Date of filing:1.7.2013
Date of Disposal:22.4.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N.TRIPURA SUNDARI, B. COM., B. L., MEMBER
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
TUESDAY, THE 22ND DAY OF APRIL, 2014.
C.C.No.114 OF 2013.
Between :
Ravvarapu Rama Krishna, S/o Venkata Rao, Hindu, 35 years, R/o FF/7, Tonia Heights, Pinnamaneni Teachers Colony, Kanuru, Vijayawada – 7.
….. Complainant.
And
M/s State Bank of India Rep., by its Branch Manager, Patamata SME Branch, Near Autonagar Gate, Vijayawada – 520 007.
…..Opposite Party.
This complaint is coming before us for final hearing on 10.4.2014 in the presence of Sri U.S.Kumar, Counsel for complainant and Smt R.Vani, Counsel for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Sri S.Sreeram)
This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act with a prayer to direct the opposite party to return the original two bounced cheques bearing No.749788 and 749789 for Rs.5,00,000/- and Rs.62,000/- respectively along with necessary endorsements within 30 days and if the opposite party fails to return the same, direct the opposite party to pay the cheque amount of Rs.5,62,000/- along with interest at 24% p.a. from the date of presentation of cheque, to pay compensation of Rs.20,000/- for harassment, deficiency of service and for causing mental agony, costs and for other reliefs.
1. The brief averments of the complaint are as follows:
The complainant is account holder of opposite party vide A/c.No.20009140406 and the complainant has presented two cheques bearing No.749788 and 749789 for Rs.5,00,000/- and Rs.62,000/- respectively which were drawn on State Bank of India in the opposite party bank for collection on 29.12.2012 which were received from M/s.BVR Projects towards certain dues. Thereafter the opposite party has orally informed that the said cheques were dishonoured due to ‘insufficient funds’ in the account of drawer. But the opposite party has not returned the bounced cheques and endorsements to the complainant. As a result of which the complainant is deprived of filing criminal case against the drawer under Section 200 Cr.P.C for the offences under Section 138 of NI Act. The non return of original cheques and not issuing the cheque return memos amounts to deficiency in service on the part of opposite party. The complainant got issued legal notice dt.20.5.2013 through his counsel to the opposite party with request to return the bounced cheques and cheque return memos. The opposite party received the said notice, but failed to comply with the request. Hence, the complaint.
2. After registering the complaint, notices were sent to the opposite party. The opposite party filed its version denying the allegations made against the opposite party and contended that the complainant deposited the said two cheques in their branch on 29.12.2012 knowing fully that there are no funds in the account of drawer and on the request of complainant, they withhold the cheques hoping for availability of sufficient balance and unfortunately due to passage of time, the cheques were misplaced and later they could trace them and opposite party issued a letter dt.18.9.2013 to the complainant requesting him to collect the cheques and as the complainant did not turn up, they sent the same through registered post to complainant. It is further contended that the complainant is not entitled to claim any relief against the opposite party and finally prays to dismiss the complaint.
3. The complainant filed his affidavit reiterating the material averments of his complaint and got marked Ex.A1 to Ex.A4. The Branch Manager of opposite party filed version, did not file affidavit and no document is marked.
4. Heard complainant and perused the record. In spite of granting sufficient time, the arguments on behalf of opposite party are not advanced. As such the arguments on behalf of opposite party are treated as heard.
5. Now the points that arise for consideration in this complaint are:
- Whether there is any deficiency in service on the part of the opposite party in not returning the bounced cheques and cheque return memos to complainant to facilitate him to file case under Section 138 NI Act?
- If so is the complainant entitled for the reliefs as prayed for?
POINT NO.1:-
6. On perusing the material on hand (complaint, affidavit and documents), it is not in dispute that the complainant is maintaining account with the opposite party branch and the complainant presented two cheques bearing No.749788 and 749789 for Rs.5,00,000/- and Rs.62,000/- respectively in opposite party bank on 29.12.2012 drawn on State Bank of India issued by M/s.BVR Projects, for collection of the said amount. Ex.A1 counter foil dt.29.12.2012 discloses the deposit of said cheques in opposite party bank for collection. The main grievance of the complainant is that the opposite party has orally informed that the said cheques were dishonoured due to ‘insufficient funds’ in the account of drawer, but failed to return the bounced cheques and cheque return memos in spite of issuance of Ex.A2 legal notice, so as to facilitate him to proceed against drawer in the Court of Law. Ex.A4 postal receipt establishes the dispatch of Ex.A2 legal notice and Ex.A3 postal acknowledgment discloses that the opposite party received the legal notice.
7. The opposite party through its version admitted the fact that in the first instance the cheques were misplaced due to passage of time and later they informed the complainant through letter dt.18.9.2013 to receive the said cheques and as the complainant failed to receive the same, they sent the same through registered post. But to prove the said contentions, the opposite party has not filed any documentary proof with regard to dispatch of letter dt.18.9.2013 and also not filed any postal receipt evidencing the registered post or acknowledgement from the complainant. In the absence of any such proof more particularly the documentary proof, the contention of the opposite party that they have sent the cheques to complainant cannot be accepted and we have no hesitation in holding that the opposite party has acted negligently in this transaction and that the said cheques were misplaced at the opposite party bank itself. As such the acts of the opposite party would amount to deficiency in service.
8. Now coming to the next aspect that whether the complainant is entitled to the entire cheque amount is concerned, it is an admitted fact that the said two cheques were dishonored due to ‘insufficient funds’ in the account of drawer on the date of presentation or thereafter. Further in this case the opposite party is not due any amount to the complainant. The complainant relied on a decision of National Commission in M/s ICICI Bank Ltd., Vs. Shri Sonnegowda & Ors in Revision Petition No.649/2012. This decision is not applicable in view of the ruling of the Apex Court. In this regard, we would like to rely on the following decision of Hon’ble National Commission in
A.P.Bopanna Vs. Kodagu District Co-operative Central Bank in R.P.No.5/2005 decided on 17.12.2008 “
In the above case, the Hon’ble National Commission held that the complainant is only entitled to compensation for loss of cheque and not for the amount covered under the cheque by placing reliance on the decision of Hon’ble Supreme Court of India in
“Citibank N.A V. Geekay Agropack (P) Ltd., and another” reported in 2008 CTJ 561 (SC)(CP), where under their Lord Ships held that
“This appeal filed by Geekay for not getting adequate compensation for the total amount of loss incurred by it is misconceived. For the recovery of total amount of loss, it is open for the appellant to file a civil suit before the appropriate Court. The National Commission could have awarded compensation only for the deficiency of service only”
Keeping in view the above said ratio, we are of the opinion that, the complainant is not entitled for entire cheque amount as sought for and it is open for the complainant to file a civil suit against the drawer before the appropriate Court under “suit for lost instrument’ for recovery of cheque amount and interest thereon or he can proceed against the drawer of the cheque under Section 138 of the Negotiable Instruments Act on the certificate being issued by the opposite party bank with regard to dischonour of cheques. Further a perusal of record discloses that the entire transaction is within the period of three years. But in view of the facts and circumstances of the case, we are of the opinion that the complainant is entitled for compensation for deficiency of service only and in our view granting of compensation of Rs.20,000/- would meet the ends of justice.
POINT No.3:-
9. In the result, the complaint is allowed partly and the opposite party is directed to pay an amount Rs.20,000/- (Twenty thousand rupees only) to the complainant towards compensation for deficiency in service besides costs of Rs.2,000/- (Two thousand rupees only). Time for compliance is one month. The other claims of complainant if any shall stands dismissed. The opposite party is further directed to issue a certificate to the complainant regarding dishonor of cheques so as to facilitate him to proceed against the drawer under Civil/Criminal Acts for recovery of amount.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 22nd day of April, 2014.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite party:-
P.W.1 R.Rama Krishna None.
Complainant
(by affidavit)
DOCUMENTS MARKED
On behalf of the Complainant:
Ex.A.1 29.12.2012 Counter foil of Pay-in-slip of State Bank of India Patamata
SME.
Ex.A.2 20.05.2013 Office copy of legal notice.
Ex.A.3 . . Postal acknowledgement
Ex.A.4 20.05.2013 Postal receipt.
On behalf of the opposite party:-
Nil.
PRESIDENT
