IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 28th day of November, 2016
Filed on 19.1.2013
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.35/2013
between
Complainant:- Opposite Party:-
Sri. K. R. Mohandas The Senior Manager
Kalathil, Pattanakkad P.O. South Indian Bank Ltd.
Cherthala Taluk Cherthala Branch
(By Adv. E.D. Zachariah) Cherthala P.O., Cherthala Taluk
(By Adv. P.K. Mathew)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the Proprietor of M/s. Jaya Coir Works and he has account with the opposite party bank in No.0120083000060672. Complainant has issued a cheque bearing No.881244 for Rs.75,000/- dated 7.9.2011 to Mr. Manoharan. But due to some technical reasons the cheque was not presented and encashed and it was not returned back, since it was a dated cheque. After 6 months it became a stale cheque. But later it was learnt that the date in the said cheque was erased, forged and fabricated as 17.5.2012 and the forged cheque presented before the opposite party and the cheque was encashed. The complainant has lost Rs.75,000/- due to the dereliction of service of the opposite party. The forgery and fabrication in the date of cheque is easily noticeable. But the time of presentation of the cheque, the bank officials ought to have verified the cheque. Due to the dereliction and omission of service the complainant was subjected to huge loss. The complainant submitted an application on 6.6.2012 before the opposite party to refund the amount of Rs.75,000/- and also requested to take appropriate action. But the opposite party quite unfortunately issued a reply dated 2.7.2012 setting forth untenable and baseless allegation with malafide intention to suppress the deficiency of service of bank officials and also to shirk away from their responsibilities. It can be easily noticeable that the date “7” is turned as ‘17’, “9” is turned as “5”, 2011 is turned as 2012. But the bank officials not carefully verified the forged and fabricated instrument and they encashed such an instrument and it caused huge loss of Rs.75,000/- to the complainant. The opposite party ought to have taken legal steps against the person who committed the forgery and fabrication and the complainant has submitted the application dated 6.6.2012 but the bank officials evaded the same. The acts of the opposite party are illegal, illmotivative, ultra virus and not in good faith and it caused much mental agony, inconveniences, loss of business etc. to the complainant. Alleging defect and deficiency in service on the part of the opposite party, the complaint is filed.
2. The version of the opposite party is as follows:-
The allegation that the cheque was dated 7.9.2011 and there is a material alteration is false. The cheque was drawn in order. No alteration is visible by naked eyes. No stop payment was given to the bank. There are regular cheques in the a/c. While this cheque came before the bank another cheque for Rs.1 lakh also was presented by Mr. Radhakrishnan who regularly comes to the bank for encashing cheques in the account of the complainant. The bearers of these 2 cheques told the counter staff that only one cash token need be issued to them for receiving payment and it was done accordingly which itself makes it clear that the encashment is with the knowledge of Mr. Radhakrishnan who is the man of the complainant. The complainant has no right to claim form the opposite party whereas if it all he has a cause of action it is against the drawer of the cheque namely Manoharan. The above complaint is filed in fraud and collusion with him. The intention of the complainant is unlawful enrichment alone is unheard to law. The cheque was passed as nothing could be found with naked eyes. Nothing prevented the complainant from issuing a stop memo. The cheque is passed during the ordinary course of business with normal prudence. There is deficiency in service on the part of the opposite party.
3. The complainant was examined as PW1. One witness was examined as PW2. The documents produced were marked as Exts.A1 to A3. The report of Forensic Science Laboratory is marked as Ext.C1. Opposite was examined as RW1. One witness was examined as RW2. Documents produced were marked as Exts.B1 to B3.
4. The points came up for considerations are:-
- Whether there is any deficiency in service on the part of the opposite party?
2) Whether the complainant entitled to get any reliefs?
5. Complainant issued a cheque bearing No.881244 for Rs.75,000/- dated 7.9.2011 to Mr. Manoharan. Due to some technical reasons the cheque was not presented and encashed and it was not returned since it was a dated cheque. According to the complainant the date in the said cheque was erased, forged and fabricated as 17.5.2012 and it was presented before the opposite party and the cheque was encashed and complainant has lost Rs.75,000/-. Opposite party filed version contending that no alteration is visible by naked eyes. They further contended that complainant has not issued stop memo to the bank and complainant has cause of action against the drawer of the cheque by name Manoharan. The disputed cheque was produced and marked as Ext.B1. Ext.B2 is the letter issued by the opposite party to the complainant regarding the complaint submitted by the complainant about the payment of cheque. In Ext.B2 letter opposite party stated that, they have made payment of the cheque for the following reasons:-
“1) The cheque was drawn in order, and the alteration in date (if at all there was any alteration) was not visible by our naked eyes.
2) The cheque was drawn as “bearer” cheque, and was not crossed also. An uncrossed bearer cheque can be encashed by any bearer, if otherwise in order.
3) If your good selves had the intention of not making the payment, you could have served a stop payment letter to the Bank. The cheque was issued on 17.09.2011 and till the date of payment, there was enough time for you to serve a stop payment letter.
4) While this cheque was presented at the bank’s counter another cheque for 10,000/- belonging to this account, drawn by you, was presented by one Mr.Radhakrishnan, who regularly comes to the bank for encashing cheques on your account. The bearers these two cheques told the counter staff that only one cash token need be issued to them for receiving the payment. This itself is a proof that it is with the knowledge of Mr. Radhakrishnan that the cheque was encashed.”
The manager of the opposite party bank was examined as RW1. While cross examining the RW1, she deposed that Exts.B1 and B3 cheques were encashed by Mr. Radhakrishnan and Manoharan. She again stated that both the cheques were presented on a single token. Moreover she deposed that in the case of a bearer cheque, bearer should sign on the back side of the cheque. To the question put by the learned counsel of the complainant, “Ext.B1 cheque- Manoharan endorse sNbvXn-«n-ÃtÃm?” She answered that, “ AsX-\n-¡-dn-bn-Ã. ” On perusing the Ext.B1 cheque, we came to see that on the back of the cheque it was signed by Mr. Vijayan. But according to the opposite party’s deposition, the picture of the Vijayan is not clear. According to the opposite party, Ext.B1 cheque was encashed with the knowledge of Radhakrishnan. Mr. Radhakrishnan was examined as RW2. He deposed before the Forum that, he has no knowledge about the Manoharan, the payee of the Ext.B1 cheque and also he has no knowledge about the signature put on the back side of the cheque. Moreover during the cross examination to the question put by the counsel, “ Xm¦Ä Øncw _m¦n sNÃp¶ Bfm-b-Xp-sImv cp sN¡n-\pw-IqSn Hä tSm¡¬ X¶-Xm-sW¶p ]d-bp¶p?” He answered as “ CÃ. ” So the statement given by the RW1 and RW2 are conflicting, hence it is not reliable.
6. Another contention of the opposite party is that no stop payment was given to the bank by the complaint. While the complainant was examined, he deposed before the Forum that he had informed the misplacement of the cheque to the opposite party. But since the validity o the cheque had already been expired, he believed the version of the opposite party that there is no need for stop payment. According to the complainant the matter was already settled with the drawee named Manoharan. The said Manoharan was examined as PW2. He deposed before the Forum that he had received the cheque dated 7.9.2011 for Rs.75,000/- from the complainant and since the amount was received before the date, he returned the cheque to the complainant. He identified the Ext.B1 cheque also. He also stated before the Forum that he has not made any endorsement on the back side of the Ext.B1 cheque. The allegation of the complainant is that the disputed cheque had been issued on 7.9.2011 and therefore its validity had lapsed after 6 months. The said allegation was proved by the deposition of the PW2. The contention of the opposite party is that the drawyee of the Ext.B1 cheque was not the person who was examined as PW2 is also not proved. The date shown in Ext.B1 cheque is 17.5.2012. The complainant alleged that the date in the cheque was erased, forged and fabricated as 17.5.2012. Since the expert opinion is necessary for the proper adjudication of the case, we have sent the cheque bearing No.881244 (Ext.B1) to the Forensic Science Laboratory, Thiruvananthapuram to ascertain whether there is any fabrication done in the cheque. Ext.C1 is the report submitted by the Examiner, Central Forensic Laboratory. In Ext.C1 report it is stated as follows:-
“1) There are marks of overwriting on the original figures in the red enclosed portion marked Q1 with an ink of different tint. However, it is not possible to ascertain whether ‘7’ has been altered to ‘17’by subsequent addition of ‘1’ or not.
2) The original figure in the red enclosed portion marked Q2 has been altered to the existing figure ‘5’ by partial physical erasing of original figure and overwriting with an ink of different tint. The original figure, remnants of which are visible, could not be deciphered completely.
3) The original figures of year ‘2011’ in the red enclosed portion marked Q3 have been altered to the existing figures of year ‘2012’ by altering the terminal ‘1’ to ‘2’ with an ink of different tint. There are marks of overwriting on medial figures ‘0’ and ‘1’ also.
4) There is no validated standard scientific method available in this laboratory to ascertain the absolute or relative age of writings.”
As per the Ext.C1 report there was alteration in the figures noted in Ext.B1 cheque. From the above discussion, we are of opinion that Ext.B1 cheque was dated 7.9.2011. It was manipulated as 7.5.2012, opposite party failed to notice the manipulation done on the Ext.B1 cheque without noticing the manipulation, they allowed to encash the disputed cheque. Opposite party failed to produce evidence with regard to the person who encashed the Ext.B1 cheque. The facts and circumstances of the case and the supporting report of the expert clearly shows that the cheque was one fabricated or manipulated and was allowed to be encashed without sufficient scrutiny by the opposite party bank expected in the ordinary course of banking transaction which amounts to deficiency in service on the part of the opposite party. The action on the part of the opposite party caused financial loss to the complainant and hence it is to be compensated by them.
In the result, complaint allowed. The opposite party is directed to pay a compensation amount of Rs.75,000/- (Rupee seventy five thousand only) to the complainant along with interest @ 8% per annum from the date of complaint till realization. The opposite party is further directed to pay an amount of Rs.5,000/- (Rupees five thousand only) towards costs of this proceedings. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the day 28th day of November, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - PW2 - Manoharan (Witness)
Ext.A1 - True copy of the letter dated 6.6.2012
Ext.A2 - True copy of the letter dated 2.7.2012
Ext.A3 - True copy of the advocate notice dated 24.7.2012
Ext.C1 - Examination report of Central Forensic Science Laborary
Evidence of the opposite party:-
RW1 - Priya Rajan (Witness)
RW2 - Radhakrishnan. P. (Witness)
Ext.B1 - Copy of the cheque for Rs.75,000/-
Ext.B2 - Copy of the letter dated 2.7.2012
Ext.B3 - Cheque for Rs. 1 lakh
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
