TaxTMI 
TaxTMI 
1977 (9) TMI 124
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ashment. 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 said cheque 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tever 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 Metropoli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 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 hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amined. 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 the D. 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 mon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....;). 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hey 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 were not 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 mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 (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 it has been held that expert evidence of handwriting can never be conclusive because it is after all an opinion evidence. In 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....parent 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 reasonable ground for believing that he is not entitled ....