STATE BANK OF INDORE Vs. KUNJILAL

JUDGEMENT

(1.) This appeal is directed against the order dated 30th August, 2002 passed in Case No.129/2000 by the District Consumer Disputes Redressal Forum, Indore (for short the 'district Forum') whereby the complaint for deficiency in service in not sending the cheque of M/s. Sharda Textiles, M. G. Road, Indore of Rs.28,452/- dated 3.9.1999 of the Central Bank of India, Cloth Market Branch, Indore deposited in the appellant - Bank by the respondent No.1 for collection and credit of the amount of the cheque in the account of the respondent No.1, which was lost and was encashed by someone, was allowed with an order to pay the amount of Rs.28,452/- with interest thereon at the rate of 9 per cent per annum from 5.9.1999 along with Rs.500/- as costs of the proceedings.

(2.) The case of the respondent No.1 is that he deposited the cheque in the box with the deposit slip for its clearance and collection of the amount in the current account of the respondent No.1 with the appellant of which on the counter slip he put the seal, but the cheque was lost and was not sent for clearance, hence, the amount was not credited in the account. He made enquiries. On this, the appellant's concerned employee stated that no such cheque was deposited. On this, the respondent No.1 shown the counter slip with seal of the Bank. The concerned clerk told him to find out with the Bank of which the cheque was presented. The respondent No.1 made enquiry from the respondent No.2, where he came to know that the cheque was given on the counter where in the "account payee" struck off and entry to pay bearer was made, which had seal of the firm and signatures of the issuing firm. After tallying the signatures of the account holder - M/s. Sharda Textiles, the amount of the cheque was paid in cash in ordinary course of the business of the Bank. On this, the respondent No.1 filed the complaint, which was resisted. The District Forum after appreciation of evidence on record held that as per practice, the respondent No.1 deposited the cheque with the deposit receipt and keeping counterfoil with seal of the Bank on it dropped in the box as per practice of the appellant - Bank. The defence of the appellant that the slip does not bear the signatures or initials of any officer of the Bank, except the seal of the Bank and that the cheque was not dropped in the box; as if the cheque would have been dropped in the box, entry of the same would have been made in the list of the cheques deposited for collection; was not accepted by the District Forum. The District Forum held that as per practice, the cheque was dropped in the box after putting the seal on the deposit receipt and filing the particular of the cheque of which counterfoil was kept. From there, the cheque was stolen and after that "account payee" endorsement was struck off and bearer entry was made with seal and signatures of the account holder-Firm which was tallied by the Bank Officers. True, prima facie the seal and signatures are compared minutely, which show the difference between the original seal and signatures of the firm issuing the cheque. If, the cheque would not have been lost, the amount would not have been withdrawn. The defence of the respondent No.2, who was opposite party No.3 before the District Forum, that the firm issuing cheque on earlier occasion has also acted in this manner as it first issued the account payee cheque to a party which was deposited for collection and thereafter the account payee entry was struck off and the amount was withdrawn by the issuing firm only making it bearer, was not accepted by the District Forum in the circumstances of the case. Hence, having found deficiency in service on the part of the appellant - Bank where the cheque was dropped in the box from where it was stolen, ordered to pay the amount of the cheque with interest.

(3.) After hearing learned Counsel for the parties and on reappraisal of evidence on record, it is established that the cheque presented for encashment with the respondent No.2 - the Central Bank of India, which had the seal and signatures of the account holder and on which alteration was not tallied, apparent payment was made in due course. Sec.10 of the Negotiable Instruments Act, 1881 defines payment in due course means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.