Senior Branch Manager Vijaya Bank vs Dwarka Nath Muskara S/o. late Debakinandan Muskara

THIS revision petition is filed against the order of the Orissa State Consumer Disputes Redressal Commission in FA NO.665 of 2006. The matter pertains to a cheque of Rs.3 lakhs drawn in favour of the Complainant/ Dwarka Nath Muskara. THIS cheque was deposited with the revision petitioner/OP -1 branch of Vijaya Bank, on 22.12.2003. It was dishonoured by the drawee bank for insufficiency of funds. The collecting bank i.e. OP -1 debited the account of the Complainant for an amount of Rs.550/ - towards collection charge but failed to return the dishonoured cheque, informing that it was misplaced.

THE case of the Complainant before the State Commission was that in the absence of the dishonoured cheque, he had lost his opportunity to proceed against its drawer for the amount in the cheque, under Section 138 of the Negotiable Instruments Act, 1881. Considering it as a case of deficiency of service, the District Consumer Disputes Redressal Forum Balasore, directed the Branch Manager/OP -1 to pay a sum of Rs.3 lakhs with 5% interest from the date of the order and Rs.5000/ - towards cost.

IN the impugned order, the State Commission, Orissa dismissed the appeal of the present revision petitioner and confirmed the order of the District Forum in the following terms: - "After hearing the learned counsel for both parties at length and perusing the series of documents filed by the parties, we see no reason to differ from the finding recorded by the learned District Forum. Of course, we cannot lose sight of the fact that the District Forum has peculiarly granted interest from the date of its order instead of granting the same from the date of deposit of the cheque. However, since no appeal has been filed by the complainant against the same, no order on that score can be passed."

WE have perused the records and examined the findings of the fora below with reference to the evidence before them. Coming against the concurrent findings of the fora below, the revision petitioner has prayed that records of the State Commission in FA No.665 of 2006 should be called for and the impugned order set aside. During the course of hearing of the revision petition, the learned counsel for the revision petitioner was asked whether there was any specific reason for seeking records of the State Commission. The counsel could not point out any reason for this prayer in the revision petition.

ACCORDING to the revision petitioner, the Complainant should have proceeded against the drawer of the cheque in criminal or civil action before a competent court, instead of filing a consumer complaint. This point was examined by the District Forum sufficiently. The Forum has noted that: "In the absence of the original cheque it is difficult to pr -ove the signature of the person, who issued the cheque in favour of Complt. So Complt. Was deprived of getting his money from the person to issued the cheque in his favour sending a duplicate cheque. Return memo is no way helpful to the complt. to get the money." We therefore, do not consider it necessary to go into this point any further.

IT is also urged in the revision petition that instead of following the due process and collecting the amount on the second cheque offered to him, the Complainant pursued his consumer complaint against the petitioner. This averment has to be rejected at the threshold itself as it is in total ignorance of the following observations in the impugned order: - "Mr. Gopal Muskara, learned counsel appearing for the respondent submitted that the other cheque was a post dated one and was to be presented on 22.10.2005. Apart from that, the name and surname of the complainant was wrongly mentioned in the said cheque. This fact was also intimated by the complainant -respondent to the appellant -Bank on 22.06.2005, but no reply was received by him. As regards the post dated cheque, the complainant -respondent also intimated the appellant -Bank that when the cheque was issued on 22.12.2003 for an amount of Rs.3,00,000/ -, the financial condition of the person issuing the cheque was somewhat better. But that cheque was dishonoured. Now, a post dated cheque has been issued to be presented in the month of October, 2005, the chance of encashment of which is totally oblique."

LEARNED counsel for the revision petitioner has sought to rely on the decision of this Commission in State Bank of Patiala Vs. Rajender Lal & Anr, IV (2003) CPJ 53 NC. We find that the facts of the cited case were very different from the facts in the matter before us. Therefore, in our view the case of the revision petitioner cannot draw any support from the same.

MOREOVER, the scope of the present proceedings under section 21 of the Consumer Protection Act 1986, is very limited. Concurrent findings of fact in the fora below are not open to being disturbed in exercise of revisional jurisdiction. The law on this subject has clearly been enunciated by the Apex Court in Rubi (Chandra) Dutta Vs. United India Insurance Company Limited, (2011) 11 SCC 269. Hon''ble Supreme Court has observed that 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 face jurisdictional error appearing in the impugned order, and only then, may the same be set aside.

FOR the reasons discussed above, the revision petition is dismissed and the order of the Orissa, State Consumer Disputes Redressal Commission, in FA No.665 of 2006 is confirmed. The parties shall bear their own costs.