State Consumer Disputes Redressal Commission
The Manager, vs Kannan,S/O Alakarswamy on 23 July, 2010
Daily Order
First Appeal No. A/09/524
(Arisen out of order dated 27/03/2009 in Case No. CC 176/08 of District Idukki)
1. Federal Bank Ltd.
Kerala
....Appellant
Versus
1. Kannan
Kerala
....Respondent
BEFORE :
HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU , PRESIDENT PRESENT:
None for the Appellant None for the Respondent *JUDGEMENT/ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.APPEAL No. 524/2009
JUDGMENT DATED:23-07-2010 PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU :PRESIDENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER The Manager, Federal Bank Limited, : APPELLANT Adimali Branch, Adimali. (By Adv:Sri.S.Reghukumar) Vs. 1. Kannan,S/o Alakarswamy, Mangalya House, Adimalikara, Mannamkandam Village, Karuvelipady, Kochi-5. : RESPONDENTS 2. Bhasura Kannan, W/o Kannan, Mangalya House, Adimalikara, Mannamkandam Village, Karuvelipady, Kochi-5. JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU:PRESIDENT
The appellants are the opposite parties/bank in CC.176/08 in the file of CDRF, Idukki. The appellants are under orders to pay a sum of Rs.10,000/- to the complainant as compensation for deficiency of service and Rs.2000/- as cost.
2. It is the case of the complainants/husband and wife that they had a joint account in the appellant bank and that a signed cheque was kept in the business premises of the complainants' shop when the first complainant went to Tamilnadu for business purpose. It is his case that the neighbourhood business man by name Kissigner willfully obtained the same without the knowledge of the 2nd complainant. Hence in order to avoid misuse of the cehque complainant 1 and 2 issued a written stop memo to the bank. On 22-6-2007 also a stop payment memo was given to the bank but the said cheque was produced by one Kilpart of Ernakulam district for a sum of Rs.30,000/- dated:10-4-2007. The opposite parties returned the cheque noting "funds insufficient". Hence the above person filed a criminal case before the additional Chief Judicial Magistrate Court, Ernakulam under setion-138 of NI Act against the first complainant. The complainant could not defend the case in the additional CJM Court because of the act of the opposite party in this regard. Hence alleging deficiency of service the complaint has been filed.
3. In the version filed by the opposite parties it is mentioned that on 26/3/2007 the petitioners had issued a letter to the bank that cheque No.320511 for Rs.30,000/- has been mischievously taken and abused by Mr.Kissinger a neighbouring business man and has sought to dishonour the same if presented for encashment noting the reason "incomplete signature and payment is stopped by the drawer". The drawer cheque was presented by one Kilpart on 10/4/2007 but there was no sufficient fund in the account. In the complainant's account the amount available was only Rs.379/-. The cheque was returned by the bank noting the reason "insufficient funds". As the accounting transactions of the bank are fully computarised only if there were sufficient funds the system would have alerted the officer concerned about the stop payment. As there were no sufficient funds there was no occasion for the system to go further and examine the stop payment marking. There was no intention on the part of the bank to malign the reputation of the petitioner. It is also pointed out that in the case of a joint account the signature of one of the account holders is sufficient. The appellant has denied any liability or deficiency of service.
4. The evidence adduced consisted of the testimony of PW1, PW2 Exts.P1 to P6 and R1.
5. The counsel for the appellant has relied on the decision reported in G.Kandaswamy Vs. Bank of India, Chennai. 2008 CTJ 376 (CP) (NCDRC). In the above cited decision it is pointed out that even if the cheque has been dishonoured by a reason of stop payment instruction, an offence against the drawer would be made out under section 138 of the NI Act. The National Commission has relied on the decision of the Supreme Court in this regard in MMTC Ltd. Vs. Medchi Chemicals & Pharma (P)Ltd. And another, AIR 2002 SC 182. Hence we find that even if the cheque was dishonoured on the basis of the stop payment instructions the complainant would not be in a position to stall the institution of the complaint under sec.138 of the NI Act. In the above circumstances we find that the order of the Forum cannot be sustained and the same is set aside. The appeal is allowed.
JUSTICE K.R. UDAYABHANU:PRESIDENT VL.
S. CHANDRAMOHAN NAIR : MEMBER Pronounced Dated the 23 July 2010 [HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT