State Consumer Disputes Redressal Commission
Vishu Kumar vs Canara Bank on 30 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.722 of 2017
Date of institution : 17.10.2017
Date of decision : 30.01.2018
Vishu Kumar, aged about 24 years, Son of Sh. Tarsem Chand,
Resident of Aulakh Mohalla, Ward No.17, Mansa, Tehsil and
District Mansa.
....Appellant/Opposite Parties
Versus
1. Canara Bank, Mansa District Manager, through its Branch
Manager.
2. Punjab National Bank, Budhlada, Branch through its
Manager.
....Respondents/Opposite Parties
First Appeal against the order dated
01.09.2017 of the District Consumer
Disputes Redressal Forum, Mansa.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Sh. H.S. Kotli, Advocate
For respondent No.1 : Sh. Puneet Jain, Advocate for
Sh. Yogesh Kumar, Advocate
For respondent No.2 : Sh. Anuj Ahluwalia, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
The instant appeal has been filed by the
appellant/complainant against the order dated 01.09.2017 passed by District Consumer Disputes Redressal Forum, Mansa (in short, "the District Forum"), whereby the complaint filed by him, under First Appeal No.722 of 2017 2 Section 12 of the Consumer Protection Act, 1986, against the respondents/opposite parties was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant is having Bank Account No.2472101006181 with opposite party No.1-Bank. He received a cheque No.604763 dated 12.3.2013 for ₹3,00,000/- issued by Kheta Singh S/o Inder Singh, resident of Village Phuluwala Dod from his Bank Account No.2124323 drawn at opposite party No.2-Bank in favour of the complainant. The said cheque was presented by the complainant with the opposite party No.1-Bank on 10.06.2013, well within the prescribed period of limitation, as it was valid upto 11.06.2013. Opposite party No.1 sent the cheque for clearance to the opposite party No.2, which was duly received by it. However, both the opposite parties were in active connivance with each other and opposite party No.2 issued a memo dated 18.6.2013 with the remarks "Funds insufficient' and 'instrument post dated/outdated/undated/without proper date." It was further averred that under the influence of Kheta Singh, the opposite parties had changed the date of presentation of the cheque from 10.6.2013 to 18.6.2013. The complainant obtained the opinion of Forensic expert. Vide report No.Q215/Mansa dated 10.4.2016, First Appeal No.722 of 2017 3 Anil Gupta Forensic Services, Fazilka, reported that there is alteration and overwriting on the digits to make the date from "10.6.2013" to "18.6.2013" in order to make the cheque outdated. Due to above said deficient and negligent act of the opposite parties, said Kheta Singh refused to pay anything to the complainant and, thus, he has been put to huge financial loss. Accordingly, the complainant approached the District Forum, seeking following directions to the opposite parties:
(i) to pay the cheque amount of ₹3,00,000/-, alongwith interest at the rate of 18% per annum from 10.6.2013 till realization;
(ii) to pay ₹1,00,000/-, towards compensation on account of mental and physical harassment; and
(iii) to pay ₹25,000/-, towards litigation expenses.
Defence of the Opposite Parties
4. Upon notice, the opposite parties appeared before the District Forum and filed independent replies to the complaint.
5. In its reply, opposite party No.1 raised certain preliminary objections that the complaint is beyond limitation. The allegations of the complainant regarding altering and changing the date on cheque cannot be decided in summary manner and only the Civil Court is competent. The complainant has no locus standi or cause of action to file the complaint. On merits, it was admitted that the complainant is the account holder with opposite party No.1-Bank and that he deposited the cheque dated 12.3.2013 in his account for payment. It was pleaded that opposite party No.1 First Appeal No.722 of 2017 4 sent the same to opposite party No.2-Bank for clearance in routine. Opposite party No.2 was to see the validity of the cheque, but in those days validity of cheque was converted from 6 months to 3 months. It was pleaded that the alleged memo dated 18.6.2013 is not related to opposite party No.1 and this fact was to be determined between the complainant and the opposite party No.2. Thus, the answering opposite party is not liable for anything. It is further pleaded that for the fault of opposite party No.2, if any, opposite party No.1 cannot be connected with the same. It was further pleaded that opposite party No.1 had performed its duty properly, by sending the cheque for clearance to opposite party No.2. The alleged overwriting, if any, had never been done by opposite party No.1. Moreover, the report of expert is not admissible, unless it is held as correct and genuine by the Civil Court. The said report cannot disclose, as to who had done the alleged overwriting and alteration on the digits to make the date from '10.6.2013' to '18.6.2013'. The Civil Court can only adjudicate the fact, as to who and when the alleged overwriting and alteration was done. It was further pleaded that no loss was caused to the complainant. Otherwise also, when the cheque was returned on the ground of 'insufficient funds', there was no question of any alteration, as alleged. In fact, the complainant was required to file a complaint against the drawer of the cheque under Section 138 of the Negotiable Instrument Act, but he could not avail the said remedy within the limitation. The complainant is not entitled to First Appeal No.722 of 2017 5 recover the alleged amount from opposite party No.1, as there is no deficiency in service or unfair trade practice on its part. All other allegations of the complaint were denied and it was prayed that the complaint be dismissed against opposite party No.1 with costs.
6. In its reply, opposite party No.2 raised certain preliminary objections that the complaint is time barred, as the cheque, in question, was valid upto 11.06.2013. The complainant is not its 'consumer' and it has been wrongly impleaded. On merits, it was admitted that Kheta Singh was having account No.2124323 with opposite party No.2-Bank. It was pleaded that complainant presented the cheque for clearance with opposite party No.1 on 28.3.2013, which was forwarded to opposite party No.2, through registered post, which was received by OP No.2 on 4.4.2013, as per entry in the Receipt Register maintained by it. Opposite party No.2 returned the said cheque to opposite party No.1 on the same day, with the remarks 'insufficient funds'. Thereafter, opposite party No.1 again sent the said cheque to opposite party No.2, vide registered post dated 10.6.2013, which was received by opposite party No.2 on 18.6.2013, as per entry made in receipt register. Opposite party No.2 returned the same on the same day to opposite party No.1, vide memo dated 18.6.2013. The validity of the cheque was for 3 months, as per the RBI guidelines. The cheque was presented for clearance by the complainant within the validity period and it was returned by opposite party No.2 through memo within validity period. It was First Appeal No.722 of 2017 6 further pleaded that the complainant was entitled to recover the cheque amount from Kheta Singh, but he failed to take any action against him within the stipulated time. There is no deficiency in service on the part of opposite party No.2-Bank and the complaint is liable to be dismissed against it.
Finding of the District Forum
7. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties
8. We have heard learned counsel for the parties and have carefully gone through the records of the case.
9. Learned counsel for the complainant vehemently contended that the complainant presented the cheque, in question, to his Banker, opposite party No.1, on 10.06.2013 for getting the same encashed. However, the opposite parties in connivance with each other changed the date as 18.06.2013, to show that the cheque was presented beyond the prescribed period of three months, due to which the said cheque was dishonoured by opposite party No.2. The complainant suffered loss of the amount of the said cheque i.e. ₹3,00,000/-, due to the deficiency in service and unfair trade practice on the part of the opposite parties. The alteration is clear from the report of Forensic expert, Ex.C-6. The District Forum failed to take notice of all these facts First Appeal No.722 of 2017 7 and wrongly dismissed the complaint. Thus, the appeal/complaint is liable to be allowed and all the directions, as prayed for in the complaint are liable to be issued to the opposite parties.
10. Per contra, learned counsel for opposite party No.1 vehemently contended that the cheque, in question, was returned by opposite party No.2, vide Memo Ex.C-2, with remarks "insufficient funds" as well as "Instrument post dated/outdated". Opposite party No.1 performed its duty by sending the said cheque to opposite party No.2 and the alleged overwriting was never done by opposite party No.1. Moreover, when the cheque has been dishonoured for want of sufficient funds in the account of the drawer, there is no question of any alteration therein. The matter is between the complainant and opposite party No.2 and opposite party No.1 has no responsibility in this matter. The complaint has been rightly dismissed against it and the appeal is also liable to be dismissed.
11. On the other hand, learned counsel for opposite party No.2 vehemently contended that earlier the cheque, in question, was presented by the complainant for clearance on 28.03.2013, but the same was returned with remarks 'insufficient funds'. It was again presented with opposite party No.2 on 10.06.2013, through registered letter, which was received by it on 18.6.2013, but the same was again dishonoured, vide Memo dated 18.06.2013 on account of insufficient funds. Hence, opposite party No.2 correctly ticked objections at Sr. No.1 and 30 in Memo, Ex.C-2. Since there First Appeal No.722 of 2017 8 were no sufficient funds in the account of the drawer to clear the cheque on 18.06.2013, therefore, there was no question of any alteration on the cheque. It was further contended that the complainant could file complaint against Kheta Singh under Section 138 of the Negotiable Instrument Act, but he failed to do so within the limitation. There is no deficiency in service on the part of opposite party No.2. The complaint has rightly been dismissed by the District Forum. The appeal also deserves to be dismissed.
Consideration of Contentions
12. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
13. Admittedly, the cheque, in question, Ex.C-1, was issued by one Kheta Singh in favour of the complainant, for an amount of ₹3,00,000/-. The same was presented for encashment with the Bank on 10.06.2013 and it was received by opposite party No.2 on 18.06.2013. So far as the date of receipt of the cheque is concerned, it appears that the date has been converted from 10.06.2013 to 18.06.2013. Be that as it may, but the fact remains that opposite party No.2 has returned the cheque, in question, vide Memo Ex.C-2, specifically on the ground that there were no sufficient funds in the account of the person, who issued the same in favour of the complainant. It is also the specific case of opposite party No.2 that earlier also the cheque, in question was presented to it on 28.03.2013 and it was returned for want of sufficient funds. First Appeal No.722 of 2017 9 The fact remains that since there were no sufficient funds in the account of the drawer of the cheque, so the cheque, in question, was rightly dishonoured and it cannot be said to be a matter of deficiency in service on the part of the opposite parties. The complainant could have filed complaint against the drawer of the cheque, in question, under Section 138 of the Negotiable Instruments Act at that point of time. The District Forum passed legal and valid order, after properly and rightly considering the evidence on the record in its right perspective and we do not find any justification to interfere with the same.
14. In view of our above discussion, the appeal, being without any merit, is dismissed and the impugned order is upheld.
15. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER January 30, 2018.
(Gurmeet S)