APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :   16^th MAY 2018

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 17.03.2016, passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 222/2014, “Feroke Service Co-operative Bank Ltd. versus Saju Stephen & Anr.”, vide which, while partly allowing the appeal, the order dated 28.02.2014, passed by the District Forum Wayanad, Kalpetta in consumer complaint No. 258/2012, filed by the present petitioner, allowing the said complaint, was modified.

2.       The facts of the case are that the petitioner/complainant Saju Stephen is the holder of a Bank Account No. 0144150 with the Opposite Party (OP-1), Punjab National Bank, Chungam, Sulthan Bathery.  On 27.08.2012, the complainant presented a cheque No. 101234 dated 30.05.2012 for a sum of ₹3 lakhs for collection of the same to the said Bank.  The said cheque had been issued by one Suresh, drawn on the OP-2, Feroke Service Co-operative Bank Ltd., Nallalam Post Office, Kozhikode.  It is alleged in the consumer complaint that the said cheque was not received back after collection, rather the same was wrongly sent to the Citi Bank Bangalore.  The complainant filed the consumer complaint, seeking directions to the OPs to pay him a sum of ₹3,50,000/- towards deficiency in service and litigation cost etc.

3.       The complaint was resisted by the OP-1, the Punjab National Bank by filing a written version before the District Forum, in which they stated that the said cheque had been dishonoured by the OP-2, Feroke Service Co-operative Bank Ltd. and by mistake, had been sent to the Citi Bank Bangalore, rather than returning the same to the OP-1 Bank.  The OP-1 Bank stated that there was no deficiency in service on their part on any account.  The OP-2, Feroke Service Co-operative Bank Ltd., also filed their written version before the District Forum, in which they stated that the complainant did not fall under the category of ‘consumer’, vis-à-vis, them, as he had not hired their services in any manner.  The OP-2 further stated that the said cheque dated 30.05.2012 was received by them on 01.09.2012, although its validity had already expired after three months of the issue of the same, i.e. on 30.08.2012.  Therefore, it was not possible to get the cheque encashed.  The OP-2 further stated that they had received another cheque from the Citi Bank, Bangalore for collection of the same.  When both the cheques were to be sent back to the respective banks, the envelops got interchanged by mistake and hence, the cheque in question, reached the Citi Bank, Bangalore.  Despite contacting the Citi Bank a number of times for getting the cheque back, they could not succeed.  There was, therefore, no deficiency in service on the part of the OP-2.

4.       The District Forum, after considering the averments of the parties, allowed the consumer complaint and directed the OP-2 to pay a sum of Rs.3 lakhs to the complainant with interest @12% p.a. from the date of filing the complaint and also a sum of ₹10,000/- as litigation cost.  Being aggrieved against the order of the District Forum, the OP-2, Feroke Service Co-operative Bank Ltd., challenged the same by way of an appeal before the State Commission.  The said appeal was partly allowed by the State Commission, the direction to make payment of ₹3 lakhs by the OP-2 Feroke Service Co-operative Bank Ltd. to the complainant was set aside and they were directed to pay a compensation of ₹10,000/- only for deficiency in service.  Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the present revision petition. 

5.       During arguments, it was stated by the learned counsel for the petitioner/complainant that admittedly, the cheque dated 30.05.2012 had been presented to the OP-1, Punjab National Bank by the complainant on 27.08.2012 and the same was promptly forwarded by the OP-1 Punjab National Bank to the OP-2 Feroke Service Co-operative Bank Ltd. for collection.  However, the said cheque was dishonoured for the reasons “funds insufficient” and was wrongly sent alongwith a return memo to the Citi Bank Bangalore, instead of sending the same to the OP-1.  The learned counsel stated that the factum of dishonour of the cheque was not communicated to the complainant in time and hence, the petitioner/complainant lost the opportunity to proceed under section 138 of the Negotiable Instruments Act against the drawer of the cheque, Mr. Suresh or to recover the amount from him.  Therefore, there was a clear deficiency in service on the part of the OPs.  Further, the OP-2 Bank did write letters to the Citi Bank, Bangalore for the return of the cheque, but did not send any person to Bangalore to get the cheque traced.  The learned counsel further explained that the amount involved in the cheque had been advanced as loan on an earlier occasion to his friend Suresh, who was the drawer of the cheque.  Since the petitioner/complainant did not have any documents to show to the drawer to prove the dishonouring of the cheque, there was no obligation on the drawer to issue a new cheque.  In support of his arguments, the learned counsel has drawn attention to the orders made by this Commission in “ICICI Bank Ltd. vs. Sonnegowda & Ors,” [II (2012) CPJ 370 (NC)], in which the Bank was held to be liable to compensate for the loss suffered, because the drawee Bank had sent the cheque to the drawer, instead of sending it to the payee or his bank.  The learned counsel has also relied upon an order made by the M.P. High Court in “State Bank of Indore vs. National Textile Corporation” [2004 (IV) MPLJ 214], in support of his arguments.

6.       Per contra, the learned counsel for the respondent-2/OP-2, Feroke Service Co-operative Bank Ltd. argued that the petitioner/complainant had never hired any service from them and hence, he did not fall in the category of consumer, vis-à-vis, the said Bank, and thus, the complaint against them was not maintainable.  The learned counsel further argued that admittedly, there were no funds in the account of the drawer, as a result of which, the cheque got dishonoured.  The main thrust of the arguments made by respondent- 2/OP-2, Feroke Service Co-operative Bank Ltd., says that the drawer of the cheque Suresh was a friend of the complainant, but still he did not make any attempt to get duplicate cheque issued by the said person.  There was no evidence on record, therefore, that the amount involved in the cheque had been lost by the petitioner/complainant.  The learned counsel has drawn attention to the statement of the complainant recorded before the State Commission, in which he has categorically stated as follows:-

“Suresh is a friend.  Money was loaned to him in the capacity of a friend.  I did not take any steps with Suresh in connection with the loss of cheque.”

7.       The learned counsel argued that if the complainant had exercised little bit of vigilance, he would have received another cheque from the sender and there would have been no need to have litigation in the matter.

8.       In support of his arguments, the learned counsel has drawn attention to the orders passed by the Hon’ble Supreme Court in “Branch Manager, Federal Bank Limited vs. N.S. Sabastian” [III (2009) CPJ 3 (SC)], saying that if the complainant had not taken any steps for obtaining duplicate cheque, grant of interest on the amount involved was unjustified.  The learned counsel has also drawn attention to the orders passed by this Commission in “Canara Bank vs. B. Muraleedharan Nair Awasthi [II (2008) CPJ 1 NC]”, “Hari Ram Garg vs. State Bank of Patiala & Anr. [I (2011) CPJ 30 (NC)]” and “State Bank of India vs. Muntha Lakshmi Kumari [I 2009) CPJ 198 (NC)]” in support of his arguments.

9.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

10.     It is a fact admitted by the complainant in the consumer complaint itself that the cheque for a sum of ₹3 lakhs dated 30.05.2012 was presented by the complainant with his own bank, i.e., the Punjab National Bank on 27.08.2012, when its validity was just going to expire.  It has been stated by the OP-2, Feroke Service Co-operative Bank Ltd., in their written reply before the District Forum that they received the said cheque on 01.09.2012, although its validity had expired on 30.08.2012.  However, on other occasion, including the arguments before us, the OP-2, Feroke Service Co-operative Bank Ltd., took the stand that the cheque had been dishonoured for insufficient funds.  In their memo of appeal filed before the State Commission, the OP-2 Bank stated that there were no sufficient funds in the relevant account and also the validity of the said cheque had expired.  It is, however, clearly admitted by them that the dishonoured cheque alongwith the return memo was sent to the Citi Bank, Bangalore by mistake and that they were not able to get the said cheque back from the Citi Bank, Bangalore, despite making efforts to that effect. 

11.     The main issue for consideration in the matter is whether the complainant was in a position to get a duplicate cheque from the drawer, and whether he had suffered loss to the extent of amount involved in the cheque, due to the action of the OP-2 Bank.  It has been stated categorically by the complainant himself that the drawer of the cheque, Suresh was his friend and he had given the amount in question to him as loan, in the capacity of a friend.  The complainant has also admitted that he did not take any steps with Suresh in connection with the loss of the cheque.  He also stated during his cross-examination before the District Forum that he was not the consumer of the OP-2 Bank.  During arguments also, it was stated that he was not in a position to get another cheque from Suresh, because the said drawer had already given the cheque to him.  Considering the factual position stated above, it is made out that no serious attempts were made by the complainant to obtain another cheque from the drawer.  It cannot be concluded, therefore, that the complainant suffered loss of a sum of ₹3 lakhs for the action of the OP Bank for their failure to return the dishonoured cheque to him.  No evidence has been led to dispute the version of the OP-2, that there were insufficient funds in the account of the drawer, when the cheque was presented to the OP-2 Bank.  In the light of these facts, it becomes clear that the only fault/deficiency in service on the part of the OP-2 lies in the fact that they failed to return the dishonoured cheque promptly to the complainant through his Bank, i.e., the Punjab National Bank.

12.     Based on the discussion above, it is made out that the order passed by the State Commission partly allowing the appeal made by the OP-2, Feroke Service Co-operative Bank Ltd., before them, is based on a logical analysis of the facts and circumstances on record. There is no justification for payment of the cheque amount to the complainant.  Since the OP-2 Bank has been found negligent in not returning the dishonoured cheque promptly to the complainant and since they have not challenged the impugned order of the State Commission, the direction to pay a compensation of ₹10,000/- by the OP-2 Feroke Service Co-operative Bank Ltd., is held to be justified. 

13.       In so far as the citations relied upon by the learned counsel for the petitioner are concerned, the same would not be strictly applicable in the present case, because the factum of loss having been accrued to the complainant has not been proved, keeping in view the fact that he could have obtained another cheque from the sender, who is stated to be his friend.  On the other hand, the orders relied upon by the learned counsel for the OP-2, Feroke Service Co-operative Bank Ltd., do find application in the present case, because the penalty payable by the OP-2 has to be determined, keeping in view the extent of deficiency on their part only.  The instant revision petition is, therefore, held to be without merit and the same is ordered to be dismissed. The impugned order passed by the State Commission is upheld.  There shall be no order as to costs.