Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal No. 438/2001

Allahabad Bank through Branch Manager,

Mainpuri Branch, Tehsil/District: Mainpuri      ..Appellant.

Versus

Praveen Kumar, Advocate, s/o Sri Shiv Das,

R/o 1231, Uttari Chaptatti, Bye Pass Road,

Raghurajpuri, Mainpuri, Distt. Mainpuri.      .…Respondent.

Present:-

1- Hon’ble Sri Rajendra Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Sri Manoj Kumar, Advocate for the appellant.

None for the respondent.

Date 1.9.2021

JUDGMENT

Per Sri Rajendra  Singh,  Member- This appeal has been preferred under section 15 of the Consumer Protection Act against the judgement and order dated 02.02.2001 passed by the Learned District Consumer Forum, Mainpuri in complaint case no.09 of 2006, Praveen Kumar  Vs.  Allahabad Bank.

The brief facts of the appeal are that a complaint case no 09 of 1996 has been filed by the respondent/complainant on 04.01.1996 with the allegations that he had deposited a cheque no.3041144 of ₹ 10,000/– in the appellant branch on 19 October 1995 but this was not credited in his account till the date of filing of complaint. This cheque was drawn at Punjab National Bank, branch Bareilly. The complainant made a prayer for a direction against the bank for giving him ₹ 10,000/– that is the amount of cheque along with the interest and  ₹ 2000/–  as mental agony et cetera. The

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opposite party has filed his written statement that the cheque was immediately sent to Bareilly branch for collection but when the colletion amount was not received and the complainant informed the bank about this, regular letters were sent by the appellant to the Bareilly branch and a telegram was also sent. The Bareilly branch informed that the cheque was not received by them and it was due to this reason the cheque could not be produced for collection and hence this amount was not credited in complainant’s account it appeared that the cheque was lost during the course of transit.

After filing the written statement, the opposite party came to know that the complainant had received the payment of ₹ 10,000/– from Sri Jagdish Prasad who had issued the cheque in dispute but there was no evidence available with the opposite party and as such the opposite party filed an amendment to the written statement/objections. The complainant filed a rejoinder on 11 February 2000 against the amended written statement in which he categorically denied that he had received the amount of cheque and also it was the bank’s burden to prove that he had received the money in lieu of the amount of lost cheque. The learned District Forum believed the statement of complainant as true and did not issue any notice to Sri Jagadish Prasad who had issued the lost cheque and allowed the complainant in the most illegal and arbitrary manner.

After the judgement, the copy of the judgement was sent to the Regional Office, Allahabad Bank, Lucknow, who directed the appeal to be filed with the help of the Counsel and after looking into the facts of the case. The counsel

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advised the bank manager  to make efforts for approaching Sri Jagadish Prasad  at Bareilly and as per advice of the Counsel, the Branch Manager made hectic efforts for tracing Sri Jagadish Prasad and after contacting him he explained the entire facts  of the case. Mr Jagadish Prasad was surprised to see the false statement made by the complainant before the Learned District Forum. He clarified that on receiving the information of the loss of cheque from the complainant, he asked the Punjab National Bank on 15 January 1996 to cancel the cheque no.304114 dated 15 October 1995 for ₹ 10,000/– which was issued in the name of the complainant and simultaneously made a request for issuing a Bank Draft for the same amount in favour of Mr Praveen Kumar in lieu of the cheque. He supplied to the Branch Manager the copy of letter written by Sri Praveen Kumar to him and also written by him to the Branch Manager, Punjab National Bank. Sri Jagadish Prasad was kind enough to give the entire thing in the writing to the Branch Manager on 2 March 2001. On the request of the appellant Sri Jagadish Prasad obtained a confirmation from Punjab National Bank with respect to the preparation and issuance of a draft of ₹ 10,000/– in favour of Praveen Kumar on 15 January 1996.

Now it is crystal clear that the complainant had made false statement and misrepresentation before the Learned District Forum. The opposite party had also requested the complainant that he should made efforts for obtaining a duplicate cheque from the person concerned but even then the complainant did not inform that he had been making such efforts and had already obtained the demand draft from the

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same person of the same amount. The impugned judgement is absolutely illegal, unjust and arbitrary and has been passed in ignorance of the facts and circumstances of the case. The impugned judgement is one-sided and has been passed without application of mind. The opposite party has made a specific averment in the written statement that the complainant had received the amount of cheque by means of draft given to him by the same person. Since there was contrary statement with respect to one fact it was apparently a question of disputed fact and as such it was necessary that the independent evidence or the third-party evidence would have been collected. The opposite party had clearly made a request for impleadment of Mr Jagdish Prasad but the Learned District Forum did not consider this request if the cheque is lost during the course of transit, the liability of the bank cannot be extended to the payment of a entire amount of cheque. The proper exercise in such circumstances is to make effort for obtaining a duplicate cheque from the person who has issued it and in the instant case also the complainant had made such efforts but he did not inform about it either to the opposite party or to the Learned District Forum.

The learned District Forum  should have asked the complainant as to whether he had made any effort for obtaining a duplicate cheque from the person concerned or not as the liability to make the payment to the complainant was ultimately lies on the person who had issued the cheque. By directing the bank to make the payment of the entire amount of cheque which was lost, the learned district forum has acquitted the person concerned from making any payment

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and has also left an option upon the complainant to opt  payment from the bank by filing a complaint and by virtue of the judgement, the Learned District Forum has already imposed the compensation and interest against the opposite party. Since the complainant had already received the amount as early as in 1996 there is no justification in directing the bank to pay the same amount again. Therefore it is most respectfully prayed that this Hon’ble commission be pleased to allow the appeal and set aside the impugned judgement and order dated 2 February 2001.

We have heard the Ld. Counsel for the appelalnt Sri Manoj Kumar. The respondent did not turn up to argue his case though he has been served sufficiently.  We have perused the pleadings, impugned judgment and documents on record.

There is copy of the letter of Mr Jagadish Prasad who has categorically written that Mr Praveen Kumar informed him vide letter dated 12 December 1995 that the cheque has been lost in transit somewhere by the bank and then he purchased a draft of ₹ 10,000 in favour of Mr Praveen Kumar and also stopped the payment of the said cheque. The copy of the letter of Praveen Kumar has also been filed. If a cheque is lost in transit and it has not been cleared/paid, the duplicate cheque is usually issued. There is no evidence on record to show that the first cheque was paid to someone. The person who has issued the cheque, on receiving the letter of complainant, issued a bank draft in his favour and wrote a letter to the bank to stop the payment of the lost cheque. Therefore it is clear that there is no loss of any amount of the

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cheque and the complainant received the amount of the cheque by way of bank draft. The learned District Forum should have called the bank’s statement or account statement of the complainant to see whether the payment has been credited to his account or not. The cheque was lost in transit and it cannot be said that it is due to carelessness of the bank but it is due to carelessness of postal department. When the cheque amount has been again sent to the complainant by way of bank draft and evidence has been filed by the appellant in this regard, it is clear that the complainant suffered no loss and the impugned judgement of the Learned District Forum is liable to be set aside and appeal is able to be allowed.

ORDER

The appeal is allowed and the impugned judgment and order 02.02.2001 passed by the Learned District Consumer Forum, Mainpuri in complaint case no.09 of 2006 is set aside.

          The stenographer is requested to upload this order on the Website of this Commission today itself. 

          Certified copy of this judgment be provided to the parties as per rules.       

       (Rajendra Singh)                              (Sushil Kumar)

     Presiding  Member                                    Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to record.

       (Rajendra Singh)                              (Sushil Kumar)

     Presiding  Member                                    Member

Jafri, PA II

Court 3