DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 31st day of December 2008.

Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

Smt. Bhanumathi.A.K. (Member)

C.C.No.151/2006

NarayanankuttyK.

S/o. Kunjan Nair

Kondoli House

P.O. Paruthur

Via Pallippuram

Ottappalam Taluk

Palakkad. - Complainant

(Advocate P.K. Mohanan)

V/s

1. The Manager

State Bank Of Travancore

Main Road

P B No.1

Pattambi – 679 303.

2. P. Bhaskaran

S/o. Velu Asari

Pakathu House

P.O. Paruthur

Via Pallippuram

Ottappalam Taluk - Opposite parties

(Advocate G. Ananthakrishnan)

O R D E R

By Smt. H. Seena, President

The facts leading to filing of the complaint is that, the Complainant has a joint account with his wife with 1st Opposite party. On 31/03/2006, he presented a cheque issued by the 2^nd Opposite party in favour of the Complainant for an amount of Rs.1,00,000/- drawn on Punjab National Bank, Pallippuram. The 1^st Opposite party has credited the amount in his pass book on 03/04/2006.

Complainant had withdrawn an amount of Rs.20,000/- on 21/04/2006 towards an urgent expenditure. The balance as on 21/04/2006 has entered as 81,025/- in his pass book. Later on 06/05/2006, he had received a notice from 1^st Opposite party stating that

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the cheque he had presented was returned as dishonoured and the amount he had withdrawn has to be repaid. Opposite party No.1 has not returned the dishonoured cheque even though the complainant requested for the return of the same. Again on 05/07/2006, complainant received a lawyer notice from the 1^st Opposite party stating that he had overdrawn an amount of Rs.18,975/- when the cheque stood as an unclear balance and he has to repay the said amount. The grievance of the complainant is that as the alleged dishonoured cheque is in the custody of the 1^st Opposite party and he had lost his valuable right to file a complaint against the IInd Opposite party under Section 138 of Negotiable Instrument Act. The act of the Ist Opposite party amounts to clear deficiency pf service. Hence the complaint.

Opposite party filed version. The main contention of the Opposite party 1 is as follows.

First Opposite party admits that Complainant is having a savings Bank account with them. According to 1^st Opposite party, on 21/04/2006, the Complainant had withdrawn an amount of Rs.20,000/-, when the amount of the cheque which was sent for collection was an unclear balance. On 22/04/2006, the above mentioned cheque which was sent to Pallippuram branch of Punjab National Bank for collection at the request of Complainant was returned stating insufficient funds

The complainant had actually overdrawn a sum of Rs.18,963/- from his account maintained by the Opposite party bank. Opposite party No.1 has send many reminders and notices and finally registered letter dated 06/05/2006 and a lawyer notice dated 05/07/2006 to the complainant.

The cheque amount was credited to the account of Complainant only on his request and believing that the cheque will be encashed. Accordingly the said amount was entered in the pass book of complainant even before encashment. As the complainant failed to return the amount overdrawn, Opposite party No.1 has filed a suit before the Munsiff court, Pattambi, on 21/12/2006. The crediting of unclear balance to the complainant's account can only be treated as discounting of the cheque. Once the cheque is dishonoured, Opposite party is

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entitled to withhold the cheque since it forms part of the transaction and it is the security for the amount overdrawn. Complainant is not entitled for any damages as claimed.

The evidence consists of proof affidavit and Exhibit A1 to A4 on the side of Complainant and proof affidavit and Exhibit B1 on the side of Opposite party.

The issues for consideration are,

1. Whether there is deficiency of service on the side of Opposite party No.1 ?

2. If so, what is the relief and cost?

Issues 1 & 2

The case of the complainant is that he has presented the cheque dated 31/03/2006 on the same date itself. The cheque was sent for collection and the amount was credited in his account on 03/04/2006. Later only on 21/04/2006, he has withdrawn Rs.20,000/-. Opposite party No. 1 states that the said cheque was credited to the account of the complainant itself on his request and believing that the cheque will be encashed and accordingly the said amount was entered in the pass book of complainant even before encashment. So according to both parties amount was credited to the account of complainant on 03/04/2006. The fact is also evident from Exhibit A4, pass book of the complainant.

The only question to be decided is whether this has been done at the request of the complainant as stated by Opposite party No.1. On perusing the evidence on record, it can be seen that other than mere pleadings, no evidence has been adduced by Opposite party, in support of their contentions. In the absence of any cogent and convincing evidence, the contention of Opposite party No.1 cannot be accepted.

Admittedly Opposite party No.1 has not returned the dishonoured cheque to the complainant. The act of Opposite party No.1 has prevented the complainant from initiating proceedings against Opposite party2. The contention of Opposite party No1 that they are

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entitled to withold the dishonoured cheque since the overdrawn amount has not been paid cannot be accepted in the absence of any evidence. Opposite party1 has not produced the dishonoured cheque before the forum.

In view of the above discussions we are of the view that the act of Opposite party No.1 amounts to clear deficiency of service. Opposite party No.1 ought to have credited the amount after sufficient verification. Complainant cannot be made to suffer on account of the negligence of Opposite party No.1.

As the deficiency of service of Opposite party1 is established, the complainant is entitled for compensation.

In the result complaint allowed. Opposite party1 is directed to pay an amount of Rs.81,025/- (Rupees Eighty one thousand and twenty five only) being the balance amount credited and an amount of Rs.20,000/- as compensation and Rs.1,000/- as cost within one month from the date of communication of this order , failing which the whole amount shall carry an interest at the rate of 9% per annum from the date of order till realization.

Pronounced in the open court on this the 31^st day of December 2008.

PRESIDENT(SD)

MEMBER (SD)

MEMBER (SD)

Exhibits marked on the side of complainant

1. Ext A1 – Notice issued from Opposite party 1 to complainant

2. Ext A2 – Lawyer notice dated 05/07/2006 send by Opposite party1 to complainant

3. Ext A3 – Reply

4. Ext A4 – Pass Book issued to complainant by OP1 for SB account.

Exhibits marked on the side of Opposite party

Ext. B1 – Certified copy of the complaint presented before Pattambi Munsiff court.

Costs

Allowed

Forwarded/By Order

Senior Superintendent