The revision-petitioner is before us against concurrent orders of the District Consumer Disputes Redressal Forum, Fategarh Saheb and the Punjab State Consumer Disputes Redressal Commission. The case of the complainant is that he had availed of the consultancy service of the opposite party (present revision petitioner) for the process of emigration to another country for employment and settlement. He was informed that the total expenditure involved in securing of passport, visa, tickets and employment would be Rs. 12.52 lacs. Allegedly, Rs. 2.52 lacs was paid to the OP in cash on 30.4.2009 followed by Rs. 5.00 lacs on 30.6.2009 and another Rs. 5.00 lacs on 30.7.2009. When the complainant insisted on the arrangement for going abroad, the OP refunded the amount taken from him in two cheques, one of 16.9.2009 for Rs. 2.52 lacs and the other of 15.5.2010 for Rs. 10.00 lacs. As both cheques were dishonoured for want of sufficient funds in the account, complainant with the District Forum was lodged.
2. The OP was ex-parte before the District Forum. In this behalf the Forum has observed that notices served on two occasions were “refused” by the OP.
3. The District Forum considered the evidence on record and directed the OP to pay Rs. 12.52 lacs to the complainant together with Rs. 5,000/- towards cost. While allowing the complaint, the Forum has observed :
“Sh. V.K. Sharma, Advocate for the complainant has tendered in evidence affidavit of Sh. Sikander Singh, complainant as Ex. CW/1, copy of notice Ex.C-1, copy of postal receipt Ex.C-2, copy of memo Ex.C-3, copy of cheque and memo Ex.C-4 and Ex. C-5, copy of memo Ex.C-8, affidavit of Sh. Gurnam Singh witness as Ex.CW2/A and closed the complainant evidence.
We have gone through the record and have heard the Ld. Counsel for the complainant.
Ex.C-1, is the legal notice sent by the complainant dated 02.07.2010. Ex.C-3 to Ex.C-4 shows that cheques which was given by the opposite party to the complainant for Rs. 10 lakh was dishonoured and memo is attached showing that cheque is dishonoured due to insufficient funds. Ex.C-6 is the memo of cheque of Rs. 2,52,000/- which was dishonoured for the reason “drawer signature differ”. All these evidence show that opposite party has taken money from the complainant to the amount of Rs. 12,52,000/- promising to send him abroad but the opposite party fail to keep his promise and returned his money of Rs. 12,52,000/- in the shape of two cheques by cheque no. 332946 of Rs. 10 lakh and cheque no. 332942 of Rs. 2,52,000/- as there is no other consideration to pay these two cheques to the complainant, but these cheques are not realized due to above mentioned reasons showing that the opposite party failed to pay back the money and to keep their promise which is deficiency of service.”
4. The State Commission considered the evidence before the District Forum together with written arguments of the OP before the Commission. The Commission also heard the counsel for the OP/appellant before confirming the order of the District Forum. In a detailed order, the Commission has observed:
The respondent before filing the complaint even sent the legal notice dated 02.07.2010, Ex.C-1. Postal receipt is Ex.C-2, but the appellant never bothered to reply this notice or to clarify her stand. The respondent sent the cheque bearing No. 339246 for Rs. 10.00 lacs for encashment to State Bank of Patiala, but the said cheque was dishonoured and the letter, cheque and memo of the bank are Ex.C-3 to Ex.C-5. The cheque was dishonoured because of insufficient funds. Another cheque bearing no. 339242 for Rs. 2.52 lacs was also dishonoured. The letter of the bank and the cheque, memo of State Bank of India are Ex.C-6 to Ex.C-8. The appellant has not been able to rebut these documents. Just taking the plea of forgery is not sufficient to prove the same. The appellant has not moved any application to examine the signatures on the cheques and the complaint made to SSP placed on file, through post, does not disclose if any further action was taken. The complaint was sent by post and thereafter the appellant has not pursued the matter, which shows that this has been done only to create defence and nothing else. The appeal has been filed just to for the delay the execution of the order passed by the District Forum and to deprive the respondent of his hard earned money which he paid to the appellant for going abroad. The appeal is required to be dismissed with special costs and the impugned order warrants no interference.”
5. We have carefully perused the record and heard Mr. Himanshu Gupta, Advocate on behalf of the RP/OP. Learned counsel could not give any explanation why the legal notice issued by the complainant was not replied by the RP/OP. He also had no reply why the OP chose not to exercise her right of defence before the District Forum. Learned counsel confined himself to raising just one point viz. that so far as the complainant is concerned, it was just a matter of two dishonoured cheques. The remedy lay under the Negotiable Instrument Act and not under the Consumer Protection Act. This contention needs to be dismissed at the threshold itself. The complainant has succeeded in establishing before the fora below that the OP has failed to perform the service for which payment of Rs. 12.52 lacs was made. The cause of action, within the contemplation of the Consumer Protection Act, 1986 arose from such failure. It arose again when the complainant failed to secure his refund due to dishonouring of the two cheques. We therefore, hold that there is no illegality on the part of the fora below in entertaining the consumer complaint.
6. We also find ourselves in agreement with the State Comission when it says that the complaint to the Police regarding theft of cheques was only an attempt on the part of the OP to create the defence. Significantly, the complaint to the Police was made on 19.11.2010 while date of the first cheque was 16.9.2009 and on the second cheque 15.5.2010. There is no explanation why the OP waited so long to make a complaint to the Police, if she actually thought the cheques had been stolen. Equally, there is no explanation why there was no attempt to advise the bank to stop payment on these two cheques, if they had actually been stolen. We also cannot lose sight of the fact that the police complaint was filed by the OP on 19.11.2010 when the consumer complaint with the District Forum had already been filed almost 3½ months prior to it i.e. on 09.8.2010.
7. In the result we find no merit in this revision petition and hold that it has been filed only to further delay repayment of the money to the complainant and, in the process, waste the time of this Commission. Therefore, the revision petition is dismissed for want of merit and the special cost of Rs. 20,000/- imposed by the State Commission on the RP/OP is enhanced to Rs. 40,000/-. The same shall be paid to the complainant together with other amounts awarded by the fora below. With this modification, the impugned order in the First Appeal No. 2112 of 2010 stands confirmed. |
