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TMI Blog1996 (8) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... esented to Banque Leumi, Paris on 13.7.90. On 9.4.91, on the instructions of the respondent, a telex was sent to Banque Leumi, Paris to transfer the documents to another French Bank, namely, Society Lyonnaise De Banque, Lyon, France, and on the same day, fresh Bills of Exchange dated 6.3.91 were sent to the French Bank at the request of the respondent. In these Bills of Exchange, there was no clause for co-acceptance by the French Bank which, however, returned the documents unpaid on 9.8.91. 3. On 26th August, 1991, respondent forwarded a fresh set of Bills of Exchange for being sent to the French Bank. The Bills of Exchange, on their face, specifically provided for acceptance by the Buyer and co-acceptance by the French Bank. 4. It appears that the Buyer, namely, M/s STE Kolori went under liquidation and an order was passed by the Commercial Court at Lyon, France for winding up the firm. The Court also appointed a Liquidator who wrote to the respondent to file its claim. 5. On 1st January, 1992, Napean Sea Rood Branch of the appellant at Bombay wrote a letter to the French Bank that payment of the Bills of Exchange forwarded to it earlier may be made. The French Bank wrote on 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commission that the letter dated 26th August, 1991 which was placed on the record by the respondent and in which a specific mention was made that co- acceptance from French Bank had to be obtained, was a letter forged by the respondent to obtain a decree in its favour. The appellant contended that this letter was never issued to the appellant. The letter dated 26.8.91 which was actually issued to them did not contain any direction for obtaining co-acceptance by the French Bank. The Commission in its judgment dated 13.12.94 (disposing of the review application) has considered both the letters and has reproduced the contents thereof but it did not go into the question whether the letter filed by the respondent was a forged letter or not. 8. The relevant portion of the findings recorded by the Commission in its judgment passed on the review application is quoted below :- " The Opposite Party - Bank - has alleged that the letter of 26th August, 1991 from the Complainant to the Opposite Party - Bank which was the letter with which the Bills of Exchange were submitted to the Opposite Party - Bank - for collection, did not specifically direct the Bank to secure co- acceptance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk it necessary to go into this question. We only pointed out to the Complainant that in the ordinary course of correspondence, in its letter of No.2776 the Complainant should have stated that this was in continuation of its previous letter No.2775 and that the letter No.2776 was necessitated by the omission in the letter No.2775 of the vital directions regarding co-acceptance of the Bills of Exchange. We did not get a satisfactory answer to this question. We have also once again gone through the records of the case, the oral arguments and the written submission made by the parties at the rehearing limited to the question of the letter No.2776 being a forgery and its effect on the findings corded in the order of this Commission of 16th November, 1993. It will be observed from the order that the Bills of Exchange clearly specified that the same were to be co-accepted by the foreign bank besides being accepted by the buying French Firm. In these circumstances it was the duty of the Opposite Party Bank to ensure co-acceptance by the foreign Bank. The responsibility of the Bank to obtain co-acceptance of the Bills of Exchange is also manifest from the Rules of Collection laid down by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pend on a correct reading and interpretation of the ICC Rules which, we unhesitantly say, at the outset, were misread, misunderstood and misinterpreted by the Commission. 11. Clause B of the ICC Rules which came into force with effect from January l, 1979 contains Definitions some of which (which are relevant for this case) are reproduced below :- "1. (i) "Collection" means the handling by banks'on instructions received of documents as defined in (ii) below, in order to a) obtain acceptance and/or, as the case may be, payment, or b) deliver commercial documents against acceptance and/or, as the case may be, against payment, or c) deliver documents on other terms and conditions. (ii) "Documents" means financial documents and/or commercial documents: (a) "financial documents" means bills of exchange, promissory notes, cheques, payment receipts or other similar instruments used for obtaining the payment of money; (b) "Commercial documents' means invoices, shipping documents, documents of title or other similar documents, or any other documents, whatsoever, not being financial documents. 2. The "parties thereto" are : ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signatory to sign the acceptance. 12. Clauses 2 and 3 specify the parties to the transaction for purpose of "Collection" as defined in Sub-clause 1(i) of Clause B. These parties are the "Principal" who entrusts the operation of "Collection" to his Bank. This, in the instant case, would be the respondent as the respondent entrusted the operation of "Collection" to the appellant. The other party is the "Remitting Bank", namely, a Bank to whom the operation of "Collection" is entrusted by the "Principal". In the instant case, the "Remitting Bank" would be the appellant as it was this Bank to whom the respondent had entrusted the job of "Collection". Another Bank which is involved in the whole transaction is the "Collecting Bank". According to the definition, this would be a Bank other than the "Remitting Bank". There is, yet, a third Bank, namely, the "Presenting Bank" which, according to the definition, is, in fact, the "Collecting Bank" making presentation to the "Drawee". "Drawee" has been defined in Sub-clause 3 of Clause 8 as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommerce leave no room for doubt that as per Article 3 of the said Rules, for giving effect to the instructions of the principal, i.e., the customer entrusting the operation of collection to his Bank, the remitting bank (viz. the Bank to which the principal has entrusted the operation of collection) is the collecting Bank. As observed earlier, under Article 15 it is the presenting Bank which is responsible for seeing that the form of acceptance of a Bill of Exchange appears to be complete and correct. Under Item C "General Provisions and Divisions" of the above Rules "All documents sent for collection must be accompanied by a collection order which has to be made by the Bank in accordance with the instructions of the client or the principal". The opposite party Bank failed to do so. We reject its plea that it was not responsible to obtain the co-acceptance of the Bank and there was no deficiency of service on its part." 16. A mere perusal of the above passage of the Commission's judgment indicates that the Commission fell into a serious error in treating the "Remitting Bank" as the "Collecting Bank" and, then, fastening liability on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; to give or send specific and precise instructions to the Bank besides sending the "Commercial/Financial Documents", Commission was under a duty to decide as to whether the appellant had issued the letter containing the requirement of co-acceptance by the French Bank. The Commission could not legally avoid to decide this question particularly as the appellant had contended before the Commission that the letter No.2776 of 26th August, 1991 was forged and fabricated by the respondent and that the only letter issued by the respondent was letter No.2775 dated 26th August, 1991. The contents of both the letters have already been reproduced by the Commission in its judgment by which the review application has been disposed of which would indicate that in the letter No.2775, there is no requirement to obtain co-acceptance by the French Bank whereas in the other letter, namely, letter No.2776, this condition has been specifically mentioned. 20. By filing letter No.2775 of 26.8.91 along with the Review Petition and contending that the other letter, namely, letter No.2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is used in our law for the fraudulant making and publishing of false writings to the prejudice of another mans right (Termes de la Ley) (Stroud's judicial Dictionary, Fifth Edition Vol. 2). 26. In Webst Comprehensive. Dicitionary, International Edition, "Forgery' is defined as : "The act of falsely making or materially altering. with intent to defraud; any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability." 27. This Definition was adopted in Rembert vs. State 25 Am. Rep. 639. In another case, namely, State vs. Phelps 34 Am. Dec. 672, it was laid down that forgery is the false making of any written instrument, for the purpose of fraud or deceit. This decision appears to be based on the meaning of forgery as set out in Tomlin's Law Dictionary. 28. From the above, it would be seen that fraud is an essential ingredient of forgery. 29. Forgery under the Indian Penal Code is an offence which has been defined in Section 463, while Section 464 deals with the making of a false document. Section 465 deals with the making of a false document. Section 465 prescribes punishment for forgery. "Forged document" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on oath but also to receive evidence in the form of affidavits. 34. The parties, in the instant case, have filed their affidavits annexing therewith a host of documents. These affidavits and documents were treated as evidence in the case. It was on the basis of this evidence that the main case, as also the Review Petition, were decided by the Commission. 35. Since the evidence of the parties is already on record and all vital facts either stand admitted or proved, we proceed now to consider whether forgery and fraud are established. This we are doing in view of the facts and circumstances of this case otherwise we would have either remanded the case to the Commission or directed the respondent toe approach the Civil Court. 36. Paragraphs 2, 3, 4, 5, and 6 of the Review Application filed by the appellant before the Commission are as under: "2. In brief, the case of the complainant before this Hon'ble Commission was that it had by its letter of the 26th August, 1991, which letter enclosed the bills of exchange in question, gave specific instruction to the Opposite Party - -- the Bank -- for securing a co- acceptance by Societe Lyonnaise de Banque (the French Bank) befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot received the letter bearing reference No. 2776 of 26th August, 1991 the contents of which are as the purported copy produced by the Complainant before this Hon'ble Commission. What was given by the complaint to the Bank as a covering letter was a letter being reference No. 2775, a copy of which is annexed hereto and marked as Annexure I and the original of which shall be produced at the time of hearing. Affidavit of the then manager of the said branch confirming that the said letter dated 26th August, 1991 annexed as Exhibit "A" to the Complaint was not received by the Bank is annexed hereto and market Annexure "II". 5. A perusal of this letter shows that the material instructions in relation to co-acceptance by the French Bank are absent in this letter. The Opposite Party is advised to stated that considering the fact that a letter dated 26th August, 1991, bearing REF:SF:E:2775 was given as a covering letter to the Bank, it is inconceivable that a second letter also as a covering letter would be given to the Bank. The letter of 26th August, 1991 stated that it is "....enclosing fresh set of drafts....". There are some other discrepancies betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has also been annexed hereto as Exhibit 'C'. The said letter was delivered to the Opponent and the same bears the initials of the persons who received the said letter in the Opponent and the same bears the intials of the person who received the initials of the person who received the said letter also bears the rubber stamp of the Opponent. (d) The said letter dated 26th August 1991 bearing Reference No. SF:E: 2775 is also mentioned in the Outward Register maintained by the Complainant. Exhibit 'B' hereto which is the relevant page of the Outward Register not only shows the entry of the said letter bearing Reference No. SF:F: 2775 but also the entry of the aforesaid letter bearing SF:E: 2776. (e) From the aforesaid it is evident that there were to letters both dated 26th August, 1991 which were addressed by the Complainant to the Opponent. (f) The Complainant says that pursuant to the filing of the original complaint, the Complainant's Advocates gave inspection of the documents, referred to and relied upon by the Complainant, to the Opponents Advocate. The said inspection was taken on 14th October, 1992 and at the said time the carbon copy of the letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a copy of the aforesaid letter dated 4th January, 1994. 38. Other relevant paras of the respondent's reply are paragraph 7 to 15. 39. The Respondent's denial that it had fabricated the letter No. 2776 is also contained in various other paras of its reply. 40. The appellant filed a rejoinder affidavit before Commission. Paras 3,7,12,21 are quoted below- "3. It is only after having perused the Reply of the Complainant that the Opposite Party has further realised that the Complainant has played a calculated fraud with an intention to secure an order from this Hon'ble Commission. the Complainant has all along played a fraud on this Hon'ble Commission in making it believe that the Bills of Exchange have been forwarded by the alleged letter dated 26th August, 1991 bearing No. 2776 annexed as Exhibit "A" to the Complaint. Having now read the tenor of the Reply of Complainant, the Opposite party has realised that the Complainant has with mischievous and malafide intent in its pleadings before this Hon'ble Commission cleverly avoided making reference to the different letters said to have been delivered to the Opposite Party and the aforesaid fact i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r date bearing outward number of an earlier date. The Opposite Party says and commits that no reliance can be placed upon the said alleged Outward Register alleged to have been maintained by the Complainant. The opposite party says and submits that the alleged initials of the person who received he said letter is not initial led by any officer/staff member of Indian Bank working in its Nepean Seas Road Branch at the relevant time. The Opposite Party says that prior to the filling of the Review Application the Opposite Party obtained verification from the officers and staff members attached to the Nepean Sea Road Branch of the Opposite Party who certified and stated that the alleged initial on the alleged office copy of the Complainant is not their initial. The Opposite Party states and submits that the mere fact that a rubber stamp appears on the alleged letter cannot be itself confer any authenticity. It is pertinent to note that the Complainant has obtained and alleged acknowledgment on the officer copy of the alleged letter 26th Aug. 1991 bearing reference No. 2776 when, in fact no such letter was delivered by the Complainant to the Opposite Party. It is further pertinent to not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Complainant that the two letters both dated 26th August, 1991 bearing Nos. 2775 and 2776 are materially different from each other. The Opposite Party states that the Complainant has not explained in any part of the replay as to what warranted the submission of the alleged letter dated 26th August, 1991 bearing No. 2776 on the same dated after submission of a letter on the same subject, also dated 26th August, 1991 bearing No. 2775 without providing for any reference to the earlier letter or without making any mention about the submission of the earlier letter to the Opposite Party. The Opposite Party submits that the absence of continuity of reference to the earlier letter cannot be termed as an omission, as alleged, by the Complainant, particularly who, according to the Complainant itself the second letter is intended to be substitution of the contents of the earlier letter. 21. With reference to paragraph 21 to 24 of the said Reply, it is pertinent to note that the Complainant says tat the Complainant was willing to have the goods delivered to the Buyer not only letter acceptance of the Bills of Exchange by the Buyer but also co-acceptance by the foreign bank. The Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) The respondent does not deny that this letter does not contain any direction to the appellant to obtain co-acceptance from the French Bank: (iii) The respondent says that it had issued letter NO. 2776 dated 26th August, 1991 in substitution of the earlier no. 2775 of the event dated; (iv) the fact that this letter was sent in substitution of letter No. 2775 dated 26th August, 1991 is not mentioned in the letter itself: (v) The respondent does to say that the letter NO. 2775 dated 26th August, 1991 should be treated as cancelled; (vi) The respondent had corresponded with the appellant and had even given a notice dated 26.3.92 through its counsel to the appellant claiming the amounts due under the Bill of Exchange on the ground of negligence but nowhere does the respondent says that the letter No. 2776 dated 26th August, 1991 was substitution of letter No. 2775 of that date: (vii) Even the original complaint filed before the Commission , the respondent does not say anywhere that they had issued letter No. 2776 of 26th August, 1991 in substitution of the letter NO. 2775 of that date. (viii) The plea that letter NO. 2776 was issued in substitution of letter no. 2775 was asser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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