BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.124 of 2015

Date of Instt. 26.03.2015

Date of Decision :6.11.2015

Dinesh Chopra aged about 50 years son of Sohan Lal R/o Kothi No.314, Golden Avenue, Jalandhar.

..........Complainant Versus

1. Punjab & Sind Bank through its Senior Manager, Urban Estate, Phase-I, Jalandhar.

2. Kamaljit Singh son of Sohan Singh R/o Village Garhi Ajit Singh, P.S.Mukandpur, Tehsil Nawanshahr District Shaheed Bhagat Singh Nagar.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.VK Attri Adv., counsel for complainant.

Sh.APS Pathania Adv., counsel for OP No.1.

Sh.GS Mattu Adv., counsel for OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant has a bank account No.06131300005379 with the opposite party No.1 and the complainant has obtained cheque book including cheques No.001653, 001655, 001656, 001657. Unfortunately the said cheques were misplaced by the complainant and due information has been given to the opposite party No.1 for the same on 10.5.2013 and the complainant requested the opposite party No.1 not to make the payment of the above said cheques to anyone and the opposite party No.1 also issued a letter and certificate dated 10.5.2013 for the stop payment of the above said cheques duly signed by the senior manager of the opposite party No.1. The opposite party No.1 at the time of presentation of cheque has ignored the fact that the payment of cheques bearing No.00165, 001655, 001656, 001657 stopped by the complainant vide letter dated 10.5.2013 duly received by the opposite party No.1 and also issued a certificate for the stop payment of above said cheque duly signed by senior manager of the opposite party No.1. But despite the above said information given by the bank, the opposite party No.2 by misusing the blank cheques in connivance with the bank officials and after forgoing of the signatures of the complainant in fraudulent manner presented the cheque in the account of the complainant and the opposite party No.1 bank without comparing the signature and also by ignoring the letter and certificate dated 10.5.2013 wrongly and negligently issued the memo dated 17.5.2013 to the opposite party No.2 of the cheque No.001655 dated 11.5.2013 for Rs.13,50,000/- drawn on Punjab & Sind Bank, Urban Estate, Phase-I, Jalandhar with the remarks “Exceed Arrangement”. It is pertinent to mention here that signature on the said cheque No.001655 is not of the complainant and even full account number is not mentioned in the said cheque, which clearly shows the connivance between the opposite parties. After issuing the bank memo, the opposite party No.2 filed a complaint u/s 138 of N.I.Act against the complainant before the ACJM, SBS Nagar, which is pending for 3.4.2015, wherein the complainant get regularly harassed from the hands of the opposite party No.2 and also suffered huge mental tension and agony for which the opposite parties are liable to compensate the complainant. On such like averments, the complainant has prayed for directing the opposite parties to pay him damages of Rs.10 Lacs beside litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that the complainant has no locus-standi to file the present complaint. The bank has no concern with the dispute between the complainant and the opposite party No.2. It seems that the complainant has filed the present complaint just to get a defence under section 138 of Negotiable Instruments Act which is reportedly pending against him in the competent court of law as already mentioned by him in the complaint himself. As per the banking guidelines, if the cheque is presented for encashment in that event the bank has to provide the memo on the basis of the funds, which are available in the account of bank. If the balance available in the account exceeds to the cheque amount in the bank account, only then the bank has to see the other reasons for the cheques, as such comparison of signatures or other instructions of the client in the memo at the time of returning the cheque. In the case of complainant, since the payment was below the cheque amount, accordingly the cheque was returned with the appropriate memo of “Exceeds Arrangement”. It is submitted that even after getting the memo of “Stop Payment” even then the complaint filed by the holder of the cheque could be filed against any person and that person can be summoned by competent court of Judicial Magistrate. However, it is submitted that as per the bank records, the application dated 10.5.2013 was received and that if the funds were not available in the bank account, in such situation the memo of “Exceeds Arrangement” has to be issued and it nowhere shows that the bank was negligent and has acted in connivance with opposite party No.2. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.2 pleaded that the complainant is not at all entitled to any relief from the Forum, as he has concealed the material facts from the Forum. The fact of matter is that the opposite party No.2 is general company of Gurwinder Singh Johal son of Karnail Singh, who is residing in foreign country, has land/property situated in village Johal and Chohak, Tehsil & District Jalandhar. The said property was agreed to be sold by the opposite party No.2. Out of said transaction/deal, an amount of Rs.13,50,000/- was outstanding against the present complainant, for which the present complainant issued a cheque bearing No.001655 dated 11.5.2013 for the sum of Rs.13,50,000/- with the assurance that the same will be honoured as and when presented for its encashment. As per the assurance given by the present complainant and after informing him, the said cheque was presented in his bank i.e State Bank of Patiala, Branch Aur, District Shaheed Bhagat Singh Nagar. The opposite party No.2 received back the said dishonoured cheque with the memo having remarks “Exceed Arrangement” vide memo dated 17.5.2013. Thereafter, the opposite party No.2 issued a legal notice dated 27.5.2013 to the present complainant to make the payment, but the present complainant did not bother about that. Consequently, the opposite party No.2 being law abiding and peace loving citizen, filed a complaint under section 138 of Negotiable Instruments Act, which is pending in the court of Judicial Magistrate Ist Class, SBS Nagar. The present complainant filed the present complaint during pendency of the complaint already pending against the present complainant. The present complaint is false and frivolous, which is liable to be dismissed with special costs. It denied other material averments of the complainant.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA alongwith copies of documents Ex.C1 to Ex.C9 and closed evidence.

5. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.OP/A alongwith documents Ex.OP1 to Ex.OP12 and closed evidence. Further learned counsel for opposite party No.2 has tendered affidavits Ex.RW1/A and Ex.RW2/A alongwith documents Ex.R1 to Ex.R4 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted by complainant and opposite party No.1.

7. In the present complaint, we are not to decide the controversy between the complainant and opposite party No.2 as the same does not constitute any consumer dispute. It is not disputed that complainant reported loss of 4 cheques and instructed the opposite party No.2 bank to stop payment in respect of the same. The opposite party No.2 presented one cheque in the opposite party No.1 bank in which complainant is having account and opposite party No.1 bank instead of returning the cheque with memo of stop payment returned the same with the remarks “Exceed Arrangement”. Ex.C7 is above said memo. Ex.C8 is cheque in question for Rs.13,50,000/-. When the cheque was dishonoured by opposite party No.1 bank, the complainant was admittedly not having sufficient funds in his account. Counsel for the complainant contended that due to issuing of wrong memo by opposite party No.1 bank, opposite party No.2 by forging the signature of the complainant on the cheque presented the same in the opposite party No.1 bank which was dishonoured by the said bank with the memo bearing remarks “Exceed Arrangement”. He further contended that due to this memo, the opposite party No.2 filed the complaint under section 138 of the Negotiable Instruments Act which is pending in the court of Judicial Magistrate. He further contended that due to wrong issuing of above said memo the complainant is facing unnecessarily trial and harassment. On the other hand, it has been contended by learned counsel for the opposite party No.1 bank that on the date of dishonouring of the cheque the complainant was not having sufficient funds in his account and as such it was returned with the memo bearing remarks “Exceeds Arrangement”. He further contended that even if the cheque has been returned with the memo bearing remarks “Stop Payment”, opposite party No.2 could file a complaint under section 138 of the Negotiable Instruments Act. He further contended that complainant has not suffered any loss due to issuing of above said memo by the bank. He further contended that complainant has opportunity to take any defence in the complaint case under section 138 of the N.I.Act and bank has nothing to do with it. He further contended that complainant has filed the present complaint just to create a defence in the above said criminal complaint. He further contended that complainant is not entitled to any compensation. In support of his above contention he has relied upon G.Kandaswamy Vs. Bank of India 2008 (1) CPJ NC 98. We have carefully considered the contentions advanced by both the parties and further gone through the written arguments submitted by complainant and opposite party No.2. The facts involved in the present complaint are fully covered by the above cited authority and law laid down in it by Hon'ble National Commission. In the above cited case in the similar circumstances, the District Forum accepted the complaint with the directions to the opposite party to pay an amount of Rs.50,000/- by way of compensation and further Rs.10,000/- spent by him in defending criminal complaint and further refund of Rs.75 being debited towards charges for “Stop Payment” of the cheque and cost. The opposite party challenged the order passed by District Forum before Hon'ble State Commission and Hon'ble State Commission dismissed the complaint. In these circumstances, the Hon'ble National Commission has held as under:-

“3. Before adverting to the submission advanced by Ms.Madhumita Bora for the petitioner, it will be profitable to refer to para Nos.18 and 19 which has bearing in this case of the decision in M.M.TC.Ltd and Anr Vs. Medchl Chemicals and Pharma (P) Ltd and Anr., I (2002) BC 280 (SC)= VIII (2001) SLT 83=IV (2001) CCR 316(SC)=AIR 2002 SC 182. This decision has also been relied upon by the State Commission. Said paras read, thus:-

“18. Lastly it was submitted that a complaint under section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of ingredients of section 138 was not fulfilled and thus the complaints were not maintainable.

19. Just such a contention has been negatived by this court in the case of Modi Cements Ltd Vs. Kuchil Kumar Nandi. It has been held that even though the cheque is dishonoured by reason of “Stop Payment” instructions an offence under section 138 could still be made out. It is held that the presumption under section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instructions by virtue of section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in the part of any debt or liability. Of course this a rebuttable presumption. The accused can thus show that the “Stop Payment” instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under section 138 would not be made out. The important this is that the burden of so proving would be on the accused. Thus a Court can not quash a complaint on this ground”.

4. Short submission advanced on behalf of the petitioner was that the respondent-bank was deficient in service as in view of the instruction given, the cheque in question ought to have been returned with the endorsement of “Stop Payment” instead of “no sufficient funds” and the bank, therefore, can not evade liability of payment of the expenses incurred by the petitioner in defending the criminal complaint filed by Venkata Reddy and pay compensation. From para 19 extracted above, it may be seen that even if a cheque is dishonoured by reason of “stop payment” instruction an offence under section 138 of Negotiable Instruments Act is made out against the drawer. Petitioner does not dispute that only an amount of Rs.1311 was lying in balance in the saving bank account at the relevant time. Amount of the cheque in question was Rs.1,45,000/-. In view of these facts and the ratio in Kuchil Kumar Nandi's case the respondent-bank can not be ordered to pay the expenses allegedly incurred by the petitioner in defending the criminal complaint filed by his erstwhile partner-Venkata Reddy. Since the compensation claimed is relateable to the said endorsement made on the cheque in question, it is also not payable. There is no illegality or jurisdictional error in the order passed by State Commission warranting interference in revisional jurisdiction under section 21 (b) of Consumer Protection Act, 166. Revision petition is, therefore, dismissed”

8. The present complaint is squarely covered by the above cited authority decided by Hon'ble National Commission, after relying upon the decision of Hon'ble Supreme Court. Consequently, we hold that complainant has failed to prove any deficiency in service on part of the opposite party No.1 bank.

9. Consequently, the present complaint is dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

6.11.2015 Member Member President