Delhi High Court
State Bank Of India vs Raman Kumar & Ors. on 31 May, 2011
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 31.05.2011
+ CS(OS) No. 2025/1986
STATE BANK OF INDIA .....Plaintiff
- versus -
RAMAN KUMAR AND ORS. .....Defendants
Advocates who appeared in this case:
For the Plaintiff: Mr. S.L. Gupta with Mr. Ram Gupta, Advs.
For the Defendant: Mr. Digvijay Rai, Adv. for def. No. 6
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported No.
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a suit for recovery of Rs. 84,37,759/-. The
defendant No. 1 Raman Kumar was an employee of the
plaintiff bank posted at its service branch. Defendant No. 2
Chaman Kumar and defendant No. 7 Madan Kumar are his
brothers, defendant No. 5 Radhey Lal is his father and
defendant No. 6 Smt. Raj Rani is his mother. Defendant No.
3 Shri Vipin Bhardwaj is alleged to be an associate of
defendant No. 1. Defendant No. 8 Shri Dwarka Nath
Bhardwaj is the father of defendant No. 3 and defendant No.
9 Shri Santosh Bhardwaj is the mother of defendant No. 3.
Defendant No. 4 Ashok Kumar is also alleged to be in
connivance with the other defendants.
2. The functions of the service branch of the plaintiff
bank which was established in the July 1983 are:- (a) to
receive instruments drawn on local branches of the plaintiff
bank in Delhi; and (b) to receive from local branches of the
plaintiff bank, the instruments which are to be collected from
the drawee branches of other banks. Similar bank branches
have been set up by other banks and at the relevant time,
there was a system of centralized collection and payment of
local cheques drawn on various banks in Delhi. The
centralized system for clearance of cheques is controlled by
Reserve Bank of India which maintains accounts of all the
banks participating in the clearing house. The bank, in which
the cheque is deposited for collection is called the collecting
bank whereas the bank on which the cheque is drawn is called
the drawee bank. In the clearing house, one box each has
been kept for every member bank participating in the clearing
house. The collecting banker puts all the cheques drawn upon
the local branches of a particular bank into the box meant for
that particular drawee bank. The representative of the service
branch of that bank comes and collects those cheques from
the banks. At the time of delivery of the cheques by the
collecting bank to the drawee bank, the total amount of all the
cheques delivered to the drawee bank is furnished to the
Controller of Clearing House who gives credit of the total
amount to the collecting bank and debits that amount to the
drawee bank. A copy of the list containing amount of each
cheque as well as the total sum representing all the cheques
presented by the collecting bank is also given to the drawee
bank along with the cheques which are attached to it. The
service branch after collecting the cheques tallies them,
balances their amounts and the total figure with the figures
furnished by the concerned plaintiff bank and thereafter sends
those cheques to its own local branches for either debiting the
accounts of the concerned drawers or for return of the cheques
in case the funds in the account of the drawer are not
sufficient to honour the cheques.
3. It is alleged that as per the prevalent banking
practice, if the cheque presented by the collecting bank to the
drawee bank in the clearing house is not returned to the
collecting bank on the third day from the date of presentation,
it is deemed to have been honoured by the drawee bank and
the collecting bank gives confirmed credit to the payee's
account.
4. The service branch of the plaintiff bank is stated to be
functioning in two shifts, morning and evening. The
employees in the evening shift are required to verify/tally the
amounts of cheques and the amount/figures as furnished by
the collecting bank by typing bank-wise list whereas the
morning shift employees are required to branch-wise sort out
all the cheques and prepare covered typed list for onward
delivery of the cheques to the concerned branches of the
plaintiff bank. To ensure an efficient working of this job, the
employees are divided in groups and each group in the evening
shift is allotted specified bank whereas each group in the
morning shift is allotted specified local branches of the plaintiff
bank. When the service branch of the plaintiff bank was
established, four groups were formed. It is alleged that Punjab
& Sind Bank and UCO Bank were allotted to group 3 and the
defendant No. 1 who was transferred to service branch on 4 th
July, 1983 was allotted group 3 vide an office order dated 25 th
July, 1983.
5. The case of the plaintiff bank is that sometime in
August, 1983, the defendants entered into a criminal
conspiracy to cheat the plaintiff bank and pursuant to that
conspiracy, defendant nos. 1 to 4 opened accounts with
different branches of the plaintiff bank as well as with different
branches of Punjab & Sind Bank and UCO Bank. One of the
defendants having account with the plaintiff bank would issue
a cheque in favour of another defendant having account with
another bank. The payee defendant would deposit the cheque
in his account with Punjab and Sind Bank and UCO Bank, as
the case may be, and the cheque so deposited by him would be
sent for collection to the service branch of the plaintiff bank
through clearing house. Since defendant No. 1 was posted in
the service branch, he would be knowing about the cheque
which were then to be to be received by the service branch. He
would sit in the group which had to receive that particular
cheque from the collecting banker and while preparing typing
list, he would remove and destroy that particular cheque so
that it cannot be sent to the drawee branch of the plaintiff
bank for debiting to the drawer's account or for return in case
the funds in the account of the drawer are not sufficient. Non-
return of the cheque within the specified period of three days
from the date of its presentation to the collecting bank,
amounts to honour of the cheque and the collecting bank
would then give confirmed credit of the amount in the cheque
to the account of the payee.
6. According to the plaintiff bank, the defendant No.
1/Raman Kumar opened a Saving Bank Account No. 3040
with the Gujranwala Town branch of Punjab & Sind Bank and
also got Account No. 3918 opened in the name of his brother
Chaman Kumar/defendant No. 2 with the same branch. He
also got Account No. 3917 opened in the name of defendant
No. 4/Ashok Kumar with the same branch. Defendant No.
2/Chaman Kumar also opened another account bearing No.
11861 in the name of Ashok Kumar with the Jehangirpuri
branch of the plaintiff bank.
7. Defendant No. 3/Vipin Bhardwaj is alleged to have
opened an account with the Paharganj branch of the plaintiff
bank. He is alleged to have opened 10 other accounts in 10
different names between September, 1983 and February,
1984. The assumed names in which accounts are alleged to
have been opened by defendant No. 3 Vipin Bhardwaj are:-
1. Vipin Kumar Chawla
116/2, Bajaj House, Nehru Place,
New Delhi
2. Vipin Sharma S/o D.N. Sharma
57, Sarai Piplithala, Delhi-33
3. Vipin Mohan Sharma
S/o S.K. Sharma
Proprietor M/s Simplex Traders
118, Bajaj House, Nehru Place,
New Delhi
4. Vipin Chandra S/o D.N. Bhardwaj
Proprietor Swastik Enterprises
G-18, Deepali Building, Nehru Place,
New Delhi.
5. Bipin Kumar
57, Sarai Piplithala, Delhi-33
6. Bipin Kumar Sharma,
57, Sarai Piplithala, Delhi-33
7. Naveen Kumar
1073-A, Basai Darapur, Delhi
8. V. Kumar, Proprietor
M/s Santosh Sales
126/3, Rampura, Delhi
9. V.Inder Pal, Proprietor
M/s Vishal Plastic Enterprises
5014/1, Ballimaran,
Chandni Chowk, Delhi
10. Santosh Kumar Sharma
Proprietor, M/s Santo Sons
A-24/1, Naraina Industrial Area,
New Delhi
8. It is alleged that defendant No. 2 Chaman Kumar,
opened an account No. 11661 in the name of Ashok Kumar
with Jehangirpuri branch of the plaintiff bank and issued five
cheques bearing nos. 695337, 695322, 695324, 695325 and
695335, one for Rs. 65,000/-; three for Rs. 70,000/- each and
one for Rs. 74,000/- in his correct name Chaman Kumar.
Those cheques were deposited in the Gujaranwala branch of
Punjab and Sind Bank through which the money was collected
and misappropriated.
9. Defendant No. 3 Vipin Bhardwaj in his assumed
name Naveen Kumar opened an account with Najafgarh
branch of the plaintiff bank and then issued a cheque bearing
No. 402481 for the sum of Rs. 70,000/- in favour of defendant
No. 1 Raman Kumar. He also issued cheque No. 402485 for
Rs. 74000/- in his assumed name Vipin Kumar Chawla;
Cheque No. 402487 for Rs. 38,000/- in his assumed name
Vipin Sharma; Cheque No. 402482 for Rs. 74,000/- in his
assumed name Vipin Kumar; Cheque No. 402488 for Rs.
68,000/- in his assumed name Vipin Kumar; cheque No.
402489 for Rs. 65,000/- in his assumed name Vipin Kumar;
and cheque No. 402490 for Rs. 65,000/- in his assumed name
Bipan Kumar Sharma. All these cheques were deposited with
Punjab & Sind Bank and UCO Bank and after collection of the
amount from the plaintiff-bank, it was fraudulently
misappropriated.
10. It is also the case of the plaintiff-bank that defendant
No. 3-Vipin Bhardwaj opened an account in his assumed
name V. Kumar as proprietor of M/s Santosh Sales with
Shakurbasti branch of the plaintiff bank and thereafter issued
cheque No. 778404 for Rs. 1,19,000/-; No. 778411 for Rs.
1,46,000/-; cheque No. 778442 for Rs. 1,91,000/-; and
cheque No. 778401 for Rs. 3,80,000/- all in favour of M/s
Simplex Traders, of which he himself was proprietor, in his
other assumed name Vipen Mohan Sharma. All these cheques
were deposited with Punjab & Sind Bank and later on credit
was obtained. The defendant No. 3 is also alleged to have
been issued cheques No. 778403 for Rs. 92,954/-; cheque No.
778402 for Rs. 2,72,000/-; cheque No. 778405 for Rs.
1,81,000/-; and cheque No. 778406 for Rs. 2,72,000/ in
favour of M/s Swastik Enterprises, of which he himself was
the proprietor in his other assumed name Vipan Chander. The
amounts of these cheques were also obtained and
misappropriated by him.
11. The defendant No. 3 Vipin Bhardwaj also opened a
current account at Chandni Chowk branch of the plaintiff
bank in the name of M/s Vishal Plastic Enterprises as its
proprietor in his assumed name V. Inder Pal and issued
cheque No. 332505 for Rs. 83099/-; cheque No. 332503 for
Rs. 2,90,000/-; cheque No. 332506 for Rs. 2, 72,000/-; and
cheque No. 332510 for Rs. 2,54,000/- in favour of M/s
Swastik Enterprises. These cheques were deposited with
Punjab & Sind Bank, Defence Colony branch and the proceeds
of the cheques were misappropriated by him. Similarly,
cheques bearing No. 332507 for Rs. 2,72,000/-; cheque No.
332509 for Rs. 1,91,000/-; cheque No. 332502 for Rs.
2,81,000/-; and cheque No. 332508 for Rs. 2,72,000/- were
also issued by defendant No. 3 Vipin Bhardwaj in favour of
M/s Simplex Traders, of which he himself was the proprietor,
under the assumed name of Vipin Mohan Sharma. These
cheques were deposited with the Naraina branch of Punjab &
Sind Bank for collection and proceeds were misappropriated
by him.
12. The defendant No. 3 Vipin Bhardwaj also opened an
account with Paharganj branch of the plaintiff bank in the
assumed name Vipan Bhardwaj and thereafter issued cheque
bearing No. 86423 for Rs. 74,000/- in favour of defendant No.
2 Chaman Kumar, which was deposited with Gujaranwala
Town branch of Punjab & Sind Bank and after collection of the
amount, it was misappropriated. He further issued cheque
bearing No. 86425 for Rs. 46,000/- in his own favour in the
assumed name Vipin Sharma and deposited the same with the
Karol Bagh branch of Punjab and Sind Bank for collection and
later on misappropriated the same. Further, cheques bearing
No. 86422 for Rs. 65,000/-; No. 86424 for Rs. 38,000/-; and
No. 86429 for Rs. 74,000/- were drawn by him in his own
assumed name Vipin Kumar and were deposited for collection
with New Subzi Mandi branch of UCO Bank and later on, the
proceeds were misappropriated by him. Similarly, cheques
bearing cheque Nos. 86425 for Rs. 65,000/-; and No. 86428
for Rs. 47,000/- were drawn in favour of his own assumed
name Bipin Kumar Sharma and were deposited for collection
with Kamla Nagar branch of UCO Bank and the proceeds were
misappropriated by him.
13. The defendant No. 3 Vipin Bhardwaj also opened a
current account with Mayapuri branch of the plaintiff bank in
the name of M/s Santo Sons, as its proprietor in the assumed
name Santosh Kumar Sharma and then issued cheques
bearing No. 970857 for Rs. 2,81,675/-; No. 970853 for Rs.
2,90,000/-; No. 970852 for Rs. 1,64,000/-; and No. 970854
for Rs. 1,82,000/- in favour of M/s Swastik Enterprises of
which he was proprietor. These cheques were deposited with
the Defence Colony branch of Punjab and Sind Bank and the
proceeds were misappropriated by him.
14. The plaintiff bank has therefore claimed a sum of Rs.
58,16, 728/- from the defendants as the principal amount and
a sum of Rs. 26,21,031/- as interest @ 18% per annum
calculated upto 31st August, 1986, thus amounting to a total
claim of Rs. 84,37,759/-. The liability of the defendants is
alleged to be joint as well as several.
15. The defendants were proceeded ex parte vide order
dated 13th November, 1992. By that time, written statement
had been filed only by defendant No. 4 Ashok Kumar, who
denied all the allegations against him and alleged that he had
no relationship or connection with the other defendants. He
has also alleged that he had sold his property No K-722,
Jahangir Puri, New Delhi to one Sunil Kumar and had received
a sum of Rs. 35,000/- from him by way of a cheque which he
had deposited in his Savings Bank account No. 3917.
16. The ex parte order against defendant No. 6 Smt. Raj
Rani was set aside vide order dated 6th August, 2002. However,
no written statement was filed by her and this Court vide order
dated 18th March, 2009, declined another opportunity to her
for filing the written statement.
17. The plaintiff-bank has filed affidavits of a number of
bank officials. The first witness Shri S.K. Dhawan has stated
in his affidavit that in the year 1984, he was working at
Mayapuri Branch of State Bank of India. On 2 nd March, 1984,
the current account of M/s Santo Sons was opened with that
branch by Shri Santosh K. Sharma as proprietor of M/s Santo
Sons and he was introduced by another account holder Mr.
Vinod Ahuja.
18. The next witness Mr. S.M. Harjai, who was working
as an Officer in PBD Division at Najafgarh Road branch of the
plaintiff bank in the year 1981 has stated that on 6th
September, 1983, one Mr. Naveen Kumar approached the
bank for opening a Savings Bank account. He was introduced
by one current account holder Mr. Ram Lakhan. Accordingly,
Savings Bank Account No. 14322 was opened in the name of
Naveen Kumar vide Account Opening Form, Exhibit PW 8/1.
He has further stated that a sum of Rs. 151/- was deposited in
cash in that account and no material transaction was
undertaken in that account.
19. The witness Mr. D.N. Utreja was working as the
Deputy Manager at SIB Division of Chandni Chowk branch of
the plaintiff bank from July, 1980 to July, 1988. He has
stated that one Shri B. Inderpal claiming to be the sole
proprietor of M/s Vishal Plastic Enterprises opened an account
with the branch on 5th March, 1984. Shri B. Inderpal was
introduced to the bank by M/s Kay Bee & Co. The account
was opened with cash deposit of Rs. 500/- and cheque book
containing 100 leaves bearing nos. 332501-332600 was issued
to the account holder.
20. The witness Shri S.C. Kathuria was working as an
Officer at Paharganj Branch of the plaintiff bank from the year
1981 to 1986. He has stated that one Shri Vipin Bhardwaj
had opened a Savings Bank account with the aforesaid branch
vide Account Opening Form, exhibit PW 11/3, and he was
introduced by one Mr. V.K. Diwan, who was working in the
Savings Bank Section of the branch.
21. The witness Shri V.K. Diwan, who was working as an
officer at Paharganj Branch of plaintiff-bank from April, 1980
to February 1985 has stated that Mr. Vipin Bhardwaj who
opened an account with the Paharganj branch of the plaintiff
bank was introduced by one Shri Rajesh Bajaj and the cheque
book containing 20 leaves bearing nos. 086421 to 086440 was
issued to the account holder.
22. The witness Mr. G.S. Mehta who was working as Sub-
Manager at Guraranwala Town branch of the Punjab and Sind
Bank from July, 1978 to October, 1982, has stated that on
21st July, 1981, Shri Raman Kumar S/o Shri Radhey Lal, R/o
Z-7, Model Town, Delhi-110009 opened an account No. 3040
with the bank on introduction by the account holder of
Account No. 64 vide Account Opening Form Exhibit PW 10/1.
He has also proved Exhibit PW 10/3 which is the statement of
account of the aforesaid bank account holder.
23. The witness, Mr. D.R. Manmohan Singh, who was
working as Officer at Naraina Branch of Punjab and Sind Bank
from February, 1979 to March, 1990, has stated that one Mr.
Vipin Mohan Sharma, sole proprietor, M/s Simplex Traders
had opened an account with the aforesaid branch of the bank
on introduction by one Mr. Harcharan Singh, sole proprietor of
M/s Singh Battery House vide account opening form, Exhibit
PW 9/1. He has also proved Exhibit PW 9/3 which is the
statement of account of the aforesaid account holder.
24. The witness Mr. Satinder Singh, who was working as
Clerk cum Cashier at Asaf Ali Road branch of Punjab and Sind
Bank from May, 1981 till 1990, has stated that he was known
to Mr. Raman Kumar who introduced him to defendant No. 3
Vipan Kumar Chawla and also requested him to introduce the
account of defendant No. 3. The account in the name of
defendant No. 3 was accordingly opened, vide Account
Opening Form Ex.PW 6/1. He has also proved Exhibit PW6/3,
which is copy of the register of bills/cheques sent for collection
on 16th September, 1983 and which contains reference to a
cheque deposited by defendant No. 3 in the aforesaid account.
25. The witness, Shri Pratap Singh Verma, was working
at Kamla Nagar branch of UCO Bank from 1 st September, 1974
to 24th July, 1994. He has stated that on 14th September,
1983, defendant No. 3 opened a Savings Bank Account No.
19001 in the name of Bipan Kumar Sharma and he was
introduced by Shri Raj Kamal Srivastava who was holding
another account with the said bank. He has further stated
that defendant No. 3 withdrew money from the said account by
issuing cheque dated 13.10.1983 for Rs. 35,000/- which is Ex.
PW 5/6, cheque dated 28.10.1983 for Rs. 20,000/- which is
Ex. PW 5/7, cheque dated 9.11.1983 for Rs. 15,000/- which is
Ex. PW 5/8, cheque dated 2.11.1983 for Rs. 40,000/- which is
Ex. PW 5/9, cheque dated 9.12.1983 for Rs. 2,000/- which is
Ex. PW 5/10, cheque dated 22.12.1983 for Rs. 30,000/- which
is Ex. PW 5/11, cheque dated 28.12.1983 for Rs. 50,000/-
which is Ex. PW 5/12, cheque dated 24.12.1983 for Rs.
15,000/- which is Ex. PW 5/13, cheque dated 30.12.1983 for
Rs. 202.75 ps. which is Ex. PW 5/14 and cheque dated
30.12.1983 for Rs. 17,000/- which is Ex. PW 5/15. On
30.12.1983, at the request of defendant No. 3, the Savings
Bank Account No. 19001 was closed. The statement of
Savings Bank Account No. 19001 is Exhibit PW 5/16.
26. Shri Ram Kumar Verma, the next witness of the
plaintiff-bank was working as Special Assistant at New Subzi
Mandi Branch of UCO Bank from 1975 to 1994. He has stated
that defendant No. 3 Vipin Kumar who was residing at 57,
Sarai Peepal Thala, Delhi was known to him and on the
request of defendant No. 3 and a colleague, he had introduced
the Savings Bank Account No. 3573 with UCO Bank, New
Subzi Mandi Branch of UCO Bank which was opened on 1st
June, 1981 in the name of Vipin Kumar. He has further
stated that a cheque book containing 20 leaves bearing Nos.
003981 to 003990 was issued to the account holder. Vide the
pay-in-slips/cheque deposit slips which are Ex. PW 3/6, Ex.
PW 3/7, Ex. PW 3/8, Ex. PW 3/9, the defendant No. 3
deposited various cheques for collection, drawn on various
branches of State Bank of India. He has further stated that
he cleared for payments, cheques drawn by defendant No. 3 on
New Subzi Mandi Branch of UCO Bank and these cheques
were cheque dated 5.9.1983 for Rs. 60,000/- which is Ex. PW
4/1, cheque dated 26.9.1983 for Rs. 35,000/- which is Ex. PW
4/2, cheque dated 14.9.1983 for Rs. 40,000/- which is Ex. PW
4/3, cheque dated 2.11.1983 for Rs. 60,000/- which is Ex. PW
4/4, cheque dated 17.12.1983 for Rs. 40,000/- which is Ex.
PW 4/5, cheque dated 24.11.1983 for Rs. 7500/- which is Ex.
PW 4/6, cheque dated 21.12.1983 for Rs. 20,000/- which is
Ex. PW 4/7 and cheque dated 29.12.1983 for Rs. 29,606.88/-
which is Ex. PW 4/8.
27. Shri Kuldip Singh is the next witness of the plaintiff
bank. He was working as Special Assistant at New Subzi
Mandi Branch of UCO Bank from 1.9.1977 to 1994. He has
stated that Savings Bank Account No. 3573 was opened by
Shri Vipan Kumar with UCO Bank, New Subzi Mandi Branch
on 1st June, 1981 vide exhibit PW 3/1 which is the account
opening form and cheque book containing leaves bearing Nos.
003981 to 003990 was issued to him. According to this
witness, the defendant No. 3 deposited various cheques vide
deposit slips Exhibit PW 3/3 to PW 3/9 with UCO Bank, New
Subzi Mandi Branch and he withdrew money from time to time
from the aforesaid bank account. He has proved statement of
account Ex PW 3/13 in respect of the aforesaid account.
28. Shri M.S. Oberoi, next witness of plaintiff, was
working with Gujranwala Town branch of the Punjab & Sind
Bank. He has stated that on 21st October, 1983, one Shri
Ashok Kumar S/o Shri Roshan Lal, R/o B-1200, Jahangirpuri,
Delhi-110033 opened a Savings Bank Account with
Gujaranwala Town branch of the Punjab and Sind Bank. He
was introduced by one Shri Raman Kumar, R/o Z-7, Model
Town, Delhi. Shri Ashok Kumar deposited a cheque of Rs.
35,000/- in the aforesaid account vide deposit slip Exhibit PW
7/3. Another cheque of Rs. 5,000/- was deposited by him on
26th October, 1983. Exhibit PW 7/4 to PW 7/11 are the
cheques drawn by Shri Ashok Kumar in the aforesaid account.
These cheques were cleared by the witness in due course.
Exhibit PW 7/12 is the statement of account of the aforesaid
account. He has further stated that on 21 st October, 1983,
one Chaman Kumar also opened a Savings Bank Account with
Gujaranwala Town Branch of the Punjab and Sind Bank vide
Account Opening Form Exhibit PW 7/13. The deposit slips,
Exhibit PW 7/15 to PW 7/25, were accepted by him along with
the cheques mentioned. He further stated that at the time he
joined Gujaranwala Town Branch in the year 1983, Shri
Raman Kumar S/o Shri Radhey Lal R/o Z-7, Model Town,
Delhi who also introduced the account of Shri Ashok Kumar
and Shri Chaman Kumar, was maintaining a Savings Bank
Account No. 3040 with that branch and a number of cheques
drawn by Shri Raman Kumar were cleared by him in due
course.
29. Shri D.D. Joshi, the next witness of the plaintiff
bank, was working as Manager, PBD Division at Najafgarh
Road, New Delhi. He has stated that on 6 th September, 1993,
one person claiming to be Naveen Kumar approached the bank
for opening a Savings Bank Account. He was introduced by
another account holder Shri Ram Lakhan and Account No.
14322 was opened in his name.
30. The witness Shri D.N. Taneja, Deputy Manager with
State Bank of India, Chandni Chowk branch, Delhi has stated
that in March, 1984, one person claiming to be Santosh K.
Sharma, sole proprietor of M/s Santo Sons approached the
Mayapuri branch of the plaintiff bank and opened a current
account No. 1949 in the name of M/s Santo Sons. He has
further stated that a cheque book containing 25 leaves bearing
Nos. 970851 to 970875 was issued for the aforesaid Current
Account. According to him, the cheques issued out of the
aforesaid 25 cheques were presented to the Mayapuri branch
of the plaintiff bank for clearing.
31. The witness Mr. C.H. Batra, Assistant Manager with
the State Bank of India, New Laxmi Nagar branch, Mathura
(U.P) has stated that he was working with Jehangirpuri branch
of the plaintiff bank in the year 1983. He has further stated
that on 23rd November, 1983, a person claiming to be Mr
Ashok Kumar opened a Savings Bank Account bearing No.
11661 on being introduced by one customer of the plaintiff
bank having his Account No. 6171 with the same branch.
According to him, a cheque book containing 20 leaves bearing
Nos. 695321 to 695340 was issued in the aforesaid account.
There was no transaction in the account except the entries for
initial deposit of Rs. 100/- and subsequent credit entries for
small amount towards the interest accrued on the balance
amount. He has further stated the cheques issued in the
Account No. 11661 were never presented for payment to the
Jehangirpuri branch of the plaintiff bank.
32. The next witness of the plaintiff bank Shri Veer
Singh, Manager with the plaintiff bank, was working with
service branch of the plaintiff bank since June 2008. He has
deposed about the working of the service branch of the plaintiff
bank as disclosed in the plaint and has stated that defendant
No. 1 Raman Kumar was transferred to the service branch of
the plaintiff bank on 4th July, 1983 and was allotted Group-3
(M-P). He has proved a large number of documents filed by the
plaintiff bank which are Exhibit P-1 to P-176.
33. The plaintiff Baink has filed the affidavit of Shri
B.M. Anand, Assistant General Manager, State Bank of
India, Centralized Cheques Processing Centre/Service
Branch on 19th May, 2011. Mr. Anand has stated that
defendant No. 3, Vipin Bhardwaj had opened an account
bearing Savings Bank Account No. 14322 with Nazafgarh
Road Branch of the plaintiff bank and was issued cheque
book having cheque bearing nos. 402481-402500.
According to him, there is no transaction in this account
except application of interest and, the balance in the
account remained as Rs. 151/-. However, a perusal of the
Account Opening Form Ex. P-125 and specimen signature
sheet Ex. P-126 and P-127 would show that this account is
opened in the name of Naveen Kumar. There is practically
no evidence to prove that it was defendant No. 3 who had
opened this account and/or had signed as Vipin Kumar on
Ex. P-125 to Ex. P-127. Hence, it is difficult to accept that
this account was opened by defendant No. 3 in the assumed
name of Naveen Kumar.
34. This witness has further stated that defendant
No.3 also opened an account with the Paharganj Branch of
the plaintiff bank vide Account Opening Form, Ex. P-129
and a cheque book containing 20 cheques bearing nos.
086421-086440 was issued to him. He has further stated
that there was no transaction recorded in this account
except application of interest and none of the cheques
issued out of this cheque book has been debited to this
account.
A perusal of Ex. P-129 would show that though the
address given by the account holder was 57, Adarsh Nagar,
Delhi-110033 but the learned counsel for the plaintiff states
that Sarai Peepalthala is a part of Adarsh Nagar and
therefore, the address given in the account opening form is
correct address of defendant No. 3 Vipin Bhardwaj.
35. The witness has further stated that defendant
No.3, V. Inder Pal, Proprietor, Vishal Plastics Enterprises
had also opened current account bearing No. 3/47300 on
5th March, 1984 with Chandni Chowk branch of the plaintiff
bank and was issued cheque book containing 100 cheques
bearing nos. 332501-332600. According to him, there is no
transaction in this account. However, a perusal of the
account opening form Ex. P-132, signature sheet Ex. P-133
and the statement of account Ex. P-135 would show that
this account was opened by someone who claimed to be V.
Inder Pal, Proprietor Vishal Plastics Enterprises. There is
no evidence on record to prove that it was defendant No. 3
who had opened this account and had signed Account
Opening Form Ex. P-132 and signature sheet Ex. P-133.
Thus, the plaintiff bank has not been able to prove that the
said account was opened by defendant No. 3. However, it
has come in the deposition of this witness that there is no
transaction in this account except application of interest
and no cheque was however debited to this account.
36. This witness has further stated that defendant
No.3, Santosh Kumar Sharma, Proprietor, M/s Santo Sons
opened a current account bearing No. 1949 with Mayapuri
branch of the State Bank of India. Probably, the witness
wants to say that the defendant No. 3 opened this account
in the assumed name of Santosh Kumar Sharma. However,
there is no evidence to prove that defendant No. 3 had
signed the Account Opening Form of this account, Ex. P-
136 and/or specimen signature sheet, Ex. P-137. Thus,
there is no evidence to prove that the aforesaid account in
the name of Santosh Kumar Sharma was opened by
defendant No. 3. However, it has come in the deposition of
this witness that there is no transaction in this account
except application of interest and no cheque was however
debited to this account.
37. This witness has also stated that the defendant
No.3 V. Kumar, Proprietor, M/s Santosh Sales had opened a
Current Account No. 543 with State Bank of India, Shakur
Basti branch. The witness presumably wants to say that
the defendant No. 3 had opened this account in the
assumed name of V. Kumar. However, there is no evidence
to prove that the Account Opening Form, Ex. P-142 was
signed by defendant No. 3. Thus, there is no evidence to
prove that this account was opened by defendant No. 3.
However, it has come in the deposition of this witness that
there is no transaction in this account except the
application of interest and no cheque was however, debited
to this account.
38. This witness has further stated that defendant
No.3 Ashok Kumar opened a Savings Bank Account No.
11661 with State Bank of India, Jehangirpuri branch.
Again, he presumably wants to say that the defendant No. 3
had opened this account under the assumed name of Ashok
Kumar. However, there is no evidence to prove that the
Account Opening Form Ex. P-144A is signed by and
specimen signature on sheet Ex. P-144B are of defendant
No. 3. The plaintiff bank has not been able to prove that the
said account was opened by defendant No. 3, Vipin
Bhardwaj. However, it has come in the deposition of this
witness that there is no transaction in this account except
for application of interest and no cheque, out of the cheque
book issued to him containing cheque nos. 695321-695340,
was however debited to this account.
39. He has further stated that the defendant No. 1 on
21st July, 1981 opened a Savings Bank Account No. 3040
in his own name with Punjab and Sind Bank, Gujranwala
Town, Delhi vide Account Opening Form, Ex. P-1 and
specimen signature Ex. P-2. According to him, on 14 th
September, 1983, the defendant No. 1 deposited in the
aforesaid account, a cheque bearing No. 402481 for Rs.
70,000/- which was issued out of the cheque book issued
by the State Bank of India, Najafgarh Road, in the account
which was opened by defendant No. 3 in the name of
Naveen Kumar. The cheque was sent for collection by
Punjab and Sind Bank as is evident from the clearing scroll
of the Punjab and Sind Bank vide Ex. P-170. The cheque
however, never reached to the branch and was not debited
whereas, the defendant No. 1 got the credit for the aforesaid
amount as would be evident from the statement of account.
40. He has further stated that on 6 th February, 1984,
the defendant No. 1 deposited with Punjab & Sind Bank, a
cheque bearing No. 695337 for Rs. 65,000/- which was
issued out of the cheque book issued by the State Bank of
India, Jehangirpuri branch in the name of Ashok Kumar.
The aforesaid cheque was sent for collection by Punjab and
Sind Bank as is evident from the clearing scroll of the
Punjab and Sind Bank, vide Ex. P-176. The cheque
however never reached to the branch and was not debited
whereas the defendant No. 1 got the credit for the aforesaid
amount as would be evident from the statement of account.
41. The witness has further stated that defendant No.2
on 21st October, 1983, opened a Savings Bank Account No.
3918 in his own name with Punjab & Sind Bank,
Gujranwala Town Delhi, vide Account Opening Form Ex. P-
18 and specimen signature, Ex. P-19. According to him, on
10th November, 1983, the defendant No. 2 deposited in the
aforesaid account, a cheque bearing No. 086423 for Rs.
74,000/- which was issued out of the cheque book issued
by the State Bank of India, Paharganj branch in the account
which was opened by defendant No. 3 in the name of Vipin
Bhardwaj. The cheque was sent for collection by Punjab and
Sind Bank as is evident from the clearing scroll of the
Punjab and Sind Bank vide Ex. P-171. The cheque,
however, never reached to the branch and was not debited
whereas the defendant No. 2 got the credit for the aforesaid
amount as would be evident from the statement of account.
42. The witness has further stated that defendant No.2
on 29th November, 1983 deposited with Punjab and Sind
Bank, a cheque bearing No. 695322 for Rs. 70,000/- which
was issued out of the cheque book issued by the State Bank
of India, Jehangirpuri branch in the account which was
opened by defendant No. 3 in the name of Ashok Kumar.
The cheque was sent for collection by Punjab and Sind
Bank as is evident from the clearing scroll of the Punjab and
Sind Bank, vide Ex. P-172. The cheque, however, never
reached to the branch and was not debited whereas, the
defendant No. 2 got the credit for the aforesaid amount as
would be evident from the statement of account.
43. He has further stated that defendant No. 2 on 14th
December, 1983 deposited with Punjab and Sind Bank, a
cheque bearing No. 695324 for Rs. 70,000/- which was
issued out of the cheque book issued by the State Bank of
India, Jehangirpuri branch in the account which was
opened by defendant No. 3 in the name of Ashok Kumar.
The cheque was sent for collection by Punjab and Sind
Bank as is evident from the clearing scroll of the Punjab and
Sind Bank, vide Ex. P-173. The cheque, however, never
reached to the branch and was not debited whereas, the
defendant No. 2 got the credit for the aforesaid amount as
would be evident from the statement of account.
44. According to the witness, on 20th December, 1983,
the defendant No. 2 deposited with Punjab and Sind Bank,
a cheque bearing No. 695325 for Rs. 70,000/- which was
issued out of the cheque book issued by the State Bank of
India, Jehangirpuri branch in the account which was
opened by defendant No. 3 in the name of Ashok Kumar.
The cheque was sent for collection by Punjab and Sind
Bank as is evident from the clearing scroll of the Punjab and
Sind Bank, vide Ex. P-174. The cheque, however, never
reached to the branch and was not debited whereas, the
defendant No. 2 got the credit for the aforesaid amount as
would be evident from the statement of account.
45. He further stated that a cheque bearing No.
695335 for Rs. 74,000/- was deposited in the aforesaid
account by defendant No.2 on 6th February, 1984. This
cheque was sent for collection by Punjab and Sind Bank as
is evident from the clearing scroll of the Punjab and Sind
Bank vide Ex. P-176. The cheque, however, never reached
the branch and was not debited to the account, whereas the
defendant No. 2 got the credit for the aforesaid amount as
would be evident from the statement of account.
46. This witness has further stated that on 13 th
September, 1983, the defendant No. 3 opened a Savings
Bank Account No. 2013 in his assumed name Vipin Kumar
Chawla with Punjab and Sind Bank, Asaf Ali Road, vide
Account Opening Form Ex. P-77 and specimen signature,
Ex. P-78. According to him, one Satinder Singh who was
working at Asaf Ali Road branch, Punjab and Sind Bank
had introduced the account at the request of defendant No.
1 who was known to him and he had also introduced
defendant No. 3 as Vipin Kumar Chawla to him. He has
further stated that on 16th September, 1983, the defendant
No. 3 deposited the cheque bearing No. 402485 for Rs.
74,000/- with Punjab and Sind Bank which was issued out
of the cheque book issued by the State Bank of India,
Najafgarh Road branch in the account which was opened by
defendant No. 3 in the name of Naveen Kumar. The cheque
was sent for collection by Punjab and Sind Bank as is
evident from the clearing scroll of the Punjab and Sind Bank
vide Ex. P-162. The cheque, however, never reached to the
branch and was not debited whereas, the defendant No. 3
got the credit for the aforesaid amount as would be evident
from the statement of account. According to this witness,
defendant No.3 on 26.08.1983 opened account No.8423,
Punjab and Sind Bank in the name of Vipin Sharma with
initial deposit of Rs.151. The name of the father of the
account holder has been shown as D.N.Sharma (wrongly
typed as B.N.Sharma in the affidavit) whereas the address
has been shown as 57, Sarai Thala, which is the correct
address.
Considering the fact that the first name of
defendant No.3 as well as the first name of the account
holder is Vipin and the first name of his father as well as the
first name of father of the account holder is also the same
and the address given in the Account Opening Form is the
same which is also the address of defendant No.3 given in
the plaint, I am inclined to accept the case of the plaintiff
that this account was opened by defendant No. 3-Vipin
Bhardwaj. This is more so when defendant No.3 has chosen
not to come to the Court to controvert the case of the
plaintiff in this regard, by contesting the suit.
47. According to Shri B.M.Anand, AGM defendant No-3
deposited 02 cheques; one bearing No. 086425 Rs.46,000/-
and the other bearing No. 402487 Rs.38,000/- in its
account with Punjab & Sind Bank. The first cheque was
drawn on SBI, Paharganj in the account opened by
defendant No. 3 in his own name, whereas the other cheque
was drawn on State Bank of India Najafgarh Road in the
account opened in the name of Naveen Kumar. According
to the witness neither of these cheques reached the branch
and neither of them was debited to the account of the
drawer whereas the defendant No.3 got credit for the
amount of both the cheques.
48. It is also stated by this witness that defendant No.3
Vipin Bhardwaj opened the current Account No. 2475 with
Punjab and Sind Bank, Naraina, New Delhi in his assumed
name Vipin Mohan Sharma as proprietor of M/s Simplex
traders. However, there is no evidence to prove that the
aforesaid account was opened by defendant No.3-Vipin
Bhardwaj. The similarity in the first name, in my view, is
not sufficient to establish that defendant No.3 Vipin
Bhardwaj and the holder of the Current Account No. 2475
were the same persons. It is important to note here that the
name of the father of defendant No.3 is D.N.Bhardwaj
whereas the name of father of the account holder is
H.K.Sharma. As many as 08 cheques were deposited in the
aforesaid Current Account No. 2475 opened in Punjab &
Sind Bank, Naraina. The first cheque was for Rs.2,72,000/-
drawn on State Bank of India, Chandni Chowk in the
account opened in the name of V.Inder Pal, proprietor of
Vishal Plastics. The second cheque was for Rs.1,19,000/-
drawn on State Bank of India, Shakur Basti, Delhi in the
account opened in the name of V.Kumar, proprietor of
Santosh Sales. The third cheque was for Rs.1,91,000/-
drawn on State Bank of India, Chandni Chowk, Delhi in the
account opened in the name of V.Inder Pal, proprietor of
Vishal Plastics. The fourth cheque was for Rs.1,46,000/-
drawn on State Bank of India, Shakur Basti, Delhi in the
account opened in the name of V.Kumar, proprietor of
Santosh Sales. The fifth cheque was for Rs.2,81,000/-
drawn on State Bank of India, Chandni Chowk, Delhi in the
account opened in the name of V.Inder Pal, proprietor of
Vishal Plastics. The sixth cheque was for Rs.2,72,000/-
drawn on State Bank of India, Chandni Chowk, in the
account opened in the name of V.Inder Pal, proprietor of
Vishal Plastics. The seventh cheque was for Rs.1,91,000/-
drawn on State Bank of India, Shakur Basti in the account
opened in the name of V.Kumar, proprietor of Santosh
Sales. The eight cheque was for Rs.3,80,000/- drawn on
State Bank of India, Shakur Basti in the account opened in
the name of V.Kumar, proprietor of Santosh Sales. None of
these cheques reached the concerned branch of State Bank
of India and the amount of none of them was debited to the
account holder whereas the payee was given credit for the
amount of all the eight cheques.
49. It is further stated that on 18.2.1984 defendant
No.3 opened a Current Account No. 1289 with Punjab and
Sind Bank, Defence Colony in the assumed name of Vipin
Chandra, proprietor M/s Swastick Enterprises, giving his
father's name as B.N.Bhardwaj. However, in my view the
plaintiff bank has failed to establish that this account was
opened by none other than defendant No.3-Vipin Bhardwaj.
The address given in the account opening form is altogether
different from the address of defendant No. 3 given in the
plaint. The introducer has not been examined to prove that
it was Vipin Bhardwaj whom he had introduced for opening
this account. No handwriting expert has been examined to
prove that the handwriting on the Account Opening Form
Exh. P-74 and the signatures on the specimen signature
sheet Exh. P-75 tally with the admitted
handwriting/signatures of defendant No.3.
As many as 12 cheques were deposited in the
aforesaid Current Account No. 1289 opened in Punjab &
Sind Bank, Defence Colony. The first cheque was for
Rs.83,099/- drawn on State Bank of India, Chandni Chowk
in the account opened in the name of V.Inder Pal, proprietor
of Vishal Plastics. The second cheque was for
Rs.2,81,675/- drawn on State Bank of India, Maya Puri in
the account opened in the name of Santosh Kumar Sharma,
proprietor of Santo Sons. The third cheque was for
Rs.92,954/- drawn on State Bank of India, Shakur Basti in
the account opened in the name of V.Kumar, proprietor of
Santosh Sales. The fourth cheque was for Rs.2,90,000/-
drawn on State Bank of India, Chandni Chowk in the
account opened in the name of V.Inder Pal, proprietor of
Vishal Plastics. The fifth cheque was for Rs.2,72,000/-
drawn on State Bank of India, Shakur Basti in the account
opened in the name of V.Kumar, proprietor of Santosh
Sales. The sixth cheque was for Rs.2,90,000/- drawn on by
State Bank of India, Maya Puri in the account opened in the
name of Santosh Kumar Sharma, proprietor of Santo Sons.
The seventh cheque was for Rs.1,81,000/- drawn on State
Bank of India, Shakur Basti in the account opened in the
name of V.Kumar, proprietor of Santosh Sales. The eight
cheque was for Rs.2,72,000/- drawn on State Bank of India,
Chandni Chowk in the account opened in the name of
V.Inder Pal, proprietor of Vishal Plastics. The ninth cheque
was for Rs.2,72,000/- drawn on State Bank of India,
Shakur Basti in the account opened in the name of
V.Kumar, proprietor of Santosh Sales. The tenth cheque
was for Rs.1,64,000/- drawn on State Bank of India,
Chandni Chowk in the account opened in the name of
V.Inder Pal, proprietor of Vishal Plastics. The eleventh
cheque was for Rs.1,82,000/- drawn on State Bank of India,
Chandni Chowk in the account opened in the name of
V.Inder Pal, proprietor of Vishal Plastics. The twelfth
cheque was for Rs.2,54,000/- drawn on State Bank of India,
Maya Puri in the account opened in the name of Santosh
Kumar Sharma, proprietor of Santo Sons. None of these
cheques reached the concerned branch of State Bank of
India and the amount of none of them was debited to the
account holder whereas the payee was given credit for the
amount of all the eight cheques.
50. According to this witness on 29.12.1983,
defendant No.3 opened a Savings Bank Account No. 3573
with UCO Bank, New Subzi Mandi, Delhi in his name as
Vipin Kumar. The account holder has given the address of
the account holder given in the account opening form as 57,
Sarai Pipal Thala, Delhi which is also the address of the
defendant in the plaint. Sarai Pipal Thala is stated to be a
part of Adarsh Nagar.
As many as 06 cheques were deposited in the
aforesaid Savings Bank Account No. 3573 opened in UCO
Bank, New Subzi Mandi. The first cheque was for
Rs.65,000/- drawn on State Bank of India, Pahar Ganj in
the account opened in the name of Vipin Bhardwaj. The
second cheque was for Rs.74,000/- drawn on State Bank of
India, Najafgarh in the account opened in the name of
Naveen Kumar. The third cheque was for Rs.38,000/-
drawn on State Bank of India, Pahar Ganj in the account
opened in the name of Vipin Bhardwaj. The fourth cheque
was for Rs.65,000/- drawn on State Bank of India,
Najafgarh in the account opened in the name of Naveen
Kumar. The fifth cheque was for Rs.74,000/- drawn on
State Bank of India, Pahar Ganj in the account opened in
the name of Vipin Bhardwaj. The sixth cheque was for
Rs.65,000/- drawn on State Bank of India, Najafgarh Road
in the account opened in the name of Naveen Kumar. None
of these cheques reached the concerned branch of State
Bank of India and the amount of none of them was debited
to the account holder whereas the payee was given credit for
the amount of all the eight cheques.
51. He has further stated that defendant No.3 also
opened Account No. 19001 on 14.9.1983 in UCO Bank,
Kamla Nagar, Delhi (Exh. P-109). The account holder has
not given the name of his father while opening the account
but he has given his address as 57, Sarai Pipal Thala,
Adarsh Nagar, Delhi which is the correct address of
defendant No.3 and which also shows that Sarai Pipal Thala
is a part of Adarsh Nagar.
As many as 04 cheques were deposited in the
aforesaid Bank Account No. 19001 opened in UCO Bank,
Kamla Nagar. The first cheque was for Rs.65,000/- drawn
on State Bank of India, Paharganj in the account opened in
the name of Vipin Bhardwaj. . The second cheque was for
Rs.65,000/- drawn on State Bank of India, Najafgarh in the
account opened in the name of Naveen Kumar. The third
cheque was for Rs.47,000/- drawn on State Bank of India,
Pahar Ganj in the account opened in the name of Vipin
Bhardwaj. None of these cheques reached the concerned
branch of State Bank of India and the amount of none of
them was debited to the account holder whereas the payee
was given credit for the amount of all the eight cheques.
One cheque for Rs.47,000/- is also stated to have
been deposited in this account vide pay-in-slip Exh. P-113.
A perusal of deposit slip would show that it was a cheque of
State Bank of India though it was not known to which
branch this cheque pertained. This is also the case of the
plaintiff that this cheque also did not reach the concerned
branch and its amount was never debited into the account
though the payee got the credit for the amount.
Liability of defendant No.1 - Raman Kumar
52. The evidence produced by the plaintiff-Bank shows
that Account No.3040 was opened by defendant No.1 -
Raman Kumar with Punjab & Sind Bank, Gujranwala with
an initial deposit of Rs.5/- vide account opening form Ex.P-
1. The evidence further shows that he deposited cheque of
Rs.70,000/- drawn on State Bank of India, Najafgarh Road,
in an account opened in the name of one Naveen Kumar.
This cheque was sent by Punjab & Sind Bank to the
clearing house for the purpose of collection. The cheque,
however, did not reach State Bank of India, Najafgarh Road
and its amount was never debited to the account of the
drawer of the cheque. Since, the amount of this cheque has
been debited to the account of State Bank of India, the
bank, on account of non-receipt of cheque by it, for any
reason whatsoever, has not been able to debit its amount to
the account of the drawer, the bank is entitled in law to
recover that amount from the person to whom it has been
paid. In fact, even if the bank had received cheque, it would
not have been able to debit the amount of the cheque to the
account of the drawer for the simple reason that there was
not enough balance in the account for this purpose. If the
payee of the cheque is aggrieved on account of the State
Bank of India realizing the amount of the cheque from him,
he can avail the remedy open to him in law against the
drawer of the cheque. But, he must necessarily pay this
amount to the bank which, on account of non-receipt of the
cheque and on account of there not being enough fund in
the account of the drawer has not been able to debit this
amount to the account of the drawer. I, therefore, hold that
the plaintiff-Bank is entitled to recover the aforesaid amount
of Rs.70,000/- from defendant No.1.
53. The evidence produced by the plaintiff-Bank shows
that in similar manner, a cheque of Rs.65,000/- drawn on
State Bank of India, Jahangir Puri was deposited in the
aforesaid account on 06.02.1984. That cheque was issued
by one person who claimed to be Ashok Kumar. The
plaintiff- Bank, therefore, is also entitled to recover
Rs.65,000/- being the amount of the aforesaid cheque from
defendant No.1.
Liability of defendant No.2-
54. The evidence produced by the plaintiff, as
discussed in the preceding paragraphs, shows that
defendant No.2 had opened Saving Bank Account No.3918
with Punjab & Sind Bank, Gujranwala Town, on the
introduction of defendant No.1. A cheque of Rs.74000/-
was deposited in the aforesaid account on 10.11.1983. The
cheque was drawn on State Bank of India, Paharganj, an
account opened by defendant No.3- Vipin Bhardwaj. This
cheque also did not reach State Bank of India, Paharganj
and the amount of this cheque was never debited to the
account of the drawer of the cheque. The funds in the
account were also not sufficient for debiting the amount of
this cheque to the said account. For the reasons given
earlier, while dealing with the liability of defendant No.1, I
hold that the plaintiff-Bank is entitled to recover the
amount of this cheque from defendant No.2- Chaman
Kumar. Since this cheque was issued from an account
opened by defendant No.3- Vipin Bhardwaj, he would be
knowing that there are no funds in his account for
honouring of the aforesaid cheque by the bank.
The case of the plaintiff is that this cheque was
removed/stolen by defendant No.1 who was posted in the
service branch of the plaintiff bank and whose job was to
sort out the cheques which were received from the other
banks through clearing house and which were to be
transmitted to the various branches of the plaintiff bank.
Be that as it may, it is difficult to dispute in the facts and
circumstances of this case that defendants No.2 & 3 were
acting in connivance in defrauding the plaintiff Bank to the
extent of the amount of this cheque. This is not a case of a
cheque being dishonoured for wants of funds. Here the
cheque was issued but did not reach the bank on which it
was drawn and the amount was credited to the account of
the payee. Therefore, not only defendant No.2 but
defendant No.3 is also equally liable to pay the amount of
this cheque to the plaintiff- Bank.
The evidence produced by the plaintiff shows that
on 29.11.1983, a cheque of Rs.70,000/- issued by Ashok
Kumar, holder of an account with State Bank of India,
Jahangir Puri was also deposited in the aforesaid account of
defendant No.2- Shri Chaman Kumar with Punjab & Sind
Bank. This cheque also did not reach the concerned
Branch and neither its amount was debited to the account
holder nor were the funds sufficient in his account for this
purpose. Hence, the Bank is entitled to recover the amount
by the aforesaid cheque from defendant No.2. In similar
manner, one cheque of Rs.70,000/- dated 14.12.1983 one
cheque of Rs.70,000/- on 20.12.1983 and one cheque of
Rs.74,000/- issued by Ashok Kumar who had opened an
account with State Bank of India, Jahangir Puri were
deposited in the aforesaid account of defendant No.2 with
Punjab & Sind Bank. None of these three cheques reached
the concerned branch and since the funds in the account
were not sufficient, the amounts of the cheques have also
not been debited to the account. The plaintiff-Bank is,
therefore, entitled to recover the amount of the aforesaid
three cheques also from defendant No.2.
It has come in evidence that bank account No.2013
was opened with Punjab & Sind Bank, Asaf Ali Road on
1309.1983 in the name of Vipin Kumar Chawla. It has
come in the deposition of Mr. Satinder Singh who was
working as Clerk-cum-Cashier in Asaf Ali Branch of this
Bank that defendant No.1 - Raman Kumar had introduced
him to defendant No.3 and had also requested him to
introduce his account. Accordingly, this witness introduced
defendant No.3 as Vipin Kumar Chawla for the purpose of
opening the account with Punjab & Sind Bank, Asaf Ali
Road. Since the defendants have not come forward to
contest the suit, I see no reason to disbelieve the unrebutted
testimony of Mr. Satinder Singh in this behalf and hold that
this account was opened by Vipin Kumar Bhardwaj under
the name V.K.Chawla. The evidence produced by the
plaintiff - Bank shows that a cheque of Rs.74,000/- drawn
on SBI, Najafgarh Road, was deposited in this account. The
cheque purported to have been issued by one Naveen
Kumar. Though the case of the plaintiff Bank that it was
defendant No.3 who had opened the account with SBI
Najafgarh Road as Naveen Kumar, no evidence has,
however, been led to prove the case of the plaintiff in this
regard. This cheque never reached State Bank of India and
its amount also could not be debited to the account holder
since the balance in the account was not sufficient. Hence,
the plaintiff bank is entitled to recover the amount of this
cheque from defendant No.3 - Vipin Kumar Bhardwaj. I
have earlier while dealing with the deposition of
Mr.B.M.Anand has accepted the case of the plaintiff that in
fact this account was opened by defendant No.3-Vipin
Bhardwaj under the assumed name of Vipin Sharms. Two
cheques one of Rs.46,000/- and the other of Rs.38,000/-
have been deposited on 30.08.1983 and the second on
15.09.1983. The cheque of Rs.46,000/- was drawn on SBI
Pahar Ganj and was issued from the account opened by
defendant No.3 - Vipin Bhardwaj whereas the cheque of
Rs.38,000/- was drawn on SBI Najafgarh Road and was
issued from the account of Naveen Kumar. Since these
cheques did not reach State Bank of India and the amount
of these cheques could not be credited to the account of the
drawer for want of sufficient funds, the plaintiff bank is
entitled to recover these amounts from defendant No.3-
Vipin Bhardwaj.
55. This is also the case of the plaintiff - bank that
current account No.2475 with Punjab & Sind Bank,
Najafgarh Road was opened by defendant No.3 in the
assumed name of Vipin Mohan Sharma. This case of the
plaintiff has not been accepted by me while dealing with the
affidavit of Mr.B.M.Anand. Neither the introducer has been
produced to prove that the account was actually opened by
defendant No. 3 Vipin Kumar Bhardwaj, nor has any
handwriting expert been produced to opine that the
signatures on the Account Opening Form and/or specimen
signature sheet, are of defendant No. 3. I, therefore, hold
that the plaintiff bank is not entitled to recovery of the
amount deposited in this account from defendant No.3.
56. This is also the case of the plaintiff bank that the
current account No. 1289 with Punjab and Sind Bank,
Defence Colony was opened by defendant no. 3 under the
assumed name Vipin Chandra as proprietor of Swastik
Enterprises. This case of the plaintiff bank has been
rejected by me while dealing with the deposition of Shri
B.M. Anand. Again, neither the introducer has been
produced to prove that the account was actually opened by
defendant No. 3 Vipin Kumar Bhardwaj, nor has any
handwriting expert been produced to opine that the
signatures on the Account Opening Form and/or specimen
signature sheet, are of defendant No. 3. I, therefore, hold
that the plaintiff bank is not entitled to recover the amount
of the cheques deposited in this account from defendant no.
3.
57. It has also come in the evidence of plaintiff bank
that defendant no. 3 had opened Saving Bank account No.
3573 with UCO Bank, New Subzi Mandi branch in the name
of Vipin Kumar. The address given in the account is same
as is the address of defendant no. 3. It has come in the
deposition of Mr. Ram Kumar Verma, Special Assistant with
UCO Bank, Model Town branch that defendant no. 3 who
was residing at 57, Sarai Peepalthala, Delhi was known to
him as Vipin Kumar as he used to visit his colleagues in the
branch and he had introduced him for opening of Saving
Bank account No. 3573 with UCO Bank, New Subzi Mandi
branch in the name of Vipin Kumar. It thus stands proved
that the aforesaid account was opened by defendant no. 3
Vipin Kumar Bhardwaj under the incomplete name Vipin
Kumar.
58. As many as six cheques, three for Rs. 65,000/-,
each two for Rs. 75,000/- each and one for Rs. 38,000/-
were deposited in this account. Out of them, three cheques
were issued by defendant no. 3 from his account with State
Bank of India, Paharganj branch. Since none of these
cheques reached the concerned branch and none of these
cheques were debited to the account holder for want of
sufficient funds. The plaintiff bank is entitled to recover the
amount of these six cheques from the defendant no. 3. In
fact, in all the accounts from which these cheques have
been issued, the balance has always been very meager and
did not even touch the four figures.
59. The plaintiff bank has also been able to prove that
the account No. 19001 with UCO Bank, Kamla Nagar was
opened by defendant no.3 Vipin Kumar Bhardwaj giving his
name Bipin Kumar Sharma in place of Vipin Kumar
Bhardwaj. The address given in account opening form is
same as is the address of defendant no. 3 given in the
plaint. Since defendant no. 3 has not come forward to
contest the suit, I see no reason to disbelieve the case of the
plaintiff bank in this regard particularly when, the address
given in the Account Opening Form is exactly the same as is
the actual address of defendant no. 3. As many as four
cheques have been deposited in this account out of which
two are for Rs. 65,000/- each and the remaining two are for
Rs. 47,000/- each. Out of these four cheques, two cheques
- one for Rs. 65,000/- and the other for Rs. 47,000/- were
issued from the account of defendant no. 3 with State Bank
of India, Paharganj branch. Since none of these cheques
reached the concerned branch of the plaintiff bank and the
amount of none of them could be debited to the account of
the drawer of cheque on account of funds in the account
being wholly insufficient, the plaintiff bank is entitled to
recover the amount of these cheques from the defendant no.
3.
For the reasons given in the preceding paragraphs,
a decree in the following terms is hereby passed:-
(i) a decree for recovery of Rs. 1,35,000/- with
proportionate cost along with pendente lite and future
interest @ 6% per annum in favour of the plaintiff and
against the defendant no. 1.
(ii) a decree for recovery of Rs. 2,84,000/- with
proportionate cost along with pendente lite and future
interest @ 6% per annum in favour of the plaintiff and
against the defendant no. 2.
(iii) a decree for recovery of Rs. 8,38,000/- with
proportionate cost along with pendente lite and future
interest @ 6% per annum in favour of the plaintiff and
against the defendant no. 3.
(iv) a decree for recovery of Rs. 74,000/- is also passed in
favour of the plaintiff and against the defendant nos. 2 and
3 as they are held jointly as well as severally liable for the
aforesaid amount.
(v) the suit against the other defendants does not stand
proved. There is no evidence of any of them having opened
the account in which the cheques in question were
deposited. The suit against them is, therefore, dismissed,
without order as to costs.
The interim orders, to the extent they pertain to
defendants other than defendant nos. 1 to 3, stand vacated.
The counsel fee certificate furnished by the learned
counsel for the plaintiff is taken on record.
Decree sheet be drawn accordingly.
(V.K. JAIN)
JUDGE
MAY 31, 2011
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