3, copy of voucher receiving slip dated 11.01.2023 Ex.C4, copy of application to SHO Gharaunda dated 02.02.2023 Ex.C5, copy of complaint slip dated 02.02.2023 Ex.C6, copy of application ICICI Bank Gharaunda dated 04.02.2023 Ex.C7, copy of application to S.P. Karnal dated 18.05.2023 Ex.C8, copy of complaint number slip dated 18.05.2023 Ex.C9 and closed the evidence on 23.02.2024 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Jasmer Sheron Ex.OPW1/A, copy of complaint/letter dated 04.02.2023 Ex.OP1, postal receipt Ex.OP2 and closed the evidence on 06.09.2024 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that one Balinder Singh in order to discharge his liability issued two cheques amounting to Rs.9,50,000/- each dated 28.12.2022. The said cheques were presented for encashment by the complainant in his account and OPs issued the receipt in this regard. When the cheques were not clear complainant met the OPs, then the OPs told the complainant cheques are not traceable and started postponing the matter on one pretext or the other. OPs in connivance with Balinder Singh handed over the said cheques to him with malafide intention and deprived the complainant on his legal rights to file the complaint under section 138 of Negotiable Instrument Act. Thus, complainant has suffered a huge financial loss  and lastly prayed for allowing the complaint. Learned counsel for the complainant has relied upon the case law titled as Manager, Bank of Baroda & Another Vs. Chitrodiya Babuji Divanji in appeal no.119 of 2014, decided on 19.07.2019.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that on 11.01.2023, complainant presented two cheques of Rs.9,50,000/- each issued by one Balinder Singh. Due to insufficient funds in the account of Balinder Singh, the cheques amounts could not be transferred in the account of the complainant. The cheques in question were high value, the officer of the OPs called Mr. Balinder Singh, who told the OPs that he has wrongly issued the said cheques. Believing, it to be true the original cheques were handed over to Balinder Singh. The OPs tried to receive the cheques from Balinder Singh but he was not ready to handover the same. The OPs are always willing and ready to issue the memo for the cheques in question which were fraudulently taken by Mr. Balinder Singh from the OPs. The issuer of the cheques is only liable to make the payment of the cheque in question to the complainant and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant is having a saving account no.359901501057 with the OPs bank and Balinder Singh cheque issuer/Debit Party, has a current account no.359951000156 in the OPs bank. It is also admitted complainant has presented two fund transfer cheques of Rs.9,50,000/- each in the OPs bank.

11.           OPs have alleged that while processing the said cheques and considering the cheques in question being heavy valued, as part of the standard process, OPs found that funds were not sufficient in the account of said Balinder Singh. OPs’ officer called Balinder Singh informing about the receipt of two fund transfer cheques and requested to deposit the funds but Balinder Singh told to the OPs that he has wrongly issued the cheques, therefore, OPs handed over the original cheque to said Balinder Singh.

12.           The OPs have further alleged that they tried to collect the cheques from Balinder Singh and in this regard they have sent letter dated 11.05.2023 via speed post which was delivered on 13.05.2023. The OPs further alleged that bank is always willing and ready to issue the memo for the cheques in question which were fraudulently taken from the OPs by the drawer of the cheques Balinder Singh.

13.           It is also evident from the photocopies of the cheques dated 28.01.2022 Ex.C1 and Ex.C2, Balinder Singh to discharge his liability had issued two cheques. It is also evident from the copies of deposited  slips Ex.C3 and Ex.C4, the complainant had deposited the said cheques in the bank of the OPs and OPs had issued the said receipts.

14.           Complainant moved an application Ex.C5 dated 02.02.2023 to the SHO, P.S. Gharaunda for taking the legal action against OPs. Complainant also moved an application Ex.C7 dated 04.02.2023 to the Branch Manager, ICICI Bank. Gharaunda with regard to missing of the cheques and also moved application Ex.C8 dated 18.05.2023 to Superintendent of Police, Karnal against the OPs and Balinder Singh.

15.           When the cheques were dishonoured due insufficient funds, it was the duty of the OPs to return the same to the complainant alongwith cheques return memos but instead of handing over the cheques to the complainant, OPs have given the cheques to issuer Balinder Singh.

16.           The complainant constantly pursued his case with the OPs for return of dishonoured of cheques and cheques return memo. Undisputedly, cheques were given to issuer Balinder Singh by the Bank. The complainant did not receive the bounced cheques nor he get the cheques amount of Rs.19,00000/-. The OPs have failed to return the cheques to the complainant and complainant has deprived of his legal right to file a case under section 138 of Negotiable Instrument Act against the issuer. The complainant has suffered a loss of Rs.19,00,000/-. In this regard we are fortified with the observation made by Hon’ble National Commission in case law titled as Manager, Bank of Baroda & Another Vs. Chitrodiya Babuji Divanji decided on 19.07.2019 wherein it is held that “Bank Services-cheque- Dishonour of- Non-returning of cheque-Loss sustained-Deficiency of Service-District Forum partly allowed complaint- State Commission allowed appeal of respondent and setting aside order of District forum with direction to petitioner to pay Rs.3,60,000/- to respondent-Being  aggrieved from the order of State Commission, the petitioner filed present revision petition. The cheque was lost by Bank-Respondent. Petitioner not received the bounced cheque nor he got cheque amount of Rs.3,60,000/-. Petitioner failed to return cheque to respondent and respondent was deprived of his legal right to file a case under section 138 of Negotiable Instrument Act against account holder. Thus, respondent had to suffer a loss of Rs.3,60,000/-. When cheque in question had been lost by petitioner bank, it is responsibility of Bank to compensate loss. No illegality or infirmity in impugned order and same is upheld. Revision Petition has no merit and same is hereby dismissed.”

17.           Keeping in view the ratio of the law laid down in the abovesaid judgment, facts and circumstances of the present complaint, we are of the considered view that the act of the OPs amounts to deficiency in service and unfair trade practice.

18.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.19,00,000/- (Rs. Nineteen lakhs only) to the complainant with interest @ 9% per annum from the date of filing the complaint i.e.18.07.2023 till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:04.11.2024

         President,

      District Consumer Disputes                           

      Redressal Commission, Karnal.

 

                   ( Neeru Agarwal)            (Sarvjeet Kaur)  

                          Member                        Member