IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 9th day of October 2009 CC/329/2005 P.K.Krishnakumari, 12/A Cantonment, Near Govt.Guest House, Kannur 1. Complainant The Senior Manger, Indian Bank, Kannur (Rep. by Adv.T.Achuthan Nair) Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay an amount of Rs.20, 00,000/- as compensation. The case of the complainant is summarized as follows: Complainant received a lawyer notice from her brother P.K.Mohanan informing that her cheque for Rs.1, 10, 00,000/- issued in favour of Mohanan was dishonoured by opposite party. The complainant was unaware of any such account with the opposite party. So complainant approached opposite party and made verification. It was found that an account bearing No.6169 was started in the complainant’s name by her father on 26.5.1983 before the opposite party for the purpose of encashment of a Demand Draft for Rs.21, 163/- that came in the name of the complainant. That could be seen and understood from the way in which the account was operated. Keeping an amount Rs.300/- the entire amount was withdrawn in a single transaction by using only first cheque leaf. Thereafter the account has been remained dormant without any operation. It is the second leaf in that cheque book which seen dishonored. The complainant has never issued such a cheque. The cheque presented for encashment was one which was forged by her brother Manoharan. Complainant has already initiated criminal proceedings against Manoharan for forgery and cheating. It is the officials of opposite party who helped Mr.Manoharan to do the same. Complainant has an account bearing No.S.A.No.11890 with the opposite party which was opened on 21.8.96 when the complainant opened this account, the officials did not tell her anything about an account already existing in her name. The fact that the complainant opened a savings account on 21.8.1996 shows that the complainant was not in the knowledge of a savings account No.6169 when the cheque leaf in a dormant account which remained inoperative for more than 21 Years is received for collection especially a big amount more than a core, the officials and the Manger should have taken extra care before dishonouring the cheque. At least the complainant should have been informed before acting upon such a cheque for huge amount in a dormant account. The opposite party has not followed the rules of inoperative account in this matter which paved the way for a crime. The bank did not suspect any foul play even though the cheque was for a huge amount in an inoperative account. It is the duty of the Bank official to safe guard the interest of the customers. The very purpose of making rules in the case of inoperative accounts is the protection of best interest of customers. But opposite party did not follow up those rules in this case. The cheque was returned on the very same day for the reason “insufficient fund”. The eagerness shown by the opposite party for returning the cheque on the very same day on which it came for clearness itself shows the dishonesty and negligence. This has put to him sever mental agony and loss. Though notice was sent opposite party did not heed to the same. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version in the form of statement. The contentions of opposite party in nutshell are as follow: the complainant is not a consumer. Complainant herself opened a savings bank account in the opposite party’s bank. She was introduced by one P.S.Narayanan, who was an account holder. The initial deposit was Rs.101/- and collection by way of DD has been Rs.21, 163/-. The amount collected has been withdrawn by her as per cheque No.577301. It is true that the second leaf of that cheuqe book for an amount of Rs.1,10,0,000/- came up for collection and on account insufficient fund the same was dishonored. The complainant is the custodian of the cheque book. The averment that the cheque presented was a forged one by her brother Manoharan to wreak vengeance up on the complainant for demanding partition of the partnership business etc. are matters best known to complainant and Manoharan alone? The opposite party is a Nationalized Bank. Manoharan is not a customer of this bank. Even if he is a customer the bank is not expected to do undue help to him. When a cheque comes up for collection it is the duty of the Bank either to grand payment or to bounce the same. The purpose of opening another saving account without disclosing the existence of prior account is a matter known to the complainant alone. It is meaningless to say that the manager and the officials of the Bank should take extra care while returning a cheque which was for a huge amount. The cheque, which came up for collection was one which was issued by an account holder of the bank. There was no sufficient amount to honor the cheque so the same was returned. The bank has no further role in that matter. The account of the customer is a saving bank account wherein interest for the balance amount is calculated and added. The complainant cannot say that she is not aware of the account so long as she keeps the cheque book and pass book with her. From the cheuqe book available with her she has sued one of the leaves to her brother Manoharan which came up for collection. The understanding in between them is known to them alone. When a cheque came up of collection the bank has to see whether there is sufficient fund or not in the account. The bank need not go into deep whether the person issued the cheque has capacity to pay such amount or not. The complainant is well aware that the account is still alive and not closed. No duty casted up on the bank to inform the issuer since the amount involved is huge. There is no negligence on the side of the bank. Bank has been doing their normal duties. The complainant is not entitled to claim compensation against the opposite party. The alleged cheque was presented by Mr.Manohran. He alone says how he got the cheuqe from the complainant and the real story behind it. So Manohran is a necessary party. Complaint is bad for non-joinder of necessary party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether the complainant is a consumer and the complaint is maintainable? 2. Whether the complainant is entitled for any remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of Ext.A1 to A8, B1 to B5. Issue No.1 Admittedly complainant is an account holder of the opposite party bank. Receiving a lawyer notice in respect of dishonouring of a cheque for Rs.1, 10,000/- complainant approached opposite party and on verification it was found that there was an account in the name of complainant’s name. Complainant’s case is that she found that an account bearing No.6169 was opened by her father on 26.5.1983 with the opposite party bank for the purpose of encashment of a Demand draft for Rs.21, 163/- that came in the name of the complainant. It can be seen that the entire amount except a sum of Rs.300/- was withdrawn by using only one leaf. The account has been remained dormant without any operation. It is the second leaf, the subject matter of this complaint which is alleged to have been dishonoured. The specific case of complaint is that she had never issued any such cheque. According to complainant the cheque presented for encashment was one that was forged by her brother Mohanan, to whom against criminal proceedings have been already initiated by the complainant. Complainant has an account with the bank which was opened on21.8.96. The complainant alleges that the bank officials did not tell her anything about the above said account at the time of taking the account bearing S/ANo.11890 on 21.8.96. The case of the opposite party is that the above said old account was opened by the complainant herself and she was introduced by one P.S.Narayanan who was holding savings bank account No.2374. Opposite party admits that the second leaf of that cheque book for an amount of Rs.1, 10, 00,000/- came up for collection but contended that the same was dishonored due to insufficiency of fund. Opposite party further contended that the complainant is the custodian of the cheque. It is also contended that unless and until the customer informs the bank to close the account by surrendering the balance cheque with the customer the bank cannot close the account suomoto. Further when the above said cheque came up for collection the bank has to see whether sufficient funds are there to honour the cheque. In this case there was no sufficient amount to honour the cheque so the same was returned. The bank has no further role in the dispute. Opposite party has also contended that the complainant can not say that she is not aware of the account so long as she keeps the cheque books and pass book with her. The complainant has the case that the officials of the opposite party bank, especially the manager should have taken extra care before dishonoring the cheque when it is issued from the cheque book of a dormant inoperative account which remained inoperative for more than 21 years and that too for an imaginary amount. Complainant alleges that the opposite party at least should have informed the complainant before acting upon the cheque of a dormant/inoperative account for such a huge amount. If they have taken care of the rules to be followed in the use of an inoperative account this type of crime could have been avoided. There is some substance in the case of complainant with respect to the dealing with the cheque in question which contains a huge amount. The stand that the bank has taken that there is no difference with cheque with fewer amounts and a cheque with huge amount is absolutely wrong. It has to be treated as a case of rare of the rarest since a cheque bearing more than an amount of 1 crore is not a common affair in a bank in Kannur municipality. The cheque in question is for a huge amount for Rs. 1 crore 10 lakh. It is understandable if it is happened in a bank in a metropolitan city. If the officials are not able to understand the difference between a cheuqe for Rs.1000/- and a cheque for Rs. 1 crore and 10 lakh, that is a sign of something wrong which is difficult to cure. If they are of opinion that both the cheuqes shall be treated equally with equal respect we cannot appreciate our banking system is safe in the hands of these masters, whatever maybe the provisions of law over which they have been taking shelter. Herein the complainant’s definite case is that she has not opened an account with the opposite party bearing number 6169 on 26.5.1983. That account was started by her father in the name of complainant for the purpose of encashment of a Demand Draft for Rs.21, 163/- that came in the name of complainant. The withdrawal of said amount keeping a nominal amount in the account by the first leaf of cheque itself remains as an indication that the opening of the account was actually intended to encash the said amount and the same can be confirmed with the experience of keeping this account dormant without any transaction for more than 21 years. She has the case that she was not aware of such account. There is no need to disbelieve her in this aspect. In the ordinary course of dealing if she had been aware of this account, she might have operated it for herself. There is no need to take a second account knowingly. Hence this account and the cheque book issued in connection with the account cannot be considered legally as that of complainant. That is a false account. The second leaf of the cheque book misutilised by her brother whatever maybe the purpose had definitely been a fraudulent act and that amounts to criminal offence. If it is done with knowledge and consent of opposite party that is only an involvement of the same crime. It is not a question of rights and liability that arose from the provisions of Consumer protection Act. The complainant is not related with the opposite party bank as a consumer though the account had been opened by her father in her name without her knowledge. That account cannot at any rate be legalised. Herein the right of the complainant to seek remedy as consumer does not arise. The complainant is not entitled to claim the status of a consumer to approach the Forum, whereby complaint is not maintainable. The 1st issue is found against complainant. Since it is found complaint is not maintainable there is no need to go in to other issues. Complainant is at liberty to seek remedy in appropriate civil or criminal courts if so advised. In the result, the complaint stands dismissed. No order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the lawyer notice dt.22.12.04 sent by Sreeja Prasanth A2.Copy of the letter dt.4.1.05 sent to OP A3.Copy of the letter sent by OP dt.4.1.05 A4.&5.Copies of the letter sent to OP dt.26.2.05 and 7.7.05 A6.copy of the letter sent by Deputy General Manger dt.15.7.05 A8.Copy of the reply notice received from S.Sreekumar. Exhibits for the opposite party: B1.Copy of the page No.65 of the Funds book dt.21.12.04 B2. Page No.31 of the cheque returned register dt.21.12.04 Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
