Inderjeet Ajmani vs BRANCH MANAGER

AGGRIEVED by order dated 31.12.2010, passed by State Consumer Disputes Redressal Commission, Raipur(for short, ''State Commission'') petitioner has filed this petition.

BRIEF facts are that petitioner/complainant is having saving account No. 3012669 with the respondent/OP Bank. It is alleged that petitioner deposited one cheque for Rs. 40,000/ - in this account. When the cheque amount was not credited to his saving account, he contacted the respondent and enquired about the cheque. Respondent assured him that cheque will be cleared in a day but when for 20 days the cheque was not cleared, then respondent told him that cheque deposited by him has been misplaced. On 28.11.2008, petitioner submitted an application to the respondent regarding the cheque. Respondent intimated him that in the cheque date was not mentioned, therefore cheque has been returned to the petitioner. Petitioner received the letter on 28.11.2008 which was sent by the respondent but he has never received the cheque sent by the respondent on 7.11.2008. Thus, respondent has misplaced the cheque and therefore, petitioner has not received the amount of Rs. 40,000/ - and has suffered financial and mental loss. Accordingly, petitioner filed complaint against the respondent and has claimed the cheque amount of Rs.40,000/ -, Rs. 5,000/ - for mental harassment and Rs.2,000/ - as cost.

RESPONDENT in its reply has stated that petitioner has not written the date in the cheque. Therefore, according to rules of the respondent bank, entry was made in the register and cheque was sent back to petitioner since date was not mentioned in the cheque. Respondent has not committed any deficiency in service. Respondent has also sent letter by dispatch No. 34, 35 by post and information was given to the petitioner on 28.11.2008. It is further alleged that petitioner has deposited the cheque against the provisions of Negotiable Instruments Act. Therefore, there is no question of physical, mental and financial loss to the petitioner. The complaint filed by the petitioner is not maintainable. Therefore, amount of Rs.5,000/ - should be awarded in favour of the respondent bank and complaint be dismissed.

DISTRICT Consumer Disputes Redressal Forum, Dhamtari (for short, ''District Forum'') vide order dated 5.6.2010, dismissed the complaint.

PETITIONER filed an appeal before the State Commission which dismissed the same, vide its impugned order.

THIS is how the matter has reached before this Commission.

I have heard the learned counsel for the parties and have gone through the record.

IT is contended by learned counsel for the petitioner that perusal of dispatch register shows that there was overwriting in the entries. Thus, respondent has tried to save itself by creating false evidence.

IT is further contended that letter dated 28.11.2008 sent by the respondent is an after thought. Nowhere in this letter it has been mentioned by what mode it was sent.

ON the other hand, it is contended by learned counsel for the respondent that both the fora below have considered the evidence in detail and there is no illegality in the impugned order.

DISTRICT Forum in its order has held; "The OP bank has returned back the cheque to the complainant, therefore pleading of the complainant that the cheque has been misplaced by the OP is wrong and the bank according to the provisions of Negotiable Instrument Act has returned the cheque because there was no date in the cheque. The OP bank has filed the proof of post as annexure A -I. It is clear that the OP bank has not misplaced the cheque of the complainant. If the cheque has not been received by the complainant then OP is not responsible, the reasons for this is that the OP bank has sent the cheque immediately on 07 -11 -2008 to the complainant for inserting the date. The OP bank has not committed any deficiency in service. The complainant is not entitled for any relief if the complainant wants he can receive another cheque from the United Bank Branch, Dhamtari. Therefore the complaint of the complainant is dismissed, both the parties will bearing their own cost".

THE State Commission while, concurring with the findings of the District Forum, dismissed the appeal. It observed; " 7. We find that in the despatch register of the respondent Bank, there is an entry regarding returning of the cheque in question to the complainant. As there was some overwriting in despatch No., therefore, a query was made to the respondent Bank to clarify this overwriting and also to state as to why letter ''P'' has been written against the entry of return of cheque to the complainant.

Before us, counsel for the respondent Bank has filed affidavit of Shri Pawan Kumar, Branch Manager of the respondent bank, wherein, it has been stated by him on oath that cheque in question, was duly returned to the complainant on 07/11/2008 by post and entry in that regard was made in the despatch register. It has further been stated by him that on account of clerical mistake committed by someone, the desptach No.3434 was written against the entry of sending the cheque in question to the complainant. That was despatch no. of a post send to G.P. Sector, New Delhi and, therefore, despatch No. was corrected. It was a bona fide mistake which was corrected by the employee of the respondent bank. The cheque in question was duly returned to the complainant by post, by making entry in the despatch register, which was bearing next no.3435.

We find that in the despatch register of the respondent bank, of the relevant date, the first entry was in respect of despatch no.3432. It was a letter sent to the Regional Office, Bhopal and against that entry, number has been written regarding which counsel for the respondent submitted that it is a Serial No. in which letter was sent to the Regional Office, Bhopal. Serial No. 3433 is in respect of post sent to the Head Office, New Delhi and thereafter Sl.No.3434 was also an entry in respect of post sent to the G.P. Sector, New Delhi. Thereafter entry at Serial No.3435 regarding sending the cheque in question to Inderjeet Ajmani, has been made and against it letter ''P'' has been written and postal stamps used for sending that cheque, have also been described in the despatch register by saying that postal stamp of Rs.5/ - was utilized. Remaining entries are in serial order. Studying the despatch register and the affidavit of Branch Manager of the respondent bank as well as letter sent by the respondent bank to the complainant, carbon copy of which, has been filed before us, it is clear that cheque no.071439 of Rs.40,000/ - was returned by the respondent Bank to the complainant by despatch No.3435. Later on separate intimation was also sent to the complainant.

From the aforesaid material, we are satisfied that the respondent Bank had duly returned the cheque in question to the complainant. It is true, that, cheque in question, was deposited by the complainant with the respondent Bank for encashment, but when on account of certain defects, it was returned by the respondent Bank to the complainant, then the respondent Bank can not be faulted and can not be said to have committed any deficiency in providing banking service, because cheque in question was returned by it to the complainant in time.

In view of the aforesaid, we find that District Forum, has not committed any mistake in dismissing the complaint of the appellant herein. The appeal has got no force and is hereby dismissed. No order as to the cost of this appeal".

IT is an admitted fact that cheque deposited by the petitioner with the respondent, did not bear any date and as such negligence on the part of petitioner is writ large. For his own negligence act, petitioner cannot hold the respondent for deficiency in service. Further, both the fora below have given finding of facts that there is an entry regarding return of the cheque in question to the petitioner in the despatch register of the respondent -bank. Though, there is some overwriting in the despatch register but same was duly clarified by the respondent by filing of affidavit of its Branch Manager.

IN view of the concurrent findings of facts given by two fora below, this Commission cannot go in for reappraisal of the evidence.

UNDER section 21 (b) of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 3 Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

IN view of the concurrent findings of facts given by the fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.

ACCORDINGL Y , present revision petition stands dismissed.

PARTIES shall bear their own cost.