KAZI MOHIUDDIN ANSARI vs CHHATTISGARH ELECTRICITY BOARD

THIS is an appeal against the order dated 6.7.2001 passed in Case No. 398/2000 by the District Consumer Disputes Redressal Forum, Bilaspur (for Short the ''District Forum'').

FACTS giving rise to this appeal are thus : The appellant, who is an Advocate by profession, a consumer of supply of domestic electricity gave a account''s payee cheque No. 03053 dated 3.11.2000 of Rs. 408/- of Bilaspur Nagrik Sahkari Bank Ltd., Bilaspur in the name of Superintending Finance, City Division, Bilaspur for the payment of electricity bill. The said cheque was sent by the Board for collection with other cheques and for deposit of the amount of the cheque in their account at State Bank India, Tifra Branch, Bilaspur. It is alleged that except the cheque of the appellant, all cheques were sent for collection and the cheque of the appellant was returned on the ground that the Bank of which the cheque is issued by the appellant is closed. On this the appellant served a notice to prosecute the appellant under Section 138 of the Negotiable Instruments Act, 1881. The appellant alleged that his Bank was not closed and he had sufficient fund in his account. The notice has been illegally sent with mala fide intention to disrepute the appellant. However, as there was a threatened disconnection, therefore, he deposited the amount in cash with surcharge of Rs. 100/-. The appellant filed a complaint which was resisted. The District Forum dismissed the complaint holding that as the amount of the cheque was not collected and was returned, therefore, the notice was sent. Therefore, issuance of notice by the Board was not illegal. For the threat or disrepute, the appellant had to resort the remedy in accordance with law, hence dismissed the complaint. Appellant submitted that on record, it is well established that the appellant had sufficient funds in his account in the Bank of which the cheque was issued which was not closed. Therefore, there was no cause for return of the cheque or for issuance of notice under Section 138 of the Negotiable Instruments Act, 1881 and to compel the appellant to deposit with the surcharge. Issuance of notice has caused mental pain and worry and disreputed the appellant.

The submission of the Board is that because the Bank has returned the cheque, therefore, the Board has to send a notice and later waived the surcharge.

LEARNED Counsel for the Bank submitted that the cheque was never given for collection to the Bank, hence question of cheque does not arise. Somebody has written "R" and put the seal of the Bank. If the cheque would have been given for collection then it would have been sent for collection as the Bank was not closed. After hearing learned Counsel for the parties, the appellant has no concern whether the Board sent the cheque for collection or the Bank has given a notice or not of "R". The Board as well as the Bank would have been careful not to return the cheque in a casual manner without sending the cheque to the Bank, which is said to be closed for collection. That having not been done, in our opinion, the Bank was at fault and the Board was also at fault that without making an enquiry from the Bank, why the cheque has been returned, the Board served a notice on the appellant to file a complaint under Section 138 of the Negotiable Instruments Act, 1881. Even if the cheque was returned to the Board, the Board instead of serving notice to the appellant ought to have followed the instructions of Condition No. 19 given in the Manual of Instructions on Cash Accounting Procedure, 1976, which reads thus : Cheque Dishonoured In the event of cheque being dishonoured by the Bank on presentation, the fact shall be reported at once to the tenderer with the renewed demand for payment in cash. The dishonoured cheque shall be returned and it shall be made clear to the party concerned that the Board cannot accept any liability either for the money receipt or for loss or damage to the prayer, which may possibly occur as a result of the Board''s dues remaining unpaid and consequent action which the Board may take thereof.

FROM a bare reading of Condition No. 19 it is clear that in the event of cheque being dishonoured by the Bank on presentation, the fact shall be reported at once to the tenderer with the renewed demand for payment in cash. Therefore, the Board ought to have reported the matter to the tenderer with the renewed demand for payment in cash instead of issuing notice under Section 138 of the Negotiable Instruments Act, 1881 for taking criminal action. The Board did not follow the said instructions for the best reasons known to it. However, on deposit of cash and having come to know the mistake committed by them, the surcharge was waived but that would not absolve the Board from the wrong done for which the appellant served a notice and also filed the complaint. Instead of replying the notice and accepting the mistake which the respondents committed, they contested the complaint. This whole action of the Board as well as of the Bank certainly cause for mental pain and sufferance as receiving a notice under Section 138 of the Negotiable Instruments Act, 1881 when a person had sufficient funds in his account is the cause of worry and disrepute. In the circumstances, we are of the opinion that the Board as well as the Bank failed in discharge of their duty and have not acted fairly, hence were deficient in service. Therefore, the Board and the Bank are ordered to pay the compensation of Rs. 500/- each for deficiency in service to the appellant with a further warning to be careful in future and not to deal the consumer in the discharge of their duty in such a casual manner or with ulterior motives. The appellant shall also be entitled to costs of Rs. 1,000/- throughout which shall be borne by both the respondents in equal proportion. The order shall be complied by the respondents within a period of two months from the date of receipt of certified copy of this order. In the result, the appeal is allowed. The order of the District Forum is set aside and the complaint is allowed as indicated hereinabove. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with record of the case. Appeal allowed.