State Consumer Disputes Redressal Commission
Shri Satya Ranjan Das vs The Chief Manager, Bank Of India on 28 November, 2008
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. 19/0/2007 DATE OF FILING: 02.5.2007 DATE OF FINAL ORDER: 28.11.2008 COMPLAINANT Shri Satya Ranjan Das Sole Proprietor Shaon Classics (Mfg.) Company Represented by its Constituted Attorney Sri Rabi Ranjan Das Kasba Industrial Estate, Phase III, Shed 9 P.S. Kasba, Kolkata 700 017 OPPOSITE PARTIES 1) The Chief Manager Bank of India Free School Street Branch 4, Free School Street, P.S.- New Market Kolkata 700 016 2) The Chairman Bank of India Star House, C-5, G- Block, Bandra East Mumbai 400 051 3) The Chairman State Bank of India CMD, SBI Bhawan, Madam Kama Road Mumbai 400 021 4) State Bank of India Local Head Office Hashangabad Road Bhopal 462 011 5) The Branch Manager State Bank of India, Katni Main Branch Post Box No.138, P.O.- Katni, Dist. Jabalpur Madhya Pradesh, Pin No. 483 501 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : Mr. S. COARI MEMBER : MRS. S. MAJUMDER FOR THE COMPLAINANT : Mr. G. Gupta Roy, Advocate FOR THE OPPOSITE PARTIES: Mr. S.K. Sengupta, Advocate(OP1&2) Mr. P.K. Mishra, Advocate (OP3,4&5) : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT The present consumer complaint was filed by the complainant stating interalia that the complainant is the sole proprietor of M/s Shaon Classics (Mfg.) company and in course of his business one M/s. Allied Minerals & Industries Pvt. Ld. issued an A/c Payee cheque bearing No.145618 dated 30.7.05 drawn on State Bank of India, Katni Main Branch for a sum of Rs.10 lacs as part payment. On 28.9.05 the complainant deposited the said cheque with his banker, Bank of India, Free School Street Branch, Kolkata where the complainant maintains a Current A/c. bearing No.O/D 45414. OP1 Bank of India sent the said cheque to the Katni Main Branch of State Bank of India being the OP5 for clearing and, thereafter, OP1 received instructions from OP5 that the said cheque was outdated and the OP1 returned the cheque along with their letter dated 18.10.05 to the complainant.
On receipt of the same the complainant found that the date on the cheque was changed from 30.7.05 to 30.7.04 by overwriting. Inspite of correspondence raising objection to such subsequent alteration/interpolation and consequent dishonour of the cheque as the complainant did not get any relief, the present complaint was filed for the said sum of Rs.10 lacs and a compensation of Rs.16.50 lacs. Written objection was filed by the OP Nos.1 & 2 jointly and by the OP Nos. 3,4 & 5 jointly. Parties adduced evidence on affidavit to which questionnaires were filed by the other side and replies were filed thereto. At the time of hearing the Ld. Advocate for the complainant and Mr. S.K. Sengupta, the Ld. Advocate for the OPs1 & 2 and Mr. P.K. Mishra, the Ld. Advocate for the OPs 3,4 & 5 were heard. At the outset the Ld. Advocate for the complainant stated that he was not praising the application for amendment of the complainant filed earlier and the same was dismissed. The contention of the complainant is that the complainant deposited the disputed cheque dated 30.7.05 with his bankers OPs 1 & 2 whereupon the same was sent by OPs 1 & 2 to the OP5 for clearing. Reliance was placed by the letters of the OPs 1 & 2 wherein the cheque was described as one dated 30.7.05 and, therefore, there is no dispute that the cheque received by the complainant and deposited by him with OP1 & 2 was dated 30.7.05. Subsequent thereto when the OP5 refused to honour the cheque on the ground of it being outdated, the interpolation appears to be effected at that stage and, therefore, the complainant is entitled to payment of the said sum as also compensation.
Mr. S.K. Sengupta, the Ld. Advocate for the OPs 1 & 2 argued that the complainant himself has stated that the grievance of the complainant is against OPs 3,4 & 5 and in this connection reference was made to various paragraphs of the complaint and particularly paragraph 8 thereof wherein categorical statement was made that the change of date has been done at the end of the OP5 with the collusion and direct co-operation of the employees of the said Branch while it was under its custody. In above view of the fact it is argued on behalf of the OP1 & 2 that the relief has been specifically sought on allegation of a fault on the part of the OPs 3,4 & 5 and, therefore no relief can be granted against the OPs1 and 2.
Reliance was placed on various questions and answers thereto for making out a case that so long the disputed cheque was in the custody OPs1 & 2, the same was bearing the date clearly as 30.7.05 and, therefore, letters by OPs1 & 2 described the cheque as dated 30.7.05.
Therefore, the alteration/interpolation of the cheque must have taken place after the cheque left the custory of OPs1 & 2.
On behalf of the OP1 & 2 it is argued by their Ld. Advocate that in reply to the question No.31 the OP5 stated that the cheque was received by OP5 interpolated and outdated and from the facts it is not clear at what stage the interpolation took place and when it is not during the period when the custody of the cheque was with OP5, the OPs3,4 & 5 are not responsible for payment of compensation.
With regard to the definition of deficiency the provision of Section 2(1)(g) of the Act was relied on as also the judgment in the case of Rakesh Kr. Jain-Vs-State of UP reported in AIR 2007 SC 917 was referred to in respect of law relating to penal interest.
Reference was also made to Section 8 of the Negotiable Instrument Act for showing what is meant by holder in due course. The Ld. Advocate for the OPs 3,4 & 5 contended that it is not clear from the facts disclosed as to interpolation of the cheque was done by whom and at what stage and, therefore, the OPs 3,4 & 5 cannot be made responsible for payment of compensation. It is argued that it can be even as a result of collusion between complainant and the drawer of the cheque to extract money from the nationalized banks.
Considering the aforesaid we find that the document show clearly that the OPs1 & 2 proceeded on the basis that the cheque was dated 30.7.05. Therefore, the alteration/interpolation could not have been done to the cheque while it was in the custody of OP1 &
2. Letter dated 23.11.2005 show clearly that the cheque was described as dated 30.7.05.
In case the interpolation had been made during its custody with OP1 & 2, such description of the cheque would not have been there. The allegation of collusion between the complainant and the drawer of the cheque, also is not acceptable as none of them could have an access to the disputed cheque during its custody either with the OP1 & 2 or with the OP5. In such circumstances there is no other alternative but to conclude that alteration/interpolation occurred while the cheque was in custody of OP5. As the drawer of the cheque was account holder with OP5, the said possibility becomes more apparent. The evidence recorded in the proceeding also show that OP1 & 2 dealt with the cheque when it was dated 30.7.05 and the OP5 refused to honour the cheque as it was outdated which means the alteration of the date to 30.7.04 was made at that stage.
In the written objection filed by the OPs 3,4 & 5 it has been stated in paragraph 5 thereof that the said cheque contained overwriting which was strolled through and as such the correctness of the content of the alleged cheque is not admitted. Again in paragraph 7 of the said written objection the OPs 3,4 & 5 stated that they received the alleged cheque in an interpolated condition. But, surprisingly, the OPs did not return the cheque on the ground of interpolation but treating the said cheque as dated 30.7.2004 returned the same as outdated cheque. It may be noticed that the said OPs 3,4 & 5 even did not admit the correctness of the content of the cheque as it contained overwriting but accepting the overwriting as a valid alteration returned the cheque as outdated.
Therefore, the case made out by the OPs 3,4 & 5 is self-contradictory whereas the contentions of the OPs 1 & 2 are consistent and it has been categorically stated by OP1 & 2 that the said cheque was dated 30.7.2005 and was sent for clearing to OP5. The OPs 1 & 2 by their letter dated 23.11.2005 categorically described the cheque as dated 30.7.05. In above view of the findings it appears that OP1 & 2 received the cheque as clearly dated 30.7.2005 and sent it to the OP5 also in the same condition. But OP5 returned the cheque as outdated which shows that it acted on the altered date 30.7.2004 treating the alteration as a proper correction. But in course of the proceeding the said OPs have stated that the said cheque was interpolated and even did not admit the correctness of the cheque due to such interpolation. But it is also noticed that the cheque was not returned on the ground of interpolation but on the ground of it being outdated. Therefore, it is apparent that the OP5 has tried to make out two inconsistent cases of interpolation as also the cheque being outdated. Therefore, there is no reason to accept self-contradictory cases made by the OP5 and as there is no other party involved which had dealt with the cheque keeping in its custody, the only conclusion can be reached that said alteration/interpolation has been done on the said cheque while it was in the custody of the OP5. As it is not the case of the OP5 that the envelop containing the cheque received for OP1 & 2 was tampered or damaged, the alteration was not possible while the cheque was in transit. Therefore, the said OPs are held responsible and are, therefore, liable to compensate the complainant and also to make payment of the amount covered by the said cheque.
The complaint is, therefore, allowed and the OPs 3,4 & 5 are directed to pay a sum of Rs.10 lacs being the cheque amount and also a compensation of Rs.25,000/- to the complainant along with cost of Rs.1,000/-. Such payment is to be made by the OPs 3,4 & 5 to the complainant within a period of two months from the date of this order and in case of noncompliance the complainant will be entitled to recover the said amount from the OPs 3,4 & 5 along with interest @ 10% per annum in accordance with law.
(S. Majumder) (S. Coari) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT