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Pranenda Mohan Das Vs. Central Bank of India - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtKolkata High Court
Decided On
Case NumberSuit No. 2753 of 1969
Judge
Reported inAIR1978Cal55
ActsEvidence Act, 1872 - Section 45; ;Negotiable Instruments Act, 1881 - Sections 10 and 85; ;India Law
AppellantPranenda Mohan Das
RespondentCentral Bank of India
DispositionSuit dismissed
Cases Referred(Ramnarain v. State of Uttar Pradesh
Excerpt:
- orderpadma khastgir, j. 1. this suit has been filed by the plaintiff on 13th sept. 1969 againstthe defendant bank for a decree for rs. 13,701/-, being the amount according to the plaintiff wrongfully and illegally debited in the savings account no. 266 maintained by the plaintiff with the defendant in its college street branch, decree for rs. 5,000/- and damages and other consequential reliefs. 2. the plaintiff's case is that the plaintiff at all material times had and still has a savings deposit account bearing no. s/b a/c no. 266 with the defendant at its college street branch, 'at no. 1, bidhan sarani. according to the plaintiff, on 10th june 1966 the plaintiff had a balance of rs. 27,025.55 in the said account to the credit of the plaintiff. on 18th june 1966 and 11th august 1966 the.....
Judgment:
ORDER

Padma Khastgir, J.

1. This suit has been filed by the plaintiff on 13th Sept. 1969 againstthe defendant Bank for a decree for Rs. 13,701/-, being the amount according to the plaintiff wrongfully and illegally debited in the Savings Account No. 266 maintained by the plaintiff with the defendant in its College Street Branch, decree for Rs. 5,000/- and damages and other consequential reliefs.

2. The plaintiff's case is that the plaintiff at all material times had and still has a savings deposit account bearing No. S/B A/c No. 266 with the defendant at its College Street Branch, 'at No. 1, Bidhan Sarani. According to the plaintiff, on 10th June 1966 the plaintiff had a balance of Rs. 27,025.55 in the said account to the credit of the plaintiff. On 18th June 1966 and 11th August 1966 the plaintiff withdrew from the said account a sum of Rs. 2,943.50 and Rs. 3,225/- respectively aggregating Rs. 6,168.50 leaving a credit balance of Rs. 20,860.50 in the said account. On 2nd Feb. 1968 the plaintiff issued a bearer cheque for Rs. 19,000/_ upon the defendant bank, but although according to the plaintiff he had sufficient fund, the defendant bank wrongfully and illegally dishonoured the said cheque with the endorsement 'full cover not received'. Thereafter on 5-2-1968 the plaintiff again issued another bearer cheque for Rs. 7,900/- upon the defendant bank for encashment and the defendant bank wrongfully and illegally dishonoured the said cheque with the endorsement 'bearer's signature differs from the specimen record' and 'payment stopped by drawer'. At this the plaintiff was very much surprised as according to him he had sufficient fund in his account. Moreover he had never instructed the defendant bank to stop any 'cheque for payment. On 26th Feb. 1968 the plaintiff came to know from the defendant bank upon enquiries that the plaintiff has been debited in his said account on 8th December 1967 with a sum of Rs. 13,701/- alleged to have been paid against a cheque bearing No. CSC/H. S. O47261 alleged to have been issued by the plaintiff in favour of one Soumen Kumar Chatterjee. According to the plaintiff the said cheque was never drawn by him and it was a forged cheque and the defendant bank has failed and/or neglected to exercise due and/or normal and/or reasonable care or attention at the time of encashing the same which was incumbent on the defendant. The plaintiff has also made out a case of connivance and/or conspiracy between the defendant bank and/or its servants and agents in para. 9 of the plaint. The plaintiff has also made out a case of loss and use of the said sum of Rupeos 13,701/-. As a result according to the plaintiff he has suffered damage which he assessed at Rs. 5,000/-.

3. The defendant bank filed its written statement in which the defendant has stated that in the beginning of Dec. 1967 the plaintiff addressed a letter tothe defendant intimating that the cheque book as well as the bank pass book issued to the plaintiff were missing. The plaintiff requested the bank to take necessary steps so that the lost cheques would not be misused and also requested the bank to supply a fresh cheque book and a pass book to the plaintiff. The said letter was brought to the bank by a man named Jitendra Mohan Das who gave out his identification as the brother of the plaintiff. In the letter itself the signature of the said jitendra Mohan Das appears to be attested by the plaintiff himself. Inasmuch as it was a case of missing cheque book the bank requested the bearer of the said letter to send the plaintiff to receive the cheque book whereupon the plaintiff called at the said bank and upon duly signing the requisition slip before the officers of the said bank obtained a fresh cheque book containing cheques Nos. CSC/RSP 47261 to O47270. The plaintiff also signed at the back of the requisition form as a token of the receipt of the cheque book whereupon the said cheque book was duly issued in the usual course of the business to the plaintiff himself.

4. The defendant Bank also took step by noting 'stop payment' as instruction by the plaintiff's letter. The duplicate pass book was also issued and made ready for the plaintiff after debiting the usual bank charges on 7th Dec. 1967. According to the defendant bank on 8th December 1967 a cheque was drawn bearing No. CSC/HSD 47261 for Rupees 13,701/- marked account payee by the plaintiff in favour of one Soumen Kumar Chatterjee and the same was duly presented to the bank through clearance for encashment. As the said cheque was in order it was duly passed in the usual course of the business without negligence and in good faith by the said bank. In the premises, it is the case of the bank that the bank is not liable to the plaintiff.

5. According to the defendant the cheque for Rs. 19,000/- had to be returned as unpaid inasmuch as there was not sufficient fund to the credit of the plaintiff at the time when the said cheque was issued. The said cheque was also dishonoured because specimen signature did not tally with the signature of the said cheque.

When the second cheque was issued for Rs. 7,900/- and was presented for payment the bank found that the saidcheque had been used from the missing cheque book in respect of which the plaintiff has already given instruction for 'stop payment' and as also drawer's signature differed, no payment was made in respect of the said cheque.

According to the defendant bank on 5th February 1968 the plaintiff had only a sum of Rs. 8,399.32 to his credit and not Rs 20,860,00 as claimed by the plaintiff.

6. It is the positive case of the defendant bank that whatever cheques have been passed by the defendant bank they have been signed by the plaintiff himself. The defendant denies that the said cheque was forged or there was any connivance or conspiracy between the said bank and/or agents or servants.

The defendant bank has honoured the said cheque for Rs 13,701/- after considering the tenor of the same. The defendant bank has also denied the claim of the plaintiff towards damages. The defendant bank has also pleaded estoppel in para. 13 of the written statement. The defendant bank denied and disputed the claim of the plaintiff as made out in the plaint.

7. After hearing the submissions of the parties the following issues were raised:

1. Were the cheque No. CSC/H. S. O47261, requisition slip and letter dated 7th Dec. 1967 forged Did the defendant dishonour the cheques dated February 2, 1968 and Feb. 5, 1968 wrongfully and illegally

2. Did the plaintiff obtain a fresh cheque book containing cheques Nos. CSC/ HS O47261-O47270 on the representation that the old cheque book was missing as alleged in para. 3 of the written statement

3. Is the plaintiff estopped from disputing the payment made by the defendant against the cheque No. C. S. C./H. S. O47261 as alleged in para. 13 of the written statement

4. Did the plaintiff suffer any loss and damages as alleged in para 11 of the plaint ?

5. Was the defendant negligent in encashing the cheque for Rs. 13,701/- as alleged in para. 9 of the plaint

6. To what relief, if any, the plaintiff is entitled?

8. The plaintiff examined himself. The sum and substance of his evidence is that he had en account with the defendant bank in which he used to de-posit and withdraw money. He had asum of Rs. 20,860.50 as balance amount in the said account after he issued a cheque on 11th Aug. 1966. According to him between 11th Aug. 1966 and Feb. 1968 he did not withdraw any money from the said account. On 2nd Feb. 1968 he drew a cheque for Rs. 19,000/- which was returned by the bank. The said cheque according to him has been seized by the police in connection with investigation that was being carried on his complaint regarding the subject-matter of this suit. According to him, on 5th Feb. 1968 he issued another cheque but as bank refused to pay the money he went and saw Mr. R.K. Nath, an Accountant of the bank on 5th Feb. 1968 and after that he was told by Mr. Nath to give in writing whatever he had to say regarding the same. So according to him he gave a letter on 7th Feb. 1968 to the bank recording his protest. He received a letter from the bank on 26th Feb. 1968. According to him, for the first time he came to know from that that on 7th Dec. 1967 a letter was presented by somebody to the bank and that person introduced himself as Jitendra Mohan Das alleged to be a brother of the plaintiff. According to the plaintiff he had six brothers and none of them is named Jitendra Mohan. He has emphatically denied that Jitendra Mohan Das is his brother. After receiving the letter dated 26th Feb. 1968 he sent a letter on 9th March 1968 and according to him this letter was written by a lawyer practising at the Bankstall court on his behalf. He has also proved that seizure list dated 16th Feb. 1968 whereby he deposited pass book, cheque book and other necessary documents with the police and in acknowledgment thereof the police gave a copy of the seizure list duly signed by the police officer. By a letter dated 6th Feb. 1968 the plaintiff informed the Detective Department of Police, Calcutta regarding this case and the said letter was also written by a lawyer of the Metropolitan Magistrate's Court. He by a letter dated 29th May 1968 again reminded the Deputy Commissioner, Detective Department to expedite the investigation. According to him, the police authorities never gave any reply to his letter although it is his case that he himself went to the Detective Department and handed over the letters to the Deputy Commissioner personally.

9. According to the plaintiff one Uma Shankar Dikshit was appointed to investigate the matter on 28th Aug. 1967 and on 9th Dec. 1967 he wrote another letter to the Detective Department to inform him about the result of the said investigation. He most emphatically denied that his brother Jitendra Mohan Baa went to the bank giving information that the cheque book containing Nos. O38741 to O35750 were missing or that he ever went to the bank on 7th Dec. 1967. He most emphatically denied that he has put his signature on Exhibit 1, Exhibit O-1 and Exhibit O-2. He has also denied that he had ever any letterhead pad. He has denied his signatures on Ext. 2 and on Ext. 4. His case is that he never gave any cheque to anybody named Soumen Chatterjee. He has denied to have put any signature in the presence of R. K. Nath on 7th Dec. 1967. He has also denied the fact that Mr. Nath has stated in his evidence that after the said cheques dated 2nd Feb. 1968 and 6th Feb. 1968 were dishonoured the plaintiff never went and saw Mr. Nath.

According to him, he has drawn the cheque for Rs. 19,000/- from the last page of his previous cheque book and the sum of Rs. 7,900/- from the first page of his second cheque book. According to him before all the leaves of the previous cheque book were exhausted he got another cheque book from the bank and he utilised the first page of other cheque book in the month of February 1968 while drawing the second cheque. When confronted with in Question 128 that he did not withdraw any money for more than 1 1/2 year, his answer was that at that time he was not in need of money and as such he did not withdraw any money. It was only on 2nd Feb. 1968, according to the plaintiff that a sum of Rs. 19,000/- was needed urgently by him to buy certain quantity of glucose from S. D. Sethia & Co. Instead of paying S. D. Sethia by cheque he wanted to withdraw the money in cash as according to him S. D. Sethia and Co. insisted on cash payment. So, he sent his brother with the bearer cheque for Rs. 19,000/- to encash it from the bank.

10. In Questions 141 to 152 he was asked by me whether immediately after he got the information of dishonour of cheque for Rs. 19,000/- he went to the bank to find out what was the position of his bank balance and as to why it was not honoured. According' to him, he did not go to the bank to find out what was his bank balance on 5th Feb. 1968; instead, he issued another cheque for Rs. 7,900/- without ascertaining what was his bank balance on that particular day. He did not again present his cheque for Rs. 19,000/- on 5th Feb. 1968 although his positive case is that he had a sum of Rs. 20,000/- as balance to his credit with the said bank. He did not inform the bank nor record his protest in writing that because of wrongful refusal by the bank to honour his cheque for Rs. 19,000/- he has lost his business with S.D. Sethia & Co. regarding purchase of glucose. According to him, on 5-2-1968 Mr. Nath told him about the withdrawal of the cheque for Rs. 13,701/-but surprisingly enough in the plaint the plaintiff made out a case that on 26th Feb. for the first time he came to know about the withdrawal of the said cheque for Rs. 13,701/- from his account. He could not give any satisfactory answer when in question 156 he was confronted as to why he drew a cheque for Rs. 7,900/- and not Rupees 19,000/- on 5-2-1968 for the purpose of his business with S. D. Sethia & Co. His lame excuse was that as he could not arrange for the payment of the big amount of glucose then he could get a smaller amount of glucose which would cost him Rs. 7,900/- by S.D. Sethia and Co. In answer to Question 158 he has stated his inability to call S.D. Sethia and Co. to support his statement According to him a certain person of that company has been transferred to Ahmedabad, as such it was not possible for the plaintiff to call him as witness. Surprisingly enough the plaintiff did not even mention the name of the said person. S.D. Sethia & Co. being a company, somebody on behalf of the company could have given evidence and supported the plaintiff's case as tried to be made out by the plaintiff in his evidence, it is amazing that a person who is positively sure of having a sum of Rs. 20,000/- to his credit, did not go to the bank and lodge a protest when his cheque for Rs. 19,000/- was dishonoured on the ground 'full cover not received.' Instead, he issued another cheque for Rs. 7,900/- which was covered by the existing balance and paid by the bank after taking into account the encashment of the said cheque for Rs. 13,800/-. It is his evidence that as he was confident of having the balance of Rupees 20,000/- in the bank, so he did not go to the bank and protest and/or enquire from the bank authorities regarding thesaid amount. All of a sudden the plaintiff's urgent need for Rs. 19,000/- on 2nd Feb., 1968 disappeared on 6th Feb. 1968 when he gave a cheque for Rs. 7,900/-only for encashment. In question 167 he was asked specifically as to why in spite of the fact of his having Rupees 20,000/- in the bank, when bank dishonoured his cheque for Rs. 19,000/- he did not go and protest to the bank and make necessary enquiries, his answer was that he presented a second cheque for a smaller amount and waited for the result. In view of his answer to this question I am of the opinion that the plaintiff on that day was not sure of the money that was lying to his credit and he tried to make an incorrect allegation against the defendant. According to his evidence in questions 168 to 174 he has tried to make out that it is the bank employees who have forged the letterhead pad and also his signature and tried to cheat him of the large amount of Rs. 13,700/- that has been kept by him in his account. Although he has written many letters to the bank authorities, in none of them he mentioned that he had no relation by the name of Jitendra Mohan Das. As such, an enquiry should be made about the whereabouts of the said Jitendra Mohan Das.

11. In answer to question 183 he stated that the police was not in a position to catch hold of the real culprits and arrested some officers of the bank.

12. According to him on 26th Feb., 1968. he for the first time came to know that a cheque was drawn in favour of Soumen Kumar Chatterjee for Rs. 13,700/- and before that he did not know anything about it. He was shown Ext. 4 being the cheque for Rs. 13,000/-on which two signatures appeared and the plaintiff denied them to be his own signatures. Although he came to know the name of Soumen Chatterjee on 26th Feb. 1968 he did not make any enquiry about the address or whereabouts of the said person. According to him as he has kept the money with the bank, it was the bank's duty to do whatever they felt necessary. He did not mention to the police about the name of Soumen Kumar Chatterjee. It is the case of the plaintiff that as he knew English very little most of the cheques were written by persons in whose favour the cheques were issued and for encashment of smaller amount he used to write out the body of the cheque himself somehow.

13. When confronted with question 214 that if according to him, the bank people have forged his cheque why they could not do it earlier between the period 11-8-1968 and 7-12-1968, his answer was 'as during that period the bank could not procure a person who could sign in Bengali in that manner'. Although 'in his evidence he has made serious allegations against the bank employees he has nowhere in his letters mentioned the said fact implicating the bank employees. He definitely made a great departure from his pleadings as also the contemporaneous correspondence and tried to make out a new case in his evidence against the employees of the bank. In his letter dated 7th Feb., 1968 nowhere he has stated that somebody from the bank might have been involved in the case, nor has he made any such complaint in his letter dated 9th March 1968 implicating the bank people. He has not made any allegation against bank employees or the bank officers in respect of the charge of forgery. It is interesting to note that in answer to questions 230 and 231 he has stated that he did not go to the bank on 7th December 1967 but in answer to question 231 he stated 'How can one forget when such a thing had happened ?' In answer to question 237 he stated that in 1968 he had gone to the bank for the first time on 11th Sept. 1963. Strangely enough he forgot to mention that in 1968 he went to the bank on 5th Feb. 1968. In this manner the plaintiff has given contradictory and inconsistent answers in his evidence.

14. It would appear that the persons who were arrested from the Bank by the police in connection with investigation were ultimately let off and no charge could be framed against them. Considering the above facts and considering the circumstances I felt that by giving permission to the plaintiff to call the investigating officer after the evidence was over and arguments started only to prove the seizure of the said document would not carry the plaintiff's case any further. On the contrary the defendant would be highly prejudiced as all its witnesses have already been examined. As such I disallowed the prayer of the plaintiff to call the investigating officer at such a late stage. It is strange that although the original plaint was filed in 1968 between 1968 and 1974 neither the plaintiff nor his solicitors M/s. T. C. Dutt & Co. ever wrote any letter to theD. C. D. D. or make any endeavour to find out what was the result of their complaint lodged with the police. Although the defendant bank received back their documents seized by the I. O. the plaintiff did not make any effort to get back his documents seized by the police. It is only after the case was closed and arguments were started, the plaintiff all of a sudden realised the necessity of calling the I. O. and having the documents proved by him.

14-A. The defendant bank examined one R. K. Nath and his examination was heard de beneesse before the Hon'ble Mr. Justice D.K. Sen on 30th Aug., 1974. The sum and substance of Mr. Nath's evidence is that he worked as a sub-accountant of the defendant bank at its College Street Branch in 1967. He was posted in that branch in 1965. He knew Pranendu Mohan Dass as he used to go to him for the purpose of withdrawing money and also depositing money while he was acting as sub-accountant in the Savings Department of the said bank. According to him on 7th Dec., 1967 one person by the name of Jitendra Mohan Das approached him and told him that he was the brother of Pranendu Mohan and stated that as the plaintiff lost the cheque book and/or pass book he has brought a letter dated 7th Dec., 1967 signed by Pranendu Mohan requesting the bank to hand over the cheque as also the pass book to him. As the cheque book was missing, Mr. Nath told him that the party himself should come and according to usual practice the cheque book would be given to the party himself whereupon the said Jitendra Mohan Das became enraged and started calling names. After half an hour Pranendu Mohan Das himself came and approached Mr. Nath with the said letter. He abused him further for not handing over the cheque book to bis brother. The requisition slip being Exhibit T was according to him signed by Pranendu Mohan Das in his presence both on the obverse as well as on the reverse side.

15. According to him Pranendu Mohan put his signature in his presence and after receiving the cheque book he signed on the reverse again. In answer to question 27 Mr. Nath stated that bis agent asked him to obtain the signature of Pranendu Mohan Das on the back of the letter and the agent also put his initial there. He also issued a duplicate pass book and that pass book contains the initial of Mr. Nath. According tohim all the entries in the duplicate pass book were made correctly. According to ledger keeper he was shown the original cheque dated 7th Dec. 1967 and according to him the said cheque was signed by Pranendu Mohan Das. He knew the signature and this cheque as it was an account payee cheque was presented to the bank through another bank. According to the usual practice of the bank when a cheque is presented to any bank they find out the specimen signature of the constituent and have it compared with the signature on the cheque. According to him the same practice was followed so far as Ext. '4' was concerned.

16. He has also proved the account opening form of Pranendu Mohan Das dated 18th May 1962 (Ext. '5'). The specimen signature card of Pranendu Mohan has been proved by Mr. Nath (Ext. '6'). He has proved the cheque requisition slip signed by Pranendu Mohan and also his signature on the reverse (Ex. '7'). According to him this was done in his presence at the time of taking delivery of the cheque. According to him in Feb., 1968 the cheque for Rs. 19,000/- was returned on the ground 'full cover not received' and also the said cheque was dishonoured because of the instruction 'stop payment'. He has proved the cheque return register and he has also proved his own signature on it. There is an entry in the said register regarding the cheque for Rs. 7,900 at page 47 of the said register. He had the signature tallied with the specimen signature card. In cross-examination he has stated that he was an employee of the Central Bank since 1943 and while he was acting as sub-accountant in 1967 it was his duty to compare the party's signature and thereafter he would pass the cheque. According to him there was another person named Anant Ram Shukla who also used to compare the cheque on which the vernacular signatures appeared. On 7th Dec., 1967 according to him, Jitendra Nath (Mohan?) Das approached him with a letter. He personally did not know Jitendra Mohan Das but the said person himself told that his name was Jitendra Mohan Das and he was the brother of Pranendu Mohan Das. After receiving the letter he compared the signature with the specimen signature card. In answer to question 93 he has stated that he personally compared the signature with the specimen signature card and he was satisfied that it was the signature of the plaintiff. Although he was satisfied regarding the signature of the plaintiff but considering the practice of the bank that whenever a cheque book is issued, party himself had to approach and that is why he asked the said man to request the party himself to come and receive the cheque book. According to him, Pranendu Mohan Das himself came to collect the cheque book and he knew the plaintiff personally, and only after Pranendu Mohan Das put his signature in the presence of Mr. Nath as also the agent of the bank had put his initial on the said document, it was handed over to him. It was not necessary according to him to compare the said signature with the specimen signature card as the plaintiff himself put the signature in his presence and his agent saw this and put his initial. According to him Pranendu Mohan Das came and raised a hue and cry and hearing that the agent approached his table and saw the signature of Pranendu Mohan Das as also the card and thereafter the cheque book was made over to the plaintiff. According to him, Exhibit '4' being the cheque for Rs. 13,700 was signed by Pranendu Mohan Das and Anantram Shukla compared the signature with the specimen signature card and then passed the cheque. He himself sent the specimen signature card to Anantram Shukla to compare it with the original. According to him, he saw Mr. Shukla emparing the signature as Mr. Shukla came to his table along with the specimen signature card and the cheque. In answer to question 107 he stated that at that time the bank did not have any Munshi and the Cashier himself used to carry on the job of the Munshi and at that time Mr. Shukla was the Cashier of the bank. According to him, the cheque came to him first and then it was sent to Mr. Shukla for comparison with the specimen signature and Mr. Shukla came back to his table along with the said cheque and the specimen signature card for the purpose of returning him the specimen signature card along with the cheque, in answer to question 123 he has stated that although there are peons in the bank but specimen signature cards are never sent through peon. On the other hand, they themselves carry these cards and he personally took the cheque along with the specimen signature to Mr. Shukla for comparison. In answer to question 136 he has positively stated that although the cheques for Rs. 19,000 and Rs. 7,900 werenot encashed by the bank the plaintiff did not approach him nor did he complain about the encashment of cheque for Rs. 13,701. According to him, he was arrested along with Mr. Shukla and kept in Lal Bazar for one night but no charges were framed against them. In answer to question 166 he has reiterated that he has personally verified the signature of the plaintiff on the letter dated 7th Dec., 1967. He has denied the suggestion given by the plaintiff that Exhibits 1, 2 and 4 were forged.

Although Mr. Nath was cross-examined at length by the plaintiff's counsel, Mr. Gopal Law, Barrister-at-Law, no question was put to the said officer suggesting that he was giving false evidence or that he was trying to protect or shield any of the bank's officers or servants who according to the plaintiff were in collusion and conspiracy to defraud the plaintiff. Not a single suggestion has been given to Nath of the case which had been tried to be made out by the plaintiff in his evidence implicating the bank officers regarding encashment of the said cheque for Rs. 13,700.

17. Moreover, save and except making a complaint to the police the plaintiff did not pursue the matter any further. Although the incident took place in 1968 the plaintiff did not send any reminder regarding the said case earlier than 1974. The plaintiff was negligent in not taking back the relevant documents which had been seized by the police even after the filing of the civil suit against the bank or when the suit was ready for hearing. It is only after the evidence was closed and the defendant's arguments were going on, the plaintiff wanted to prove the seizure of the cheques and the relevant pass books made by the police. Even if I would have allowed and given an opportunity to prove that the police seized the pass book and cheque book from his custody by itself that would not have furthered his case against the bank. The scope of this suit is limited to the finding whether the cheque in question and the letter requesting for issue of a fresh cheque book are forged or not, and whether the bank is liable in the absence of bank being negligent and/or acting with due care and diligence. From the facts and circumstances of the case I find that the plaintiff acted in a very peculiar fashion all throughout, if he really had Rs. 20,000 in his bank and in view of the fact his cheque for Rs. 19,000 was dishonoured by the bank on the ground that full cover was not received he took the same lying down and did not behave in a manner in which a reasonable and prudent man would have acted. Instead of going immediately to the bank and meeting its officers and finding out the actual position and/or recording his grievances with them he gave a cheque for a smaller denomination to find out the reaction of the bank. Moreover, in his plaint he made no case of forgery against the bank servants and/or its agent nor in evidence he has substantiated any charge whatsoever of fraud, forgery and conspiracy against the bank officers.

In view of the line of cross-examination made by the plaintiff's counsel, while cross-examining Mr. Nath, he no where made out a case of forgery, fraud or conspiracy of the bank officer nor has he given the suggestion that Mr. Nath was giving false evidence so far as the issue of the duplicate cheque book is concerned. In view of what is stated above and in view of the conduct of the plaintiff in not pursuing the matter to find out who the culprits were either by expediting the investigation or by making a complaint to the Magistrate, he has filed the present suit against the bank for monetary reliefs. If forgery would have been the motive of the forger and to defraud the plaintiff of the sum of Rs. 13,701 what was the necessary of forging the letterhead pad and getting fresh cheque and pass book which could have been done by simply forging a cheque leaf and utilising the same? I accept the evidence of Mr. Nath and also of Mr. Shukla that while passing the cheque they have exercised due and reasonable care and were not negligent in passing the said cheque, Mr. Shukla although was not a Munshi of the bank but he stated in evidence that he had been carrying on the job of a Munshi by comparing vernacular signatures for the last so many years. It has been suggested by the plaintiff that he was not a Bengalee and he did not know Bengali language well, as such it was not possible for him to compare the signature on specimen card and also signature on the questioned cheque but Mr. Shukla has deposed that he has been comparing vernacular signatures, specially Bengali signatures and in fact he has passed thousands of such cheques. His evidence is that he compared the particular style and the peculiar mode of writing of the signatory with the signature card andthen passed the said cheque. He took all due diligence and care before passing the said cheque.

Moreover, considering the said cheque was an account payee crossed cheque, care and caution taken by the bank officers were sufficient. In view of the scanty and unconvincing evidence given by the plaintiff, I am of the opinion that the defendant bank is not guilty of negligence in passing the said cheque.

I am not at all satisfied with the evidence of the plaintiff nor I am satisfied with the evidence given by Purushottam Chatterjee, specially in view of the fact that he was told all about the facts and circumstances of the case and specially he was pointed out which one was the questioned document and which was the correct document. I am of the opinion that by knowing the full case and examining the same in that light, the handwriting expert's opinion was prejudiced. The plaintiff is barely an educated man in the sense he can put just his signature in Bengali and write very few scanty sentences. As such, he always required the help of others in filling up the body of the cheques.

Considering also the fact that specimen signature was signed in the year 1961 and the signature on the requisition for issue of fresh cheque book as also on the letterhead pad requesting for issue of a duplicate cheque book and pass book were made in the year 1967 after so many years naturally for a person who is not in the habit of writing very often his signature and also because of the fact he had not a very steady hand In putting his signature, there are bound to be some variations in the signatures. As such those variations should be treated as natural variations and not much importance be attached to them.

In a case reported in 0065/1961 : AIR1961Cal300 (Bisseswar Poddar v. Nabadwip Ch. Poddar), it has been held by Mr. Justice P. B. Mukharji that there is no legal bar to the Judge using his own eyes to compare disputed signatures with admitted signatures even without the aid of any evidence of any handwriting expert. In the same case Mr. Justice H. K. Bose held that a comparison of handwriting is at all times, as a mode of proof, hazardous and inconclusive and specially when it is made by one not conversant with the subject and without such guidance as might be derived from the argument of the counsel and the evidence of experts. In a case reported in : 1977CriLJ711 (Magan Beharilal v. State of Punjab) it has been held that 'it is now well settled that expert opinion must always be received with great caution and perhaps none with more caution than the opinion of a handwriting expert.'

In : [1963]3SCR722 it has been held that expert evidence of handwriting can never be conclusive because it is after all an opinion evidence.

In : AIR1964SC529 it has been held that the expert evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. The same view has also been accepted by English and American Courts.

In a case reported in AIR 1967 SC 1326 Fakruddin v. State of Madhya Pradesh it has been held that handwriting may be proved by the evidence of some witness in whose presence the writing has been put and this is direct evidence and if it is available, the evidence of any other kind is rendered unnecessary. The Evidence Act makes relevant the opinion of a handwriting expert under S. 45.

Besides direct evidence which is the best method of proof there are also other modes of proving such signatures. In that decision the Supreme Court of India held that Court must be satisfied itself. One of such modes of satisfying is for the court to apply its own observation to the admitted or proved writings and compare the same with the disputed one. Where an expert opinion is given, the Court must see for itself and come to its own conclusion.

It has also been held in a case reported in AIR 1967 SC 778 that sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not.

In coming to the conclusion by comparison of the two signatures one will look for striking general similarity between admitted signature and the disputed one and that is a very telling test in deciding whether the signature on the disputed document is genuine. (AIR 1937 Cal 99)

Although in a case of forgery one will try to give the forged signature as much resemblance as possible of a genuine signature. But personal characteristic of writing or signature of a particular individual are often an unfailing guide in determining the question of genuineness of the writing, and it is often a difficult work for a stranger or a forger to reproduce forgery of such characteristics.

In this, case not only there is direct evidence of Mr. Nath that the plaintiff has put his signature in his presence on the requisition for the purpose of getting a second cheque book but that signature was also put in the presence of the agent of the defendant bank. Moreover, Mr. Nath by comparison with the specimen signature has deposed that those signatures belong to the plaintiff.

In the light of this direct evidence and considering the surrounding circumstances, specially considering the peculiar attitude and behaviour of the plaintiff which could not be explained by him properly or at all from the witness box and lastly I myself in the light of the evidence that has been tendered in this suit compared the specimen signature with the disputed one and I came to the conclusion that there was some striking resemblance between both the signatures.

Where a bank makes payment in accordance with the apparent tenor of the instrument in good faith and without negligence under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment, payment is said to be done in due course.

(Section 10 of the Negotiable Instruments Act).

Under S. 85 of the Negotiable Instruments Act where a cheque payable on order purports to be endorsed by or on behalf of the payee, the drawee is discharged by payment in due course. This section applies to payment made by bankers on cheques drawn on him.

The relationship of a banker and his customer is that of a debtor and creditor with the obligation of honouring customer's orders on the funds in the hands of a banker. Banker would only be liable where it has acted negligently and payment is made out of usual course of business. As an agent of the customer a bank is expected to act bona fide and without negligence.

Under Indian Law a banker is protected if he pays the amount in due course in accordance with the apparent tenor of the instrument, in good faith and without negligence and to a person under circumstances not affording a reasonableground for believing that he is not entitled to receive the payment.

In a case reported in : 1973CriLJ1187 (Ramnarain v. State of Uttar Pradesh) it has been held that opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion but such opinion is worthy of acceptance if there is internal or external evidence relating to the writing in question supporting the expert's view. The question in each case falls on the court's appreciation of evidence. In the same case, the Supreme Court has held that evidence of an expert should be accepted with great caution.

As already discussed above, in the cases quoted above, definitely power has been given to Court to compare the signatures itself and come to its own finding irrespective of a report given by an expert. I after comparing the said signatures hold that the signatures on the requisition slip for issue of the 2nd cheque book as also the signature on the cheque for Rs. 13,701 are of the plaintiff.

In the letter written to the bank dated 7th February, 1968 although according to the plaintiff he has taken the help of a police court lawyer he has nowhere alleged that the bank's employees are guilty of fraud and conspiracy but has positively made a case that a sum of Rs. 13,700 had been dishonestly withdrawn from his account against a cheque issued by the bank without his knowledge and consent by some unknown person purporting to copy his signature which according to him was forgery and he has stated that there was conspiracy of fraud and forgery and criminal misappropriation by some designing persons. In view of the facts and circumstances as stated above, I answer issue Nos. 1 and 2 in the negative.

I answer issue No. 3 in the positive.

I answer issue No. 4 in the positive.

As the plaintiff did not lead any evidence whatsoever, I answer issue No. 5 in the negative. I answer issue No. 6 in the negative.

I accept the evidence given by Mr. Nath as also Shukla on behalf of the bank and I hold that the bank has not been guilty of negligence in encashing the said cheque for Rs. 13,701 and in view of my finding of the issues as stated above, I hold that the plaintiff is not entitled to any relief as claimed in the plaint and I dismiss the suit with costs.


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