State Consumer Disputes Redressal Commission
Sure Janaki Rama Krishna And Others vs Syndicate Bank Main Branch, on 3 February, 2012
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.290 OF 2010 AGAINST C.C.NO.1124 OF 2006 DISTRICT FORUM GUNTUR Between 1. Sure Janaki Rama Krishna, S/o. Venkata Punna Rao, 2. Sure Vankata Punna Rao, S/o. Satyanarayana, 3. Hari Krishna Traders, Rep. by its Proprietor Sure Vankata Punna Rao Complainant 1 to 3 are having business at Amaravathi Road, Atchampeta Post and Mandal, Guntur District. Appellants/complainants A N D Syndicate Bank Main Branch, Rep. by its Branch Manager, (M.T.Road) Patnam Bazar, Guntur Respondent/opposite party Counsel for the appellants Sri M.Hari Babu Counsel for the Respondent Sri M.V.Ramana QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE THIRD DAY OF FEBRUARY TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complainants are the appellants.
2. The 1st appellant is the son and 2nd appellant is his father. The 3rd appellant is a proprietary concern being run by 2nd appellant.
The 1st appellant is having saving Bank account bearing No.201/58867 with the respondent bank.
The 2nd appellant is having current account bearing No.101/1154 in the name of Hari Krishna Traders (3rd appellant) with the same Bank. On 14-02-05 the 1st appellant deposited a cheque bearing No.030018, dated 14-02-05 for `1,80,000/- in the name of Hari Krishna Traders vide current account No.101/1154, which is being run by the 2nd appellant with the respondent bank. The respondent Bank has received the cheque and acknowledged on the counter foil.
The cheque was drawn by 1st appellant from his account with an intention to deposit the amount in his fathers account. But due to mistake, the 1st appellant has written his name on the face of the cheque and also signed on the back of it and deposited in the current account No.101/1154 of the 2nd appellant.
3. The 2nd appellant drawn two cheques bearing Nos.22669 for `14,100/- and 22670 for `10,000/- respectively in favour of third party out of his current account No.101/1154 but the cheques were returned by the respondent Bank for want of sufficient funds. Both the appellants enquired with the respondent Bank about return of cheques and came to know that an amount of Rs.1,80,000/- deposited through cheque dt.14-02-05 by the 1st appellant, was not credited to current account No.101/1154. The appellants brought the fact to the notice of Manager of Bank and also given complaint on 07-03-05. On verification, it was found that the cheque amount of Rs.1,80,000/- was paid to one R.Srinivasa Rao on 15-02-05, on behalf of 1st appellant. The appellants are not aware of the person known as R.Srinivasa Rao to whom the Bank has paid the amount.
4. The 1st appellant has not authorized any person to withdraw the amount of `1,80,000/- caused under the cheque No.030018, dt.14-02-05, since he himself presented the said cheque for deposit in his fathers account. Thereafter, the appellants are informed about this issue to the Regional Office at Vijayawada. An officer came and enquired the matter on both sides. The respondent lodged complaint with the police on 19-03-05 as per the direction of its Regional Office.
After 15 days, the Regional Manager, Vijayawada visited respondent Bank, on enquiry and on search, they found the cheque deposit slip in the waste basket. There is deficiency of service on the part of opposite party who failed to credit the amount of `1,80,000/- to the current account No.101/1154 of the 2nd appellant even after they acknowledged the deposit of the cheque by the 1st appellant.
5. The respondent Bank resisted the case contending that the cheque, pay in slip and counterfoil show the cheque was issued by Mr.Sure Janaki Rama Krishna and drawn in favour of Mr. Sure Janaki Rama Krishna in his personal name and also signed on reverse of the cheque by Mr. Sure Janaki Rama Krishna, the first appellant indicating all the features of a self drawn cheque. The 1st appellant on 14-02-05 presented the cheque bearing No.030018 for `1,80,000/- at the counter and sought to be deposited in the account of M/s.Hari Krishna Traders, the third appellant, a current account with the Bank. As a routine habit/practice, the round seal was affixed on the counterfoil. The bearer cheque (uncrossed) presented was self drawn in favour of Mr. Sure Janaki Rama Krishna and not matched/tallied with the name mentioned in the pay in slip i.e., M/s.Hari Krishna Traders. Hence, the cheque/instrument cannot be accepted for credit to the account of a business concern.
6. The cheque was returned to the 1st appellant by the respondent for rectifying the mistake by attaching a fresh cheque or change the name of payee under authentication of account holder. Hence, the counterfoil did not contain any signature of the Bank officials. The appellants should have resubmitted the pay in slip with proper cheque. The 1st appellant who received the instrument back might have thrown the pay in slip in the dustbin available in the premises, after retaining the counterfoil with ulterior motive. The pay in slip was not acknowledged by the respondent as alleged by the appellants. Taking advantage of the round seal on the counterfoil, the appellants have hatched up the claim.
7. Taking undue advantage of returning of cheque to 1st appellant who came to the Bank along with others have hatched a plan and on the next day presented the cheque for payment with the assistance of other persons putting signature of one Mr.K.Srinivasa Rao, a person believed to be representative of the 1st appellant. As the cheque was a bearer cheque (uncrossed) and the signature of bearer was obtained second time and got tallied, the said amount was paid by the respondent in the usual course by observing the Bank norms. As the respondent had discharged its duties in terms and norms prescribed, there is no deficiency on the part of opposite party.
8. The appellants cannot blame the respondent without observing the required norms prescribed. A cheque uncrossed and drawn in favour of the same person (self drawn) is a bearer cheque and can be presented for payment by its bearer. The cheque was drawn by the first appellant in his own favour and the instrument was presented by one Mr.K.Srinivasa Rao a person believed to be representative of the 1st appellant. The payees name in the cheque (Sure Janaki Rama Krishna) and the name mentioned in the pay in slip (M/s.Hari Krishna Traders a business firm) are not one and the same and not tallied with the payees name. The party without writing the name of firm i.e., Hari Krishna Traders as payee, and also without crossing the instrument submitted to the Bank which is not in order and there is clear lapse on the part of 1st appellant in presenting the instrument on 14-02-05 to the respondent. There was negligence on the part of the 1st appellant. For the simple reason that, the counterfoil was stamped by this respondent can not be blamed.
9. For deriving business benefits/transactions a cheque self drawn in favor of drawer himself can not be adjusted to the account of the business concern i.e., M/s.Hari Krishna Traders without drawers mandate and crossing the instrument. The respondent lodged a complaint with the crime police Lalapet, Guntur under section 468, 471 and 420 IPC and the same was under
investigation and result is awaited. The 1st appellant having failed to draw the cheque properly and to observe the norms prescribed by the Bank/RBI cannot maintain the complaint.
10. The 2nd appellant has filed his affidavit and the documents Exs.A1 to A17. On behalf of the opposite parties, the Chief Manager filed affidavit and the documents Ex.B1 and B2.
11. The District Forum has allowed the complaint on the premise that there was no deficiency in service on the part of the respondent bank except the lapse with regard to the affixing the seal on the counter foil of pay-in-slip without verifying the entries made in the cheque. The District Forum awarded an amount of `10,000/- against the respondent Bank.
12. Feeling dissatisfied with the order of the District forum, the complainants have filed the appeal contending that the FIR lodged by the respondent bank had shown that the cheque was not returned to them and that the appellant had followed the normal procedure in presenting the cheque as also that the deposit slip was with the respondent bank even 15 days after the cheque was returned. It is contended that there has been no adverse interest between the complainants who are the father and the son.
13. The counsel for the respondent bank has filed written submissions.
14. The point for consideration is whether there has been any deficiency in service on the part of the respondent bank in not crediting the amount of RS.1,80,000/- covered under the cheque to the account of Hari Krishna Traders belonging to the second appellant and if so, to what relief the appellants are entitled to?
15. The first appellant maintained a savings bank account and the second appellant, the current account with the respondent bank.
The passbook and statement of account would establish the operation of the aforementioned accounts by the first appellant and the second appellant. The contention of the respondent bank is that the appellants adopted improper and incorrect procedure in drawing the cheque bearing no.030018 dated 14.2.2005 for `1,80,000/-. The first appellant had drawn the cheque dated 14.2.2005 and presented it along with pay-in-slip. In the pay-in-slip, it is mentioned as Hari Krishna Traders and A/c No.101/1154 and the sum as `1,80,000/- both in words and figures. The counter foil of the pay-in-slip contains the same particulars as were mentioned in the pay-in-slip. It is not disputed that the cheque is not crossed and the drawer of the cheque is also the drawee of the cheque. Thus, it becomes a bearer cheque within the meaning of provisions of Negotiable Instrument Act.
16. The cheque was returned to the first appellant with the instructions either to get a fresh cheque in the name of Hari Krishna Trades vide A/c No.105/1154 or effect suitable amendment in the cheque.
On 15.2.2005 the cheque was presented for encashment through K.Srinivasa Rao, whose signature is found on the reverse of the cheque and beneath the signature of the first appellant. At that juncture, to ascertain the signature of the first appellant, the signature of the bearer was obtained by the respondent bank and thereafter it has paid the cash to the bearer of the cheque.
17. The first appellant had mentioned the particulars of the account and the name of the third appellant in the cheque. Affixing the seal in the counterfoil of the pay-in-slip, the respondent Bank cannot be made a ground to expect the respondent to credit the cheque proceeds to the account of the third appellant. The respondent bank on verification of the particulars of the cheque as also the contents of the pay-in-slip returned the cheque to the first appellant. The District Forum has found fault with the respondent bank that the staff concerned of the respondent bank ought to have compared the contents of pay-in-slip with those of the cheque. The pay-in-slip was found 15 days later in a dustbin when the Regional Manager of the respondent bank visited the bank for the purpose of enquiry. The District Forum has opined that affixing the seal of the respondent bank on the counter foil of the pay-in-slip and handing over the pay-in-slip to the appellants as also tracing the pay-in-slip in the dustbin constitutes deficiency in service on the part of the respondent bank and in regard to the respondent banks refusal to credit the amount covered under the cheque to the account of the third appellant, there was held to be no deficiency in service on the part of the respondents bank in the backdrop of the manifest variation in the contents of the pay-in-slip and the cheque.
18. The learned counsel for the respondent bank has relied upon the decision of the National Commission in M/s Tarachandlal Chand Vs Oriental Bank of Commerce, in R.P.No.218 of 2009 decided on 20.10.2009.
A cheque was found to have been got encashed as self/bearer cheque by the person to whom the complainant firm claimed to have given the cheque book for the purpose of binding. The person to whom the cheque book was given was not made a party to the proceedings. The State Commission had found that there was no question of doubting genuineness of apparent tenor of the instrument as it contained stamp of the firm besides signature and payment was made on good faith. The National Commission referred to its earlier decision in R.P.No.960 of 2004 Vijaya Bank Vs Captain Gurunam Singh decided on 16.7.2002, wherein the District Forum and the State Commission concurrently held that the bank was negligent as it was not possible to forge the document without some of the officials of the bank being hand-in-glove with the forger. In contrast to the ratio of the judgment, the cheque leaf had the signature as well as the seal of the firm and the complainant firm had given the cheque book to a binder who had removed a cheque leaf and on receiving back the cheque book the complainant firm had not verified the number of the cheque leaves. The National Commission held the complainant negligent.
19. The ratio in the aforementioned decision is applicable to the facts of the case on hand. In the instant case the first appellant has signed the cheque and presented it for encashment.
20. The appellants have been claiming compensation despite the fact that they are the cause for the respondent bank to return the cheque and having been acquainted with the manifest variation in the contents of the cheque and the counterfoil, the appellants are not supposed to throw blame on the respondent bank for not crediting the amount to the account of the third appellant. The appellants have not shown any reason for enhancement of the compensation from the amount that was awarded by the District Forum. In any view of the matter, the appellants cannot claim compensation when they are at fault in misdirecting the respondent Bank by filling up the pay-in-slip and the cheque with innovative and different contents.
In the result, the appeal is dismissed confirming the order of the District Forum.
There shall be no order as to costs.
MEMBER MEMBER Dt.03.02.2012 KMK