Thursday, 12 November 2015

Whether Banks can be liable for loss of dishonoured cheques?

When a cheque is dishonoured, the payee can take legal action against the drawer under the Negotiable Instruments Act. The complainant needs to produce the dishonoured cheque and the bank advice as evidence. But, what if the dishonoured cheque is lost by the bank? Here’s a case of ICICI Bank v/s Shri Sonnegowda & Ors in revision petition No. 649 of 2012, decided on April 16, 2012.
Sonnegowda had received a cheque of Rs 2 lakh from Siva Sankar, drawn on ICICI Bank. This cheque was deposited by Sonnegowda in his Pragathi Gramin Bankaccount, which sent it for collection to ICICI Bank. The cheque bounced due to insufficient funds. Sonnegowda wanted to institute a criminal complaint against Siva Sanker under Section 138 of the Negotiable Instruments Act, but was unable to do so, as the bank did not return the dishonoured cheque with the memo of dishonour. As both banks avoided giving proper information, Sonnegowda filed a consumer complaint in the District Forum.
Pragathi Gramin Bank filed its reply, admitting all the facts. However, it disputed any liability, claiming it was helpless as ICICI Bank had not returned the cheque. ICICI Bank tried to escape its negligence by claiming Sonnegowda was not its customer and there was no privity of contract. As no services had been rendered by ICICI Bank to Sonnegowda, a consumer complaint would not be maintainable.
The Forum held ICICI Bank liable to return the cheque to Sonnegowda. In case it was unable to do so, said it is liable to pay Rs 2 lakh, with an interest at 12 per cent per annum, plus compensation of Rs 25,000 and cost of Rs 5,000. ICICI Bank’s appeal against this order was dismissed by the Karnataka State Commission.
ICICI Bank finally approached the National Commission through a revision petition. The bank reiterated its stand. It claimed it could not be held liable for the value of a cheque dishonoured due to insufficient funds.
The National Commission observed it was an undisputed fact that Sonnegowda neither received the value of the cheque or the bounced cheque. He had been prevented from taking legal action against the drawer of the cheque, as the bank did not return the dishonoured cheque. Thus, Sonnegowda had been put to loss though he was not at fault. The liability would lie on the party responsible for losing the cheque.
As a last effort, ICICI Bank tried to blame its own advocate for not conducting the matter properly before the District Forum, and requested the case be remanded back to the Forum for fresh adjudication. Rejecting this plea, it was held the bank could take legal action against its advocate, but Sonnegowda could not be made to suffer due to this.
The National Commission observed the Forum had given an opportunity to the bank to return the cheque with the memo of dishonour within 30 days. It held the bank was liable to pay Rs 2 lakh only in case of default. Hence, the order was fair and could not be faulted. With this observation, the National Commission refused to admit ICICI Bank’s revision petition.
While dismissing the petition, the Commission observed that the concurrent findings of the District Forum and the State Commission were proper. Also, filing a revision petition wasn’t justified, as there was no jurisdictional or legal error in the orders passed. The Commission asked the bank to pay Rs 10,000 to the legal aid in four weeks, and a nine per cent interest in case of delay in payment.
National Consumer Disputes Redressal
M/S Icici Bank Ltd. vs Shri Sonnegowda & Anr. on 16 April, 2012
  Aggrieved by order dated 20.10.2011, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short State Commission), petitioner has filed this revision petition.
2. Brief facts are that respondent no.1/complainant was given a cheque for Rs.2 lakhs by Shri R.Siva Sankar - respondent no.3, herein. Respondent no.1, presented the said cheque to his banker - respondent no.2/opposite party no.1 for collection. Respondent no.2 sent the cheque for collection to petitioners bank/opposite party no.2 on 9.8.2010. The said cheque was not encashed due to insufficient fund in the account of respondent no.3. Accordingly, petitioner sent the cheque to respondent no.3. It is alleged by respondent no.1 that, petitioner ought to have sent the cheque and the endorsement to respondent no.2 and respondent no.2 ought to have handed over the cheque and endorsement to respondent no.1. Thus, respondent no.1 on the basis of cheque and banks endorsement as insufficient fund, had to file a private complaint u/s 200 Cr.P.C. before Magistrates Court for the offence punishable u/s 138 of the Negotiable Instrument Act, against respondent no.3. But due to the negligence on the part of petitioner and respondent no.2, respondent no.1 could not get the said cheque and endorsement of the Bank and as such respondent no.1 was not able to prosecute respondent no.3 u/s 138 of the Act due to delay. The cheque amount is Rs.2,00,000/-.
3. It is further stated that there is no proper information from the petitioner as well as to respondent no.2. Thus, there is gross negligence on the part of the petitioner and respondent no.2. Accordingly, respondent no.1 prayed that petitioner and respondent no.2 be directed to return the above said cheque as well as endorsement forthwith and settle the matter and pass orders the Court deems fit and proper in the circumstances of the case.
4. Respondent no.2 in its reply, admitted all the allegations made by respondent no.1. It is further stated that cheque was sent for collection. However, negligence and mistake has been committed by the petitioner in not returning the cheque to respondent no.1 and as such respondent no.2 is not liable for any action.
5. Petitioner in its reply has stated that there is no privity of contract between it and respondent no.1, as respondent no.1 has not availed any services of the petitioner. Respondent no.1 is not a consumer as defined under Section 2 (d) of the Consumer Protection Act, 1986 (for short as Act).
6. However, petitioner admits that while dispatching the said cheque and return memo, by inadvertently the same was sent to the account holder i.e. respondent no.3.
Thereafter, petitioner immediately approached respondent no.3 and requested him not to bounce the cheque. Petitioner has made sincere efforts to get back the bounced cheque. As such, question of deficiency of service on the part of petitioner does not arise at all.
7. District Forum, vide order dated 29.7.2011, allowed the complaint and directed the petitioner to return the bounced cheque along with the necessary endorsement to respondent no.1, through respondent no.2, within thirty days from the date of the order. It further directed that in case, petitioner fails to return then, it shall be liable to pay Rs.2 lakhs to the complainant with interest @ 12% p.a. from 9.8.2010 until actual payment. In addition, petitioner had to pay compensation of Rs.25,000/- to the complainant for inconvenience caused to him and Rs.5,000/- as costs.
8. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission and the same was dismissed, vide impugned order.
9. This is how the matter has reached before this Commission.
10. At the outset, we may point out that in the initial complaint filed by respondent no.1, there were only two respondents. However, in the present revision, petitioner without seeking any permission from this Commission has impleaded Mr.R.Siva Sankar as respondent no.3. At the time of hearing, when this fact was brought to the knowledge of learned counsel for the petitioner, he gave a statement that respondent no.3 may be deleted, since it was not a party before the District Forum. Accordingly, name of respondent no.3, who was not a party before District Forum, was deleted from the array of the parties.
11. It is contended by learned counsel for the petitioner that respondent no.1 is not a consumer of the petitioner bank and as such, he is not entitled to any relief.
12. The second leg of argument is that there was no privity of contract between petitioner and respondent no.1 and as such complaint is not maintainable.
13. Another contention made by learned counsel is that petitioner had taken all the necessary steps to retrieve bounced cheque from the account holder. Moreover, the disputed cheque has already been dis-honoured due to insufficient fund in the account of the account holder. Thus, respondent no.1 is not entitled for the said cheque amount from the petitioner.
14. Lastly, it is contended that District Forum has granted reliefs which were not sought for by the petitioner and as such, impugned order is liable to be set aside.
15. It is an admitted fact that respondent no.1 presented the cheque issued in his favour with his banker i.e., respondent no.2. Respondent no.2 had sent the said cheque to petitioners bank for collection. Though the said cheque is stated to have been dishonoured due to insufficient fund in the account of drawer, thus the said cheque ought to have been sent to respondent no.1, but it was sent to respondent no.2.
16. Respondent no.1 did not receive the bounced cheque nor did he receive the sum of the cheque i.e., Rs.2 lakhs, which was issued in his favour by the account holder. In this entire transaction there was no fault of the complainant.
17. Admittedly, petitioner has failed to return the cheque in question to respondent no.1. Under these circumstances, respondent no.1 had been deprived of its legal right to file a case undersection 138 of the Negotiable Instrument Act, against the account holder. Thus, respondent no.1 has been made to suffer loss of Rs.2 lakhs for no fault of his own.
18. When cheque in question has been lost at the end of petitioners bank, then it is the petitioner alone who is liable to compensate the loss, suffered by respondent no.1.
19. State Commission in its impugned order has observed ;
The averments made by the complainant in the complaint that the documents produced in the case remained un-rebutted. The District Forum though given an opportunity to the appellants, the appellants failed to contest the case for the reasons best known to them. At the same time, there is no reason to disbelieve the evidence produced by the respondent. The reason assigned by the appellants in this appeal for not closely contesting the case in the appeal memorandum cannot be accepted and the prayer made by the appellants for fresh adjudication does not hold water since the District Forum has ordered only for refund of the amount paid by the respondents with interest. If the appellants have aggrieved of the service rendered by their Advocate, it is for them to take a different footing in that regard if they are so advised, for which the respondent should not suffer. Accordingly we pass the following :-

Order   The appeal is DISMISSED at the state of admission.

20. It stands clearly from the record that in the absence of the original cheque, respondent no.1/complainant has been deprived of getting his money from the person who has issued the cheque in his favour. Moreover, the return memo returning the cheque on the ground of insufficient fund has not been placed on record.

21. This plea of learned counsel for the petitioner that respondent no.1 has nowhere claimed a sum of Rs.2 lakhs in its complaint, is wholly unfounded. District Forum in its order has directed the petitioners bank to return back the cheque along with necessary endorsement to respondent no.1, within thirty days. In case, petitioner fails to return the cheque within time, then only it shall be liable to pay Rs. 2 lakhs with interest. It was only in the event of non-return of the cheque, the cheque amount has been ordered to be paid by the petitioner to respondent no.1. Thus, there was no illegality or infirmity in the above directions passed by the District Forum.

22. It is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited.

23. Honble 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 fromSection 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.

24. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act.
Since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present revision petition is hereby, dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only).
25. Petitioner is directed to deposit the costs of Rs.10,000/-, by way of cross cheque, in the name of Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner fails to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
26. Pending application also stands dismissed.
27. List on 25.5.2012 for compliance.
...J (V.B.
Print Page

No comments:

Post a Comment