MANAGER, CENTRAL BANK OF INDIA vs JOSE M.FRANCIS

OPPOSITE party in O.P. 707/2000 on the file of the Consumer Disputes Redressal Forum, Ernakulam is the appellant. Complainant''s grievance was that two cheque leaves, Nos. 019887 and 019888 were stolen and on discovery of the same he issued a stop memo to his Bank and paid a sum of Rs. 100/- to the Bank to note the same. One of the cheque leaves with an entry of Rs. 1,50,000/- was presented on 6.1.1999 for encashment. That cheque was returned with endorsement "fund insufficient". Complainant alleged that having regard to the fact that he had issued a stop memo, the failure of the opposite party to make entry in the endorsement as regards the said aspect would amount to deficiency of service and, therefore, he wanted to be compensated particularly in the context of the fact that on the basis of the said return of the cheque with endorsement ''fund insufficient'' Criminal Case No. 949/1999 for the offence punishable under Section 138 of the Negotiable Instruments Act is filed. In the version by the opposite party they sought to defend their action by maintaining that as a matter of fact the funds in his account were insufficient to honour the cheque and as per the practice of the Bank it was enough to make the said entry. On previous occasions also complainant had issued stop memo. In such circumstance they maintained that there is no deficiency in service. Before the District Forum complainant produced Exbts. A1 to A3 and opposite parties produced Exbts. B1 to B3. On a consideration of the said material the District Forum found deficiency in service and directed the opposite parties to pay a compensation of Rs. 1,000/-. It is the said direction that is under challenge.

LEARNED Counsel for the appellant submitted that having regard to the conduct of the complainant in stopping payment on previous occasion also. It is urged the return of the cheque cannot constitute deficiency in service and he also maintained that in the given circumstance, it cannot be said that the complainant sustained any injury to be compensated. The impugned order mentions that in Exbt. B3, SB account of the complainant, mention is made as to the communication of the stop memo. What is to be noted is, when the Bank perused the amount to see whether enough amount to honour the cheque, the aforesaid fact that there was a stop memo could not have escaped their attention. So far as the Bank is concerned nothing prevented them to mention the said fact also while returning the cheque. A limited question to be looked into so far as an allegation is to see whether there was defect in service which could have caused injury to the complainant. The stop memo was issued by the complainant. This is relied on to show that he is within the jurisdiction of Ernakulam Branch. It has to be noted that the complainant has to answer a charge under Section 138 of the Negotiable Instruments Act on the basis of the dishonour of the cheque. Failure of payment as a result of stop memo could also constitute offence under Section 138 of the Negotiable Instruments Act, are matters has to be gone into by the Court where the prosecution is pending. Whether as a matter of fact cheque leaves were stolen if raised, may be considered by the Criminal Court. The failure to note that the cheque was stolen when the same was presented for encashment is deficiency of service. We see nothing to interfere, appeal fails, dismissed. Appeal dismissed.