1.      The instant appeal is filed against the order of the District Forum, Yavatmal passed in complaint No.54/2009 dtd.24.11.2009, granting the complaint partly and directing the opposite party to provide the complainant Rs.10,000/- as compensation for physical and mental harassment and cost of Rs.1,000/- and further giving liberty to the  complainant that he can approach competent Court to get the cost of the Cheque submitted by him. The remaining prayers of the complainant are rejected.

2.      The complainant herein filed a complaint in brief that he has a current account in the bank of the opposite party which is just located near his shop.  He on 19.12.2006 submitted a Cheque given to him by one Shri Sanjay V Galande of Rs.5.50 Lakhs for encashment in the branch of the opposite party. He expected the amount to be deposited on the same day as drawer of the Cheque also had account in the same branch.

3.      The complainant further complained that in-spite of repeated request, he was neither given the information nor the Cheque was returned to him.  He therefore, was deprived of using the amount for his business and interest also. He, therefore, on 12.04.2007 gave a notice to the opposite party which was received by them.  However, the opposite party did not act upon it.  He also, therefore, could not get the Cheque and hence could not file the case under Negotiable Instrument Act against the drawer to recover the amount of dishounered Cheque.  He, therefore, filed a complaint with a prayer to direct the opposite party to provide him the value of the dishonoured Cheque of Rs.5.50 Lakh with interest from the date of depositing it i.e. from 19.12.2006 with interest @ 10% p.a. and claiming deficiency in service, he requested to provide him the compensation of Rs.10,000/- for physical and mental harassment and cost of complaint of Rs.3,000/- with appropriate interest upon the amount.

4.      On notice the opposite party appeared filed written version.  It admitted to have the current account of the complainant and also drawer of the Cheque to be Shri Sanjay Galande. Also admitted the depositing of the Cheque with it. But it submitted that as the drawer account had no sufficient balance, it was dishonoured. However, the information was given to the complainant and was asked to take away the Cheque, which was informed to the worker in the shop of the complainant, who failed to inform it to the complainant.

5.      The opposite party further submitted that the said Cheque was sent to the shop of the complainant, where it was received by some worker in the shop, however, he may not have given it to the complainant.

6.      The opposite party further submitted that the complainant had given the notice, but as the contents were wrong it was not replied and as the shop of the complainant is just adjacent, the information was given to the workers in the shop. 

7.      The opposite party further submitted that it learnt that the drawer Sanjay Galande was requested by the complainant, who returned the Cheque to the complainant and the complainant took value of the Cheque form the said drawer and another Cheque. Hence, the complaint of loss of Cheque amount and interest is false.  No loss is caused to the complainant and the incident as has taken place through misunderstanding, it be dismissed.

8.      The o.p. filed the affidavit of the drawer of the Cheque stating that he was a servant in the shop of the complainant and had received the Cheque sent by the opposite party, which he had given to the complainant as a security. He, therefore, had given replacement Cheques to the complainant.

9.      The learned Forum heard both the parties and held that the opposite party should have informed about the dishonouring of the Cheque to the complainant and should have also returned it with a positive receipt and with appropriate urgency as such dishonoured Cheque is required to file for filing criminal case under Negotiable Instrument Act. However, the opposite party did not perform the said duty and service with proper urgency and thus did not return the disputed Cheque in proper manner causing deficiency in service to the complainant.  The opposite party also failed to provide evidence and also failed to reply to the notice of the complainant.

10.    The learned Forum relied on the judgement passed by the Hon’ble High Court, Mumbai in Y B Sachdeo Vs., State of Maharashtra, 2003, ALL MR. (Cri) 639 and Supreme Court judgement passed in Branch Manager, Federal Bank Ltd Vs. N S Sabastian, III(2009) CPJ 3 (SC), holding that the complainant deserves to be compensated. Hence, passed the order supra.

11.    Aggrieved against the order, the complainant filed the appeal, hence is referred as appellant and Advocate Shri N R Bhishikar appeared on behalf of appellant, Advocate Shri Nitin Thamke holding for advocate Shri W G Paunikar had appeared for the opposite party but did not file power. The opposite party now referred as respondent was declared exparte as per order dated 29.09.2017.

12.    The advocate for the appellant reiterated the contentions of the complainant and submitted that in-spite of repeated requests the respondent did not provide him the disputed Cheque. Hence, was not only deprived of the interest benefit but was also prevented from filing criminal case under Negotiable Instrument Act to get the appropriate compensation. He was also not properly responded by the respondent which is a banker and which filed an affidavit of the drawer of the Cheque stating that he had received the Cheque. 

13.    The advocate for the appellant submitted that in-spite of such a grave deficiency in service; the learned Forum gave a meager compensation. Hence, he has appeared in appeal with a request to provide him the appropriate compensation by providing all reliefs as per consumer complaint.

14.    We find that the respondent being a responsible bank failed to appear in the appeal in-spite of positive service of notice and was quite careless in not submitting their contentions and justification when the respondent is a scheduled bank of Government of India, indicating callous and careless behaviour of the respondent officer. 

15.    We considered the contentions submitted before us in which there is an affidavit filed by the drawer of the disputed Cheque Shri Galande, who filed an affidavit which is not objected by the appellant. The drawer of the disputed Cheque had submitted in the affidavit that he was serving with the appellant and had given the disputed Cheque as a security of his service. When the appellant had submitted the Cheque for encashment with respondent, he was serving with the appellant. The dishonoured cheque when was sent by the respondent he was working in the shop.  Hence, it was taken by him and gave it to the appellant. The appellant then returned that Cheque to him and took equivalent new Cheques from him.

16.    This affidavit clearly shows that and also subscribes the contentions of the respondent that the respondent had informed about the dishonourment of the disputed Cheque and also sent it to the shop of the appellant which finally was received by the appellant. The closeness of the appellant shop and that of the respondent branch indicates the casual and confident relations between the appellant and the respondent, which shows that the respondent might not have responded in the strict service relation behavior with the appellant, resulting in to no evidence of returning of the disputed Cheque. 

17.    We, therefore, find that in the event when the drawer of the disputed Cheque was available to the respondent as account holder and when he also filed an affidavit of receipt of the Cheque and its delivery to the appellant, it supports the premise that the appellant did not financially suffer because of the dishonouring of the Cheque. Also the appellant if had the real desire to file the recovery case; he could have filed it by taking a certificate from the respondent and also filing the civil suit in Civil Court for recovery of amount of the Cheque.

18.    With evaluation of the appeal as above, we find that the learned Forum has taken a correct stand of providing compensation to the appellant, which we find to be correct with no necessity of disturbing it. Hence, we decide to confirm it.

Hence, the order below.

ORDER

i.        The appeal is dismissed.

ii.       The order of the learned Forum is confirmed.

iii.      Parties to bear their own costs.

iv.      Copy of the order be provided to both the parties free of cost.