BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                    

Dated this the 31^st January 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.22/2014

(Admitted on 16.01.2014)

Mrs. Shahida Farooq,

W/o Mr. Umarul Farroq,

Aged 35 years,

Residing at Ullal,

Mangalore, D.K.

                                                   ….. COMPLAINANT

(Advocate for the Complainant: Sri SRK)

VERSUS

The Manager,

State Bank of India,

Choto Mangalore Brank 03669,

Ullala, Mangalore  575020.

                                        …..........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri BNK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaints filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant contends she opened SB account with opposite party Bank in April 2013.  On  11.7.2013 complainant presented an Account Payee Cheque No.250833 dated 10.07.2013 for Rs.50,000/ drawn on Corporation Bank, Uppinangady Branh, Uppinangady issued in favour of one Mr. Mustafa K @ Kempi Mustafa.  On 12.7.2013 the complainant received message through SMS Banking of opposite party bank stating the said amount Rs.50,000/  has been credited to SB account and the available balance is Rs.1,00,926/ SMS from the opposite party bank at 3.53 pm.  On 16.11.2013 the complainant visited opposite party bank for making entries in her passbook she found to her surprise there is a deficit of Rs.50,000/ on 19.7.2013 Rs.50,000/ was debited from her account.  On enquiry with bank it was revealed by the staff of opposite party that this cheque No.250833 was not honoured by the banker of Mr. Mustafa K Kempi Mustafa i.e. Corporation Bank returned the original cheque with the memo with reason ‘funds insufficient’.   The opposite party bank ‘s fused to give any explanation to the complainant about not informing about the bouncing of the cheque.  When after 2 days she visited opposite party bank with her husband. Opposite party Bank returned the original cheque and memo of the Corporation Bank by then it was too late for the complainant to proceed with cheque bounce case as the cheque was outdated and she was deprived of filing the case against Mr. Mustafa K @ Kempi Mustafa alleging deficiency of service.   Complainant got issued legal notice it was not complied with hence the complaint for the relief claimed. 

II. Opposite party filed written version admitting complainant as an account holder in his branch presenting the cheque for Rs.50,000/ on 10.7.2013 and of complainant receive message from opposite party on 12.7.2013 through SMS Banking stating Rs.50,000/ had been credited to complainants account is also admitted.  But it was later on that SMS sent in due course was in error and in fact it was intended to be stated regarding the presentation of the cheque and sending same to the Corporation Bank on which the bank the cheque was drawn it requires more than a day to know as to whether her the cheque forwarded to drawer Bank is enchased or not. Hence there was a bonafide error in sending the SMS message.  The allegation of complainant was dismayed surprised or shock and debit of Rs.50,000/- is denied.   On 19.7.2013 of the opposite party delaying the informing to the complainant about the concern is denied.  The allegation of opposite party causing delay of any insufficient time under Negotiable Instruments Act as for the reason that it is not the date of the cheque that is to be taken into account but endorsement from the bank.  Under section 138 (b) of Negotiable Act.    Hence within a period of the 30 days from receipt from the bank the complainant to issue notice of the drawer over of the cheque calling upon to pay the proceeds of the cheque amount with the complainant did not availed for reasons known to her.   The allegation of deficiency in service is denied.  Hence seeks dismissal.

2.     In support of the above complainant Mrs. Shahida Farooq filed affidavit evidence as CW1 and produced documents got marked Ex.C1 to C3 as detailed in the annexure here below.  On behalf of the opposite parties not filed affidavit evidence.  

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

      The learned counsels for both sides filed notes of arguments.   We have considered entire case file on record including evidence tendered by the parties and notes of argument of opposite parties.  Our findings on the points are as under are as follows:             

                       Point No.  (i): Affirmative

                       Point No.  (ii):  Partly Affirmative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i): The complainant as an account holder in an opposite party there is customer and consumer relationship with the opposite party as a service provider is undisputed.  The cheque represented by complainant in respect of cheque present on 10.7.2013 an SMS Banking was received by complainant from opposite party mentioning crediting of the cheque amount of Rs.50,000/ to complainant’s bank but opposite party subsequently debiting the amount for insufficient of funds received from the drawer bank in the account of the cheque who issued the cheque to complainant but not informing of this bouncing of the cheque and debiting the account of the complainant according to the complainant being a provider of service is disputed by opposite party.  As such there is a dispute between the parties as contemplated under section 2(1)(e) of the C P Act  in the affirmative.

POINTS No.(ii): In the case on hand the opposite party specifically stated that it was an error in sending the credits of the amount to the account of the complainant to send the SMS through SMS Banking and when the cheque bounced on 19.7.2013 when the intimation from the Corporation Bank was received of an endorsement of an ‘insufficient fund’ in account of the drawer of the cheque in not intimating the complainant about the debiting of the amount in respect of the cheque. 

2.     The contention of the complainant is that due to such delay caused in giving intimation to the complainant till she visited the bank on 16.11.2013 for getting the entries in the pass book her right to file a complaint under section 138 of NI Act was lost. 

3.     Section 138 of NI Act 1881 reads thus:

Section 138 in The Negotiable Instruments Act, 1881 ¹⁸ [ 138 Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for ¹⁹ [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless 

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, ²⁰ [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation. For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]

Thus it is clear in respect of section 138 of NI Act as noted above as complainant did not receive intimation in writing about bouncing of the cheque presented by her in writing from opposite party till 16.11.2013 as rightly pointed out for opposite party, if the complainant so desired right to initiate proceedings under section 138 of NI Act is not at all lost.  Hence the claim of the complainant that remedy to complainant in the circumstances was lost is misconceived. 

4.     However in our view the opposite party cannot escape responsibility in sending wrong message in SMS banking to complainant of crediting Rs.50,000/ and in not sending message and intimating to complainant of debiting the Rs. 50,000/ on 19.7.2013 when the cheque issued by favour of complainant by Mr. Mustafa K @ Kempi Mustafa bounced.  Considering this as the remedy to complainant under NI Act was not lost to complainant for recovery of Rs.50,000/ as compensation of opposite party that is the amount of the cheque cannot be accepted.  However for the negligence on the part of opposite party in not intimating the bouncing of the cheque which is nothing but deficiency in service by opposite party to complainant and the debiting of the amount of the cheque from the SB Account of the complainant maintained with opposite party, awarding compensation of Rs.10,000/ inclusive of the cost of the case could meet the ends of the justice.  Hence we answer this point No.2 partly in the affirmative.

POINTS No. (iii): Wherefore the following order

ORDER

            The complaint is partly allowed.  Opposite party is directed to pay Rs.10,000/- (Rupees Ten thousand only) as compensation to complainant within 30 days if the amount is not paid to the complainant amount shall be  carry interest at 8 % per annum from the date of complaint till the date of payment.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open

       court on this the 31^st January 2017)

             MEMBER                                    PRESIDENT

(SRI T.C. RAJASHEKAR)         (SRI VISHWESHWARA BHAT D)

D.K. District Consumer Forum         D.K. District Consumer Forum

 Additional Bench, Mangalore           Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mrs. Shahida Farooq

Documents marked on behalf of the Complainant:

Ex.C1: Photostat copy of Bank Pass Book

Ex.C2: Office copy of Legal notice

Ex.C3: Postal Acknowledgement

Witnesses examined on behalf of the Opposite Party:

 Nil 

Documents marked on behalf of the Opposite Party:

Nil 

Dated: 31.01.2017                                    PRESIDENT