AJAY KUMAR vs Union of India

THE complainant Shri Ajay Kumar has filed this appeal against order dated 16.3.2004 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 1030 of 2002 filed against Union Bank of India through its Branch Manager, Sector 21-C, Chandigarh vide which the complaint was dismissed with costs of Rs. 1,000/- to be paid by the complainant to the Free Legal Aid Fund maintained by the Chandigarh UT State Legal Services Authority.

A cheque bearing No. 0265588 dated 7.5.2000 for a sum of Rs. 50,000/- drawn on the Punjab State Cooperative Bank Ltd., Chandigarh was delivered to the respondent-Union Bank of India, Chandigarh for collection and credit in the complainant''s Saving Bank Account No. 15655, which was being maintained by the complainant with respondent-Union Bank of India (for short hereinafter referred to as the Bank). The appellant/complainant obtained statement of his savings bank account, which was issued on 6.7.2002 and it shows that a sum of Rs. 15/- was debited in the saving bank account aforesaid on account of the cheque referred to above being returned. The complainant alleged that the cheque was not delivered back to him by the respondent Bank, which amounted to deficiency in service. Based on these allegations, the complainant filed the complaint and sought issuance of direction to the respondent Bank to pay the amount of the cheque i.e., Rs. 50,000/- to him and further sum of Rs. 30,000/- as compensation on account of harassment and loss and further to pay interest @ 18% per annum on the said amount from 6.7.2002 till actual date of realization of the amount to the complainant. The complainant also claimed costs of litigation, which he assessed at Rs. 11,000/-. The respondent /O.P. Bank appeared and filed written statement. The main contention raised by the respondent Bank was that the cheque deposited by the appellant/complainant with the respondent Bank for collection was dishonoured by the drawee Bank namely Punjab State Cooperative Bank Ltd., Chandigarh and it was returned to the O.P. Bank on 6.7.2002. The O.P. Bank sent the said cheque to the appellant/complainant through courier M/s. Rossel Air Services, Sector 22-A, Chandigarh vide respondent Bank extract of postage register (R-1). It was alleged that when the complainant made inquiries about the said cheque from the respondent Bank, which enquired about the delivery of the letter containing the dishonored cheque from the said courier, the said courier vide letter dated 6.3.2003 informed that the dishonoured cheque had been delivered to the complainant on 18.7.2002 and it was duly acknowledged. A copy of the delivery manifest maintained by the said courier agency was placed on record as Annexure R-2 showing that the envelop containing the dishonored cheque was received by the complainant and he had put his signatures at entry No. 5279 in the delivery manifest (R-2). The parties led evidence both in the shape of affidavits and documents.

The District Forum disbelieved the case of the complainant and held that the complainant deliberately put his thumb impression on the complaint, affidavit, power of attorney despite the fact that he could sign and write English fluently. The District Forum held that the complainant dishonestly put his thump impression on the complaint and accompanying documents with a view to defraud and befool the District Forum and to mislead the District Forum that he was totally illiterate. The version of the complainant that he had injured his right hand at the time when the impression was affixed was also disbelived. It was also held that when educated and literate person affixes his thumb impression then unually a note is appended about the state of his hand in not being able to sign and in affixing his thumb impression. The version given by the respondent Bank was believed that the courier had delivered the dishonoured cheque to the complainant on 18.7.2002 and the complainant had signed the relevant entry in token thereof at entry No. 5279.

THE District Forum further held that the complainant deserved to be penalized suitably and taking into consideration the totality of the facts and circumstances of the case, the costs of Rs. 1,000/- was awarded to be paid by the complainant to the respondent Bank. So far as the facts and circumstances leading the complainant to affix his thumb impression on the aforesaid documents and the fact that he is a literate and can write English fluently and sign in English are concerned, the same were not disputed by the respondent Bank and no allegations were made in this regard in the written statement filed by the respondent Bank. The respondent Bank filed the written reply and mainly contended that it had returned to the complainant the dishonoured cheque through courier and the inquiries made from the courier after the complainant made inquiries from the Bank revealed that the envelope containing the dishonoured cheque had been duly delivered to the complainant and evidence in that regard, which is the delivery manifest dated 18.7.2002 was placed on record.

SINCE this plea was not taken by the respondent Bank that the District Forum unnecessarily entered into the said aspect of analysing the facts and circumstances regarding the affixation of thumb impression and about the ability of the complainant to sign in English and write English fluently. We are also of the considered opinion that the District Forum has unnecessarily recorded certain findings against the complainant accusing him of making attempts to befool and cheat the District Forum. The observations in this regard are to be found in Para 6 of the impugned order, which reads, inter alia, as under: "........... Therefore, it is manifest that there was the usual method in madness i.e., he dishonestly put his thumb impression in the complaint and the accompanying documents in order to befool and cheat this District Forum and to make it believe that the complainant was totally illiterate..."

It was further observed in para 7 of the impugned order that "His version that it was not returned to him is patently false and dishonest. Such like dishonest litigants must be discouraged and suitably penalized...." We are of the considered opinion that such expressions in describing the complainant without any adequate material being placed on record is highly improper. The complainant may file a complaint making averments, which he may not be able to prove and the complaint may be dismissed on that score but to hold that the complainant filed the complaint knowing it to contain false and frivolous allegations, there must be some tangible evidence worth credence on record from which such inferences could be drawn. We hope that the District Forum will avoid using such harsh language in critizing the conduct of the complainant particularly in the absence of a plea and of cogent and relevant evidence adequate in nature.

COMING to the merit of the case, the only controversy is about the non-receipt of dishonoured cheque, which according to the respondent Bank had been sent through courier to the complainant. The respondent Bank is the own banker of the complainant. It is not disputed that the cheque, which was deposited for a sum of Rs. 50,000/- was dishonoured by the drawee Bank i.e., Punjab State Cooperative Bank Ltd., Chandigarh and the amount of such a cheque could not be collected because of its being dishonoured and that dishonoured cheque when received by the respondent Bank was remitted to the complainant by courier. The evidence of the courier has been led including the extract of the delivery manifest, which clearly shows at entry No. 5279 the address of the complainant and signatures appearing under the column of signatures. The courier took the envelope at the address mentioned and delivered to the addressee and the addressee or some one on his behalf had signed the column meant for signatures. In the instant case, it is urged that it was the complainant who signed the same.

THE learned Counsel for the complainant stated that the signatures, which were affixed were later on scored off. THE scoring off is possible only after it has been signed and it means that the complainant in the first instance signed the relevant column of signatures. It is difficult to understand that why the courier would make such an entry in the delivery manifest and file an affidavit of Shri Sahdev Sharma, Proprietor, M/s. Rossel Air Services, wherein he clearly deposed in paras 2 and 3 as under: "2. That a letter was booked by Union Bank of India, opposite party, on 17.7.2002 at Sr. No. 5279 in favour of Mr. Ajay Kumar, complainant, resident of House No. 2383, Sector 24-C, Chandigarh. (3) That the said letter was duly delivered at the address i.e., House No. 2383, Sector 24-C, Chandigarh on 18.7.2002 duly acknowledged. At Sr. No. 5279 the letter stood received by the addressee Mr. Ajay Kumar and Delivery Manifest stands signed by Mr. Ajay Kumar in token of the acceptance of the letter sent by the Union Bank of India. THE extract of the delivery manifest (Delivery Book) dated 18.7.2002 is enclosed with this affidavit."

Since the respondent Bank returned the dishonoured cheque to the complainant through courier, there was no deficiency in rendering service on the part of the respondent Bank.

Resultantly, we find that on merit, the District Forum has rightly dismissed the complaint but the District Forum went wrong in imposing a cost of Rs. 1,000/- on the complainant for filing a false and frivolous complaint as no such plea was taken by the respondent Bank that the complainant had filed a false and frivolous complaint and the costs be imposed on the complainant. The impugned order insofar as it imposes a costs of Rs. 1,000/- on the complainant deserves to be set aside and accordingly the appeal is partly allowed and the impugned order insofar as it imposes costs of Rs. 1,000/- on the complainant is set aside. However, the order of the District Forum dismissing the complaint is confirmed. Copies of this order be sent to the parties free of charge. Appeal partly allowed.