Presented by Sri B.K.Pati, Member:-<br /> The present complaint pertains to deficiency of service as envisaged under the Consumer Protection Act. Its brief history is as follows:-<br /> <br /> 2 The Complainant, proprietor M/s Shreeram Sales Agencies, is a customer of the Opposite Party having his Cash Credit Account bearing No.01660/060210/00 previously numbered as 01660/060210. While availing of distributor-ship of the products of one Shree Banke Bihari Spices Private ltd, Delhi, carrying on business of spices, the Complainant submitted two numbers of undated blank cheques bearing No. 334980 and No.334981 to the said Shree Banke Bihari Spices Private Ltd towards security. In the course of business transaction Shree Banke Bihari Spices Private Ltd remained in due of Rs.57,427.20/-(Rupees fifty seven thousand four hundred twenty seven and twenty paise)only to the Complainant as on March-2005. The Complainant's request to the said farm to settle the account and clear up the outstanding dues was refused by the farm and instead, the farm threatened the Complainant to utilize the blank cheques if the Complainant raised any such claim. In view of such threat the Complainant instructed the Opposite Party, vide letter Dt.08/05/2006 to stop payment of the said two cheques, if sent for collection. The Complainant has deposited the required fee of Rs.110/- (Rupees one hundred ten)only per each cheque as required by the Opposite Party towards the cost of “stop payment” instruction on Dt.15/05/2006.<br /> <br /> 3. Shree Banke Bihari Spices Private Ltd utilized the undated blank cheque bearing No.334980 by inserting Rs.42,931/-(Rupees forty two thousand nine hundred thirty one)only dating the same to be 30/05/2006. When the said cheque reached for collection the Opposite Party, instead of endorsing the reason of “Stop Payment instruction” negligently dishonored the cheque endorsing “Exceeds arrangement”, though on the date the cheque was dishonored, there was sufficient balance in the account of the Complainant. The Complainant contends that, as a result of this negligent act of the Opposite Party, Shree Banke Bihari Spices Private Ltd initiated C.C.No.5064 of 2006 under section 138 of Negotiable Instrument Act against the Complainant before the Chief Metropolitan Magistrate, Tis Hazari Dist. Court, Delhi. The Complainant was also compelled to file Civil Suit No.100 of 2006 in the Court of Civil Judge, Senior Devision, Bargarh. The Opposite Party did not reply to the Complainant's notice Dt.16/05/2006 though it had received the same.<br /> <br /> 4 The Complainant contends that he has sustained loss of Rs.1,27,985/-(Rupees one lakh twenty seven thousand nine hundred eighty five)only due to unnecessary litigation expenses arising out of the wrong reporting of the Opposite Party while dishonoring the cheque. It has also lowered his prestige in the society causing serious stress of mental agony. For the above alleged deficiency of service of the Opposite Party the Complainant claims Rs.2,00,000/-(Rupees two lakh)only for mental agony and Rs.10,000/-(Rupees ten thousand)only towards litigation expenses. The Complainant claims from the Opposite Party a total amount of Rs. 3,37,985/-(Rupees three lakh thirty seven thousand nine hundred eighty five)only along with pendentelite and future interest.<br /> <br /> 5 The Opposite Party, in its version, contends that the account of the Complainant with the Opposite Party/Bank is a Cash Credit Account dealing with business transaction of the Complainant who has incurred a loan in shape of Cash Credit facility and the Complainant, therefore, not being a consumer within the meaning of the C.P. Act, the present complaint can-not be agitated before this Forum. The Opposite Party also says that the Complainant was not legally authorised to issue blank cheque in respect of a Cash Credit Account which has a credit limit and hence can not make any claim in relation to any untoward incident arising out of the same. Since the payer had not made any arrangement to honor a particular cheque, the endorsement “exceeds arrangement” is not wrong or improper, claims the Opposite Party. The Opposite Party further contends that it carried out the “stop payment” instruction made by the Complainant by not making any payment against the cheque. The Opposite Party denies any act of negligence on its part towards the Complainant in the matter. Besides, the payee is legally competent to prosecute the payer under Section 138 of N. I. Act. irrespective of the reason of dishonor and the same cannot be attributed to the Opposite Party's “exceeds arrangement” endorsement.<br /> <br /> 6. The Opposite Party denies the allegation of deficiency of service and unfair trade practice towards the Complainant and makes counter allegation that the Complainant has filed this false and frivolous case against it in order to escape from being prosecuted under the Section 138 of N. I. Act. The Opposite Party prays for dismissal of the complaint with cost.<br /> <br /> 7. Perused the complaint, the version of the Opposite Party thereto as well as the copies of documents filed by the Parties in support of their respective cases and find as follows:-<br /> Advancing loans to customers through Cash Credit facility is one of the modes of Banking service available to the customers/consumers and the Complainant, having a Cash Credit Account with the Opposite Party Bank is very much a consumer of the Bank and hence the present complaint is triable by this Forum. The Opposite Party does not disclose or put-forth the credit limit of the Complainant in respect of his Cash Credit Account and as to how he has crossed such limit by issuing any cheque exceeding the same. A consumer is legally entitled to agitate any untoward incident arising in the course of transactions that forms part of Banking service, before a Forum meant for the purpose. The claim of the Opposite Party that the payer i.e. the Complainant, had not made any arrangement to honor a particular cheque and so the endorsement “exceeds arrangement” is not wrong or improper , does not hold water, because the Opposite Party was required to make only such endorsement for which it had been formally requested through payment of necessary fee. The Opposite Party's contention that it carried out the “stop payment” instruction of the Complainant by not making any payment against the cheque in question, presents a distorted version of the fact. However, the Opposite Party is correct to hold that the payee is legally competent to prosecute the payer U/S 138 of N.I.Act irrespective of the reason of dishonor and the type of endorsement made by a Bank.<br /> <br /> 8. And, precisely for the said reason, as broached upon in the preceding para, the Complainant's claim that that Shree Banke Bihari Spices Pvt. Ltd initiated proceeding U/S 138 of N.I.Act that due to the wrong endorsement in the intimation slip by the Opposite Party cannot be accepted, because, dishonoring a cheque by the payer automatically invites his prosecution by the payee U/S 138 of the N. I. Act.<br /> <br /> 9. The following points, supported by copies of documents, lead to the truth of the matter and a just and proper finding thereon. The Complainant's letter dated 08/05/2006 requesting the Opposite Party to stop payment in respect of the two cheque in question, for which, the Complainant has paid Rs.110/-(Rupees one hundred ten)only towards fee for each cheque respectively, for such instruction, amply prove the fact of “stop payment” instruction by the Complainant. The certified copy of the intimation-slip of the Opposite Party obtained by the complainant from the Dist. and Session Court, Delhi, confirm the allegation of the Complainant that the Opposite Party has made the endorsement, “Exceeds arrangement,” and not “Stop payment,” as instructed by the Complainant. The copy of statement of account Dt.06/06/2006 issued by the Opposite Party itself shows that on the said date, of making the wrong endorsement of “Exceeds arrangement”, the Complainant had a balance of Rs.1,19,871.47/-(Rupees One Lac Ninteen thousand eight hundred seventy one and forty seven paise)only, whereas, the cheque which was dishonored was only for Rs.42,931/-(Rupees forty two thousand nine hundred thirty one)only.<br /> <br /> 10. From the above facts, three points emerge loud and clear that clinche the issue infavour of the Complainant.(a) that the Complainant's instruction was for “Stop Payment”, (b) that the Opposite Party had made the endorsement, “Exceeds arrangement”(c) that the Complainant had sufficient fund in his account on the date of the above endorsement by the Opposite Party. And, this, precisely tantamounts to an act of negligence by the Opposite Party resulting in deficiency of service towards the Complainant.<br /> <br /> 11. The incorrect endorsement by the Opposite Party, made the Complainant's position more vulnerable vis-a-vis the farm of Delhi, which sent the cheque for collection and the consequent proceeding U/S 138 of N.I. Act against the Complainant. The Complainant's plea that he had to file a Civil Suit in the Court of Civil Judge, Bargarh , becacuse of such situation, appears plausible.<br /> <br /> 12. The facts of the case corroborated by the copies of documents filed, results in the compelling conclusion that by making the wrong endorsement in the intimation-slip, the Opposite Party has committed negligence and deficiency of service against the Complainant.<br /> <br /> 13. The Complainant files documents to assert monetary claim incurred towards various expenses, but we feel that an award of Rs.25,000/-(Rupees twenty five thousand)only in his favour would meet the ends of justice.<br /> <br /> 14. In the result, the Opposite Party is directed to pay to the Complainant Rs.25,000/-(Rupees twenty five thousand)only towards cost/compensation/damages within thirty days hence, failing which the amount shall carry 12%(twelve percent) interest per annum till payment.<br /> Complaint allowed accordingly.<br />