State Consumer Disputes Redressal Commission
Tripura Bank, Represented By The ... vs Shri Rupam Mallik, Son Of Shri Kumud ... on 7 May, 2012
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
TRIPURA
Appeal Case No.F.A-02/2012
Tripura
Bank, Represented by the Chairman,
Head Office, Abhoynagar, Agartala.
The
Branch Manager, Tripura Gramin Bank,
Jogendranagar Branch, P.O-Jogendranagar,
Agartala.
. . .
. Appellants.
Vs
Shri Rupam Mallik,
Son of Shri
Kumud Mallik,
Resident of Kata
Sheola,
P.S-East Agartala,
District-West Tripura.
. .
. . Respondent.
PRESENT :
HONBLE
MR.JUSTICE A.B.PAL,
PRESIDENT,
STATE COMMISSION
MR.B.K.SHARMA,IAS (Retd),
MEMBER,
STATE
COMMISSION.
For the Appellants : Mr.A.K.Bhowmik,Sr. Adv.
For the Respondent : Mr.K.N.Bhattacharjee,Sr.Adv.
Date of Hearing : 18-04-2012 &
26-04-2012.
Date
of delivery of Judgment : 07-05-2012.
J U D G M E N T
Pal,J , This appeal has arisen from the judgment of the District Forum, West Tripura, Agartala dated 24-01-2012 in C.C-59 of 2009 whereby the appellant-Gramin Bank and its branch Manager have been held to be jointly and severally liable to pay Rs.2,50,000/- being value of a cheque lost by the bank along with Rs.5,000/- as compensation and Rs.2000/- as litigation cost.
2. The admitted fact in short is that the respondent-Rupam Mallik deposited in his account in the Gramin Bank, Jogendranagar Branch a cheque issued in his favour by one Santanu Chowdhury for an amount of Rs.2,50,000/-
drawn on SBI account at Bishalgarh Branch. The Gramin Bank sent the cheque to the SBI, Bishalgarh branch for collection but it returned dishonoured on the ground of insufficient fund. The cheque was returned to the respondent on 29-12-2008. But the respondent again deposited the cheque with request to send it again to the SBI account as he was assured by Shri Chowdhury that sufficient fund was then available in his account. The cheque was accordingly sent to SBI on 22-01-2009 but again dishonoured on 03-02-2009. SBI Bishalgarh branch sent the dishonoured cheque to the Gramin Bank, Bishalgarh branch on 03-02-2009. On the same day Gramin Bank Bishalgarh branch sent it to the Jogendranagar branch of the Gramin Bank with SBI note of refusal. According to the Jogendranagar branch it did not reach them at all. The branch had therefore, no occasion to inform the drawee. On 24-06-2009, after about five months the drawee Rupam Mallik wrote a letter to the Manager, Jogendranagar branch seeking information about collection of the money. Then only they began to search and trace the cheque to presume finally that it was lost in transit. The respondent was informed accordingly by the Gramin bank. The original cheque could not, however, be returned as it was lost in the transit. A photocopy of the cheque and a bankers note that the cheque was dishonoured was made available to the respondent. But the respondent did not take any step against the drawer under section 138 of the N.I.Act. Instead, he filed complaint before the District Forum demanding that he could not proceed against the drawer of the cheque as the original cheque was lost. He, therefore, claimed that the entire amount of the cheque along with compensation should be slapped on the Gramin Bank only.
3. The appellant-Bank admitted that the cheque was lost but contended inter alia, that even without the original cheque it was possible for the drawee to proceed against the drawer for bouncing of the cheque under section 138 of the N.I.Act. For loss of a cheque a bank could not be liable to pay the value of the cheque as per relevant provision of law.
4. We have heard learned counsels for the parties.
5. The only question which has fallen for consideration is whether the respondent suffered any loss for the failure of the appellant-bank to return the original cheque. In other words whether it was impossible for the respondent to proceed against drawer without the original cheque on the basis of the bankers note only for realization of the money under the N.I.Act.
The relevant provision is Section 146 of the N.I.Act 1881 which provides as follows :
The court shall in respect of every proceeding under this chapter on production of banks slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
The admitted position in the case in hand is that a banks slip or memo denoting that the cheque had been dishonoured was made available by the bank to the respondent on 02-07-2007 after more than five months. It was, therefore, possible for the respondent to proceed against the drawer of the cheque on the basis of the bankers note under section 138 of the N.I.Act when the cheque was dishonoured. This provision requires the holder of the cheque to make a demand to the drawer for the payment of the amount by issuing a notice in writing. If the drawer fails to make the payment of the amount within a specified period he would be liable to be punished with imprisonment which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The respondent thus committed mistake by proceeding against the Gramin Bank which was only an agent to collect the money from another bank. It is, therefore, not correct that in the absence of the original cheque it was not possible for the respondent to proceed against the drawer of the cheque. The legal action by him was thus misconceived and misplaced.
6. Mr.K.N.Bhattacharjee, Ld. Senior counsel for the complainant-respondent submits that the date of limitation for proceeding against the drawer started from 03-02-2009 when SBI informed Gramin Bank that the cheque had been dishonoured. The Gramin Bank, Jogendranagar informed him only after five months, long after expiry of limitation. Because of this negligence the complainant could not proceed against the drawer being time bared. We, however, find it difficult to agree on this point. Our view is that the limitation started when the Gramin Bank informed the complainant about the fact of dishonour, not when SBI informed Gramin Bank. We notice that the complainant was soft towards the drawer and not serious about collection of the money. He wanted to know about the fate of the cheque by writing a letter only after long five months. He could easily ascertain about collection any day by presenting his pass book for updating. In normal official course the bank would inform the drawee only when information comes from the other bank about the status of the cheque. No bank does enquire everyday about fate of every cheque sent to other banks for collection. The established fact is that Jogendranagar branch did never receive back the invalid cheque and so had no occasion to inform the drawee. The cheque did not disappear from their custody. It was lost in transit. Therefore, the branch can not be held liable for negligence.
7. From the above we also hold that for negligence only the bank can be held liable for payment of the value of the cheque. Negligence by itself can not be enough for slapping any compensation unless it can be shown that due to loss of the cheque the respondent suffered damages in any form. No proof in this regard could be furnished by the respondent.
8. For the reasons aforementioned this appeal has merit and therefore, the same is allowed setting aside and quashing the judgment impugned. The respondent shall however, be at liberty to proceed against the drawer of the cheque on the basis of the bankers note in accordance with law.
9. No cost.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura.