BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27th day of March, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.176/2008

Between

Complainants : 1. Kannan S/o Alakarswamy

Mangalya House

Adimali Kara

Mannamkandam village

2. Bhasura Kannan

Mangalya House

Adimali Kara

Mannamkandam village

(Both by Adv: Naiju Raveendranath)

And

Opposite Party : The Manager,

Federal Bank Limited,

Adimali Branch, Adimali

(By Advs: Thomas Paul & Shiji Joseph)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complaint is filed against the deficiency in service of the opposite party bank. Complainants are husband and wife, they are conducting business at Adimaly. For that purpose they have started a joint SB account as No.4556 in the opposite party bank. On 10.06.2005, the Ist complainant went to Tamil Nadu for business purpose. So a cheque leaf of the opposite party bank as No.32051 was entrusted to the 2^nd complainant, duly signed and was kept in the business premises of the complainant's shop named “Mangalya Flowers”. Unfortunately the neighbourhood businessman named Kissinger willfully obtained the same without the knowledge of the 2^nd complainant. This matter was afterwards heard by the complainants. In order to avoid the misuse of the cheque leaf, complainants 1 and 2 approached the opposite party bank on 26.03.2007 and a written stop memo was given to stop the transaction of the said cheque, from the account of the complainants. "The said cheque leaf was signed only by the Ist complainant and it was not fully filled, so if anybody comes with that cheque, it should be returned". A written request was given by the complainants on 22.06.2007 to the opposite party bank to stop the payment of the said cheque leaf if it comes for collection. But the said cheque was produced by one Kilpart, Padhmanabhapura, Ernakulam District, filling an amount of Rs.30,000/- dated 10.04.2007 at the opposite party's bank. But the opposite party wilfully avoided the stop memo given by the complainants and the cheque was returned stating “funds insufficient”. So the person who presented the cheque filed a criminal case before the Additional Chief Judicial Magistrate Court, Ernakulam under Section 138 of the Negotialble Instruments Act against the Ist complainant. The complainant lost the opportunity to defend the case before the Additional C.J.M Court, Ernakulam because of the act of the opposite party. So this case is filed for getting compensation for mental agony caused to the complainant and also for deficiency in service.

2.The opposite party filed written version and admitted that the complainants 1 and 2 were having an account in the bank. It is also admitted that the petitioners issued a letter on 26.03.2007 reporting that cheque No.320511 had been mischievously taken and abused by Mr.Kissinger, a neighbouring business man. The said cheque was presented by one Kilpert for payment on 10.04.2007. But there was no sufficient fund in the account of the petitioners. So the cheque was returned by the bank noting the reason ”Insufficient funds”. The banks accounting transactions are fully computerized. If there was sufficient balance in the account of the petitioners, the system would have alerted the officer concerned about the stop payment when further processing of the cheque for debiting to the account is taken up. There was no occasion for the system to go further and examine the stop payment marking. The opposite party had no intention to malign the reputation of the petitioners nor had the opposite party any intention to commit any deficiency in service to the petitioners.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P6 marked on the side of the complainant and the oral testimony of DW1 and Ext.R1 marked on the side of the opposite parties.

5. The POINT :- Complainants are the joint account holders of the opposite party bank. One cheque leaf of the account was taken by neighbouring business man. A stop memo was given to the bank for the same. But when the cheque was presented for collection, nothing was written about stop memo. 1st complainant was examined as PW1. He deposed that there was joint account in the bank in the name of PW1 and his wife as 4556. They are conducting business at Adimali as 'Mangalya flowers'. One cheque leaf signed by PW1 was mischievously taken by one 'Kissinger', a neighbouring businessman. The said Kissinger threatened the complainant that he would prosecute the complainant under Section 138 of negotiable Instrument Act, by misusing the said cheque leaf. The complainant filed a stop memo before the opposite party bank stating that, the cheque would be presented before the bank for collection, and in that event, to dishonour the same with reason 'incomplete signature and payment stopped' copy of the same is Ext.P1. But when the cheque was presented before the bank for collection, the opposite party dishonoured the same with memo "insufficient funds". Then the said Kissinger filed a criminal case before the Additional C.J.M Court, Ernakulam as CC.919/2007 against PW1 under Section 138 of Negotiable Instrument Act for an amount of Rs.30,000/-. The complainant's chance for defending the said case was lost by the memo stating "insufficient funds" given by the opposite party. The opposite party was examined as DW1. The opposite party admitted that the Ist complainant has given Ext.P1 memo to the bank. But as per the laws and rules of the bank, if a cheque presented before the bank and if there is no sufficient funds for honouring the cheque, the opposite party no need to look into another reason, it can dishonour only by that reason. The bank is already computerised, so it will consider the first reason and will not look into another reason. The account of the complainants was either or survivor. So the signature of one person is enough and the signature is not incomplete. Copy of the dishonour memo of the bank is marked as Ext.R1.

Ext.P1 memo is admitted by the opposite party. As per Ext.R1 memo, 10th reason is 'Drawers signature incomplete" and the 20th reason is 'the payment stopped by the drawer'. The customer specifically requested the opposite party in a petition, to give a memo stating "the account stopped and signature incomplete" to the said Kissinger if he presents the cheque before the bank. Because, it was the only remedy available to the complainant to defend the criminal proceedings against him. The cheque was not for consideration. The said Kissinger 'mischievously" taken the cheque from the complainants and threatened him about the 138 case. That is why the complainant filed Ext.P1 to the opposite party. But the opposite party never intend to help the customer and deliberately gave a memo stating "insufficient funds"when the said Kissinger presented the same. That made the complainant's chance to defend the criminal case before the additional C.J.M Court. But he filed a C.M.P before the court stating the same. The opposite party never explained what prevented the opposite party to give a memo stating the reason given by the complainant. It means that there is no reason for disbelieving that

there was some collusion with opposite party and the said Kissinger. The second dispute is that whether the account was either or survivor. It is a joint account, as per PW1, the signature is incomplete because there is only one signature which is of PW1. But as per DW1, the account is either or survivor and so one signature is enough. But no evidence produced by the opposite party to prove the type of account. So we think that there is gross deficiency in the part of the opposite party. The complainant suffered a lot because of the criminal proceedings against him before the Additional C.J.M Court and his wife became a psychiatric patient. The complainant may have spend some amount for contesting the criminal case at Ernakulam, it can be counted as Rs.5,000/-. The complainant and his wife suffered a lot of mental pain because of the same. The act of the opposite party prevented the complainants from taking a good defence in the case. Rs.5,000/- can be awarded as compensation for mental pain caused to the complainants because of this. There is no evidence to show that the PW1 paid Rs.30,000/- to the said Kissinger because of the criminal case.

Hence the petition allowed. The opposite party is directed to pay Rs.10,000/- to the complainant as compensation for deficiency in service and Rs.2,000/- for the cost of this petition to the complainant within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 25th day of March, 2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/- SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainants :

PW1 - A. Kannan

On the side of Opposite Party :

DW1 - C.G. Alexander

Exhibits:

On the side of Complainant:

Ext.P1 - Stop Payment dated 26.03.2007

On the side of Opposite Parties :

Ext.R1 - Copy of dishonour memo of the bank