Tamil Nadu

North Chennai

167/2013

A.P.Periasamy, - Complainant(s)

Versus

The Manger, Indian Bank, Jawhar Nagar Branch, - Opp.Party(s)

V.Manisekaran

08 Oct 2016

ORDER

                                                              Complaint presented on  :  27.08.2013

                                                                     Order pronounced on  08.10.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

SATURDAY THE 08^th  DAY OF OCTOBER 2016

 

C.C.NO.167/2013

 

 

A.P.Periyasamy,

No.C 489, 9^th Street,

Periyar Nagar,

Chennai – 600 083.

                                                                                 ..... Complainant

 

..Vs..

 

1.The Manager,

Indian Bank,

Jawahar Nagar Branch,

Chennai – 600 082.

 

2.The Manager,

Syndicate Bank,

Villivakkam,

Chennai  - 600 049.

 

3. Mahalingam,

Office Assistant,

Indian Bank,

Jawahar Nagar Branch,

Chennai – 600 082.

...Opposite Parties

Date of complaint                                   : 04.09.2013

Counsel for Complainant                       : V.Manisekaran

Counsel for 1^st & 3^rd Opposite parties      :M/S. Rajendran Raghavan

 

Counsel for 2^nd Opposite Party                       : M/S. C. Mahadevan

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IN BRIEF:

          The Complainant is an agriculturist and who had borrowed a sum of Rs.2,00,000 from his friend Mr.Dillibabu and who is residing at Villivakkam, Chennai. The said Dillibabu issued a crossed cheque for Rs.2,00,000/- cheque No.908178 dated 07.06.2013 drawn on the 2^nd Opposite Party branch. On 08.06.2013 the Complainant with his son P.Rajukumar went to the 1^st Opposite Party branch prepared a challen and deposited the said challen with cheque with the 3^rd Opposite Party. The 3^rd Opposite Party informed him that the cheque would be cleared in 48 hours. The said was not credited in his account. He had contacted his friend Mr.Dillibabu and who in turn verified with his 2^nd Opposite Party and learn that the amount was paid to a 3^rd party. A Complaint was lodged with the 1^st Opposite Party and he in turn verified with 2^nd Opposite Party bank and who verified in the close circuit camera shows a person presented the cheque and obtained   cash and the same was paid  to him without verifying his identity. The said Dillibabu lodged with the 2^nd Opposite Party. The Complainant filed a Complaint before the Peravallur Police Station and case in crime No.1382/2013 on 10.07.2013 registered and the same is pending. The 1^st Opposite Party failed to give credit in his account in respect of the cheque amount and the 2^nd Opposite Party without verifying the identity paid the amount to a  3^rd party proves that the Opposite Parties committed Deficiency in Service  and thereby caused mental agony to the Complainant. Hence the Complainant filed this Complaint to order compensation payable by the Opposite Parties with cost of the Complaint.

2. WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

          a) This Opposite Party states that the Complainant on 08.06.2013 visited the 1^st Opposite Party branch and made enquiries.

          b) Subsequently on 20^th June and later, there was a call from the police station that the Complainant had made a Complaint to them about non-receipt of the amount of a cheque from this Bank.

          c) On receipt of the information, there was a thorough enquiry made and it was found that there was no such cheque was deposited by the Complainant with this Opposite Party.

          d) There was no record of proof for the same alleged by the Complainant. Hence this Opposite Party advised the Complainant to properly verify and pursue his remedy if at all that remains one for him.

          e) The Complainant made a representation that he had on 08.06.2013 deposited an account payee crossed cheque drawn on syndicate bank, Villivakkam branch for Rs.2.00 Lakhs and that the said money was not received by him.

          f) After the receipt of the said letter, this Opposite Party made enquiries and it was made known that the alleged cheque was encashed across the counter at Syndicate Bank Villivakkam Branch.

          h) This Opposite Party made some enquiries with the Syndicate bank branch wherein it was revealed that, the payment was effected by the second Opposite Party across the counter, but there was a small mutilation in the top part of the cheque. The Opposite Party prays to dismiss the above Complaint as devoid of merits.

3. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

          This Opposite Party submits that the Complainant presented the cheque in question with this Opposite Party for encashment. The Complainant has represented that he is the beneficiary of the said cheque and for his urgent needs he immediately required funds and thereby requested this Opposite Party to make the payment in respect of the aforesaid cheque and the Opposite Party on believing that the Complainant is the beneficiary of the said, cheque the amount was paid to the Complainant.  The Complainant presented the cheque in question across the cash counter and the Complainant told his mobile number to this Opposite Party and this Opposite Party verified the mobile number of the Complainant furnished by him orally with the mobile number of the Complainant with the mobile number found in the reverse side of the cheque in question and after satisfying that both are the same and the person presented the cheque for encashment is the A.P.Periyasamy who is the Complainant made the payment to the Complainant. Therefore it is false on the part of the Complainant to state that without verifying identity of the person, this Opposite Party made the payment to 3^rd party. The cheque in question did not found two transverse lines i.e crossing and hence the said cheque  is the bearer cheque and hence this Opposite Party rightly made the payment to the Complainant. This Opposite Party submits that they came to know that  on 20.06.2013 the Complainant lodged a police Complaint and this Opposite Party is not aware about the FIR bearing No.1382/2013 filed by the Complainant. This  Opposite Party is no way concerned or connected with the transaction between the Complainant and the 1^st Opposite Party and hence due to that reason only, the Complainant restricted his relief against the first Opposite Party and as there is no privity of contract between Complainant and this Opposite Party. There is no deficiency in Service on the part of this Opposite Party. This Opposite Party submits that the first Opposite Party has to explain, how the cheque in question came to the hands of 3^rd person to present the same and withdraw the cash across the counter and hence the burden is on the Complainant and also on the 1^st Opposite Party to submit satisfactory explanation how the cheque has moved out from their custody.

4. WRITTEN VERSION OF THE 3^rd OPPOSITE PARTY IN BRIEF:

          The 3^rd Opposite Party denies all the averments made in the Complaint against him. Further, he adopts the written version filed by the 1^st Opposite Party and therefore prays to dismiss the Complaint with costs.

5. POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite parties?

          2.Whether the complainant is entitled to any relief? If so to  what extent?

6. POINT NO:1

The case of the Complainant is that his friend    Dillibabu  issued a cheque to him drawn on 2^nd opposite party bank cheque for a sum of Rs.2,00,000/- dated 7.6.2013 and the said cheque is crossed in favour of the Complainant and on 8.6.2013 the Complainant went to the 1^st opposite party bank with his son and prepared the challan and deposited the said cheque which was received by the 3^rd opposite party and he assured to the Complainant that the cheque will be cleared within 48 hours and on 09.06.2013 he left to his native place believing that the cheque will be credited in his account and after some time the Complainant contacted the Dillibabu and he informed him that the same was not claimed and then Mr. Dillibabu contacted the 2^nd opposite party bank and  on enquiry he came to know that the said cheque was claimed in the 2^nd opposite party counter and that time it was signed by the 3^rd party and amount was given to the 3^rd party and then a complaint was lodged with Indian Bank and they verified with the 2^nd opposite party with the closed circuit camera clearly shows a person presented the cheque and  the 2^nd opposite party without verifying identity paid the cheque amount to a 3^rd party and thereby committed deficiency in service.

          7. According  to the Complainant the CCTV camera  shows the presentation of the disputed cheque and obtained cash and without verifying the identity of the person the cash was paid to him. The cheque holder Dillibabu is the account holder of the 2^nd opposite party bank and he issued Ex.B1 for a sum of Rs.2,00,000/- to the Complainant. As contended by the Complainant  if the amount is really paid to the 3^rd party that would have  been recorded in the CCTV Camera. However the 2^nd opposite party replied that during the relevant period there was no circuit camera installed in the branch. Whether CCTV camera is available or not requires an elaborate enquiry to decide the same. Admittedly on the reverse side of the cheque one signature and a mobile number is available. Undisputedly the mobile number belongs to the Complainant. However the Complainant disputes that he had not written his mobile number and he had not signed the same. On primafacie comparison of the signature found on the reverse side of the cheque, is compared with that of the signatures of the Complainant available in the complaint filed in this case and Ex.A4,Ex.A5 and Ex.A6 filed as documents clearly establishes that the signatures found in the complaint and the documents are one and the same and the signature found on the reverse of the cheque is different. Since the Complainant contended that he had presented the cheque at the 1^st opposite party drop box is true or not, how the said cheque was encashed in the 2^nd opposite party counter is a question. For such question, there is no answer from the Complainant and therefore it requires elaborate enquiry to find out whether actually the Complainant presented the cheque in the 1^st opposite party drop box and who actually encashed the Ex.B1 cheque at the 2^nd opposite party cash counter.

          8. The original cheque of Ex.B1 was not produced before this Forum. The Complainant preferred Ex.A7 FIR with the police . According to the Complainant still the investigation is pending. Further as alleged by the Complainant the cheque dropped in the box was taken by somebody else and encashed at the 2^nd opposite party counter, it is only a case of fraud. To decide the fraud it requires detailed enquiry and evidence. Therefore considering all the aspects discussed all above that to decide the case of fraud who actually encashed the cheque, the result of the criminal case is not known and who has signed on the reverse side of Ex.B1 cheque and received the cash and whether the 2^nd opposite party staff concerned who paid cash for the said cheque diligently not taken care to ascertain the identity of person who received the cash and to clarify all these points, it definitely requires elaborate evidence and therefore in view of such conclusion we hold that at this stage the opposite parties have not committed any deficiency in service.

 

 

9. POINT NO:2

          The elaborate enquiry requires by way of letting oral evidence and further documents on either side. The same could be possible only by way of filing a civil suit and to get remedy. Therefore it would be appropriate to direct the Complainant to file a Civil Suit with the same set of cause of action to get Redressal from the civil court and accordingly this point is answered.

In the result the Complaint is dismissed with liberty to the Complainant to file a Civil Suit with same set of cause of action within two months from the date of this order and  to work out his remedy in the manner known to law. There will be no order as to costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 08^th  day of October 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 07.06.2013                 Cheque bearing No.908178

Ex.A2 dated 08.06.2013                 Challan

 

Ex.A3 dated 20.06.2013        Police Complaint

 

Ex.A4 dated 03.07.2013                 Complaint to the 1^st Opposite Party

 

Ex.A5 dated 06.07.2013                 Complaint to the 1^st Opposite Party

 

Ex.A6 dated 22.06.2013                 Complaint to the 2^nd Opposite Party

 

 

Ex.A7 dated 10.07.2013                 FIR

 

Ex.A8 dated  NIL                  Two CD copy

 

Ex.A9 dated  08.06.2013                 Video & Snap Shots

 

LIST OF DOCUMENTS FILED BY THE 2^nd   OPPOSITE PARTY:

Ex.B1 dated 07.06.2013                   Syndicate Bank Cheque

 

 

LIST OF DOCUMENTS FILED BY THE 1^st & 3^rd  OPPOSITE PARTIES:

                                      …… NIL…….                                 

 

MEMBER – II                                                               PRESIDENT