Delhi State Cooperative Bank Ltd. vs Syed Mohd. Ahmad Through Lrs
2018 Latest Caselaw 7104 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 811/2006

%                                                   3rd December, 2018

DELHI STATE COOPERATIVE BANK LTD.
                                                          ..... Appellant
                          Through:       Mr. Anand Yadav, Advocate
                                         with   Ms.    Anita Tomar,
                                         Advocate (M. No.9810126454).
                          versus

SYED MOHD. AHMAD THROUGH LRs
                                                         ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant/bank

impugning the Judgment of the trial court dated 28.10.2006 by which

the trial court has decreed the suit filed by the respondent/plaintiff for

a sum of Rs. 15.40 lakh alongwith interest @ 6% per annum.

2. The facts of the case are that the respondent/plaintiff

pleaded that he had a savings bank account no. 1832 with the

appellant/defendant/bank and the appellant/defendant/bank had issued

a cheque book containing cheque nos. 826176 to 826180. The

respondent/plaintiff pleaded that on 02.12.2002, he found that two

cheques bearing nos. 826176 & 826177 were stolen alongwith certain

jewellery from his almirah kept in his house. The respondent/plaintiff

lodged a complaint with the police being FIR No. 373/2003 dated

08.12.2003 under Sections 380/420/468/471/34 of the Indian Penal

Code, 1860. The FIR was lodged by the respondent/plaintiff against

his own son, Syed Mohd. Irfan and his wife, Saima. The

respondent/plaintiff pleaded that his signatures were forged on the two

cheques whereby Rs. 5.15 lakh and Rs. 10.25 lakh were withdrawn

from his bank account on 04.01.2003 and 10.11.2003. The cheques

were stolen by his son and his wife who had withdrawn the amount of

the cheques totaling to Rs. 15.40 lakh under the forged signatures of

the respondent/plaintiff. It was, therefore, pleaded that since under the

forged cheques the amounts were withdrawn, the

appellant/defendant/bank was liable to refund the amount to the

respondent/plaintiff.

3. Appellant/Defendant/Bank contested the suit and pleaded

that the suit was liable to be dismissed because the signatures on the

cheques were not forged. It was also pleaded that the

respondent/plaintiff was negligent in not keeping his cheque book at a

safe place, and therefore, the appellant/defendant/bank cannot be held

liable. It was pleaded by the appellant/defendant/bank that it tallied

the signatures on the cheques before clearing, and therefore, it has

acted prudently and in good faith, and therefore, was not liable.

4. After pleadings were complete, trial court framed the

following issues:-

"(1) Whether the suit is bad for non-joinder of necessary parties as alleged by the defendant? OPD (2) Whether the cheque bearing No. 826176 and 826177 do not bear the signatures of the plaintiff as alleged by him? OPP (3) If issue no.2 is decided in favour of the plaintiff, whether the defendant was negligent in encashing said cheques? If so, its effect? OPP (4) Whether the plaintiff is entitled to recover the amount claimed from the defendant? OPP (5) If issue no.4 is decided in favour of the plaintiff, whether he is entitled to recover any amount on account of interest? If so at what rate, for what period and to what amount? OPP

(6) Relief."

5. The main issue in this case was as to whether the

signatures on the cheques were or were not of the respondent/plaintiff.

An additional issue which arises in this case, in view of the two Orders

dated 24.02.2004 and 25.02.2004/Ex.DW1/4 and Ex.DW1/5, which

showed a compromise in a criminal case between the

respondent/plaintiff/father and his son, and that the respondent/

plaintiff/father did not oppose the bail of his son against whom the

FIR was lodged with respect to encashment of the cheques.

Accordingly, it is argued on behalf of the appellant/defendant/bank

that there cannot be a case of theft which continues to exist because

the alleged act of theft stood condoned and whereupon the cause of

action would dissolve/vanish as against the appellant/defendant/bank.

6. In order to prove the cause of action that the signatures of

an account holder on his cheques are forged and fabricated, the

account holder such as the respondent/plaintiff must necessarily prove

by leading requisite evidence that the signatures on the cheques are

not of the respondent/plaintiff. This is all the more so as the case of

the appellant/defendant/bank was that the signatures on the cheques

were of the respondent/plaintiff. In this regard, it is noted that the

respondent/plaintiff has except making a self-serving averment in his

deposition as PW1 that the signatures on the cheques Ex. PW1/C and

PW1/D do not bear his signatures, has led no other evidence. The

minimum that the respondent/plaintiff should have done was at least to

have summoned the account opening form and the signatures card of

the respondent/plaintiff with the appellant/defendant/bank and

thereupon file a handwriting expert's report, but admittedly no such

evidence of a handwriting expert has been led by the

respondent/plaintiff stating that the signatures on the two cheques are

not of the respondent/plaintiff. The respondent/plaintiff sought to

place reliance upon a certified copy of the FSL report filed in the

criminal case but the FSL report can only be proved by the author

thereof and admittedly the author of FSL report was not led into the

witness box to prove the report in accordance with law.

7. Once the appellant/defendant/bank has stated that the

cheques were cleared in due course after comparison with the

signatures of the respondent/plaintiff with the signatures of the

respondent/plaintiff appearing in the record of the appellant/defendant/

bank, it was mandatory upon the respondent/plaintiff to have filed the

report of the handwriting expert that the signatures on the two cheques

were not of the respondent/plaintiff, and this has admittedly not been

done.

8. I have also compared the signatures on the two cheques

Ex. PW1/C and Ex. PW1/D with the account opening form Ex.

PW4/B and it is seen that the signatures are in Urdu language. The

signatures are not signatures in the sense of signatures but the

signatures appear to be the full name of the respondent/plaintiff and

who appears to have written as signatures in Urdu language. In such a

case, therefore, I do not think that the appellant/defendant/bank can be

held guilty of negligence in clearing the cheques and in such a case as

the present, where no report of the handwriting expert has been filed

and proved by the respondent/plaintiff, it has to be held that the

signatures of the respondent/plaintiff on the two subject cheques are

not forged and the appellant/defendant/bank is not guilty of illegality

in clearing the said cheques.

9. In my opinion, really the respondent/plaintiff is trying to

be clever by half, and this is because it is seen that the

appellant/defendant/bank has proved the two Orders in the criminal

case dated 24.02.2004 and 25.02.2004/Ex.DW1/4 and Ex. DW1/5

which show that the respondent/plaintiff/father had compromised with

his son, and who thus got bail. What has finally happened to the

criminal case has also not been led in evidence by the

respondent/plaintiff, and obviously this must be because the

respondent/father in all probability would not have pursued the

criminal case against his son. In such a case, therefore, when the

respondent/father had compromised with his son, Syed Mohd. Irfan,

who along with his wife is alleged to have forged the signatures on the

cheques, in such a case, the action of the son of the

respondent/plaintiff being condoned by the respondent/plaintiff, as

against the appellant/defendant/bank, there possibly cannot remain any

cause of action for seeking recovery of the amount of cheques. If this

Court permits the respondent/plaintiff to do so, it would amount to

putting premium on the ulterior action of the respondent/plaintiff/

father suing the appellant/defendant/bank although the

respondent/plaintiff/father does not hold his own son to be guilty of

the criminal offence of cheating and forgery.

10. In view of the aforesaid discussion, this appeal is allowed

and the impugned Judgment of the trial court dated 28.10.2006 is set

aside. The suit of the respondent/plaintiff will stand dismissed.

Whatever amount has been deposited by the appellant/defendant/bank

in an FDR in the name of the respondent/plaintiff in the

appellant/defendant/bank itself, the said FDR can now be encashed by

the appellant/defendant/bank.

DECEMBER 03, 2018                         VALMIKI J. MEHTA, J
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