KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL NO.326/09 JUDGMENT DATED 18.10.2011 PRESENT: SHRI.S. CHANDRA MOHAN NAIR -- MEMBER 1. The Manager, Canara Bank, Payyannur Branch, P.O Payyannur. 2. Radhakrishnan Nair, Supervisor, Canara Bank, Payyannur Branch, -- APPELLANTS P.O Payyannur. 3. Devassia, Cashier, Canara Bank, Payyannur Branch, P.O Payyannur. (By Adv.Balakrishnan) Vs. K.V.Sheeba, Edavam Nhatiyal House, P.O.Kadannappalli, -- RESPONDENT Via Mandur, Kannur Dist, Kerala – 670 501. (By Adv.K.P.Harish) JUDGMENT SHRI.S.CHANDRAMOHAN NAIR,MEMBER The opposite parties in OP.197/04 before the CDRF, Kannur are the appellants herein who are aggrieved by the order dated 18.5.09 by which the Forum has directed the opposite parties to pay to the complainant a sum of Rs.2 lakhs with 9% interest from 10.2.04 till the date of payment and a sum of Rs.10,000/- as compensation and cost of Rs.1000/- 2. The case put forth by the complainant before the Forum was that her husband who was working at Mexico in America sent two cheques of Canara Bank, Payyannur for Rs.2,00,000/- and Rs. 25,000/- respectively drawn in favour of the complainant and that the said cheques were presented by somebody else before the opposite party/bank and that one of the cheques for Rs.2 lakhs was encashed and the other one was not paid. It is the case that the opposite party had not taken proper care and caution in disbursing the cheque amounts. It is also her case that the opposite parties did not act to the complaints made by her and alleging deficiency in service, the complaint was filed praying for directions to the opposite parties to pay the cheque amount of Rs.2 lakhs with 12% interest along with compensation of Rs.25,000/- and cost of Rs.5,000/- . 3. The opposite parties resisted the complaint by filing version wherein it was contended that 2 cheques were presented to the counter of the opposite parties on 10.2.04 drawn in favour of Sheeba K.V and that the cheque for Rs.2 lakh was given token No.24 and for the other cheque token No.78 was given. It was also submitted that the cheuqes were bearer cheques and as per usual practice, the cheques were liable to be paid. It was also submitted that though cheque for Rs.2 lakh was disbursed to the bearer who was a lady the amount for the other cheque was not received during the working hours and hence they contacted the complainant over phone and came to know that the cheques were produced by somebody else. It was further submitted that since the cheque for Rs.2 lakhs was presented by a lady there was no occasion to suspect the genuineness of the presentation of the cheque and it was only due to the fact that the second cheque was presented by a man that they tried to obtain the signature of the bearer and as the person was missing from the counter, the amount was not paid. Contending for the position that the opposite parties had acted only according to the banking procedure and also that there was no deficiency in service they prayed for the dismissal of the complaint with costs. 4. The evidence consisted of the testimony of PW1, DW1, DW2, DW3 and Exts.A1 to A10 and B1 and B2. 5. The learned counsel for the appellants/opposite parties vehemently argued before us that the complaint was not maintainable before the Forum and that there was no cause of action for the complainant to file the complaint since the opposite parties had acted only according to the banking procedure. It is his very case that the first cheque for Rs.2 lakh was presented by a lady and as the lady had signed in the reverse side of the cheque, token No.78 was given to her and the amount was also paid in due course. It is further submitted by him that the second cheque for Rs.25,000/- was presented by a man and since there were 3 signatures of the same style and also that there was no signature of the bearer, the bank’s officials searched for the party who presented it, though token No.78 was given at the time of presentation of the cheque. It is his very case that if the bank had colluded with any person for encashment of the cheques both the cheques could have been encashed. He has also submitted that the sender of the cheques from Mexico had sent the cheques by ordinary post and that could have been the reason for the receipt of the cheques by somebody other than the complainant and the bank did not know whether it was the complainant or some one else who presented the cheque before the bank counter. He has also argued for the position that the forum below had not appreciated the entire facts and circumstances of the case and the order directing the opposite party to pay Rs.2 lakhs with 9% interest along with compensation and costs is liable to be set aside. 6. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below. It is submitted by him that the opposite parties ought to have taken proper care and caution in disbursing the cheque amounts. It is his very case that the opposite parties had colluded with the persons who presented the cheques and if proper verification of the signature was done, payment of the cheque for Rs.2 lakhs could have been avoided. The learned counsel has also argued that the complainant was very familiar to the bank authorities and when the cheque in her name was presented by a stronger, the bank’s officials could easily identify and know that it was not the complainant who had presented the cheque. He has also relied on the decision of the Supreme Court in Kerala State Co-op. Marketing Federation Vs. State Bank of India and Ors. (2004 (1) Supreme 969 SC) wherein it is held that the bank did not put itself on guard when the cheque for large amount of Rs.1 lakh was deposited soon thereafter opening an account. He has also relied on the decision on the State Commission Chattisgarh where in it was held that failure to exercise due care in permitting encashment of the cheque would be deficiency in service. Thus, canvassing for the position that the Forum below has rightly passed the order the learned counsel prayed for the dismissal of the appeal with compensatory costs. 7. On hearing both sides and also on perusing the records, we find that the complainant has a case that the cheques sent to her by her husband from Mexico were presented by some persons and one of the cheques was encashed by the person who presented it. It is alleged that the bank officials colluded with the persons who presented the cheques. She has a further case that she was an account holder of the bank and was familiar to the bank’s officials and hence they could have easily identified that the cheque for Rs.2 lakhs was presented by a person other than the complainant. All the same, the opposite parties have contended that when the cheque was presented by a lady, they had no doubt about the person who presented the cheque and the signature on the reverse side of the cheques was also obtained since the cheque was a bearer cheque. They had also contended that since the second cheque was presented by a man and there were 3 signatures put on the reverse side, they had some suspicion about the presentation of the cheque and hence they tried to obtain the signature of the person who presented the cheque. It is also their case that when the token number was called out there was no person at the counter and hence they contacted the party in whose name the cheque was drawn. The learned counsel for the appellants has submitted before us that there was no irregularity or illegality in doing so. As per Section 85 of the Negotiable Instrument Act where a cheque payable to order purports to be endorsed by or on behalf of the payee the drawee is discharged by payment in due course and also where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof. It has also his case that if the cheques were either crossed or a/c payee cheques, the problem would not have been there. We find force in the said arguments for the learned counsel for the appellant. It is to be found that the 2 cheques were neither crossed nor did they have the endorsement a/c payee which would have enabled the bank to pay the money through an account holder only and if any misappropriation had occurred they could have easily identified the person who received the payment. In the instant case, the cheques were bearer cheques and we do not find any deficiency in service or collusion on the side of the opposite parties in disbursing the cheque amount for Rs.2 lakhs. It is also seen that since there were 3 signatures in the reverse of cheque for Rs.25,000/- the bank officials hesitated to pay the amount and taking caution, they tried to obtain the signature of the person who presented the cheque and it was seeing that the person was missing from the counter that they contacted the complainant. It is also to be found that if the officials had colluded with the persons who presented the cheques, both cheques could have been encashed as argued by the learned counsel for the appellants. On an appreciation of the entire facts and circumstances, we find that the order of the Forum below is liable to be set aside. 8. In the result, the appeal is allowed. The order dated 18.5.09 of CDRF, Kannur in OP.197/04 is set aside. In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs. The office is directed to forward the LCR along with the copy of this order to the Forum below urgently. S. CHANDRA MOHAN NAIR -- MEMBER SL |
