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Asish Kumar Dey vs. Habibur Rahaman dated 2014-09-09

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

    NEW DELHI

 

      REVISION PETITION No. 2281 OF 2014

 (Against order dated 17.02.2014 in S.C. Case No.221 of 2013 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata)

 

 

Asish Kumar Dey

S/o-Adhir Chandra Dey

R/o-Vill. & P.O-Sanbandha

P.S. & Dist.-Bankura

Pin-722 180

 

                                   .... Petitioner

         Versus

 

 

 

1.  Habibur Rahaman,

    The Branch Manager,

    Bangiya Gramin Vikash Bank,

    Sanbandha Branch,

    At & P.O-Sanbandha

    P.S. & Dist.-Bankura

    Pin 722 180

 

2.  The Regional Manager,

    Bangiya Gramin Vikash Bank,

    College Road, Bankura,

    P.O,P.S. & Dist.-Bankura

    Pin-722 101

 

3.  The Chairman,

    Bangiya Gramin Vikash Bank,

    Head Office at Berhampore

    P.O. & P.S.-Berhampore

    District-Murshidabad

    Pin-742 101

                                      .... Respondents

 

 

 

 

BEFORE:

 

      HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

     

For the Petitioner: Mr. Pawan Kumar Ray, Advocate

 

                       

Pronounced on: 9th September, 2014

         ORDER

 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 

      In this revision petition filed under section 21(b) of the Consumer Act,1986 (for short, ‘Act’), there is challenge to order dated 17.2.2014 passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata(for short,‘State Commission’)vide which appeal filed by the Petitioner/Complainant challenging the order of the District Forum was dismissed.

2.  Petitioner’s case is that he is having Saving Bank Account with the Respondents Bank/Opposite Parties. On 18-05-2009, he went to the respondent bank to encash a Cheque for Rs.56,000/-. The said Cheque was issued by another A/c Holder of the same Bank. At about 11-00 hrs, he produced the said Cheque with deposit slip for encashment. After few minutes, respondent no.1 returned the same by dishonouring the said instrument, marking cross in red ink. Petitioner requested respondent no.1 to issue the Cheque Return Memo so that he can take step, but he refused. Respondent No.1 tried to snatch the cheque from his hands. Being harassed as above, petitioner suffered mentally. Thus, for deficiency of service on the part of the respondents, petitioner filed a consumer complaint claiming Rupees Two Lakhs as compensation.

3.   Respondents in their written version admitted that petitioner had come to their bank on 18-05-2009 and produced the Cheque for encashment. When the specimen signature of the A/c Holder was verified with the specimen signature on the card lying with the Bank, it was found that the Drawer’s signature were in Bengali. For that reason the signature could not be verified for its authenticity. When respondent no.1 disclosed that fact to the petitioner and requested him to present the cheque again after having another signature in Bengali just below the signature put by the A/c Holder in English, then petitioner became furious and started shouting.

4.   District Consumer Disputes Redressal Forum, Bankura (for short, ‘District Forum’) dismissed the complaint of the petitioner, vide order dated 6.2.2013.

5.   Being aggrieved, petitioner filed appeal before the State Commission, which was also dismissed.

6.   Hence, this revision.

7.   We have heard the learned counsel for the petitioner and gone through the record.

8.   It is submitted by the learned counsel, that the cheque of the petitioner sent for encashment was wrongly dishonoured by the respondent, without any lawful justification. Thus, there is deficiency of service on behalf of the Respondents’ Bank.

9.   The District Forum in its order has held;

          After going through the evidence in chief of the Complainant Ashish Kr. Dey(P.W.1) We find that on 18.05.2009 he presented the instrument before his Banker for the purpose of collection and encashment thereof and after sometime he was told by the Branch Manager that signature of the person who issued the Cheque did not tally with the signature on record of the Bank and the said Cheque was returned to him with instruction to obtain  signature of issuer in Bengali instead of English in the Cheque and he was further told that the fund of the relevant A/c at that time was insufficient to meet the cheque.

 

          He has further stated in cross-examination that on 25.5.2009 he deposited the Cheque in question in UBI Bankura Branch and in that Bank he has an A/c and the Bank handed over him the receiving counter foil of the receipt.

          In this case we find that this Complaint has not produced any counter part of the depositing slip bearing seal of the O.P. Bank to prove that he deposited the Cheque in question with the depositing slip (exhibit-2)

     

          The complainant has not been able to prove that the O.P.no.1 made the said marks in Red Ink on the Cheque and depositing slip as alleged exhibit-1 & 2 respectively.

 

Moreover, it is a fact that on 25.05.2005 the Complainant deposited the said Cheque in question to the UBI with the depositing slip and the counter part exhibit-4 proves the said fact and the report exhibit-5 proves that the O.P. Bank sent the report to the UBI stating the reasons for the dishonouring the Cheque.

 

          In the aforesaid circumstances we are of the opinion that the Complainant has not been able to prove that there is/was any deficiency of service on the part of the O.Ps.and for that he suffered any financial loss.

     

          So, considering the entire facts and circumstances of the case and from the discussions made hereinabove we find that this case is not maintainable and is liable to be dismissed”.

 

10.  The State Commission, while dismissing the appeal of the petitioner observed;

We have heard the submission made by both sides and perused the papers on record. Firstly, as to the alleged snatching of the cheque by the Bank official there is no cogent material to substantiate this allegation. Secondly, it is an admitted fact that the Complainant produced the cheque for encashment. It is the contention of the Respondent Bank that the specimen signature was in Bengali and, as such, the Complainant was asked to obtain the signature in Bengali in the cheque just below the signature in English of the drawer. It is the further contention of the Bank that the Complainant became excited and started shouting. It appears that the cheque was,subsequently, deposited by the Complainant with the UBI and when it was sent to the OP Bank for collection it was stated by the Bank that the signature differed and there was insufficiency of fund. The Complainant also lodged complaint u/s 138 of the N.I. Act as it appears from the impugned judgment. Having regard to the circumstances, we are of the considered view that there was no deficiency in service on the part of the OP Bank”.

 

11. Under Section 21 of Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

12.  The Hon’ble 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 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 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”.

 

13.   In the present case, there are concurrent findings of fact given by both the fora below, that signatures of the petitioner on the cheque in question did not tally. Moreover, as per the findings recorded by both the fora below, the cheque in question was dishonoured on the ground of “insufficient funds”. Thus, there is no deficiency of service at all on the part of the respondents. Hence, there is no jurisdiction or legal error in the impugned order, to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora below, have given cogent reasons in their order, which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

14.  It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

15.  Accordingly, the present revision petition having no merits is hereby dismissed with cost of Rs.5,000/-(Rupees Five Thousand only).

16.  Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization.

17.   List for compliance on 17th October, 2014.

 

 

…………………..………..

       (V.B. GUPT

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

    NEW DELHI

 

      REVISION PETITION No. 2281 OF 2014

 (Against order dated 17.02.2014 in S.C. Case No.221 of 2013 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata)

 

 

Asish Kumar Dey

S/o-Adhir Chandra Dey

R/o-Vill. & P.O-Sanbandha

P.S. & Dist.-Bankura

Pin-722 180

 

                                   .... Petitioner

         Versus

 

 

 

1.  Habibur Rahaman,

    The Branch Manager,

    Bangiya Gramin Vikash Bank,

    Sanbandha Branch,

    At & P.O-Sanbandha

    P.S. & Dist.-Bankura

    Pin 722 180

 

2.  The Regional Manager,

    Bangiya Gramin Vikash Bank,

    College Road, Bankura,

    P.O,P.S. & Dist.-Bankura

    Pin-722 101

 

3.  The Chairman,

    Bangiya Gramin Vikash Bank,

    Head Office at Berhampore

    P.O. & P.S.-Berhampore

    District-Murshidabad

    Pin-742 101

                                      .... Respondents

 

 

 

 

BEFORE:

 

      HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

     

For the Petitioner: Mr. Pawan Kumar Ray, Advocate

 

                       

Pronounced on: 9th September, 2014

         ORDER

 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 

      In this revision petition filed under section 21(b) of the Consumer Act,1986 (for short, ‘Act’), there is challenge to order dated 17.2.2014 passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata(for short,‘State Commission’)vide which appeal filed by the Petitioner/Complainant challenging the order of the District Forum was dismissed.

2.  Petitioner’s case is that he is having Saving Bank Account with the Respondents Bank/Opposite Parties. On 18-05-2009, he went to the respondent bank to encash a Cheque for Rs.56,000/-. The said Cheque was issued by another A/c Holder of the same Bank. At about 11-00 hrs, he produced the said Cheque with deposit slip for encashment. After few minutes, respondent no.1 returned the same by dishonouring the said instrument, marking cross in red ink. Petitioner requested respondent no.1 to issue the Cheque Return Memo so that he can take step, but he refused. Respondent No.1 tried to snatch the cheque from his hands. Being harassed as above, petitioner suffered mentally. Thus, for deficiency of service on the part of the respondents, petitioner filed a consumer complaint claiming Rupees Two Lakhs as compensation.

3.   Respondents in their written version admitted that petitioner had come to their bank on 18-05-2009 and produced the Cheque for encashment. When the specimen signature of the A/c Holder was verified with the specimen signature on the card lying with the Bank, it was found that the Drawer’s signature were in Bengali. For that reason the signature could not be verified for its authenticity. When respondent no.1 disclosed that fact to the petitioner and requested him to present the cheque again after having another signature in Bengali just below the signature put by the A/c Holder in English, then petitioner became furious and started shouting.

4.   District Consumer Disputes Redressal Forum, Bankura (for short, ‘District Forum’) dismissed the complaint of the petitioner, vide order dated 6.2.2013.

5.   Being aggrieved, petitioner filed appeal before the State Commission, which was also dismissed.

6.   Hence, this revision.

7.   We have heard the learned counsel for the petitioner and gone through the record.

8.   It is submitted by the learned counsel, that the cheque of the petitioner sent for encashment was wrongly dishonoured by the respondent, without any lawful justification. Thus, there is deficiency of service on behalf of the Respondents’ Bank.

9.   The District Forum in its order has held;

          After going through the evidence in chief of the Complainant Ashish Kr. Dey(P.W.1) We find that on 18.05.2009 he presented the instrument before his Banker for the purpose of collection and encashment thereof and after sometime he was told by the Branch Manager that signature of the person who issued the Cheque did not tally with the signature on record of the Bank and the said Cheque was returned to him with instruction to obtain  signature of issuer in Bengali instead of English in the Cheque and he was further told that the fund of the relevant A/c at that time was insufficient to meet the cheque.

 

          He has further stated in cross-examination that on 25.5.2009 he deposited the Cheque in question in UBI Bankura Branch and in that Bank he has an A/c and the Bank handed over him the receiving counter foil of the receipt.

          In this case we find that this Complaint has not produced any counter part of the depositing slip bearing seal of the O.P. Bank to prove that he deposited the Cheque in question with the depositing slip (exhibit-2)

     

          The complainant has not been able to prove that the O.P.no.1 made the said marks in Red Ink on the Cheque and depositing slip as alleged exhibit-1 & 2 respectively.

 

Moreover, it is a fact that on 25.05.2005 the Complainant deposited the said Cheque in question to the UBI with the depositing slip and the counter part exhibit-4 proves the said fact and the report exhibit-5 proves that the O.P. Bank sent the report to the UBI stating the reasons for the dishonouring the Cheque.

 

          In the aforesaid circumstances we are of the opinion that the Complainant has not been able to prove that there is/was any deficiency of service on the part of the O.Ps.and for that he suffered any financial loss.

     

          So, considering the entire facts and circumstances of the case and from the discussions made hereinabove we find that this case is not maintainable and is liable to be dismissed”.

 

10.  The State Commission, while dismissing the appeal of the petitioner observed;

We have heard the submission made by both sides and perused the papers on record. Firstly, as to the alleged snatching of the cheque by the Bank official there is no cogent material to substantiate this allegation. Secondly, it is an admitted fact that the Complainant produced the cheque for encashment. It is the contention of the Respondent Bank that the specimen signature was in Bengali and, as such, the Complainant was asked to obtain the signature in Bengali in the cheque just below the signature in English of the drawer. It is the further contention of the Bank that the Complainant became excited and started shouting. It appears that the cheque was,subsequently, deposited by the Complainant with the UBI and when it was sent to the OP Bank for collection it was stated by the Bank that the signature differed and there was insufficiency of fund. The Complainant also lodged complaint u/s 138 of the N.I. Act as it appears from the impugned judgment. Having regard to the circumstances, we are of the considered view that there was no deficiency in service on the part of the OP Bank”.

 

11. Under Section 21 of Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

12.  The Hon’ble 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 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 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”.

 

13.   In the present case, there are concurrent findings of fact given by both the fora below, that signatures of the petitioner on the cheque in question did not tally. Moreover, as per the findings recorded by both the fora below, the cheque in question was dishonoured on the ground of “insufficient funds”. Thus, there is no deficiency of service at all on the part of the respondents. Hence, there is no jurisdiction or legal error in the impugned order, to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora below, have given cogent reasons in their order, which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

14.  It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

15.  Accordingly, the present revision petition having no merits is hereby dismissed with cost of Rs.5,000/-(Rupees Five Thousand only).

16.  Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization.

17.   List for compliance on 17th October, 2014.

 

 

…………………..………..

       (V.B. GUPTA, J.)

      PRESIDING MEMBER

 

SSB/

A, J.)

      PRESIDING MEMBER

 

SSB/


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