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TMI Blog2017 (11) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the trial Court. This Court, on going through the materials placed, holds that the respondent bank was never negligent in honouring the cheques. Hence, they are protected under Section 131 of the Negotiable Instrument Act, 1881. In the absence of justification on the part of the plaintiff for allowing the said Thomas to handle her passbook and cheque book and representing to the bank implicitly and explicitly that Thomas is her representative, she is estopped from alleging negligence on the part of the respondent bank. Therefore, the conduct of the respondent Bank estops her from questioning the bank for honoring the cheques of the plaintiff. Even if it is not signed by her, but due to lookalike signatures, the bank cannot be held responsible. The evidence of DW1 to DW6 narrate the care and caution exercised by the bank officials while passing the cheques. Therefore, their evidence cannot be just ignored, in the absence of contra evidence. As pointed out by the lower appellate Court, the reasoning of the trial Court is bad and bereft of details for his conclusion that the signatures found in the cheques are forged. Therefore, even though there is no legal impediment to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Officials by proper comparison of the specimen signatures of the plaintiff kept in the custody of the Bank with, the cheques presented by the said Thomas ought not have passed the forged cheques. 4. Based on her complaint to the Mylapore Police Station against the said Thomas, the Police has registered a case and the Trial ended in conviction for two years of Rigorous Imprisonment. Since the defendant Bank has negligently passed the cheques containing four signatures, they are liable to pay a sum of ₹ 52,900.55 with interest at the rate of 18%. 5. The defendant resisted the suit claim on the ground that the plaintiff introduced one Thomas as a close relative of her husband and informed the Bank that he will be helping her in interacting with the Bank. The said Thomas was operating the account on her behalf by depositing the money and collecting cash through bearer cheques. The cheques were honoured only, after due verification with the signatures and there was no variations to entertain any suspicion over those cheques. Further, the said Thomas himself was an account holder and he was introduced by the plaintiff for opening the account. The plaintiff ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the impugned cheque? 3.Whether the bank is absolved by pleading that the customer was negligent in leaving the cheque carelessly? If the cheque has not been signed by the customer with the intention to issue mandate when the payment was made by the respondent/bank is valid in the eye of law? 4.Whether the disputed signatures appear to be forged? 5.Whether the learned Judge is prohibited from comparing the signature by himself as has been enunciated in A.I.R.1994 Karnataka page 315? 6.Whether the respondent-bank has exercised due care and caution? 11. The sum and substance of the plaintiff claim is that, she entrusted the cheque book and pass book to one Thomas, who is a known person and close relative of her husband and she left Chennai to Krishnagiri to join her husband. In her absence, the said Thomas was handling the bank accounts. While so, he has misused the cheque leaves by forging her signatures and withdrawn the money through 54 cheques. Her contention is that, there is negligence on the part of the Bank in honouring those cheques presented by Thomas with her forged signatures. She relies upon the conviction of the criminal Court slapped on Thom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO REFRAIN FROM FACILITATING FRAUD OR FORGERY: 23.7. The customer owes his bank a duty to refrain from drawing cheques or other payment orders in such a manner as to facilitate fraud or forgery. This is often referred to as the Macmillan duty, following the House of Lords' decision in London Joint Stock Bank Ltd. V. Macmillan.[London Joint Stock Bank V. Macmillan [1918] AC 777, HL] The facts in the Macmillan case were that the customers, Macmillan and Arthur, had a clerk who prepared and presented for signature to one of the partners cheques for small amounts of petty cash. The clerk, with a view to fraud, wrote a cheque, inserting a '2' in th space for figures, with available blanks before and after the numeral, putting nothing where the sum in writing should appear. The cheque was to bearer and uncrossed. He then handed the cheque to a partner who was just leaving the office and who, being in a hurry, failed to notice anything unusual. Being told it was for petty cash and that 2 pounds would be sufficient, the partner signed it. The clerk filled in 'One hundred and twenty pounds' in writing, inserted a '1' before the '2' and a '0& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding of the trial Court based on comparing the signatures though naked eye cannot be faulted in view of explicit power given to Court under Section 73 of the Indian Evidence Act, 1872.On reading of the trial Court judgment, this Court finds that the trial Court has not spelt out, which are the admitted signatures of the plaintiff, were compared with disputed signatures found in the cheques or the manner in which he compared and how he got satisfied that the signatures found on the cheques are forged. 17. The judgments of this Court in (i) Central Bank of India (A Nationalized Bank) rep.by its Manager v. Antony Hardware Mart, rep.by its Proprietor K.Subbiah and another reported in [2006 (3) CTC 39]; and (ii)S.Murugesan v. V.Vijay Sai and others reported in [2006(5)CTC 560]; 18. It is held that the Court is competent to compare the disputed signature with the admitted signature and come to an independent conclusion, notwithstanding the availability and non-availability of expert opinion, but, while exercising that right, the Court should show utmost diligent and caution. 19. In addition, Section 131 of Negotiable Instrument Act 1881, indicates the circumstances when the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egligence on the part of the respondent bank. Therefore, the conduct of the respondent Bank estops her from questioning the bank for honoring the cheques of the plaintiff. Even if it is not signed by her, but due to lookalike signatures, the bank cannot be held responsible. The evidence of DW1 to DW6 narrate the care and caution exercised by the bank officials while passing the cheques. Therefore, their evidence cannot be just ignored, in the absence of contra evidence. As pointed out by the lower appellate Court, the reasoning of the trial Court is bad and bereft of details for his conclusion that the signatures found in the cheques are forged. Therefore, even though there is no legal impediment to exercise the power under Section 73 of the Indian Evidence Act, 1872, without resorting to expert opinion under Section 45 of the Indian Evidence Act, 1872, the manner in which the power under Section 73 of the Indian Evidence Act, 1872 exercised is always subject to judicial scrutiny. First and foremost, the plaintiff/appellant ought to have proved the case of forgery by letting in plausible evidence, which is well within her limitation, but miserably failed to do. 23. Next, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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