DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 5th day of February, 2020
C.D Case No. 02 of 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Smt. Sunarani Panda
W/o Padmalochan Panda
Vill/Po: Kadabaranga,
Ps: Agarapada,
Dist: Bhadrak
……………………. Complainant
(Versus)
1. The Branch Manager, Central Bank of India, Bhadrak
At: Nuabazar,
Po/Ps/Dist: Bhadrak
2. The Branch Manager, United Bank of India, Barapada
At/Po: Barapada,
Ps: Bhadrak (R),
Dist: Bhadrak
3. Sri Nirmal Chandra Pradhan,
Vill: Dankagadia,
Po: Barapada,
Ps: Bhadrak (R),
Dist: Bhadrak
……………………..Opp. Parties
Counsel For Complainant: Sri C. S. Sahoo, Adv & Others
Counsel For the O.Ps No. 1: Sri P. K. Rout, Adv
Counsel For the O.Ps No. 2: Sri P. Adhaya, Adv & Others
Counsel For the O.Ps No. 3: Set Ex-parte
Date of hearing: 14.08.2019
Date of order: 05.02.2020
BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps.
The facts of the this case as described in the complaint are to the effect that the complainant is a lady social worker in the field of organizing Women Self Help Groups particularly for social and economical development of women in rural areas. Complainant has been rendering service for last 5 to 6 years and for the said work, she had to attend Block Development Office at Bonth for various works of self help groups. On 27.05.2016 after finishing her work in Block Office, the complainant was returning from Bonth Block to Agarapada by a motor cycle and some where she lost her documents such as some papers relating to S.H. Groups, blank non-judicial papers and cheque book which were kept in a polybag. On the date of missing the documents, the complainant informed Agarapada police station in writing and the station dairy entry was made in the records of the said police station. The complainant came to know when a notice in 1 CC Case was received from the Court of S.D.J.M Bhadrak for bouncing of a cheque of Rs 1,00,000/-. After having the notice, the complainant immediately contacted the bank (OP No. 1) and enquired to know as to how the cheque was dishonored. When OP No. 1 Bank did not respond, the complainant who served notice on the O.Ps on dt. 23.09.2017 requesting them let her know the reason as to how the cheque was entertained when the signature of the account holder/complainant was not available on the body of the cheque. It is a fact that the complainant was an account holder of OP No. 1 bank bearing A/c No. 239149 and has been operating the same for a good number of years regularly. The complainant has alleged that when her banker received a cheque from the bearer, OP No. 1 should have verified the signature appeared on the cheque with reference to the specimen signature of the complainant already preserved with the said bank. But OP No. 1 bank without verifying the signature, issued a dishonor memo showing the reason to the effect that the cheque is dishonored due to insufficient of funds. Such action of OP No. 1 bank amounts to deficiency of service and it is also believed that the said OP has shown undue favour to the holder of the cheque who deposited the cheque in OP No. 2 bank for collection. On having the dishonor memo from the bank OP No. 3 filed an 1 CC Case in the Court of Hon’ble S.D.J.M Bhadrak and served notice upon the complainant for appearance. After receiving the notice the complainant rushed to his bank (OP No. 1) and lodged complaint for such unfair action but the said bank did not respond him. Further the complainant also served notice on OP No. 1 & 2 on 27.07.2017 requesting them to recall the cheque objection memo as the actual fact was not mentioned in the said return memo. Despite repeated requests and persuasions both the O.Ps did not turn up and took any action to rectify their mistake and being disappointed the complainant raised a dispute in this Forum praying for a direction to the O.Ps to cancel the return memo and to pay cost & compensation.
O.Ps strongly objected the allegations of complainant and contested the case. In submitting written version OP No. 1 has raised the question of maintainability of the case and also stated that the cheque was endorsed by OP No. 2 bank for collection which was dishonored due insufficient of funds in the account of the complainant. After receipt of the cheque when processed for transaction it was found that there was no sufficient balance in the account of the complainant and in result the said cheque was dishonored. Therefore it was not necessary to verify the signature of the complainant that appears on the cheque. Further the answering OP has also raised in the written version that a good number of cheques of the complainant were also returned with objection memo as there was not adequate balance in the account of the complainant. Therefore the answering OP has not committed any fault or mistake in issuing such return memo. The allegations made against the answering OP is not sustainable for which said dispute is liable to be dismissed.
OP No. 2, in it’s written version has raised the question of maintainability on the ground of barred by limitation and lack of jurisdiction. In explaining grounds OP No. 2 has stated that since a case U/s 138 of NI (Negotiable Instruments) Act is pending in the Court of S.D.J.M Bhadrak, this Forum has no jurisdiction to admit and adjudicate the case. Further it is also submitted in the written version that the complainant is not an account holder of the answering OP branch nor the OP has caused any deficiency of service to the complainant. The answering OP is the banker of OP No. 3 who has submitted the cheque for collection and the OP has discharged its duty with due diligence. Therefore no scope is there to verify the signature of the complainant since the specimen signature is available with OP No. 1 bank. It is further stated by the OP No. 2 that the alleged petition is of criminal in nature which is required to be adjudicated in the Criminal Trial Court and this Forum lacks jurisdiction to adjudicate the matter. In view of the above facts the complaint petition does not bear any merit against the answering OP and liable to be dismissed.
Though OP No. 3 has appeared before the Forum through Advocate on 03.03.2018 but did not submit any written version as a result of which the said OP has been set ex-parte after providing adequate opportunity.
Gone through the complaint, written version filed by O.Ps, perused the materials on record and observed as follows.
1. Primarily the O.Ps have raised the question of maintainability on the ground of barred by limitation and jurisdiction. OP No. 2 has specifically raised that case U/s 138 of NI Act has been instituted in the Court of S.D.J.M Bhadrak much before filing of dispute in this Forum. When a matter is sub-judice in a Criminal Court, another case on the same fact and matter cannot be adjudicated simultaneously in another Court. In objecting above contentions of OP No. 2, the complainant stated that she has filed this dispute in this Forum on the ground of deficiency of service of the O.Ps. The case pending in the Court of S.D.J.M Bhadrak is a case of criminal in nature but the case filed in the D.C.D.R.F Bhadrak is absolutely Civil in nature. There is no such provision in the law of the land that no Civil case can simultaneously be adjudicated in a Court in presence of a Criminal case pending in another Court. Secondly the dispute instituted in the Consumer Forum is Civil in nature as the O.Ps caused deficiency of service in issuing a dishonor memo without verifying the signature appears on the cheque with reference to the specimen signature already preserved with the same Bank. Issuing of dishonor memo without verifying the signature provided ample opportunity to OP No. 3 for filing a criminal case in the appropriate Court. If the signature of the customer of OP No. 1 Bank had been properly verified, the dishonor memo so issued should have contained the remark as “signature mismatching”. Hence because of the fault of OP No. 1 Bank, OP No. 3 got the privilege and opportunity to file a case relying on dishonor memo issued by the OP No. 1 Bank wrongly.
On perusal of materials on record it is believed and held that the OP No. 1 Bank has issued objection memo on the lost cheque superfluously which amounts to deficiency of service. As regards the point of limitation it is observed from the materials on record that the dispute has been filed within two years from the date of missing of the cheque as reported to the I.I.C Agarpada PS. Hence the objections raised by O.Ps are not sustainable in the present context.
2. It is evident from the record that the complainant has filed an FIR about missing of the cheque with the police. OP No. 3, on having got the blank cheque, has misused the same in submitting with OP No. 2 Bank for collection. OP No. 2, being the banker of OP No. 3, has transmitted the instrument to OP No. 1 Bank for collection and whatever objection memo it has received from the banker of complainant, has handed over to the customer that is OP No. 3. Thus there is no evidence against OP No. 2 Bank to have caused any deficiency of service and not found negligent and guilty and therefore the allegation made against OP No. 2 Bank is not sustainable.
3. When the instrument was presented for collection, it was the prime duty the banker of the complainant to verify the correctness of the signature appears on the cheque with reference to the specimen signature and should have mentioned the verification result in the dishonor memo. But in the instant case the banker of the complainant has grossly neglected in performing it’s legitimate duties as a result of which the complainant faced another Criminal proceeding and suffered from financial loss and mental agony. It is an admitted fact that there was no adequate balance in the account of the complainant on the date of presentation of lost cheque which does not bear the signature of the complainant. OP No. 1 Bank should have mentioned the result of signature verification in the dishonor memo in addition to insufficient of funds in the account of the complainant. So this clearly proves that OP No. 1 Bank has acted upon the cheque in a superfluous manner and liable to compensate for mental agony and harassment and also the cost incurred for facing the criminal proceeding U/s 138 of NI Act.
In view of the analysis made in the forgoing paragraph it is crystal that OP No. 1 has caused deficiency of service to the complainant and has resorted to unfair trade practice for which it is absolutely responsible for the subsequent litigations and liable to compensate. Hence it is ordered;
ORDER
The complaint be and the same is allowed against OP No. 1. OP No. 1 is directed to recall the dishonor memo issued against the cheque bearing No. 130040 and issue a revised dishonor memo specifically mentioning “the signature of the complainant does not match with the specimen signature preserved with OP No. 1 Bank”. Further the said OP is also directed to pay Rs 5,000/- as compensation and Rs 6,000/- as cost of litigation to the complainant for both Criminal and Civil case. This order must be complied by OP No. 1 within 30 days from the date of receipt of this order.
This order is pronounced in the open Forum on this day of 5th February, 2020 under my hand and seal of the Forum.
