High Court of Chhattisgarh
Case Details
1 2025:CGHC:5354 NAFR AJAY KUMAR DWIVEDI 2025.01.30 14:34:12 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 145 of 2010 Canra Bank, Badkas Chowk, Nagpur, Maharashtra, Branch Office in front of City Kotwali, Raipur, Tahsil and District Raipur (CG) ... Petitioner(s) versus 1. Shailesh Golchha, S/o Pukhraj Golchha, R/o Bairan Bazar, Near Aashirvad Bhawan, Tahsil and District Raipur (CG) 2. Vyavashayik Sahaakari Bank Limited, Jawahar Nagar, Raipur, Tahsil and District Raipur. ... Respondent(s) For Petitioner(s) For Respondent No.1 For Respondent No.2 : : :
Legal Reasoning
Mr. Gyan Prakash Shukla, Advocate. None. None. SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J Judgment on Board 29.01.2025 1. This appeal has been preferred against the judgment and decree dated 16th June, 2010 passed by the 14th Additional District Judge, FTC, Raipur in Civil Suit No.2-B/2008, whereby the decree was passed in favour of the plaintiff (respondent No.1) holding the defendants (appellant and respondent No.2) liable to pay the cheque amount of Rs.50,000/- along with interest @ 6 % per annum jointly or severally and also to bear the 2 cost of the suit. 2. Facts of the case, in brief, are that respondent No.1/plaintiff filed a civil suit on 12.09.2007 making averment inter alia that he has received the Cheque No.268450 dated 25.12.2004 of Rs.50,000/- issued by one Rajesh Santosh Suramwar who having his account in Canara Bank, Branch Nagapur (Maharashtra) i.e. defendant No.1/Bank (appellant herein). The plaintiff submitted the said Cheque for payment in bank of defendant No.2 and, in turn, defendant No.2 has forwarded the said Cheque to Branch of defendant No.1 (appellant herein). It is averred that though the plaintiff has deposited the cheque on 27.05.2005, however, neither the amount was paid to him nor the said cheque was returned as dishonored. Defendant No.2 has also sent a legal notice to the appellant/Bank on 22.10.2005, to which, the appellant has replied on 31.10.2005 stating that the said cheque was dishonored due to insufficient funds and same was returned to defendant No.2 03.06.2005. Thereafter, the plaintiff filed Complaint Case No.91/2006 before the District Consumer Disputes Redressal Forum, Raipur (for short the “Redressal Forum Raipur”) on 06.03.2006 against appellant and respondent No.2. However, the said complaint was dismissed vide order dated 03.08.2006 (Ex.P-1) holding that the complainant may avail alternative remedy by filing a civil suit or initiate criminal proceedings available under the law. Thereafter, the plaintiff has filed civil suit for recovery of loss of amount against the concerned Banks i.e. appellant and respondent No.2. 3. On the contrary, appellant/defendant No.1 specifically made averment 3 that on 03.06.2005 the questioned cheque was already dishonored due to insufficient funds and statement of account of drawer has been filed as Ex.D-4. It is averred that the dishonored cheque was sent to respondent No.2 through Speed and Safe Courier Services, Nagpur and acknowledgment of receipt has also been received which was filed as Ex.D-3. It has been further averred that drawer/account holder of the cheque namely Rajesh Santosh Suramwar is a necessary party, however, he has not been arrayed in the suit. Further, the cheque was presented for payment after lapse of 4 months. On such averments, prayer was made for dismissal of the suit. 4. Respondent No.2/Vyavshayik Sahakari Bank Limited, Jawahar Nagar situated at Raipur has filed separate written statement stating that there are five branches of their bank in Raipur and they have not received the cheque sent by the appellant – Canara Bank. 5. The trial Court has framed as many as six issues. In order to prove his case, the plaintiff has examined himself and exhibited one document which is the order passed by the Forum Raipur vide Ex.P-1. On the other hand, the appellant/defendant No.1 has examined 2 witnesses and exhibited 12 documents, in which, DW-1, Vijay Ramchandra Vaidya is employee of the appellant/Bank and DW-2, Manohar Dewani, is the courier agent. Defendant No.2 has also examined one witness, namely, Mahesh Rathi (DW-3) who is the Manager of main Branch of Vyavshyaik Sahakari Bank. 4 6. After evaluating the evidence on record, the trial Court has decreed the suit in favour of the plaintiff as mentioned in Para 1 of this judgment. 7. Learned counsel for the appellant/Bank would submit that the questioned cheque was dishonored due to insufficient funds and same is apparent from account statement of drawer (Ex.D-4). He also submits that the said dishonored cheque was returned to respondent No.2 in prompt manner and same has been received by the concerned Bank which is apparent from the acknowledgment of receipt (Ex.D-3). He submits that in support of such evidence, the appellant has examined agent of concerned courier services namely Manohar (DW-2). He also submits that the trial Court has committed grave error by fastening liability of payment of cheque upon the appellant Bank. He further submits that even in earlier litigation, the complaint of the plaintiff filed before the Redressal Forum Raipur was dismissed on 03.08.2006. He submits that though the cheque could not be traced but the plaintiff has not made any effort for obtaining duplicate cheque in terms of Section 45-A of the Negotiable Instruments Act, 1881. He submits that the plaintiff has also not taken any steps to file civil suit or initiate complaint case against the drawer of the cheque for recovery of such amount, as the questioned cheque was dishonored due to insufficient funds in the drawer’s account. He lastly submits that the only remedy lies in favour of the plaintiff is to take legal action against drawer of the cheque before appropriate forum. In view of such submission, learned counsel for the appellant prays to exonerate the liability fastened upon the appellant Bank by the trial Court. 8. None appeared on behalf of respondent No.1 though Vakalatnama has 5 been filed. 9. It is also pertinent to mention here that notice has been served to respondent No.2 on 04.12.2024 by Process server, nanely, Saranlal Yadav posted in the Office of District and Sessions Court, Raipur, however, no one has turned up at the time of hearing. Even respondent No.2 has not preferred any appeal against the impugned judgment and decree as apart from the appellant, liability has also been fastened upon the respondent No.2 to pay the amount jointly or severally. 10. Heard learned counsel for the parties and perused the record with utmost circumspection. 11.It is admitted fact that Cheque No.268540 dated 25.12.2004 for amount of Rs.50,000/- was deposited by the plaintiff/respondent No.1 before defendant No.2 – Sahakari Bank for payment on 27.05.2005. Defendant No.2 forwarded the said cheque to the drawer’s bank, the appellant herein. It has also not been disputed that the said cheque was received by the appellant Bank. 12.Vijay Ramchandra Vadiya (DW-1), employee of the appellant Bank, categorically deposed that the said cheque was dishonored due to insufficiency of funds as per bank statement of drawer Ex.-D/4 and refusal entry of the cheque was made in the register vide Ex.-D/3. Thereafter, the aforesaid cheque was returned to respondent No.2 through Speed and Safe Courier Services and acknowledgment of the same was also received which is exhibited as Ex.D-3. 13.Mahesh Rathi (DW-3), Manager of Vyavshyaik Sahakari Bank, main 6 Branch Pandari has been examined by respondent No.2. He has categorically deposed that a notice (Ex.D-5) was sent to the appellant Bank/defendant No.1 on 11.10.2005 for not returning the cheque. Against the said notice, reply has been sent by defendant No.1 on 31.10.2005 vide Ex.D-6 stating that the said cheque was immediately returned to the concerned Bank on 03.06.2005. It is also mentioned that acknowledgment of receipt is kept in record. However, this witness (DW-3) has disputed the signature and seal made on the acknowledgment receipt (Ex.D-3) and stated that he has verified the signature and seal from all branches of his Bank situated at Raipur, however, same does not belong to his bank. 14.From analysis of aforesaid evidence and documents on record, it is apparent that the appellant Bank is engaged in regular business transaction. The Bank has exhibited transaction register showing entry of questioned cheque. When the said cheque got dishonored due to insufficiency of funds, it was returned in prompt manner through courier service. In support of such fact, the appellant has examined agent of courier service, namely, Manohar Dewani (DW-2). Further, when respondent No.2 sent legal notice to the appellant Bank 22.10.2005, the appellant without any delay sent their reply on 31.10.2005 believing the said acknowledgment receipt as correct and informing that cheque was delivered to respondent No.2 on 03.06.2005. On the other hand, though the witness of respondent No.2 has disputed the acknowledgment receipt (Ex.D-3) but he did not file any specimen seal or signature of any of the 7 Branch which they were using from time to time. When in a regular course of business, an acknowledgment was received by the appellant Bank having seal on it, there was no occasion to disbelieve the said acknowledgment. In such circumstances, this Court does not find any sufficient reason to disbelieve the said acknowledgment. 15.Moreover, two sections which are relevant in the context of the present case are Section 45-A and Section 77 of the Negotiable Instruments Act, 1881 and they are as follows:- “[45A. Holder’s right to duplicate of lost bill.— Where a bill of exchange has been lost before it is over-due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so.] 77. Liability of banker for negligently dealing with bill presented for payment.— When a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonoured, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss. 16. Section 45-A of the Act of 1881 allows the person holding a Bill of Exchange to a duplicate copy of lost bill. In the present case, the plaintiff could have obtained the duplicate cheque from the drawer. Section 77 of the Act 1881 deals with the liability of a banker for negligently dealing with the bills presented for payment. The Bank would be liable under the provisions of Section 77 of the Act 1881, it had acted negligently in 8 dealing with the cheques presented for payment. Insofar as civil law is concerned, the term negligence is used for the purpose of fastening the defendant with liability of amount of damages. In civil proceedings, a mere preponderance of probability is sufficient. It is also well established that the banks should reimburse the account-holder related expenses for obtaining duplicate instruments and also interest for reasonable delays occurred in obtaining the same. 17.Reverting back to the present case, undisputedly the questioned cheque was lost somewhere and same was not traced. Further, it was in the knowledge of the plaintiff that the drawer of the cheque was not having sufficient funds in his account and said fact was also mentioned in the order (Ex.D-1) passed by the Redressal Forum Raipur. It is also apparent from the record that said cheque was not misused or encashed by any other person and the appellant Bank has duly proved the fact that he has returned the said cheque to respondent No.2. However, the plaintiff has not made any efforts to obtain duplicate cheque. 18.In view of the aforesaid backdrop, this Court is of the view that liability for payment of cheque cannot be fastened upon the appellant Bank. Thus, the appellant Bank is exonerated from all the liabilities fastened by the trial Court by the impugned judgment and decree. 19.As far as liability upon respondent No.2 is concerned, considering the facts and circumstances of the case, this Court deems it appropriate to quantify the liability for payment of amount to Rs.25,000/- from that of Rs.50,000/-. Thus, respondent No.2 is held liable to pay Rs.25,000/- to the plaintiff along with interest @ 6% per annum from the date of filing 9 of the suit i.e. 12.09.2007 till realization of the amount. Respondent No.2 shall also pay cost of litigation to the plaintiff. Ordered accordingly.
Decision
20.In view of the above, the impugned judgment and decree is modified to the extent indicated above. 21.In the result, the appeal is disposed of with the aforesaid modification. 22.Decree be drawn accordingly. No order as to cost(s). Judge Ajay Sd/- (Deepak Kumar Tiwari)