1977 Supreme(Cal) 332

High Court Of Calcutta
Padma Khastgir
PRANENDA MOHAN DAS - Appellant
Versus
CENTRAL BANK OF INDIA - Respondent
Suit 2753  Of  1969
Decided On : 09/15/1977

A bank is not liable for negligence in encashing a cheque if the customer has not provided any evidence to support his claim of forgery or negligence.

Headnote:

NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 10, 85 - BANKING - PAYMENT OF CHEQUE - FORGERY - NEGLIGENCE - EVIDENCE ACT, 1872 - SECTION 45 - HANDWRITING EXPERT OPINION - COMPARISON OF SIGNATURES - COURT'S OWN OBSERVATION.

Fact of the Case:

The plaintiff filed a suit against the 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. The plaintiff's case was 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/ -.

Finding of the Court:

The defendant bank is not guilty of negligence in passing the said cheque. 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.

Issues: 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?

Ratio Decidendi: The court held that the bank was not negligent in encashing the cheque for Rs. 13,701/- as the plaintiff had not provided any evidence to support his claim. The court also held that the plaintiff was 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.

Final Decision: The suit was dismissed with costs.