Alleged alteration and payment of post-dated cheque

Background

In March 2016, the complainant had advertised her business for sale in the newspaper. In response to the advertisement, an agent brought his prospective buyer to negotiate a business proposition with the complainant for the purchase of the business for an amount of RM88,000.00 on 31/3/2016.

On 1/4/2016, the complainant received the purported buyer’s cheque for RM88,000.00 which the complainant deposited into her bank account on 4/4/2016.

On 3/4/2016, the complainant was requested by the agent to issue two cheques in favour of the agent as payment of commission for the business deal. Pending clearance of the cheque deposited for RM88,000.00 on 4/4/2016, the complainant issued 2 cheques post-dated 13/4/2016 for RM4,000 each to the agent.

On 6/4/2016, the complainant discovered that one of the post-dated cheques was cleared and paid on 5/4/2016. The complainant also discovered that the cheque for RM88,000.00 which she had deposited into her account on 4/4/2016 was returned unpaid for reason that the drawer’s account has been closed.

The complainant alleged that the bank had wrongfully paid out the post-dated cheque for RM4,000.00 and that the bank had failed to detect the alteration made to the post-dated cheque from 13/4/2016 to 03/4/2016. The complainant claimed the loss of RM4,000.00 from the bank.

Upon receipt of the dispute, the bank had made a provisional refund of the disputed amount to the complainant pursuant to Clause 5.15 of the Bank Negara Malaysia Circular dated 24 December 2014 on Managing Risks of Electronic Banking, Direct Debit and Risks Associated with Payment Instruments pending completion of its investigation.

Upon completion of its investigation, the bank rejected the claim on the grounds that the bank had paid on the cheque in good faith in the ordinary course of business. The bank sought to claim back the sum of RM4,000.00 which it had earlier refunded to the complainant pending investigation. The complainant refused to return the money to the bank based on her allegations against the bank, and the dispute was referred to the OFS for mediation.

 

Investigation and Findings

The Case Manager upon reviewing the available evidence furnished by the parties and also after listening to the telephone conversation (recorded) noted/observed the following:

a) The complainant had fallen prey to fraudsters who had acted an agent/prospective buyer when she issued 2 cheques for RM4,000.00 each to the agent;

b) The disputed cheque was presented through the collecting bank for clearing and the money deducted from the complainant’s account on 5/4/2016;

c) In regard to the complainant’s allegation that the date on the disputed cheque has been altered from ‘13/4/2016’ to ‘03/4/2016’, there was no apparent alteration based on a cursory examination of the physical cheque during the mediation session;

d) The disputed cheque which was presented for payment on 5/4/2016 was not tagged for apparent alteration by the collecting bank. Therefore, it did not warrant any verification call to be performed by the paying bank. As proof, the bank furnished the eSpick records to show that there was no apparent alteration on the disputed cheque;

e) The complainant did not ask for the agent’s and the prospective buyer’s identification documents and she had also used the agent’s pen to write on the 2 cheques;

f) The telephone conversation furnished by the bank revealed that the complainant had on 4/4/2016 confirmed the second cheque as being good for payment. The collecting bank had tagged the second cheque for apparent alteration thereby prompting the paying bank to contact the complainant to verify the cheque.

 

Settlement

The complainant accepted the bank’s explanation and she agreed to return the sum of RM4,000.00 to the bank.