Abhisek Das vs Ombudsman
2023 Latest Caselaw 1903 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK
              W.P.(C) No.11131 of 2022


(In the matter of an application under Articles 226 and 227 of
the Constitution of India, 1950)


Abhisek Das                                 ....          Petitioner

                             -versus-

Ombudsman, Centralized Receipt and          ....       Opp. Parties
Processing Center, Chandigarh and
Ors.

Advocates appeared in the case:
For Petitioner            :         Mr. Biplab P.B. Bahali, Adv.
                           -versus-

For Opp. Parties             :               Mr. M. M. Basu, Adv.
                                                  (for O.Ps.2 & 3)
                                         Mr. Sukumar Debdas, Adv.
                                                        (for O.P.4)
                                     Mr. Samir Kumar Mishra, Adv.
                                                   (for Intervener)


            CORAM:
            DR. JUSTICE S.K. PANIGRAHI

               DATE OF HEARING:-04.01.2023
              DATE OF JUDGMENT:-02.03.2023

  Dr. S.K. Panigrahi, J.

1. The Petitioner has filed the present Writ Petition

challenging the order dated 04.04.2022 passed by the

pg. 1 Banking Ombudsman rejecting his claim against the

Opposite Party Nos.2 and 3/Bank who failed to discharge

their duty and service to him as per the RBI guidelines and

thereby committed illegality in not intimating him

regarding the status of the cheque deposited by him in the

said bank in spite of several approach made by him.

I. FACTS OF THE CASE

2. The Petitioner is the account holder of the Opposite Party

No.2/ Bank with SB account bearing No.13770100052201. He

had deposited an amount of Rs.67,00,000/- by way of cheque

bearing No.270767 dated 06.06.2017 of the South Indian

Bank Ltd., Cuttack on 12.06.2017 in his account with

Opposite Party No.2/Bank and had obtained the

acknowledgement slip. After deposit of the cheque, no

intimation was received by the Petitioner from the Opp.

Party No.2/Bank and due to his arrest after 7-8 days of the

deposit of the said cheque, the Petitioner could not contact

the Opp. Party no.2/Bank to know about the status of the

aforesaid cheque.

3. The Petitioner after being released on bail on 26.04.2019

inquired regarding the status of the aforesaid cheque

deposited by him. But the Opp. Party No.2 informed that

the said cheque was dishonored for insufficiency of fund

and when the Petitioner requested the Opp. Party

pg. 2 No.2/Bank to furnish him the return/information memo

along with original cheque, it was refused by the Opp. Party

No.2/Bank with the information that the Petitioner account

has been seized by the police.

4. The Petitioner issued a legal notice dated 20.08.2019 by

registered post to the Opposite Party No.2 through his

Advocate with a request to supply the intimation slip/return

memo along with aforesaid original cheque to him within a

stipulated time. But the Opp. Party No.2 did not respond to

the same.

5. The Petitioner approached the Opposite Party No.2 in his

representation dated 20.09.2021 asking for his account status

details to which the Opposite Party No.2 in its letter dated

27.09.2021 intimated the Petitioner, in very brief, that his

account has been freezed in connection with the police case

stated therein, but no clarification and information was

given regarding the cheque which was deposited by the

Petitioner more than six months before and also regarding

initiation of criminal case against him.

6. The Petitioner finding no efficacious remedy approached

the Banking Ombudsman-Opposite Party No.1 for

ventilating his grievance on 17.02.2022. According to the

Petitioner, his case was not adjudicated by the Ombudsman

in proper prospective and the same was dismissed in a

pg. 3 mechanical manner and the proceeding was closed on the

ground that:

"since a case has been registered against you by the law enforcement authority and basing on the same the bank has acted upon. Therefore your complaint is treated as dealt with and closed under appropriate clause of the Integrated Ombudsman Scheme 2021. Accordingly, the complaint has been closed under Clause16(2)(a) of the Reserve Bank- Integrated Ombudsman Scheme 2021", And it was communicated to the Petitioner vide email dated

04.04.2022.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER

7. It is submitted by the learned Counsel for the Petitioner that

as per the RBI guidelines on dishonour of cheques and the

procedure thereof in RBI/2015-16/59 DBR

No.Leg.BC.21/09.07.006/2015-16, the bank should dispatch

dishonored cheques immediately to the payees/holders in

any case within 24 hours and cheques dishonored for want

of funds in respect of all accounts should be returned along

with a memo indicating therein the reason for dishonour as

"insufficient funds." which is not followed in the case of the

Petitioner. Moreover, the question of freezing of the account

of the Petitioner more than six months after the deposit of

the cheque in question is no way relevant and reasonable

ground for the Opposite Party No.2/ Bank in waving from

pg. 4 discharge of its duty towards its customer in the present

nature of issue.

8. It is contended by learned Counsel for the Petitioner that the

Opposite Party No.2/Bank has failed to return the cheque in

question to the Petitioner and under these circumstances,

the Petitioner had been deprived of his legal right to file a

case under Section 138 of the Negotiable Instrument Act,

against the account holder. Thus, the Petitioner has been

made to suffer loss of Rs.67.00 lakhs for no fault of his own.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES

9. Per Contra, it is submitted by learned Counsel for Opposite

Party Nos. 2 and 3 that the Petitioner has no cause of action

to file the aforesaid Writ Petition against the Opposite Party

Nos.2 and 3 in view of the fact that the Petitioner has been

implicated in a criminal case which was registered as

Badambadi P.S. Case No.136 dated 28.06.2017 for the

alleged offence under Sections 420, 467, 468, 471 and 406 of

I.P.C. for which the Addl. IIC of Badambadi P.S. had

requested the Bank of the present Opp. Parties to freeze the

account as the Petitioner has cheated Rs.1,44,77,000/-

fraudulently on different dates.

10.The Petitioner had never presented the cheque bearing

No.270767 dated 06.06.2017 amounting to Rs.67,00,000/-

pg. 5 before the Branch of the Opp. Party No.2 which was signed

by Mathew Kuzhikandan from SB Account

No.0569053000001006 of the South Indian Bank, Cuttack

Branch. From the counter foil dated 12.06.2017 filed by the

Petitioner, it is clearly evident that the Petitioner had

managed to obtain the bank seal on the said counter foil as

there is no endorsement given by the bank officials in proof

of receipt of the same.

11.Further, from the allegations made in the F.I.R lodged

against the Petitioner, it is evident that the Petitioner being

one of the Executive Committee Member of the Queen

Mary's School, had cheated the Informant in different ways

and had received huge amount of Rs.1,44,77,000/- from him

by committing fraud. While cheating the Informant, the

Petitioner forged many documents including the lease deed

and civil court order and supplied the same to the

Informant for the purpose of gaining undue advantage. The

Petitioner never presented the cheque in question before the

Bank of the Opp. Parties No.2 and 3 on 12.06.2017 because

the said SB Account of the Informant was closed since

09.02.2015.

12. Moreover, after considering the counter affidavit filed by

the Opp. Party Nos. 2 and 3, this Court, pursuant to order

dated 29.07.2020 has directed the Opp. Party No. 4 namely

pg. 6 the South Indian Bank Limited to issue instruction for

production of documents in Court regarding status of the

drawer's account, from which cheque No.270767 dated 6th

June, 2017 was issued and it was said to have been

presented to Opp. Party Nos. 2 and 3 on 12th June, 2017. In

compliance to the said order, the Opp. Party No. 4 filed an

affidavit dated 05.08.2022 by disclosing the fact that the

South Indian Bank, Cuttack Branch had never received any

intimation from the Federal Bank Pvt. Ltd., Cuttack branch

in connection with the encashment of the cheque No.270767

dated 06.06.2017 and account of the drawer of the cheque

was closed since 09.02.2015.

IV. COURT'S ANALYSIS AND REASONS

13.From a bare perusal of pleadings of the parties, the primary

issue that arises for consideration is whether the Petitioner

presented the cheque bearing No.270767 dated 06.06.2017

amounting to Rs.67,00,000/- before the Branch of the Opp.

Party No.2/ Bank. From the materials on record, it is clear

that the Petitioner has presented a counter-foil dated

12.06.2017 with bank seal as proof that his deposit was duly

acknowledged by the bank. However, generally in banks,

the cheques are dropped in a "Drop in Box" and no receipt is

issued. If the depositor insists for the receipt, the counterfoil

of the pay-in-slip is stamped and is returned to the

pg. 7 depositor. But, this does not signify that the deposit via

cheque is successful from the Bank's end. The depositor is

usually notified via his registered phone number with the

Bank if his deposit has been successfully processed.

14. In the instant case, the Petitioner has contended that after

deposit of the cheque no intimation was received by him

from the Opp. Party No.2/ Bank and due to his arrest after

7-8 days of the deposit of the said cheque, he could not

contact the Opp. Party No.2/ Bank to know about the status

of the aforesaid cheque. The fact that the Petitioner or any of

his acquaintances did not inquire about the status of the

cheque for approximately 2 years (5years in total) from the

date of deposit itself casts a doubt on the genuineness of the

Petitioner's claim. In general circumstances, a person would

have inquired about the status of the aforesaid deposit in a

few days as the deposit from the bank's end is generally

processed in a day or two. However, the Petitioner in the

instant case did not inquire about the status of deposit even

after a week and thereafter, he was arrested.

15.Further, the acknowledgement slip/counterfoil for deposit

of cheque is usually accessible to all persons/customers who

visit bank as the counterfoil is the part of pay-in-slip and it

is usually stamped if the depositor insists for an

acknowledgement slip in lieu of his deposit. Therefore, the

pg. 8 counterfoil and the corresponding bank seal can be easily

obtained through forgery even though no actual deposit has

been made to the bank and in the instant case where the

counterfoil has not been endorsed by any bank official; there

is a possibility that the said bank seal could have been

forged. It is also contended that after receiving notice from

this Court in the present case, the Opp. Party No.2 obtained

a report from the South Indian Bank, Cuttack, about the

status of SB Account No.0569053000001006 and it was

reported that the account of Mathew Kuzhikandan was

closed since 09.02.2015 and the South Indian bank, Cuttack

branch had never received any intimation from the Federal

Bank Pvt. Ltd., Cuttack branch in connection with the

encashment of the cheque No.270767 dated 06.06.2017

16.Moreover, a case for obtaining money through fraud has

been registered against the Petitioner vide Badambadi P.S

Case No.136/2017 under Sections 420, 467, 471 and 406 of

IPC. The cheque in question in the present Writ Petition is

also the subject matter of the said criminal case and the

same is pending for trial. In the case of State of

Maharashtra v. Tapas D. Neogy1, the Supreme Court has

held:

(1999) 7 SCC 685

pg. 9 "Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be „property‟ within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is „property‟ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into."

17.Since, a criminal case is pending against the Petitioner

where he has been accused of receiving huge sums of

pg. 10 money amounting to Rs.1,44,77,000/- for committing fraud,

it is imperative that the case be investigated in proper

prospective so as to unearth the true dimensions of the

crime. Under these circumstances, this Court is not expected

to marshal the records with a view to decide admissibility

and reliability of the documents or records.

18.Accordingly, the Writ Petition being devoid of merits is

dismissed. No order as to costs.

( Dr. S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 2nd March, 2023/ B. Jhankar

pg. 11