O R D E R
(Pronounced on 30th day of April, 2014)
D.K. JAIN, J., PRESIDENT
These cross appeals under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) are directed order dated 29.02.2008, passed by the State Consumer Disputes Redressal Commission, Delhi (for short “the State Commission”) in Complaint No. F.A No. 200 of 2008 has been filed by Karnataka Bank Ltd., arrayed as Opposite Party No. 2; and F.A No. 206 of 2008 is by the legal heirs of Complainant in the said original Complaint. The other two Respondents in both the Appeals are Corporation Bank Centre, Opposite Party No. 1 and one Anil Kumar, Opposite Party No. 3 in the Complaint.
2. Briefly stated, the material facts giving rise to these Appeals are that a cheque dated 08.06.1998 in the sum of `8,99,571/- drawn on Corporation Bank by M/s Jawala India (Pvt.) Ltd., in favour of the Complainant was allegedly deposited by the Complainant with Karnataka Bank on 11.06.1998. Since the amount of the cheque was not credited to her account, she wrote a letter dated 11.06.1998 to Karnataka Bank and also requested the drawer company to ascertain the fate of the cheque. Enquiries revealed that the cheque had been encashed by someone through a newly opened account with the Corporation Bank. The said Anil Kumar was the introducer of the new account. In response to the Complainant’s letters dated 16.06.1998 and 22.06.1998, Karnataka Bank informed her that the cheque, purportedly drawn on Corporation Bank and reportedly deposited with them for collection, had not been received in the Bank. Thereafter, the Complainant, vide her letter dated 23.06.1998, requested the Chief Vigilance Officer, Corporation Bank to depute some senior Inspector from the Head Office to inquire into the matter and fix the responsibility of the Branch Officials, “whose poor supervision had (sic) landed the bank’s interest in jeopardy and restore the amount of the cheque together with interest” to her. It appears that on 15.06.1998, the Complainant also lodged an FIR with the police station. On 23.06.1998, the drawer of the cheque namely M/s Jawala India (Pvt.) Ltd. also lodged an FIR with regard to non-payment of the cheque to the Complainant. Having failed to receive a positive response to the legal notices issued on her behalf both the Banks as also to
the said Anil Kumar, alleging deficiency on the part of the Banks in connivance with said Anil Kumar, the Complainant filed the Complaint in the State Commission inter alia praying for direction to all the Respondents to pay the cheque amount along with interest @ 24%, and compensation and damages amounting to `5,70,000/-.
3. The Complaint was resisted by the Respondents as Opposite Parties. Apart from raising preliminary objection about the maintainability of the Complaint on the ground that: (i) the Complainant was not a “consumer” qua them as she had not hired their services and (ii) the matter of alleged fraud required detailed evidence; it was pleaded on behalf of the Corporation Bank that account of Smt. “Shila” Rani was opened in the normal course, as per the banking norms and procedures and was introduced by Anil Kumar as their old account holder. The stand of the Karnataka Bank was that the cheque in question was never deposited with them for clearance and the pay-in-slip relied upon by the Complainant as proof of deposit of the said cheque did not bear the signatures of either the cashier or any other officer of the bank, which was the normal practice at the relevant time. In his written version, Anil Kumar, while admitting that he did introduce one Smt. “Shila” Rani and not “Sheela” Rani, when she was present in the Bank with her husband, stated that he was neither aware if any cheque was deposited in the newly opened account, nor of any withdrawals from the said account till the time enquiries were made from him by the police. He also challenged the jurisdiction of the State Commission to entertain the Complaint as the Metropolitan
4. On consideration of the pleadings and the evidence adduced by the parties by way of affidavits, the State Commission has come to the conclusion that deficiency in service on the part of Karnataka Bank (OP-2), where the Complainant had allegedly deposited the cheque or commission of fraud on their part was apparent; pendency of Civil Suit by the drawer against Corporation Bank was not relevant and during the pendency of the civil and criminal proceedings, the Complainant was entitled to seek compensation for deficiency in service. Finally, the State Commission concluded as follows:-
“9. However role of OP No. 3 appears to be a little doubtful and suspicious as to
10. So far as OP No. 1 is concerned, no material has been produced as to the opening of account with it in connivance with the officials of OP No. 1 by OP No. 3 and the aforesaid Shila Rani.
11. In the given facts and circumstances of the case we hold OP No. 2 guilty for deficiency in service which in terms of section 2(1)(g) means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and direct it to make the payment of the cheque amounting to `8,99,571/-.
12. As regards OP No. 1 it was negligent in clearing the self cheque issued for such a big amount. In several cases we have taken a view that any bank which clears cheque which is in the name of self and is of the amount of more than a lac or say 2 or 3 lacs is expected to get in touch with the person
who issues the cheque and confirm the value and whether the cheque of this amount has been issued by him or not. Even if the bank is having a valued customer still it is required to verify from the valued customer as to the issuance of the cheque particularly when it is issued in the name of self or is a bearer cheque as in ordinary course no man of prudence would issue self or bearer cheque and hand over to its peon or clerk for encashment particularly when the amount of cheque is running into lacs of rupees. For this limited deficiency we direct the OP No. 1 to pay compensation of `25,000/- as connivance or fraud or conspiracy of the officials of OP No. 1 with Shila Rani and OP No. 3 has not been proved.”
5. The Karnataka Bank is aggrieved by the aforesaid directions and the Complainant is dissatisfied because interest on the cheque amount has not been awarded. The Corporation Bank has, however, chosen not to challenge the order.
6. I have heard Ld. Counsel for the parties and perused the pleadings and evidence on record.
7. It is manifest that for returning the finding to the effect that there was deficiency in service on the part of Karnataka Bank, the State Commission has proceeded on the premise that after deposit of cheque in their Branch for collection, it was taken back for being deposited in a new account in the Corporation Bank (OP-1). Although, it is true that the counterfoil of the pay-in-slip, placed on record, as a proof for deposit of the cheque in question, bears the stamp of Karnakata Bank but in the written version the receipt of such a cheque is categorically denied on the ground that the said pay-in-slip does not bear signatures of any Branch Official. Therefore, the onus lay on the Complainant to prove that the cheque was in fact deposited in the said Branch. Having perused the evidence on record, I am of the view that the Complainant has failed to discharge this onus. Mere averment in the Complaint, by itself, was not sufficient to prove the factum of deposit of cheque for collection in Karnataka Bank. Even in the Complaint there is no direct allegation of violation of any Rules and Regulations by Karnataka Bank, one of the tests, though not conclusive, for deciding whether the Bank was negligent. It is also pertinent to note that in all her letters and legal notices, the allegation of the Complainant was that the Corporation Bank had failed to follow its prescribed norms in permitting withdrawal of huge amounts from a newly opened account. Similarly, in her legal notices to both the Banks, while threatening criminal action and prosecution of the bank and its officials, the main allegation of the Complainant was that the Corporation Bank and said Anil Kumar had connived to cheat her. Again, in her letter dated 23.06.1998 addressed to the Chief Vigilance Officer of Corporation Bank, alleging fraud of `8,90,000/-, the allegation was mainly against the Corporation Bank. Significantly the suit, filed by the drawer, for recovery of the cheque amount was only against the Corporation Bank and the said Anil Kumar. Karnataka Bank was not arrayed as a party in the suit.
8. In my opinion, therefore, mere production of counter-foil of pay-in-slip, bearing rubber stamp of Karnataka Bank was not sufficient to prove that the cheque in question was actually received by the Bank for collection. It would also be relevant to note that according to the Complainant, the cheque was allegedly deposited in Karnakata Bank by one Arun who was stated to be an employee of the Drawer Company, a suspicious circumstance about the very nature of transaction between the Drawer and the Drawee of the cheque in question. In light of the material on record, I find it difficult to hold that there was deficiency in service on the part of Karnataka Bank and, Bank’s Appeal must succeed. Having come to the said conclusion, there is no question of award of any interest in favour of the Complainant on the cheque amount.
9. Resultantly, the Appeal filed by Karnataka Bank (F.A No. 200 of 2008) is allowed and the impugned order is set aside to that extent. Consequently, the Appeal filed by the Complainant (F.A No. 206 of 2008) is dismissed. It goes without saying that since Corporation Bank has not questioned the correctness of the order impugned in these two appeals, there is no occasion to comment on any observation or direction by the State Commission qua the said Bank.
10. It is directed that the amount of Rs.8,99,571/-, stated to have been deposited by the Karnataka Bank with this Commission, in compliance of order dated 14.05.2008, and the Statutory amount of Rs.35,000/-, shall be refunded to them along with accrued interest, if any.
12. In the facts and circumstances of the case, there shall be no order as to costs.
