28.08.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP-Bank challenging the judgment and order dated 31.7.2012 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas in C.C.Case No. 279 of 2010, directing the OPs to pay to the Complainant Rs. 3,00,000/- being the financial loss related to dishonour of cheque in question and also Rs. 1,00,000/- towards compensation and further Rs. 10,000/- as cost within one month, failing which interest @ 10% p.a. shall accrue on the aforesaid amount for the entire period of default and also directing the OPs to pay punitive damage of Rs. 1,00,000/- to the Consumer Welfare Fund within one month from the date of the order, failing which the said amount shall also carry an interest @ 10% p.a. from the date of default till realization.

          Facts, leading to the present controversy, are, in a nutshell, that the Respondent/Complainant used to have a Savings Bank Account bearing No. 1542 with the OP No. 1-Bank at their Khidirpur Branch Extn. Counter.  The Respondent/Complainant issued a Cheque bearing No. 201728 for Rs. 1,40,000/- in favour of M/s. Nirmal Bang Security Private Limited for purchase of shares of different companies.  But, when the said drawee-Company presented the cheque in question through their banker being Axis Bank for encashment, the said cheque was not honoured by the OP No. 1-Bank on 21.8.2010 showing the ground as ‘inoperative’ despite the cheque-related Savings Bank Account having a credit balance of Rs. 1,49,516.12 on 21.8.2010, and such act of non-encashment of the cheque in question resulted in financial loss of the Respondent/Complainant to the extent of Rs. 3,00,000/- as alleged in the Petition of Complaint.  After suffering from such financial loss due to not honouring the cheque in question by the Appellant/OP No. 1-Bank, the Respondent/Complainant followed up the redressal of the same with Appellants/OPs-Bank including service of Advocate’s Notice dated 2.9.2010, but without any success.  Then the Respondent/Complainant moved the Ld. District Forum which passed the impugned judgment and order in the aforesaid manner.  Aggrieved by such order the OPs-Bank have preferred the present Appeal.

          The Ld. Advocate for the Appellants/OPs-Bank has referred to the averment made in the Memo of Appeal stating  “the cheque issued by the Respondent herein was dishonoured on a mere bonafide mistake, which was duly admitted by the Appellants herein”. 

          The Ld. Advocate continues that the Respondent/Complainant, without advising the drawee of the cheque not to present the same for encashment, filed the Complaint Case ‘just for illegal gain’.

          The Ld. Advocate finally submits that compensation of Rs. 4,10,000/- as awarded in the said impugned judgment and order against Rs. 1,40,000/- being the amount of the cheque in question is unreasonable and unjust.

          The Ld. Advocate concludes that in view of the submission so put forward, the impugned judgment and order should be set aside.

          On the other hand, the Ld. Advocate for the Respondent/Complainant submits that the fact of dishonouring the cheque in question has been admitted by the Appellants/OPs-Bank in the Memo of Appeal itself.

          The Ld. Advocate continues that ‘having heavy workload of the OPs-Bank’, as stated in the Memo of Appeal, cannot suggest any bonafide of the mistake as taken shelter of by the Ld. Advocate for the Appellants/OPs-Bank.

          The Ld. Advocate further submits that the act of dishonouring the cheque in question points to inadequacy in the quality, nature and manner of performance on the part of the Appellants/OPs-Bank and thus, such inadequacy in the quality of performance of service on the part of the Appellants/OPs-Bank squarely falls within the deficiency in service as defined u/s 12(1)(g) of the Consumer Protection Act, 1986.

          The Ld. Advocate again submits that the compensation as awarded by the Ld. District Forum in the impugned judgment and order is neither unrealistic nor unjust in view of the financial loss of the Respondent/Complainant to the extent of Rs. 3,00,000/- as shown in the Petition of Complaint, apart from injury to the social goodwill of the Respondent/Complainant, which is incapable of being compensated in full in terms of money.

          The Ld. Advocate finally submits that in view of the submission so put forward the impugned judgment and order be sustained, it being just and proper.

          We have heard both the sides, considered their respective submission and perused the materials on records.

          The Memo of Appeal reveals the admission of dishonouring of the cheque in question by the Appellants/OPs-Bank.  The copy of the passbook in respect of the Savings Account concerned shows the presence of sufficient credit balance in the said Account on the date of presentation of the cheque by the drawee-Company for encashment.  The Appellants/OPs-Bank have not produced any cogent documentary evidence in support of the ‘bonafide’ mistake, as taken as a plea, except bare mention of the same, which cannot be accepted even by a man of ordinary prudence as a reasonable ground for dishonouring the cheque in question despite having sufficient credit balance at the time of presentation of the cheque.

          The matter is well-settled by the decision of the Hon’ble National Commission in ICICI Bank Vs. Sh. Rajendra Kumar Agarwal decided on 2.4.2014 in Revision Petition No. 532 of 2012, wherein it was held, “….the dishonouring of the Cheque No.161139 for Rs.1,15,627/-(One Lac fifteen thousand six hundred twenty-seven) was absolutely gross deficiency of service by the Petitioner’s Bank, as the respondent was having sufficient funds in his account at that time”.

          The compensation as awarded by the Ld. District Forum does not appear to be unrealistic or exaggerated as the compensation not only serves the purpose of recompensing the sufferer but also aims at brining about a qualitative change in the attitude of the service provider in a case of proven deficiency in service, as was held in a decision under the Consumer Protection Act, 1986 of the Hon’ble Supreme Court decided on 20.9.2000 in Civil Appeal No. 767 of 2000 [Charan Singh Vs. Healing Touch Hospital & Ors.].

          On the above facts and circumstances of the case, we find that the evidence on record and submission by  the Ld. Advocate for the Respondent/Complainant weigh more than that of the Ld. Advocate for the Appellants/OPs-Bank.

          In view of the above discussion we have no hesitation in holding that there is no such illegality or material irregularity in the impugned judgment and order that warrants our interference with the same.

          In the result, the Appeal is dismissed.  The impugned judgment and order is affirmed.  No order as to costs. The Misc. Application bearing No. MA/340/2012 filed by the Appellants is also disposed of.