PARVINDER KAUR vs Union Bank of India

THIS appeal is by the complainant Smt. Parvinder Kaur and others, legal heirs of Harpal Singh challenging order of the District Forum, Ropar dated 9.2.1996 dismissing their complaint.

HARPAL Singh was maintaining a Bank account with Union Bank of India - the opposite party. He also had dealings with opposite party No. 2 P.P.S. Rishi. He had issued a cheque for Rs. 25,000- in favour of Rishi on 14.4.1990. Subsequently, he paid the amount in cash to Rishi but did not collect the cheque. On 25.1.1991, he issued another cheque for Rs. 90,000/- which the Bank dishonoured for want of sufficient funds on 25.1.1991. It was on 25.1.1991 that HARPAL Singh was murdered. His legal heirs Smt. Parminder Kaur widow, Jasveen Kaur and Simerleen Kaur minor daughters and Manjit Kaur mother filed the complaint before the District Forum, Ropar against the Bank and Rishi inter-alia alleging deficiency in rendering service on the part of the Bank in making payment of the cheque of Rs. 25,000/- to Rishi illegally as date of issue of the cheque had been altered rendering the cheque as invalid. In consequence, there was again deficiency in dishonouring the cheque issued by HARPAL Singh for Rs. 90,000/- Thus in the complaint claim was made to the tune of Rs. 25,000/- as the remaining amount lying in credit to HARPAL Singh was paid to the legal heirs on their obtaining a succession certificate. Rishi was proceeded ex-parte and did not file any reply whereas on behalf of the Bank reply was filed denying the allegations made in the complaint. It was asserted that the cheque for Rs. 25,000/- was dated 14.9.1990 and its payment was rightly made. There was no deficiency on their part. Since sufficient amount was not lying in credit, subsequent cheque issued could not be honoured. It was admitted that the amount lying in credit was paid to Smt. Parvinder Kaur on production of succession certificate issued by the Civil Court. On behalf of the complainant Parvinder Kaur made the statement as AW 1 and PW 2 J.P. Goel, Manager of Union Bank of India was also recorded. Affidavit of the complainant Ex. R 2 was also produced. On behalf of the Bank affidavit of J.P. Goel, Manager of the Bank Mohali Branch was produced. The disputed cheque for Rs. 25,000/- in original was produced by the Bank alongwith statement of account Ex. Rl. The District Forum after considering the evidence produced held that the complainant could be treated as a consumer and entitled to file the complaint. However, they were relegated to remedy in the Civil Court after observing that apparently there appeared to be alteration in the date of the cheque for Rs. 25,000/- but no expert evidence was produced. The allegations of fraud having been committed by Rishi could be decided by leading voluminous evidence. Arguments of Counsel for the parties were heard at great length on 30.7.1996 and Counsel for the appellant was directed to file written arguments, the same have been filed and perused.

Mr. A.S. Bakshi, Advocate appearing on behalf of the complainant-appellant has argued that since on looking at the cheque, there can be no two opinions that date of the cheque was altered from 14.4.1990 to 14.9.1990, the Bank should not have made payment of the cheque without getting confirmation in writing from the drawee. While referring to Section 45 of the Indian Evidence Act, he has argued that for determining the issue as to whether there is alteration in the document or not expert evidence is not required and the Court can look at the document itself. The aforesaid arguments have not appealed to us. The question for consideration is as to whether the Bank was justified in making payment of the disputed cheques to Rishi. As per affidavit of J.P. Goel, Manager of the Bank, the cheque was presented on 22.1.1991 and the amount was withdrawn and deposited in the credit of the account of Rishi on 23.1.1991. Thus it is obvious that payment under the cheque was not made by cash transaction but it was through Bank transaction. It had to be so because the cheque was a crossed one. Accord ing to stand of the Bank as well as in the affidavit of J.P. Goel, the cheque bore the date of issue as 14.9.1990 and the payment was made on 23.1.1991 and there seems to be no material alteration in the said cheque. During arguments, learned Counsel for the Bank explained that what is described as alteration by Counsel for the appellant is merely flow of ink and the date has to be as 14.9.1990 and m ordinary course could be taken as correct. He has further argued that if double payment has been received by Rishi, one under the cheque in dispute and the other in cash from Harpal Singh as is the allegation though not proved from any cogent evidence it was open to the complainant to move the Civil Court for the relief, on the ground of fraud, if any, committed by Rishi on Harpal Singh. As and when any negotiable instrument is produced, such as cheque before the Bank, the same is not required to be sent to the expert for obtaining opinion. It is open to the Bank prima-facie to see its validity in the sense that particulars of the payee amount to be paid in words and in figures is correctly entered and the cheque bears signatures of the person authorised to operate the account. The date of the cheque is also material and if there is a change which could in ordinary course of business in the Bank be detected, the Bank would have been at liberty to refuse to make the payment. In the present case, it cannot be held that there was deficiency on the part of the Bank in making payment of the cheque in dispute. The date of the cheque could be read as 14.9.1990. Minute examination of the cheque by the Court is not necessary as we are of the view that these matters can be gone into in a Civil Court when detailed evidence is led. The fact cannot be lost sight of that if the stand taken up by the complainants have been correct that payment had been made in cash to Rishi by Harpal Singh and he did not obtain the cheque from Rishi, it was expected of Harpal Singh to inform the Bank not to make payment of the cheque in dispute. His silence upto the time of his death and taking no steps to inform the Bank suggests that the story of payment in cash to Rishi is not correct. Rishi though was impleaded as a party did not file any reply and in the present complaint, no relief against Rishi was either claimed or could be granted.

LEARNED Counsel for the complainant argued that change of date of cheque would be a material alternation and in support of this contention, he referred to the decision of the Madras High Court in Krushnacharana Padhi v. Gourochandro Dyano Sumanto, AIR 1940 Madras 62. That was a case of alteration in the date of promissory note whereby liability stood extended and it was held that the alteration made in promissory note was on material point. The aforesaid decision was followed by Madras High Court in another case P.R. Subramania Pattar v. Porathana Andi, AIR (29) 1942 Madras, 709 (2), citation given in the written arguments. On the same point decision of the Supreme Court in Loonkaran Sethia etc. v. Mr. Ivan E. John and Others, etc., AIR 1977 Supreme Court 336 has been relied upon. In para 23 of the judgment, it was observed as under : "A material alteration, is one which varies the rights, liabilities, or legal position of the parties, as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed."

The other decision relied upon by Counsel of the appellant in Lahore High Court in Firm Sri Chand-Sheo Parshad v. Lajjia Ram, AIR 1939 Lahore 31 wherein it was held that where instrument appears to be altered, it is incumbent upon the person suing on the instrument to show that the alteration was not improperly made. There is no dispute with the ratio of the decisions referred to above. However, the question for consideration is that by making alteration in the date on the cheque m dispute, assuming it to be so, could it be held to be on a material point. No statute or rules framed under any Act have been cited by Counsel for the appellant prescribing a period of six months for encashment of a cheque. Only reference has been made to the book "Law & Practice of Banking" by Professor Sohrab R. Davar, page 270 wherein under the heading material alteration of a cheque, it was observed that the alteration of the date with a view to accelerate or pre-pone the time of payment would be material. At page 131 under the heading ''Stale cheques; it is observed that in India a cheque is treated as stale cheque after the expiry of six months from the date of the cheque and the Banker returns such cheque to get the drawer''s confirmation thereon. It further mentions that this practice whereby a cheque is regarded as stale after six months has no statutory sanction in India. Thus in the absence of any statutory law alteration in the date of the cheque unless it effects liabilities of the parties legally cannot be treated as material. If the payment of the cheque had been made by Bank, even after six months of the date of issue but to a correct person, there would be no deficiency on the part of the Bank in doing so.

SINCE allegations of fraud were levelled against Rishi of receiving the amount twice by playing fraud upon Harpal Singh, these facts can well be gone into in the Civil Court and if factually it is found that Rishi was paid the amount/suitable relief against Rishi can be granted by the Civil Court and not by the agencies established under the Consumer Protection Act. By merely making Rishi as opposite party in the complaint and on his part not filing any reply will not be enough for the authorities under the Consumer Protection Act to go into these allegations and give decision. For the reasons recorded above, this appeal fails and is dismissed. The order of the District Forum dismissing the complaint is affirmed. However, the complainants are at liberty to move the Civil Court, if so advised. There will be no order as to costs of this appeal. Appeal dismissed. _____________