By  Sri.P.K,.Sasi, President

        The case of the complainant is that he was having an account with the opposite parties, and two cheques issued by the complainant was returned by the opposite party stating the reason ‘fund insufficient’, since, there was sufficient funds in the accounts.  Cheque dtd. 8/5/14 for Rs.24,410/- issued to the Oriental Insurance company and  another cheque dtd. 19/5/14  for Rs.4,00,000/- issued to one Mr. T.P. Akhar were dishonoured by the opposite party. Eventhough, there was  sufficient fund in the account, the returning of the cheques stating the reason ‘fund insufficient’ is illegal, willful negligence and amounts to utter deficiency in service towards the complainant. Because of the illegal act of the opposite party the complainant happened to sustain severe mental agony as well as financial loss. Evenafter, complaining regarding the returning of the 1^st cheque the opposite party repeated the same fault and returned the another cheque. Moreover, they also collected fine amount from the complainant towards the cheques returned. When a complaint was raised by the complainant the opposite party behaved badly towards the complainant. However, they credited penal amount collected from the complainant to his  account, still remains the sufferings of unnecessary mental agony sustained by the complainant. Hence a lawyer notice was issued on 31/5/14 eventhen no relief received. Hence this complaint is filed.

        2) Being noticed on the complaint the opposite party entered appearance through counsel and submitted detailed version. In fact the opposite party admitted everything stated in the complaint except the allegation regarding mental agony and financial loss happened to the complainant. According to the opposite party, based on a request from the complainant the 1^st opposite party had given a advance credit of the proceedings of the instrument submitted for clearing to the account of the complainant on 22/4/14 and since the fate of the clearing was not known at that time, as an abundant caution as a normal custom and practice being followed by banks, lien of the amount was noted in the account. By oversight, the section clerk of the 1^st opposite party omitted to lift the lien when the cheque was realized hence the 1^st cheque for Rs.22,410/- was dishonoured. However the opposite party has not noticed the same and the complainant has also not brought the same to the attention of the opposite party. Since the lien marked in the Account continued there, the 2^nd cheque was alos dishonoured. Then only the complainant informed the opposite party regarding the returning of cheques. Immediately the lien was shifted and it was discussed with the complainant and the cheque return charges already collected was also refunded to the complainant.  Thereafter, the account was operating as usual by the complainant. The opposite party further submitted that there is no willful latches or deficiency in service happened on the part of opposite parties. There is no loss or damage caused to the complainant and also there is no evidence produced before the Forum to prove such an allegation of loss and damage. They further submitted that the complainant has not submitted the real facts before the Forum and relief is sought only for making unlawful gain with an ulterior motive to tarnish the image of the bank among the public. The opposite party denied all other allegations regarding the loss and mental agony caused to the complainant. They also submitted that the opposite parties are not misbehaved towards the complainant at any instance. They prayed for the dismissal of the complaint with cost.

        3) Then the case was posted for evidence and the points for consideration was that

                1) Whether there was any deficiency in service

                    happened on the part of opposite parties towards

                    the complainant?

                2) If so what cost and relief ?

        4) From the side of complainant he has appeared before the Forum and filed proof affidavit in which he has affirmed and explained all the averments stated in the complaint in detail. He also produced 9 documents which are marked as Ext. P1 to P9. Ext. P1 Returned documents (2 Nos); Ext. P2 copy of cheque return memo; Ext. P3 cheque returned memo issued by HDFC Bank; Ext. P4 copy of lawyer notice with postal receipt; Ext. P5 A/D card (2 Nos); Ext. P6 Statement of Account; Ext. P7 photo copy of passbook entry; Ext. P8 copy of cheque return memo; Ext. P9 photo copy of returned cheque. From the side of opposite parties the present Manager of the 1^st opposite party appeared before the Forum and submitted counter proof affidavit in which he has affirmed and described all the contentions raised in their version in detail. He also produced 1 document which is the statement of Account marked as Ext. R1 both sides filed detailed argument notes and we heard in detail also.

        5) According to the complainant the opposite party has returned two cheques issued by the complainant, when there was sufficient fund in his Account with an endorsement ‘fund insufficient’. Whereas, the opposite party contented that there was lien noted by them with a facility of advance credit allowed to the complainant. By the over sight of the concerned section clerk they forgot to lift the lien. That is the reason for returning the cheques. They further submitted that the complainant has not made any complaint regarding the return of 1^st cheque so they could not find out the non lifting of lien which caused to the return of 2^nd cheque.

        6) We have gone through the contents of affidavits filed and perused the documents produced. Here since the cheque returns are admitted by the opposite party, it is their burden and duty to convince before the Forum that there was no willful latches  happened on their part. There is no evidence adduced from their side to show that they have provided advance credit of proceeds of the instruments submitted for the clearing of the account of the complainant. The account statement produced from both sides shows that there was sufficient amount in the account while returning the cheque. No material produced before us to show that there was a lien noted by the opposite party. Another point to be considered is that whether the complainant has sustained any sort of mental agony or any other sort of loss due to returning of cheques. The cheque return memos clearly shows that both the cheques are returned with an endorsement of ‘fund insufficient’. There are other reasons to be noted in the cheque return memo. Without considering all that the opposite party simply noted as ‘fund insufficient’. There is no explanation for that from the side of opposite party. But one of the cheques returned was issued to the Oriental Insurance Company towards insurance premium. It is very well known to everybody including the opposite party that insurance companies will not entertain premium of customer if cheque is returned. They never entertain any policy of such customers. Similarly it need not be explained what will be the status of a person if a cheque issued to a 3^rd person is returned with the reason ‘fund insufficient’. Considering all these points discussed hereinabove, we are of the opinion that by returning two cheques when there was sufficient funds in the account the opposite party committed utter deficiency in service towards the complainant.

        In the result, we allow this complaint and the opposite party is directed to pay Rs.10,000/- (Rupees Ten thousand only) as compensation and cost to the complainant within one month from receiving copy of this order. Failing which, the complainant is entitled to get 12% interest for that amount till realization.

        Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the     18^th day of  March 2017.