BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 494/2003 Filed on 15.12.2003

Dated : 30.09.2009

Complainant:

A. Vincent, Greenland Travel Services, Kovalam, Vizhinjam P.O, Thiruvananthapuram-21.

(By adv. S. Williams)

Opposite party:

The Branch Manager, Bank of Baroda, Vanchiyoor Branch, Thiruvananthapuram – 1.

(By adv. K.G. Mohandas Pai)

This O.P having been heard on 31.08.2009, the Forum on 30.09.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had given a D.D for Rs. 16,419/- to opposite party on 02.04.2002 for crediting the same in his current A/c No. 284, that opposite party had issued a counterfoil of pay-in-slip No. 68428 dated 02.04.2002 after receiving the said D.D and that opposite party did not credit the same in complainant's account. On 07.07.2003 complainant sent a letter to opposite party calling upon them to credit the said amount in his current account within 10 days and even after receipt of the said letter opposite party did not credit the same in his account. Hence this complaint claiming the said amount with 18% interest along with compensation of Rs. 5,000/-.

Opposite party entered appearance and filed version contending that complaint is not maintainable under law, facts and evidences in this case, that complainant is not a consumer and that complaint is filed based on presumptions and assumptions. Banks are not receiving consideration for collecting cheques and as such there is no hiring of service and deficiency of service if any. Complainant had not deposited the D.D of Rs. 16,419/- as alleged. Complainant had deposited an instrument worth Rs. 43,977/- on 02.04.2002 as per pay-in-slip No. 68428 and the same was credited to his account on realisation. The entry is reflected in the ledger account also. Contentions contrary to are false and denied. Hence opposite party prayed for dismissal of the complaint with compensatory cost.

The points that arise for consideration are:-

1. Whether the complainant has deposited a D.D of Rs. 16419/- or an instrument of Rs. 47977 vide pay-in-slip No. 68428 dated 02.04.2002?

2. Whether there is deficiency in service on the part of opposite party?

3. Whether the complainant is entitled to get any reliefs?

In support of the complaint, complainant has filed proof affidavit in lieu of examination in chief and Exts. P1 to P3 were marked. Complainant has been cross examined by the opposite party. In rebuttal, opposite party has filed affidavit and Exts. D1 to D6 were marked. Opposite party has been cross examined by the complainant. One witness as DW2 has been examined and cross examined by the complainant.

Points (i) to (iii):- It has been the case of the complainant that complainant had given a D.D for Rs. 16,419/- to opposite party on 02.04.2002 for crediting the same in his current account No. 284 and that opposite party had issued to him the counterfoil of pay-in-sip No. 68428 dated 02.04.2002 after receiving the said D.D. It has also been the case of the complainant that though opposite party had received the said D.D for Rs. 16419/- from the complainant, the same was not credited in his current account, that on 07.07.2003 complainant had sent a letter to opposite party calling upon him to credit the said amount in his current within 10 days and that even after receipt of the said letter opposite party did not credit the said amount to his current account. Ext. P1 is the counterfoil of pay-in-slip issued by the opposite party to the complainant. As per Ext. P1, pay-in-slip No. is 68428, date is 02.04.2002 and the amount recorded for credit of C/A No. 284 is 16419/-. Ext. P2 is the copy of the letter dated 07.07.2003 addressed to opposite party by the complainant. Ext. P3 is the original Current Account Pass Book No. 284. As against the case of the complainant, the version of the opposite party is that the complainant had not deposited a D.D of Rs. 16,419/- on 02.04.2002, instead he had deposited an instrument/cheque worth Rs. 43,977/- on 02.04.2002 as per pay-in-slip No. 68428 and the same was credited to his account No. 284 on realisation, and the same is reflected in the ledger account also. It is further stated in the version that the letter dated 07.07.2003 was duly replied by the opposite party on 14.07.2003. Ext. D1 is the pay-in-slip No. 68428 dated 02.04.2002. On a perusal of Ext. D1 it is seen that the amount of Rs. 16,419/- is struck off and an amount of Rs. 43,977/- is rewritten. According to opposite party, complainant had not deposited a D.D for 16,419/- it was a cheque for Rs. 43,977/- drawn on HSBC, that the amount was erroneously stated by the complainant in pay-in-slip, however the same was corrected by the opposite party and the amount covered by the cheque was realised and credited the same in the account of the complainant on 05.04.2002. Ext. D2 is the copy of the outward clearing register. As per Ext. D2 two amounts- Rs. 81,461/- and Rs. 43,977/- are seen credited in the Account No. 284. the instruments are two cheques (No. 41247 & 41359) dated 01/04 and 02/04 which are seen drawn on HSBC. On perusal of Ext. D2, on 02.04.2002 no D.D is seen sent for collection in the Account No. 284. In Ext. P3 pass book also, the said amounts – Rs. 81,461/- and Rs. 43,977/- are seen credited on 05.04.2002. Ext. D3 ledger extract would also reveal the same. Ext. D4 is the reply letter dated July 14, 2003 addressed to the complainant by the opposite party. In the said letter, it is seen replied by the opposite party to the reference letter, Ext. P2, dated 07.07.2003 that the said paying-in-slip No. 68428 is in respect of the cheque bearing No. 41359 dated 02.04.2002 drawn on Hongkong & Shanghai Bank for Rs. 43,977/- (not Rs. 16,419/- as mentioned in Ext. P1 counterfoil) which has been credited to the current account on 05.04.2002. Ext.D5 is the original letter dated 07.07.2003 sent by the complainant to opposite party. Ext. D6 series include original pay-in-slips numbered from 68424 to 68427 and from 68429 to 68430 in connection with Current Account No. 284. The disputed pay-in-slip is numbered as 68428 by Ext. D1. It is pertinent to note that the pay-in-slip bearing No. 68428 dated 02.04.2002 (Ext. D1) and its counterfoil (Ext. P1) are filled with the same blue ink and style of handwriting is one and the same. The only difference is in respect of figure of Rs. 16,419/-, which is seen struck off and rewritten as Rs. 43,977/- in Ext. D1 whereas such a correction is not seen done in Ext. P1. In this connection, we have to peruse the deposition of the complainant in cross examination. In his cross examination PW1 has deposed “02.04.2002- ല്‍ 16419 രൂപയുടെ D.D കൊടുത്തതായാണ് ഓര്‍മ്മ. Daily transaction ഉള്ളതാണ് . എന്തൊക്കെ കൊടുത്തു എന്ന് ഓര്‍മ്മയില്ല. Pass book verify ചെയ്യുന്നത് വരെ pay-in-slip സൂക്ഷിക്കാറുണ്ട്..... Ext. P1 fill ചെയ്തത് ഞാനാണ്. Rs. 16,419/- യുടെ D.D ആണ് ഞാന്‍ ബാങ്കില്‍ കൊടുത്തത്. അത് ഏത് bank-ന്‍റെ D.D ആയിരുന്നു(Q) അത് കൃത്യമായി ഓര്‍മ്മയില്ല. Ext. P1-ന്‍റെ back-ല്‍ എഴുതിയില്ല.” PW1, in his cross examination admitted that the complaint about the alleged D.D dated 02.04.2002 was lodged after a lapse of one year and four months and that the said complaint was lodged, since the D.D dishonour slip was not returned by the opposite party. D.D മടങ്ങില്ല എന്ന് അറിയില്ലേ (Q) മടങ്ങിയില്ലെങ്കില്‍ എന്‍റെ account-ല്‍ പണം വരണം അല്ലെങ്കില്‍ D.D തിരികെ തരണം. A/c Payee Draft ആണോ? Yes - (then adds) ഓര്‍ക്കുന്നില്ല. On seeing Ext. D1, complainant said it is the pay-in-slip of Ext. P1, but the amount in it is seen written by somebody else. പരാതിക്ക് ആസ്പദമായ തുക , ആര്, എപ്പോള്‍ , എന്തിന് തന്നു? എവിടെയെങ്കിലും പറഞ്ഞിട്ടുണ്ടോ? (Q) ഞാനോര്‍ക്കുന്നില്ല. Affidavit-ലും ആ വിവരം പറഞ്ഞിട്ടില്ല. കൊടുത്ത pay-in-slip പ്രകാരമുള്ള തുക കിട്ടാത്തതില്‍ അത് പറയാന്‍ കഴിഞ്ഞില്ല. When asked about the person who issued the instrument of Rs. 43,977/-, PW1 said "ഇപ്പോള്‍ എനിക്ക് ഓര്‍മ്മയില്ല ". Rs. 16,419/- തന്നതാരാണ് എന്നതിന്‍റെ രേഖ ഹാജരാക്കാം. Though complainant agreed to produce the said documents showing the names of persons who had issued the aforesaid instruments for Rs. 43,977/- and Rs. 16,419/-, complainant did not produce it till date of hearing. In his cross examination, present Senior Manager (DW1) has deposed that on 02.04.2002 complainant had given a cheque for Rs. 43,977/-. The former Manager of the opposite party Bank has been examined as DW2. In his examination in chief, DW2 has deposed that Ext. D1 pay-in-slip was received by the opposite party Bank, when he was working as the Manager in the said bank. Ext. D1-ല്‍ എന്‍റെ ഒപ്പ് ഉണ്ട്. ഒരു സ്ഥലത്ത് amount എഴുതിയിരിക്കുന്നത് ഞാനാണ്. എന്‍റെ signature-ന്‍റെ അടിയില്‍ എഴുതിയിരിക്കുന്നത് ഞാനാണ്. Black ink കൊണ്ട് signature and amount എഴുതിയിരിക്കുന്നത് ഞാനാണ്. ഞാന്‍ എഴുതിയിരിക്കുന്ന തുക അക്കത്തിലാണ്. Ext. D1-ല്‍ താങ്കള്‍ എഴുതിയിരിക്കുന്നതിന്‍റെ വലതു ഭാഗത്ത് നീല മഷി കൊണ്ട് തുക എഴുതിയിട്ടുണ്ട്(Q) ഉണ്ട്(A) ടി നീല മഷി കൊണ്ട് 43977/- എന്ന് എഴുതിയിരിക്കുന്നത് ആരാണ് (Q) Bank-ലെ staff ആയിരിക്കാം എഴുതിയിരിക്കുന്നത്(A). When asked about who ought to fill the pay-in-slip DW2 has replied that it is to be filled by the party. Regarding the circumstances that led to correct the pay-in-slip, DW2 said if there was difference in the amounts in the pay-in-slip and instrument(cheque or D.D) attached thereto, the former could be corrected. In his examination in chief, DW2 said, instruments given by the party would be sent for collection and the same would be credited in the account of the person who gave it. Further, it is deposed by DW2, that after verification of the instruments received for collection, the same will be entered in the outward register, and thereafter they will be presented for clearing, that instruments if any returns after presentation, the same will be noted in the outward register as well as cheque-return register. On perusing Ext. D2 register, DW2 in his chief examination has deposed that the amount collected as per Ext. D1 has been recorded in Ext. D2. DW2 has further deposed that since there was correction in Ext. D1, the same ought to be informed the party. DW2 has been vehemently cross examined by the complainant. In his cross examination DW2 has admitted that Ext. P1 is the counterfoil of the Ext. D1. DW2 has further deposed that on receiving the pay-in-slip, the entire instrument will not be verified immediately, only after checking the name, the counterfoil will be sealed and returned the same to the party, that, the amount in the pay-in-slip and amount in cheque will be verified later. DW2 has further deposed that a counterfoil portion shows nothing, but an acknowledgement of the receipt of a particular instrument by the bank. It is further deposed by DW2 that he had signed in Ext. D1 only after verification of the instrument concerned, pay-in-slip and register. DW2 has further deposed that whenever a foil needs correction, normally, the passing officer would initial in it, since he was the passing officer in the relevant period in the opposite party bank, he had corrected the amount in the foil in his handwriting and put full signature in it. Though DW2 has been vehemently cross examined by the complainant, nothing was brought out from him by the complainant to attribute any deficiency on the part of opposite party. It is pertinent to point out that, complainant had lodged the complaint to the opposite party after the lapse of 1 year and 4 months, that the alleged instrument given to opposite party according to complainant is a D.D for Rs. 16,419/-, but he could not remember the name of bank which had issued the said D.D nor did complainant write the nature of the instrument on the back of Ext. P1/D1 pay-in-slip but he admitted that D.D date was 02.04.2002. Whereas DW2 categorically admitted that P1 is the counterfoil of Ext. D1 pay-in-slip and correction and signature was made therein since there was difference in amount stated in Ext. D1 and the instrument/cheque given along with Ext. D1 and that the amount realised therefrom is recorded in Ext. D2 on 05.04.2002. It is further to be noted that normally an instrument either be a cheque or D.D may not be possible to be encashed on the date of presentation of the instrument itself unless the drawer and drawee of the instrument is one and the same bank. Further, complainant has no case that Ext. D2 register is a concocted document, wherein the instrument dated 02.04.2002 for Rs. 43,977/- recorded in relation to A/c No. 284 is a cheque, and the same amount is seen credited in Ext. P3 pass book on 05.04.2002. Further though complainant in his cross examination agreed to produce the document showing who had issued instruments of Rs. 43,977/- and of Rs. 16,419/-, he did not produce it, nor did he mention the same in the complaint as well as affidavit. The initial onus of proving the nature of the instrument would rest on the complainant. Complainant has failed to do so. In view of the foregoing discussions and in the light of evidence available on records, we are of the considered opinion that the instrument attached with Ext. D1 was a cheque dated 02.04.2002 for Rs. 43,977/- drawn on HSBC and the same was encashed and credited in the A/c No. 284 on 05.04.2002 by Ext. D2 and Ext.P3 and that the correction made by opposite party in Ext. D1 was by bonafide reason. Complainant has not succeeded in establishing his case against opposite party. Deficiency on the part of opposite party not proved. Complaint has no merits which deserves to be dismissed.

In the result, complaint is dismissed. Parties are left to bear and suffer their own costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of September 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 494/2003

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vincent

II COMPLAINANT'S DOCUMENTS :

P1 - Receipt for credit of current account dated 02.04.2002.

P2 - Letter dated 07.07.2003 issued to the opposite party by the

complainant.

P3 - Current Account pass book of A/c No. 284.

III OPPOSITE PARTY'S WITNESS :

DW1 - R. Balachandran

DW2 - Joy Abraham.

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Receipt dated 02.04.2002.

D2 - Photocopy of ledger.

D3 - Statement of account.

D4 - Letter dated 14.07.2003 issued to the complainant.

D5 - Letter dated 07.07.2003 issued to the complainant.

D6 - Current account vouchers ( 6 Nos.)

PRESIDENT