ICICI BANK vs Kusum Rani

-SINCE the Counsel for the respondent has appeared on his own and has argued the case the matter is being decided on merits.

VIDE impugned order dated 2.9.2006, the appellant-Bank has been directed to pay a sum of Rs. 49,999, the amount of the cheque dropped by the respondent in the drop box and Rs. 5,000 as compensation and Rs. 1,000 as cost of litigation. The said cheque was unauthorisedly encashed by someone of the staff of the appellant-Bank. Feeling aggrieved the appellant has preferred this appeal. Admittedly, the cheque issued by the respondent was a self/bearer cheque i.e., herself as she wanted to transfer the amount from her account in the appellant-Bank and dropped the same in the drop box of the appellant-Bank, Connaught Place Branch, New Delhi.

According to her when she got her pass book updated she learnt that the amount of the said cheque had not been credited to her account in the appellant-Bank. The cheque had been encashed on 10.6.2005 by someone of the staff of the appellant-Bank. She approached the Manager of appellant-Bank and lodged a complaint and she was promised that all possible action would be taken to get her money back. She also lodged complaint with Police Station, Vasant Kunj on the same day. From 23.12.2005 onwards she visited respondent No. 2-Bank on several occasions but she did not get any favourable response and ultimately she was informed that respondent No. 2 had encashed the cheque and thus there was no negligence or deficiency on their part. The respondent No. 1 by way of present complaint has prayed that erring bank be asked to compensate her for the loss of the amount represented by the said cheque i.e., Rs. 50,000. According to her on the earlier occasions also she had been dropping the bearer cheques in the appellant-Bank which were duly sent by the clearance and the amount was credited to her account.

ACCORDING to respondent No. 2 the cheque was presented bearing the signatures of the respondent on front as well as on the back side authorising the bearer to encash the cheque and as per banking rules the cheque was encashed. The cheque being "self drawn cheque" and not an account payee cheque, it was negotiable in nature and any person in physical possession of the same was entitled to receive payment of the same. Appellant-Bank has denied that the respondent had dropped a cheque bearing No. 438291 drawn at SBI, JNU Branch, New Delhi for a sum of Rs. 49,999 in its drop box. Self/bearer cheques are not dropped in the drop box and cannot be accepted for clearance. The cheques/instruments dropped in the drop box of the bank are under the joint custody of two bank employees and only the authorized custodian can have access to the said cheques/instruments dropped in the drop box.

IN support of her assertion that she has filed the affidavit of her friend who had accompanied her to the ATM of appellant where drop box was lying. Appellant has not produced any rules that forbid a person from dropping self drawn or bearer cheque in the drop box. It has also not been shown that any instructions were displayed on the drop box as to what type of instruments/cheques are allowed to be dropped in the drop box or that only account payee cheques are to be dropped in the drop box. Learned Counsel for the appellant has assailed the impugned order on the following grounds : (i) That there was no evidence that respondent No. 1 had dropped the cheque in the appellant-Bank''s drop box. (ii) In the complaint respondent No. 1 did not mention anyone who had accompanied her. She has disclosed her name by way of filing of her affidavit. (iii) It is a case of contributory negligence because the respondent who is a Govt. employee should have known that a self drawn or bearer cheques are not to be dropped in the dropping box. (iv) The earlier cheques dropped in the box were in her own name whereas this cheque was self and the name was not mentioned. (v) That the cheque was not encashed by the ICICI Bank or any of its staff.

So far as dropping of the cheque in the drop box is concerned this fact has been proved by way of affidavit of her friend who had accompanied her to the bank. The respondent has produced one photo copy of the cheque which she had dropped in the box of the appellant-Bank on earlier occasion. The said cheque is dated 8.1.2005 which is issued in favour of self (Smt. Kusum Rani). The cheque in question is also own crossed cheque and is in favour of self (Kusum).

IF any bank adopts a procedure of not receiving the cheques directly and provides facility to the consumers for dropping the cheques in the drop box, it becomes the responsibility and liability of the Bank to see that the cheque does not fall in the wrong hands and is duly credited in the account of a person concerned. Cheques are always dropped in a box with the deposit slip where the particular number is mentioned and the person in whose favour the cheque is issued. Since in the past the appellant-Bank has credited the amount of the cheque in favour of the respondent and had accepted the self/bearer cheque wherein name of account holder was mentioned which was in the name of the respondent, the only inference one can draw from this fact is that someone from the appellant Bank''s staff laid hand upon the cheque and got it encashed from SBI by taking advantage being a bearer/self drawn cheque.

FACILITY or methodology of dropping the cheques in the box amounts to a contract between parties that the dropped cheques would be duly credited in the account of person which is mentioned in the pay-in-slip and non-crediting of the cheque on or its loss or wrongful encashment amounts to deficiency in service which means : any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Since the deficiency in service on the part of the appellant-Bank which may be the result of the methodology it has adopted to receive the cheques by way of dropping the cheques in the drop box and not availing the services of a clerk at counter to receive the cheques and giving the receipt with the seal of the Bank, the deficiency is writ large. In terms of Section 14(1)(d) of the Consumer Protection Act, 1986 a consumer is entitled to an amount of compensation as to the actual loss or injury suffered by him due to the negligence of the opposite party.

The foregoing reasons persuade us to dismiss the appeal. We do not find any merit in the appeal and dismiss the same. The payment shall be made within one month after the receipt of this order.

THE bank guarantee/FDR, if any deposited by the appellant be returned forthwith after completing necessary formalities. A copy of this order as per statutory requirements be forwarded to the parties free of costs and also the concerned District Forum and thereafter the file be consigned to Record Room. Appeal dismissed.