Date of Filing            : 06/11/2009

Date of Admission   : 12/11/2009

Date of Judgment    : 26/03/2014

 

Mr. Pramod Bhausaheb Sangale

C/o Yash Enterprises, Shantikunj Building,

Rammandir Corner, Sangli                                                                 ……. COMPLAINANT

 

The Branch Manager,

Syndicate Bank, Branch Sangli

Burud Galli Chowk, Sangli                                                                ……..  RESPONDENT

 

 

 

1.         The instant complaint has been filed by the complainant, u/s 11 & 12 of the Consumer Protection Act, alleging deficiency in service and adoption of unfair trade practice by the Respondent bank.

 

2.         The facts in nutshell are : That the complainant has a savings bank account No. 5390220023344 in the Resp. Bank. There was some transaction between the complainant and one Smt. Shamala Shekhar Bane, R/o Belgaon. For the said transaction, the said Smt. Shamala Shekhar Bane had issued a cheque bearing No. 000715227 in favour of the complainant for an amount of Rs. 4 lakhs. The said cheque was presented by the complainant to his bank on 11/8/09 for encashment. A counter-slip of the pay-in-slip of the said cheque was issued by the Resp.Bank to the complainant alongwith its seal and a entry of depositing the said cheque with the bank was taken in the passbook of the complainant. On 21/8/09, the complainant approached the Resp.Bank in order to verify, as to whether the amount mentioned in the said cheque was received or not and there he learnt that the said cheque was dishonored by the drawee bank. Thereafter, the complainant demanded the cheque return memo and the returned cheque from the Resp. Bank. However, the Resp. Bank assured him that the original cheque and the return memo shall be sent to the complainant later on. The complainant started making enquiries with the respondent bank after every 8/10 days about the cheque and the cheque return memo. But neither the said original cheque nor the cheque return memo was handed over to him by the Resp. Bank. For want of the said original cheque and the cheque return memo, the complainant could not initiate the action against the drawer of the said cheque for the offence u/s 138 of Negotiable Instrument Act, nor could he file suit of recovery for the amount of the said cheque. The complainant suspects that the Resp. Bank has dishonestly returned the said cheque and the cheque return memo or have lost it. For want of the said original cheque and the cheque return memo, the complainant cannot take any legal action against the drawer and thus, the Resp. Bank has committed a deficiency in service and has also adopted the unfair trade practice, thereby the complainant has sustained a loss of Rs.4 lakhs and hence, the respondent bank is liable to compensate the complainant by the said amount of Rs.4 lakhs alongwith interest thereon. The complainant has further pleaded that he wanted to utilize the said amount of Rs. 4 lakhs for his business. Had he used the said amount for his business, he would have earned a profit of about 20 p.c.p.a. and thus, he has suffered the loss of the profit @ 20 p.c.p.a. of the said amount of Rs. 4 lakhs. That it is impossible to recover the another cheque from the said drawer Smt. Shamala Shekhar Bane. Hence, the complainant is entitled to recover the amount of Rs. 4 lakhs of the said original cheque, Rs. 2,12,000/- being the loss of profit @ 20 p.c.p.a. of Rs. 4 lakhs. He is also entitled to take the amount of Rs. 70,000/- towards the pains and suffering, on account of the deficiency in service and the unfair trade practice. He is further entitled to claim the amount of Rs. 1,500/- being notice charges and further amount of Rs.5,500/- being the cost of litigation. Thus, the complainant has prayed for the total amount of Rs.4,97,000/-. He has further claimed interest @ 12 p.c.p.a., in case, the resp. bank fails to pay the said amount within the time prescribed.

 

3.         In support of his contentions in the complaint, the complainant has filed his affidavit at Exh.5. He has also filed the copies of the counterfoil of pay-in-slip, the copy of the legal notice dated 3/10/09 issued by the complainant to the respondent bank through his Advocate. He has also filed the reply dated 8/10/09 issued by the Resp. Bank, being a reply to the legal notice, the copy of the passbook issued by the Resp. Bank.

 

4.         The Resp. Bank has filed its written statement at Exh.8 and has traversed all the adverse allegations. The Resp. Bank has admitted that the complainant holds a savings bank account No.53902200023344 with it, w.e.f. 25/8/05. It has contended that at the time of opening the said account, the complainant has given his registered address as Pramod Bhausaheb Sangale, R/o Flat No.2, Swakul Apt., Gaonbhag Sangli. That there is no change in the said registered address of the complainant in the records of the resp. Bank till today. That the bank has provided all the facilities of the savings bank account to the complainant always. The Bank has admitted that on 11/8/09, the complainant had presented a cheque No. 00715227 dated 11/8/09 drawn on Canara Bank, branch at Belgaon Camp for the amount of Rs. 4 lakhs for encashment. However, the bank does not know whether the said cheque was issued by one Smt. Shamala Shekhar Bane, Resident of Belgaon, on account of some transactions between her and the complainant. The bank has contended that after the said cheque was presented to it for encashment, the bank took the necessary entries in the records, as per the rules and on the same day, the said cheque was sent for local clearance and thereafter as per procedure, the concerned bank forwarded the said cheque to its Belgaon Branch for clearing. The information of dishonor of the said cheque was received by the Resp. Bank online on 21/8/09 and immediately, the entries of the dishonor of the said cheque were taken in the aforesaid savings account of the complainant. Thereafter, the dishonored cheque was received back from the Belgaon Branch of Canara Bank and immediately thereafter, i.e. on 26/8/09, the said cheque and the return memo were dispatched to the registered address of the complainant in a sealed envelope. The entries of the said dispatch were taken in the outward registered maintained at the resp. Bank. It is specifically denied by the Resp.Bank that the complainant was making enquiries after every 8 to 10 days about the return of the original dishonored cheque and the cheque return memo. The bank has specifically denied the allegations of the complainant that with some ulterior motive, the Resp. Bank has retained the said dishonored cheque and the cheque return memo or has lost it as false. It is contended that the bank has no reason whatsoever to retain the dishonored cheque and the cheque return memo either of the complainant or of any other customer. That the complainant had never approached the resp. Bank and if he had ever attended the bank after the dishonor of the said cheque, the bank could have handed over the said cheque and the cheque return memo. That the Resp.Bank has not given any deficient service to the complainant nor has adopted any unfair trade practice. That it is denied that the complainant could not initiate the proceedings either u/s 138 of Negotiable Instruments Act or could not file any civil suit for recovery of the said amount for want of the original dishonored cheque and the cheque return memo. It is contended that the complainant would have initiated these actions by leading secondary evidence also. That only to have some basis for filing this complaint, the complainant has made the false allegations of deficiency in service and unfair trade practice.

 

5.         It is contended by the Resp.Bank further that as soon as, it had received a legal notice dated 3/20/09 issued by the complainant through Adv. Shri P.D. Kulkarni by its letter dated 5/10/09, it has made enquiries with the Belgaon Camp Branch of Canara Bank about the said cheque. To that letter, Belgaon camp branch of the Canara Bank, by its letter dated 31/10/09, submitted a detailed information to the effect that the said cheque was dishonored because the drawer Smt. Shamala Shekhar Bane had closed her account on which the said cheque was drawn on 20/5/09 itself. That since Smt. Shamala Shekhar Bane had lost her cheque book containing 10 cheques bearing Sr.No. 715221 to 715230, she had closed her savings account on 20/5/09. That on this background, a cheque No. 715227 dated 11/8/09 drawn on the said closed account of Smt. Shamala Shekhar Bane raised various questions and a serious doubt. Therefore only, the complainant has not filed civil suit or any prosecution against the said drawer Smt. Shamala Shekhar Bane and instead has filed the complaint against the Resp. Bank making false allegations. That in the meanwhile by its letter dated 6/10/09, the Resp. Bank called upon the complainant to approach it in connection with the said dishonored cheque. The said letter was issued to the complainant at his registered address, which is recorded in the records of the Resp. Bank. The said intimation was issued through a registered post but the envelope containing the said intimation was returned unserved with the endorsement that the complainant does not reside at the given address and his whereabouts are unknown. It is clear that the savings account of Smt. Bane on which the cheque in question was drawn on 11/8/09 was closed on 20/5/09 itself on the ground that the cheque book was misplaced. It is also clear that the communication to the complainant by registered post on his given address is unserved with endorsement that the complainant is not residing at the said address and the fact that despite the knowledge of the fact that the said cheque is dishonored on 21/8/09, the complainant has not initiated any civil litigation or a prosecution against the drawer Smt. Shamala Shekhar Bane and instead, he is making out the case of constantly approaching the Resp.Bank and his filing of complaint raising false allegations against the bank and claiming substantial amount of Rs. 4,97,000/-, are all the things of imagination of the complainant, false and are raised by the complainant as a afterthought in order to take the disadvantages of the procedure of the consumer forum. The contentions of the complainant on the point of his alleged loss are imaginary. The resp. bank has denied that the complainant would have earned the profit @ 20 p.c.p.a. of the said amount of Rs.4 lakhs and that it is liable to pay the said amount to the complainant. That the bank has followed its legal obligations of informing the complainant about the dishonor of the cheque and sending the dishonored original cheque and the cheque return memo to the complainant and it has not committed any deficiency in service to the complainant. That the entire claims of the complainant are illegal, wrong and false and the bank is not liable to pay anything. On such contentions the Resp. Bank has prayed for dismissal of the complaint with a compensatory cost of Rs.10,000/-.

 

6.         In support of its contentions in the written statement, the Resp.Bank has filed the affidavit of its Branch Manager namely Mr. Tridib Kumar Bose at Exh.9 and alongwith list at Exh.12, it has filed the copies of the registered address of the complainant, the extract of the outward register dated 26/8/09 showing that the original dishonored cheque and the cheque return memo was sent to the complainant by registered post at his registered address on that day. It has also filed the copy of its letter dated 5/10/09 issued to the Canara Bank making enquiries in respect of the cheque in dispute. It has also filed the copy of the reply dated 31/10/09 received from the Belgaon Camp Branch of Canara Bank, the copy of the letter dated 6/10/09 issued to the complainant calling upon him to approach the resp. Bank in connection with the said dishonored cheque and it has also filed the copy of the returned envelope containing the said letter. Subsequently, alongwith list at Exh.25, the Resp.Bank has produced all these original documents as tendered them in the evidence.

 

7.         The complainant has not led any oral/documentary evidence and has filed pursis at Exh.19 in that behalf. The Resp.Bank has filed pursis at Exh.22 to the effect that it does not want to lead any oral evidence. However, subsequently, with the permission of the Forum, the Resp. Bank has filed the affidavits of its two employees, one Pradnya Pradip Saudagar who is the outward clerk and one Rajaram Raghunath Sarwade who is the peon working in the respective bank and who has actually posted the envelope containing the original dishonored cheque and the cheque return memo at the address of the complainant, by taking those documents at post office at Sangli. These affidavits are filed at Exh.28 & 29, respectively. The learned counsel for both the sides have submitted their written notes of arguments at Exh.21 and 23, respectively and thereafter, we have heard their oral submissions also. 

 

8.         The points those arise for our determination are as follows :

 

1) Whether the complainant has proved that the

 

2) Whether the complainant has proved that he has

 

3) Whether the complainant is entitled to the damages

 

4) What order ?                                                                                As per final order.

 

 

9.         The reasons for our findings above are as follows.

 

 

 

 

10.       At the outset, it must be mentioned here that most of the factual position is admitted in this case. Admittedly, the complainant holds a savings account in the Resp. Bank and the Resp. Bank provides him the banking services through the said account. Admittedly, there are the relationship of the customer and the service provider between the complainant and the Resp. Bank and therefore, we have consciously not framed the issue as to whether the complainant is a consumer or not. The said fact being an admitted fact, it was not necessary to frame such a issue and to answer the same. 

 

11.       The Resp. Bank has admitted that on 11/8/09, the complainant had presented one cheque bearing No. 000715227 drawn on the Canara Bank Bengaon branch for the amount of Rs. 4 lakhs by one Smt. Shamala Shekhar Bane for encashment and the respective bank had issued a counter slip of the pay-in-slip of the said cheque when the complainant had presented the same. We have mentioned above that the complainant has produced the counterfoil of the pay-in-slip vide which, the said cheque was presented by the complainant to the resp. bank on 11/8/09 for encashment and depositing the amount of Rs. 4 lakhs mentioned therein in his aforementioned savings account. The said pay-in-slip bears the seal of the Resp.Bank and the signature of the concerned officer of the Resp.Bank. The Resp. Bank has admitted this fact and further the fact that the said cheque was sent for local clearance as per the procedure and then the said cheque was sent to the drawee bank and the said cheque was dishonored for the reasons stated above and the intimation of the said dishonor of the cheque and the cheque return memo giving the reasons thereof, were received by it. According to the Resp. Bank, the intimation of the dishonor of the cheque was received back by it online on 21/8/09 and later on the said dishonored cheque and the cheque return memo was received by it. The Resp. Bank has further contended that thereafter the said original cheque return memo and the dishonored cheque were sent to the registered address of the complainant on 26/8/09. In order to prove this fact, the resp. Bank has filed on record the affidavit of Pradnya Pradip Saudagar at Exh.28. Smt. Saudagar is working as the outward clerk in the Resp. Bank. She has deposed that on 28/8/09, she herself put the cheque No. 00715227 dated 11/8/09, drawn in the name of the complainant Mr. Pramod Bhauso Sangale, for the amount of Rs. 4 lakhs and a cheque return memo in an envelope and sealed the said envelope and mentioned the registered address of the complainant as Flat No.2, Swakul Apt. Gaonbhag, Sangli and affixed the postage stamp of proper amount on the said envelope and then handed over it to the peon of the said Bank namely Mr. Rajaram Raghunath Sarawade for dispatching the said envelop through post and has taken the entries thereof in the outward register maintained in the said bank on 26/8/09 at page No.326 of the said outward registered. She has identified the said entries at page No. 326 as to be her own handwriting. She has further stated that the said peon Rajaram Sarawade took the said envelope to the said office and later on informed her that he has actually dropped the said envelope in the post bag. The said Mr. Rajaram Raghunath Sarawade has in his affidavit at Exh.29 has stated on oath that on 26/8/09, he received a postal envelope containing the original dishonored cheque and the cheque return memo received from Belgaon Branch from the outward clerk Pradnya Saudagar and as per her direction, he took the said envelope in the said post office and has dispatched the said envelop by dropping it in the post bag and thus has performed his duty. Both these affidavits have gone on record unchallenged in as much as complainant has neither cross-examined the witnesses nor has filed any affidavit by way of counterminding these statements on oath. Thus, the fact is proved that on 26/8/09, the Resp. Bank has dispatched the original dishonored cheque and the cheque return memo at the registered address of the complainant. It is pertinent to note that the resp. Bank has also produced on record the original application form for opening of savings bank account in the individual name of the complainant which is dated 25/8/05 and in the said application, the complainant has given his address as Pramod Bhauso Sangale, Swakul Apt., Flat No.2, Gaonbhag, Sangli. This address corresponds to the address mentioned by the outward clerk Smt. Pradnya Saudagar, the peon of the Resp. Bank Mr. Rajaram Sarawade and also by the address given on the unserved envelope which was addressed to the complainant by the Resp. Bank calling upon him to come to the bank in connection with the dishonor of the said cheque. The relevant entry No.6 at Page No. 326 of the outward registered, the copy of which is filed on record by the Resp. Bank alongwith list at Exh.12, corroborates the version of Resp.Bank and its two witnesses mentioned above. Therefore, it is logical to conclude that the bank has proved to have dispatched the original dishonored cheque and the cheque return memo to the complainant, by giving a correct address of the complainant which is declared by the complainant as his registered address at the time of opening the account with the Resp. Bank. The complainant denies to have received the said original dishonored cheque and the cheque return memo. May be the said envelope containing the original dishonored cheque and the cheque returned memo is lost in transit. It appears that the fact that the said envelope was lost in transit, was intimated to the Resp. Bank. This fact is clear from a letter dated 5/10/09 addressed by the Resp. Bank to the Belgaon camp branch of Canara Bank who was the drawee bank in this case, wherein the Resp. Bank has intimated to the drawee bank that the cheque No. 715227 dated 11/8/09 for Rs. 4 lakhs issued by one Smt. Shamala Shekhar Bane was returned by the said drawee bank on 22/8/09 that the said cheque was presented to the drawee bank by the Central Accounts office of the Resp. Bank at Belgaon. The Resp. Bank has requested the drawee bank to inform it whether the cheque was paid till 15/10/09 and further request is made to the drawee bank to take action, if the said cheque is presented for payment as the said cheque is reported as lost in transit. The drawee bank is also requested by the Resp. Bank to inform the address or the contact number of the drawer Smt. Shamala Shekhar Bane so that the Resp. Bank can take up the matter with her directly. From this letter, it is obvious that the Resp. Bank accepts the fact that the said original dishonored cheque and the cheque return memo was lost in transit.

 

12.       The learned counsel for the Resp.Bank Sh. Sakale has vehemently contended that as per the directions issued by the RBI in the matter of dishonor of cheque, in case of the dishonored cheque, the only responsibility which cast on the resp. Bank was to dispatch the original dishonored cheque immediately to the payee/holder. The learned counsel for the Resp. Bank has produced the relevant directives of the RBI to all scheduled commercial banks bearing No. DBOD.BC.Leg.No.113/09.12.001/2002-03 dated 26^th June 2003 which speaks about “Dishonour of cheques – procedure thereof”. The procedure in respect of the cheques presented for encashment through the clearing house, in terms of the uniform regulations and the rules for bank’s clearing house are containing in para 4.1(i). It says that the paying bank should return the dishonored cheques presented through clearing houses strictly as per the return discipline prescribed for respective clearing house. In terms of Uniform regulations and rules for banker’s clearing house, the collecting bank of receipt of said dishonored cheque should dispatch it immediately to the paying/holders. The further clauses speak about the cheque presented directly to the paying bank or the cheque dishonored for the want of funds etc. with which, we are not presently concerned. It is clear from these directives that there is a responsibility on the collecting bank, i.e. the respective bank in the present case to dispatch the original dishonored cheque alongwith the cheque return memo to the holders of the said cheque i.e. the complainant in this case, and from the evidence of Smt. Pradnya Saudagar and Rajaram Sarawade, the outward clerk and the peon of the respective bank respectively, the fact is proved that the Resp. Bank has complied with the said directives of the RBI. Therefore, we do not find any force in the contention of the complainant that the Resp. Bank has deliberately and with ulterior motive retained the original dishonored cheque and the cheque return memo, thereby depriving of an opportunity to pursue his legal remedies in the matter of dishonor of the said cheque or in the matter of recovering the amount of Rs.4 lakhs from the drawer of the said cheque by name Smt. Shamala Shekhar Bane.

 

13.       The learned counsel for the complainant vehemently contended that when the Resp. Bank has acknowledged the fact that the envelope containing the original dishonored cheque and the cheque return memo is lost in transit, by its letter dated 5/10/09 addressed to Belgaon Camp Branch of Canara Bank as per the directives of the Reserve Bank of India to the Resp. Bank being a collecting bank, the complainant is entitled to the compensation. In support of this contention, the complainant has relied on the guidelines of the RBI in relation to the collection of the instruments and the policy of the Resp. Bank styled as Policy of Collection of Cheques and Instruments and it has also further relied on the decision of the National Commission in revision petition No. 1645/08 in State Bank of India Nabha Branch Dist. Patiala Vs. Smt. Sita Devi dated 22/8/13. At the outset, it must be mentioned here that the guidelines relied upon by the complainant and the decision of the Hon’ble National Commission in the case cited by the complainant, are all relating to the loss of cheques in transit for collection. Here in the present case, the cheque deposited by the Resp. Branch was not lost in transit which in the process of collection. The said cheque was duly presented through the clearing house to the Drawee bank. The drawee bank had dishonoured the said cheque on the ground that the account of which the said cheque was drawn, was already closed down by the account holder, on the ground that the cheque book containing the cheque in question was lost much prior to the date of the said cheque and thereafter the said cheque was received by the resp. bank and then it was dispatched to the complainant as per the directives of the RBI in the matter of dishonor of the cheque which we have referred to above. Therefore, here the compensation policy in the matter of the lost instruments or cheques in transit, which are yet to be collected is not applicable. Therefore, reliance of the complainant on these policies and the judgments of the Hon’ble National Commission is unfounded. In the face of the proved fact that the envelope containing the original dishonored cheque and the cheque return memo were put in a sealed envelope which was properly addressed to the complainant, giving his registered address to the resp. Bank and it was duly dispatched through the post, we can raise the presumption of due service thereof u/s 27 of the General Clauses Act, unless, of course, the complainant has proved otherwise/contrary. The complainant has not proved anything in this matter. Therefore, it is clear that the resp. Bank has followed the directives of the RBI and acted in good faith and thus, it has not rendered any deficiency in service to the complainant.

 

14.       It is abundantly clear from the letter dated 31/10/09 received by the resp. Bank from the Belgaon camp branch of Canara Bank, which is filed on record by the Resp.Bank alongwith list at Exh.25 that the holder of the account on which the said cheque of Rs.4 lahs bearing No. 715227 was drawn on 11/8/09 was closed by the said account holder Smt. Shamala Shekhar Bane on 20/5/09 on the ground that she has lost the cheque book containing cheques bearing No.715221 to 715230. If the said account was closed on 20/5/09, on account of the cheque book containing cheque No. 715221 to 715230, then how come a cheque No. 715227 could be issued in favour of the complainant on 11/8/09, that too for a substantial amount of Rs. 4 lakhs. This is not explained by the complainant any time. It is obvious that the cheque in question was shrouded on the suspicious circumstances. The Resp. Bank is justified in contending that even in case of the loss of the said original cheque and the cheque return memo in transit, the complainant could have initiated the respective legal remedies on the basis of secondary evidence or he could have obtained a second cheque or duplicate cheque from the drawer. The complainant appears to have not done anything in the matter. Therefore, considering all these circumstances, it cannot be hold that the complainant has proved that the resp. Bank had given him any deficient service or has committed any unfair trade practice as alleged by him. Therefore, we hold accordingly and hence, we have answered the point No.2 in the negative.

 

15.       When the complainant has not proved his allegations or the deficiency in service or unfair trade practice on the part of Resp. Bank, he cannot claim any compensation from it much less the loss of profit, the cost of litigation, the notice charges, the amount of cheque from the resp. Bank. Therefore, in our considered opinion, the complainant is not entitled to any of the reliefs claimed. Hence, we hold accordingly and therefore, we have answered the point No.3 above in the negative.

 

16.       The Resp. Bank has prayed for dismissing this complaint with compensatory cost of Rs. 10,000/-. In the facts and circumstances of this case, we are not inclined to hold that the present complaint is either false or vexatious complaint. Therefore, there is no occasion to invoke the provisions of Section 26 of the Consumer Protection Act and therefore, we find and hold that the Resp. is not entitled to any compensatory cost other than the regular cost of this litigation. We therefore, hold accordingly and proceed to pass the following order :

 

1. The complaint is dismissed with the cost of Rs.2,000/-.

 

2. The complaint shall deposit the said amount within the period of one month

 

 

SANGLI

 

Dated : 26/03/2014

 

 

 

             Member                                   Member                               President