National Consumer Disputes Redressal
G. Kandaswamy vs Bank Of India on 28 September, 2007
Equivalent citations: I(2008)CPJ98(NC)
ORDER
K.S. Gupta, J. (Presiding Member)
1. Challenge in this revision is to the order dated 16.5.2007 of State Consumer Disputes Redressal Commission, Chennai allowing appeal against the order dated 10.7.2003 of a District Forum and dismissing the complaint. The District Forum had accepted the complaint with direction to the respondent to pay amount of Rs. 50,000 by way of compensation, Rs. 10,000 spent by the petitioner in defending the criminal complaint, refund amount of Rs. 75being debited towards charges for "stop payment" of the cheque and cost.
2. Petitioner/complainant was having a saving bank account with the respondent/opposite party(s) bank. He made a complaint to the respondent of the missing of cheques and stop payment thereof. After 12 days of the receiving of instruction to stop payment on 31.3.2001,achequeforRs. 1,45,000 was returned by the respondent with the endorsement "no sufficient funds". This cheque was stated to have been stolen by one of the partners of the petitioner. Based on above endorsement, a criminal complaint under Section 138 of Negotiable Instruments Act etc. was filed by Venkata Reddy, partner, before the 3rd Additional Munsif Court, Raj ahmundry against the petitioner. Petitioner alleged that in view of the said instruction, the respondent ought to have returned the cheque with the endorsement as "payment stopped" instead of "no sufficient funds" and because of the endorsement of "no sufficient funds" he was put to untold sufferings and financial loss. He had to attend the Court on each date of hearing. Alleging deficiency in service, a complaint seeking compensation was filed which was contested by the respondent, bank. It was alleged that on the date the cheque in question was presented, balance in the saving bank account of the petitioner was only Rs. 1,311. Therefore, cheque was returned with the endorsement--"no sufficient funds". It was denied that there was any deficiency in service on the part of bank or the petitioner is entitled to the amount claimed.
3. Before adverting to the submission advanced by Ms. Madhumita Bora for the petitioner, it will be profitable to refer to para Nos. 18 and 19 which has bearing in this case of the decision in MMTC Ltd. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. . This decision has also been relied upon by the State Commission. Said paras read, thus:
18. Lastly it was submitted that a complaint under Section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable.
19. Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi. It has been held that even though the cheque is dishonoured by reason of "stop-payment" instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this a rebuttable presumption. The accused can thus show that the "stop-payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a Court cannot quash a complaint on this ground.
4. Short submission advanced on behalf of the petitioner was that the respondent-bank was deficient in service as in view of the instruction given, the cheque in question ought to have been returned with the endorsement of "stop-payment" instead of "no sufficient funds" and the bank, therefore, cannot evade liability of payment of the expenses incurred by the petitioner in defending the criminal complaint filed by Venkata Reddy and pay compensation. From para 19 extracted above, it may be seen that even if a cheque is dishonoured by reason of "stop payment" instruction an offence under Section 138 of Negotiable Instruments Act is made out against the drawer. Petitioner does not dispute that only an amount of Rs. 1,311 was lying in balance in the saving bank account at the relevant time. Amount of the cheque in question was Rs. 1,45,000. In view of these facts and the ratio in Kuchil Kumar Nandi's case the respondent-bank cannot be ordered to pay the expenses allegedly incurred by the petitioner in defending the criminal complaint filed by his erstwhile partner-Venkata Peddy. Sir ce the compensation claimed is relateable to the said endorsement made on the cheque in question, it is also not payable. There is no illegality or jurisdictional error in the order passed by State Commission warranting interference in revisional jurisdiction under Section 21(b) of Consumer Protection Act, 1986. Revision petition is, therefore, dismissed.