Date of Filing:18.12.2007<br /> Date of Order:26.11.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 26TH DAY OF NOVEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2525 OF 2007<br /> <br /> Sri. Ameer Suhail,<br /> S/o Ameer Jan,<br /> R/at No. 35, II Cross,<br /> Muniveerappa Block,<br /> Palace Guttahalli,<br /> Vyalikaval, Bangalore 03. Complainant<br /> <br /> V/S<br /> 1. The Manager,<br /> Vijaya Bank,<br /> Shanky Road Branch,<br /> Palace Guttahalli,<br /> Bangalore 03.<br /> <br /> 2. Sri Uttam Chand,<br /> Proprietor of M/s Vardhaman Jewellers & Bankers,<br /> No. 17, II Main Road,<br /> Jabbar Block, Vyalikaval, Bangalore 03. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Section 12 of the Consumer Protection Act, 1986 to direct the opposite parties to rectify the mistakes and also for damages.<br /> The brief facts of the case are that, the complainant had lost two cheques bearing No. 820305 and 820310 pertaining to his account No.116763. Those were blank, not signed and also blank to all other particulars. To avoid complicities the complainant lodged complaint to the opposite party stating the loss and to mark it for stop payment and to inform the complainant in the event the cheques are presented for encashment. The complaint was lodged on 11/09/2006 and it was duly acknowledged by the opposite party. The complainant on 19/11/2007, received a notice stating that a cheque issued by him is bounced for a sum of Rs.2,00,000/- as insufficient funds by an endorsement dated 03/11/2007. On 04/12/2007 the complainant replied making of the fact that, it was lost and that stop payment is in effect regarding the lost cheques. Having made the complainant to stop the payment regarding the lost cheques on 11/09/2006, the opposite party had charged Rs.28/- as stop payment charges. The banker has failed in their duty to withhold the cheque and to make and return to the complainant or even making enquiry with the complainant. Hence the complaint. <br /> 2. Notice issued to opposite parties. Opposite parties appeared through their advocates. Opposite party No.2 appeared through Advocate and opposite party No.1 filed defense version stating that, the complainant is a customer and the averments made in para 1 of the complaint is totally incorrect. The complainant is not diligent and most of the cheques issued by him were dishonoured whenever the same was presented for payment and he is negligent in maintaining the account. The complainant is not definite whether the cheques were lost or stolen by third party. The complainant is not in a position to explain to this Forum under what situation and under which circumstances the cheques were issued to Uttam Chand. As per the averments made in para 2 and 3 of the complaint it is clear that there is a clear collision between complainant and Uttam Chand. The complainant has not chosen to take any steps against Uttam Chand. According to the complainant the said Uttam Chand is holding the cheques illegally. The averments made in para 3,4,5 and 6 of the complaint are baseless and those averments are made just to claim some compensation from the opposite party without impleading and taking any action against the holder in due course of the cheques. The averments made in para 7,8 and 9 of the complaint are baseless. In view of all reasons stated above the opposite party No.1 prayed to dismiss the complaint. <br /> 3. Affidavit evidence of opposite party filed. Arguments are heard.<br /> 4. The point for consideration is:-<br /> “Whether the complainant has proved any deficiency in service on the part of the opposite party?” <br /> <br /> REASONS<br /> 5. The learned counsel for the opposite party referred to us a direct decision of Hon’ble National Commission, New Delhi which is quite applicable to the facts of the present case. The said decision is reported in I(2008)CPJ 98(NC) G. Kandaswamy (Petitioner) Vs. Bank of India(Respondent) wherein it has been held as under:-<br /> Consumer Protection Act, 1986 – Sections 2(1)(g) and 21(b) – Negotiable Instruments Act, 1881 – Section 138 – Banking and Financial Services – Dishonour of cheque – Stop payment instructions made – Cheque returned with endorsement “no sufficient funds” – Criminal complaint filed against complainant – Deficiency in service on part of bank alleged – Complaint allowed by Forum – Order set aside in appeal – Hence revision – Amount of cheque in question Rs.1,45,000 – Balance of Rs. 1,311 lying in complainant’s account – Cheque even if dishonoured by reason of ‘stop payment’ instruction, offence under Section 138, N.I Act is made out against drawer – Bank not liable to pay expenses incurred by complainant in defending criminal case – Compensation claimed relatable to endorsement made on cheque, not payable – Order of State Commission upheld.<br /> In this case also the complainant had given request letter to stop payment of cheque Nos.820305 and 820310 on 11/09/2006. The cheque bearing No.820305 was presented by Uttam Chand on 29/10/2007 to the Bank and the Bank issued insufficient fund endorsement on 03/11/2007 to Uttam Chand. Admittedly, on the date of presentation of cheque in the complainant’s account there was no sufficient fund to honour the cheque. The said cheque was for Rs.2,00,000/-. As per the S.B A/c of the complainant there was no sufficient amount in his account. No doubt the complainant had given stop payment request in September-2006 and after more than one year Uttam Chand said to have presented the cheque to the Bank. The opposite party Bank returned the cheque with an endorsement as no sufficient fund instead of stop payment endorsement. Even if cheque dishonoured by reason of stop payment instruction offence U/Sec.138 of N.I Act prima-facie is made out. It cannot have made any difference between endorsements, no sufficient funds or stop payment. Admittedly, the complainant has not suffered any financial loss by issue of endorsement by the opposite party Bank. By relying upon the above authority of law the complaint deserves to be dismissed. The opposite party Bank cannot be held responsible for issue of insufficient fund endorsement. On the facts of the case no deficiency in service is made out on the part of the opposite party Bank. Therefore, the complainant is not entitled for any grant of compensation. The learned Advocate for the complainant argued that Uttam Chand has filed private complaint for the offence punishable U/Sec.138 of N.I Act against the present complainant. In that case the complainant has to defend his case and prove the facts that cheque leaves have been stolen or lost and the said cheque leaves were blank and not signed by him. Uttam Chand has forged his signature. All these things shall have to be proved and established before the Criminal Court. If Uttam Chand has committed any offence it is for the complainant to take suitable action against him by filing criminal case for cheating and forgery etc.,. As regards this Forum is concerned, we cannot deal with the matters of forgery, theft of cheque leaves etc.,. The complainant has to take action as per law against Uttam Chand for misusing the cheque leaves. Therefore, the present complaint filed is not maintainable and same deserves to be dismissed. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The Complaint is dismissed. No order as to costs. <br /> 7. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> 8. Pronounced in the Open Forum on this 26TH DAY OF NOVEMBER 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br /> Rhr.<br />