INDIAN BANK Vs. NEYVELI CHITS PRIVATE LTD

JUDGEMENT

(1.) One of the subscribers of the complainant Chit Company gave a cheque on Indian Bank dated 11.12.1996 to the complainant. The complainant presented the cheque with the 2nd opposite party for collection. The cheque was returned on the ground as "post-dated". According to the complainant, the cheque was dated 11.12.1996 when the complainant presented it for collection to the second opposite party. It was received by them. Thereafter they sent it for collection through clearing house and thus the officials colluded with the customer namely the drawer of the cheque and had the year of the cheque corrected and because of such correction, the cheque was returned that it was post-dated. In the very complaint, the complainant states that they do not know and that they are not in a position to know who did the correction. But they would say that both the opposite parties are liable. The complainant has not chosen to implead the said Vanathayyan as a party. If he had been impleaded, definitely he would have stated that either the cheque was dated only 11.12.1996 or 11.12.1998. The complainant has produced the challan dated 11.12.1996. In the challan we find that there is a mistake. The cheque number is given as 598847, whereas the cheque bears No.598841. The date of the cheque is not given. We find that in the date column of the cheque, there is correction in the year which reads as 11.12.1998. According to the complainant it was 11.12.1996. But it has been corrected into '98' to help the drawer of the cheque. As pointed already, the drawer of the cheque is not made a party. The complainant themselves are not in a position to say who corrected it.

(2.) It is, of course, argued by the complainant that when thy presented the cheque along with the challan, if really it was dated 1998, they would not have accepted it for collection. Therefore, it must have been only 1996 and correction must have been done subsequently. It may be that there was an overlooking or a failure to check when the cheque was presented for collection by the complainant. The fact remains that as on today the cheque bears the date 11.12.1998 and there is a correction in the year. We do not know whether 1996 has been corrected to 98 or while writing the year 1998, there was mistake committed and that it was re-written. It cannot be stated that the 1st opposite party would have stooped to the level of correcting a negotiable instrument while it was in their custody to help the party. It is not established that they are interested in the drawer of the cheque.

(3.) Therefore, when the complainant company themselves are not in a position to say who did the correction, the Lower Forum ought not to have passed an award against the 1st opposite party. It is not known how the Lower Forum when the complainant themselves are not in a position to say so is in a position to fix the responsibility upon the 1st opposite party. The 2nd opposite party has stated that there was no correction when it was presented. The observations of the Lower Forum are based upon only surmises. In the challan, it is to be pointed out that the complainant has not chosen to mention the date of cheque. They have not only given the number of the cheque wrongly, but while giving details of the cheque to be encashed, conveniently, they have not mentioned the date of cheque. If the challan mentions the date of cheque as 11.12.1996, there will be definitely some force in the contention of the complainant that it was corrected while in the custody of the 1st opposite party. Having written the value of the cheque correctly, there cannot be any reason for the complainant to omit to mention the date of cheque. The Lower Forum has come to the conclusion only on three big assumptions. One is that the drawer of the cheque would not have given a post-dated cheque and if he had given to the complainant, the complainant would not have accepted the same. The other assumption is that the bank officials would not have accepted the cheque for clearance when they found that it was post-dated. The further assumption is that the Central Bank of India would not have also accepted the cheque if it was really post-dated. These are only surmises. In fact, the complainant company clearly confesses that they are unable to say who committed the mistake. The order of return of the cheque on the ground that it was Post-dated is correct and that there was overwriting in the year and the overwriting is not authenticated with the signature of the drawer. The overwriting to the effect is to read the year as 1998. Therefore, on the ground that it is post-dated cheque, it was rightly returned. Hence, in such circumstances, it is not known how a deficiency in service can be made out at all. If it is the complainant's case that it has been done purposely by somebody at the bank, who wanted to help the drawer of the cheque, Vanathayyan, then the question of deficiency in service goes out of door. For it becomes a case of fraud in which case the cause of action will be different and the Forum to try the same will be different. Therefore, in such circumstances, we hold that the order passed by the Lower Forum cannot be maintained.