B.L. Malviya vs A. Zohari

This revision petition has been filed by the petitioner B.L. Malviya against the order dated 28.02.2013 of the State Consumer Disputes Redressal Commission, Madhya Pradesh, (in short 'the State Commission') passed in Appeal No.1532 of 2012.

Brief facts of the case are that the petitioner/complainant deposited a cheque by dropping the cheque in the drop box on 21.05.2009. On 22.05.2009, the petitioner presented an application before the bank that his cheque be returned to him as he has not entered his name in the cheque against the payee. Though the bank in writing also assured that they will return the cheque, however, the same was not returned and the cheque expired on 30.05.2009.

Ultimately, when the cheque was not returned before the expiry of the cheque the complainant filed a consumer complaint before the District Forum. The complaint was resisted by the respondent/opposite party on the ground that the issuer of the cheque Mr. Amit Rathore sent 'stop payment request' to the bank and also stated that the cheque was issued in the year 2005 and was not issued in favour of the complainant. The bank asserted that the cheque was presented by changing the date by the complainant. Accordingly, it was requested to dismiss the complaint. However, District Forum dismissed the complaint vide its order dated 13.06.2012.

Aggrieved, the complainant filed an appeal bearing No.1532 of 2012 before the State Commission and the same was also dismissed vide order dated 28.02.2013 of the State Commission.

Hence the present revision petition.

Heard the petitioner in person and the learned counsel for the respondent bank. The petitioner stated that when the bank had located the cheque, the same should have been returned to the complainant when his specific application was made before the bank in this regard. It was very clear from the deposit slip that the cheque was deposited by the complainant. However, the bank delayed the matter and meanwhile the cheque expired, therefore, the complainant has suffered a loss of Rs.5,00,000/-, the amount of the cheque as well as suffered mental agony and harassment. Both the fora below have believed the story given by the respondent that the issuer of the cheque had sent 'stop payment request' to the bank and had also stated that the cheque was not issued in favour of the complainant. The petitioner stated that it was a concocted story. It was mentioned by the petitioner that even if the story is believed the question is why the cheque was not returned before this letter was received by the bank from the issuer of the cheque. It was further stated that in accordance with Section 77 of the Negotiable Instrument Act, 1881, the bank is liable to compensate the loss suffered by the complainant.

On the other hand, the learned counsel for the respondent bank stated that both the fora below have thoroughly examined the issues involved in the matter and have reached to the conclusion that the petitioner did not have any case on merits. Against the concurrent finding of both the fora below, this Commission has limited powers under the revisionary jurisdiction. It has been observed by the fora below that the deposit slip cannot be taken as proof for returning the cheque where the payee's name is not mentioned because the cheque can be deposited by any person not necessarily being the payee. It was further stated by the learned counsel that the case is not covered under Section 77 of the Negotiable Instrument Act,1881 because that Section is only applicable in respect of accepted bill of exchange, whereas in the present case, the cheque was faulty and it was never accepted for payment.

Learned counsel for the respondent further argued that the issuer of the cheque Amit Rathore has sent a communication to the bank for stopping the payment of the cheque and also informed that the cheque was issued in the year 2005, however, the complainant presented the cheque in the year 2008 by manipulating the date. It was also clarified by the issuer that the cheque was never issued in favour of the complainant.

I have carefully considered the arguments of both sides and have examined the record. It is seen from the order of the State Commission, that the State Commission has already ordered return of the cheque to the complainant though his appeal for payment of cheque amount of Rs.5,00,000/- and compensation etc. was dismissed. Both the fora below have given concurrent finding and the scope under the revision petition is very limited when there are concurrent findings by both the fora below as held by Hon'ble Apex Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 wherein following has been held:-

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 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 that 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 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 finding of two fora."

I agree with the observations of the fora below that the depositor of the cheque may not always be the payee of the cheque. Therefore, it was not possible for the bank to return the cheque to the depositor on the basis of the deposit slip. If a cheque is not payed due to any reason, the cheque is returned to the payee whose name is entered on the cheque. In the present case, the cheque could not have been returned to anybody as no name was mentioned against payee. Prima facie this was the mistake on the part of the complainant to have deposited a cheque with the bank where name of the payee was not mentioned. Basically it was not a fair act on the part of the complainant and no deficiency can be alleged against the opposite party based on a wrongful act of the complainant himself. In the present case, particularly issuer has denied issue of cheque in favour of the complainant and has also made a 'stop payment request'. In these circumstances, there was no question of either returning the cheque to the complainant or making any kind of payment to the complainant. In such situation, no deficiency can be alleged against the respondent bank and both the fora below have rightly dismissed the complaint.

Based on the above discussion, I do not find any illegality material irregularity or jurisdictional error in the order dated 28.02.2013, which calls for any interference from this Commission. Accordingly, revision petition No.2611 of 2013 is dismissed. Parties to bear their own costs.