Tamilnad Mercantile Bank Ltd. vs S. NAGARATHINAM

THE complainant''s case is as follows: THE 5th opposite party, for the purpose of his business, had borrowed a sum of Rs. 50,000/- from the complainant and issued a cheque drawn in favour of the 1st opposite party for the said sum of Rs. 50,000/- on 23.9.1996. As requested by the 5th opposite party, the complainant, after waiting for some time, presented the cheque on 29.1.1997. THE 6th opposite party sent the cheque for collection, but the cheque was returned by the 1st opposite party to the 5th opposite party on the ground that there was alteration in it. THE opposite parties 1 to 4 and 6 have colluded with the 5th opposite party. THEre was no alteration in the cheque when it was presented for collection to the 1st opposite party. If the date had been altered, it would not have been received for collection. THE return of the cheque is improper and unfair. THE 1st opposite party and the opposite parties 2 to 5 belong to Nadar Community. THE return of the cheque has caused mental agony, hardship and loss of income to the complainant. Hence the complaint.

THE opposite parties 1 to 4 contended that the 6th opposite party returned the cheque as there was material alteration. Giving a communal colour to the return of the cheque is mischievous. It is unfair to allege that the opposite parties 1 to 4 have colluded with the 5th opposite party. THE current account No. 355672 was closed on 25.8.1992. THE said account stood in the name of one M/s. Jothi Traders, a partnership firm, constituted by one P. Nagajothi and one R. Viswanathan. THE 5th opposite party is not the account holder. THE return of the cheque is not a deficiency in service. THE complainant is not a consumer. The 6th opposite party contended that the complainant has an account with the 6th opposite party and a cheque dated 23.9.1996 for Rs. 50,000/- bearing No. 106062 was presented for collection. The cheque was returned for the reason that in the date of the cheque there was an alteration. The 6th opposite party is not aware of the other allegations. The 6th opposite party is not a necessary party as no relief is asked for against them.

The lower Forum passed an order directing the opposite parties 1 to 5 to pay a sum of Rs. 50,000/- with interest at 18% p.a. from 10.2.1997, along with a sum of Rs. 4,000/-. Hence this appeal.

ACCORDING to the complainant, the cheque was issued in his favour by the 5th opposite party for the amount due by the 5th opposite party to him and that when the cheque was presented for collection through the 6th opposite party, it was returned by the 1st opposite party on whose Bank the cheque was drawn, stating that there was alteration in the date and thus there is deficiency. We are unable to understand as to how such a complaint can be laid before the Consumer Court. The complainant is not a consumer either with reference to the opposite parties 1 to 4 or the 6th opposite party. He has not hired the services of the opposite parties 1 to 4. The 1st opposite party is a Banker on whose Bank the said cheque has been drawn by the 5th opposite party. The said cheque has been handed over by the 5th opposite party to the complainant towards the discharge of the loan. Therefore, in such circumstances, it is not known how an action under the provisions of the Consumer Protection Act can be resorted to by the complainant. Further, the return of the cheque by the Bank, if it is for due and proper reasons, it cannot be questioned as deficiency in service. Here, it is stated that there was alteration in the date of the cheque. When there was any alteration in the date, the Bank was well within its right to return the cheque. The Bank is not bound to honour the cheque if it is defective. Therefore, the return of the cheque by the Bank on the ground of alteration in date cannot be complained of nor can it be brought under the provisions of the Consumer Protection Act.

THE xerox copy of the cheque has been produced. It is not known why the original cheque is not produced by the complainant. From the xerox copy, we find that there has been a scoring out of the date. It is not known why the appellant should burk the original cheque. From the cheque, we find, it appears to be dated 23.9.1996, whereas the challan for remitting the said cheque into the account for collection is dated 29.1.1996. From the memo of the Tamilnad Mercantile Bank, we find that it has been returned on the ground of alteration in the date and it requires the full signature of the drawer and the account holder. THE records produced by the opposite parties show that the account on which the cheque was drawn was closed already. Further, we find that the said account stands in the name of M/s. Jothi Traders and it does not stand in the name of the complainant. In fact they have also produced a cheque drawn on the Tamilnad Mercantile Bank to show that the cheque issued was drawn by one Viswanathan on behalf of M/s. Jothi Traders. Thus, we find that the account has been closed and on the date of issuing of the cheque, no such account was in operation. THE account stood closed as early as on 25.8.1992 and that the 5th opposite party did not have the power to issue the cheque nor was he the account holder. THErefore, in such circumstances, the complainant cannot maintain any action at all, much less on the basis of the cheque. In such circumstances, the return of the cheque cannot be called an unwarranted or improper one. It had been done in the course of the business transaction whereby the Bank authorities are empowered to return if the cheque is not in order. Hence, the question of deficiency in service will not arise. Further, vis-a-vis the complainant and the opposite parties 1 to 4, there is no relationship of contract of service or hiring of service, nor the complainant can be equated to be a consumer as against the opposite parties 1 to 4. THErefore, in view of the above circumstances, it is obvious that the complaint is bereft of merits. Without considering these important aspects and the circumstances, a mechanical order has been passed by the lower Forum, which, therefore, deserves to be set aside. In the result, this appeal is allowed with costs. The order of the lower Forum will stand set aside. The complaint will stand dismissed with cost. Cost of Rs. 250/- to each in the appeal and before the lower Forum. Time for compliance: 2 months. Appeal allowed with costs.