Rosilah Yop JC:

THE PLAINTIFF’S CASE

[1]The plaintiff was a customer of the defendant and having the current account No 00100063923. The authorised cheque signatories of the said plaintiff’s current account are:

(a)Wong Kern Chen;

(b)Lum Siew Wai; and

(c)Leong Yee Fook.

[2]Anyone of these signatories can endorse cheques for RM5,000 or less. Cheques exceeding RM5,000 required joint endorsement by any two of the above authorised signatories.

[3]Between July 2000 and September 2002, the defendant paid various cash cheques amounting to RM465,040 purporting to be drawn by the plaintiff payable to bearer and debited the plaintiff’s account with the amount thereof.

[4]The particulars of the 105 cheques are pleaded in para 6 of the statement of claim.

[5]The plaintiff did not draw the said cheque or authorise the drawing of the said cheques.

[6]The signature on each of the said cheque was not that of the authorised signatories. The signatures were forged. The defendant had paid out the said cheques to the third party. In the premise, the plaintiff had suffered losses.

THE DEFENDANT’S CASE

[7]The defendant denies that the signatures of Leong Yee Fook were forged. It is the defendant’s case that Leong Yee Fook signed the cheques.

[8]The plaintiff did not notify the defendant that the signatures of the cheques, which were cleared between July 2000 and September 2002, were purportedly forged notwithstanding that the plaintiff knew and was obliged to do so. The plaintiff protested only for the first time that the signatures of the cheques were forged on 8 August 2003.

[9]In all the circumstances, the plaintiff is precluded by the rules, which form the terms and conditions for the current account, from contending the cheques were honored in breach of mandate, in the alternative, the plaintiff is estopped by conduct from doing so.

[10]Further and in the alternative, the defendant contends that the plaintiff negligently contributed to the alleged forged signatures on the cheques. The defendant contends that:

(a)the plaintiff’s directors failed to check or take responsible steps to check the plaintiff’s statement of accounts on monthly basis and hence, failed to detect the alleged irregular transactions involving the cheques;

(b)the plaintiff’s directors also failed to undertake regular review of its cheques and conduct regular reconciliation of cheques paid with the plaintiff’s monthly statement of account;

(c)the plaintiff’s directors failed to ensure that the cheques books were kept under the custody, control and/or possession of the plaintiff’s duly authorised signatories or persons authorised by the plaintiff to confirm the transactions of the cheques drawn against the current account; and

(d)the plaintiff’s directors failed to exercise reasonable care in supervising the plaintiff’s employees who during the material times had custody, control and possession of the plaintiff’s cheques book.

[11]The defendant had acted in good faith in clearing the cheques.

[12]Therefore the defendant is entitled to either a complete statutory defence under s 73ABills of Exchange Act 1949 s 12Civil Law Act 1956

ISSUES TO BE TRIED

[13]The agreed issues to be tried were stated in document marked as ‘R’ and reproduced as follows:

(1)Samada Plaintif adalah tertakluk kepada ‘Kaedah-Kaedah Akaun Semasa’ dan / atau ‘Kaedah-Kaedah Akaun Semasa Terpinda’ dalam pengendalian dan pengurusn akaun Plaintif di Defendan.

(2)Samada tandatangan pengisu cek dalam 105 cek-cek yang merupakan perkara subjek tuntutan (‘Cek-Cek’) ini telah dipalsukan.

(3)Samada Plaintif diestop daripada mendakwa Cek-Cek telah dipalsukan dan Defendan berhak untuk bergantung kepada Seksyen 24Akta Pertukaran Bil 1949

(4)Samada Defendan berhak kepada pembelaan di bawah s 73AAkta Pertukaran Bil 1949

(5)Samada Plaintif telah melakukan cuai sumbangan dalam pengeluaran Cek-Cek dan kerugian Defendan seharusnya dikurangkan sebahagian atau secara keseluruhan di bawah Seksyen 12Akta Undang-Undang Sivil 1956

ANALYSIS OF EVIDENCE AND FINDI