Date of Filing:30/01/2015
Date of Order:31/08/2017
ORDER
BY SRI.H.JANARDHAN, MEMBER
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 alleging the deficiency in service on the part of the OP and prays for orders to direct the O.P to pay Rs.50,000/- along with interest at the rate of 18% per annum and also to pay Rs.15,000/- towards damages.
2. The brief facts of the complaint is that in the month of August 2011 complainant approached one T.Murali requested for a financial help for a sum of Rs.50,000/- to meet his urgent domestic necessities and further assured that he will return the same within five months. Accordingly on the same day the said T.Murali issued a post dated cheque bearing No.801281 dated 28.1.2012 for a sum of Rs.50,000/- drawn State Bank of Mysore, NIMHANS Branch, Hosur Road, Bangalore and on the same day the said Murali requested the complainant to present the cheque complainant presented the above said cheque for encashment in Canara Bank KIDWAI Branch on 28.1.2012 and after that the said cheque was dishonoured and the same was returned dishonoured with an endorsement dated 1.2.2012 stating funds insufficient and the O.p bank authority had misplaced the said original cheque and after that on 23.2.2012 the O.P bank issued an endorsement that this “instrument is processed at our end”. Thereafter the complainant issued a legal notice to the said T. Murali but he never bothered to repay the said amount and after that the complainant with no other option filed private complaint before the concerned Magistrate but the learned Magistrate insisted for the original cheque for physical verification and hence the original cheque is just and necessary to proceed the case against T.Murali, from all the above acts of the O.P the complainant had lost Rs.50,000/- of the cheque amount and the said loss is on the account of the O.P negligent and deficiency in service. Thereafter the complainant left with no other option got issued the legal notice to the O.P to his counsel on 13.12.2014 calling upon the O.P to pay Rs.50,000/- of the cheque amount and the said notice was duly served on the O.p but the O.P did not claim the notice and the O.p never bother to reply and pay back the amount. the complainant left with no other option filed this present complaint.
3. Upon issuance of notice to O.P and the O.P. appeared through its counsel and filed version. In the version it is contended that, the compliant is not maintainable in law or on facts and same is liable to be dismissed in limine. Further contended the complaint is frivolous and vexatious as there is no deficiency of service on the part O.P. It is contended that the complaint is filed after a lapse of two years of the cause of action i.e. the cheque dated 28.1.2012 and presented the said cheque and got dishonoured on 21.2.2012. However the complainant issued a legal notice on 12.11.2014 i.e. after the lapse of two years and the complaint is filed on 21.1.2015 i.e. after a period of almost three years and hence as per the provision of the C.P. Act, 1986 the complaint is to be dismissed on this ground alone. However O.P contended that it is false to stated that O.P bank has misplaced the said cheque as the complainant subsequent to the dishonouring of the cheque approached the O.P bank and collected the original cheque bearing No. 801281 after signing the register maintained in the bank. The claim form dated 23.2.2012 issued by the State Bank of Mysore or the Item Copy request issued by the Canara Bank of correspondence between the bank and are not documents issued stating that the cheque was misplaced by the Bank. On the contrary O.P has the signature of the complainant in the ledger maintained by the bank. Where the complainant has sent for having receiving the said cheque in return in the ledger maintained by the bank. Further contended that the complainant has no cause of action as the complainant after receiving the original cheque from the O.p has filed this complaint with a mala-fide intention to make financial gains and further O.p denied all the allegations made in the complaint and on other grounds and ultimately prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and both parties have filed their affidavit evidence and also heard the arguments.
5. On the basis of the pleading of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complaint is barred by limitation?
(C) Whether the complainant is entitled to
the relief prayed for in the complaint?
(D) What order?
6. Our answers to the above points are:-
POINT (A): In the Negative.
POINT (B): In the Affirmative.
POINT (C) & (D): As per the final order
for the following:
REASONS
POINT No.(A):-
7. On perusal of the pleadings of the parties, it is not in dispute that, the complainant cheque in question presented to the bank for encashment but due to insufficient funds maintained in the account the said cheque got dishonoured. The allegation of the complainant is that the O.P bank misplaced the cheque.
8. Per-contra, O.P contended that, the cheque in question was received by the complainant by signing the register maintained by the bank. It is worth to note that the original register of the bank is also produced before the Forum as a part of evidence and the Forum also verified the register, wherein which it is found that the complainant by receiving the cheque in question signed the register. However, the complainant did not rebut the evidence that the signature on receiving of the cheque in the register is not pertaining to him. Per-contra the complainant has filed an affidavit stating that instead of issuing the original cheque the O.P bank has issued a certified copy of the cheque and the bank authorities told that this will be treated as original cheque. But the deposition of the facts in the affidavit is not proved inaccordance with law. In the absence of the any rebuttable evidence and on perusing the banking documents it is not possible for us to disbelieve the contention of the O.P that the complainant had received the cheque in question. It is pertinent to note that complainant is already initiated the 138 proceedings against the person who has issued the cheque and in the absence of the original cheque how can the court will take cognizance of the offence under Section 138 of the Negotiable Instrument Act. Hence, there is no force in the allegations of the complainant and also complainant utterly failed to prove deficiency in service on the part of the O.P. Accordingly we answered Point No.(A) in the Negative.
POINT No.(B):-
9. It is worth to note that, as per the saying of the complainant the cheque in question presented to the O.p bank on 28.1.2012 and the same was dishonoured on 21.2.2012 and the cause of action runs from the date when the complainant received the endorsement of dishonoured cheque from the bank i.e. from 21.2.2012 and the complaint is filed 30.1.2015 and hence we have no hesitation to hold that the complaint is also barred by limitation. Accordingly we answered point No.(B) in the Affirmative.
POINT (C) & (D):
10. Further the averments made above and on perusal of the entire evidence on record we are of the considered opinion that that the complaint is devoid of merits. Viewing from any angle, we are of the considered opinion that complainant has not proved any deficiency in service on the part of the O.P. and not entitled for the relief as sought in the complaint. On the basis of answering these Points, we proceed to pass the following:-
ORDER
1. The complaint hereby is dismissed. No order as to cost.
2. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 31st Day of August 2017)
MEMBER MEMBER PRESIDENT
*Rak
