(1) This is a defendant's First Appeal under Section 96 of the Code of Civil Procedure.
(2) Sri Sharad Malviya learned counsel for the defendant appellant (State Bank of India) as also Sri K.N. Roy learned counsel on behalf of the plaintiff respondent have been heard at length.
(3) The plaintiff respondent filed a Suit no. 96 of 1986 (Lakhi Chand Prasad Vs State Bank of India and Others) before the court of II nd Additional District Judge, Ballia for recovery of Rs. 19,668/- along with interest and 10 percent as compensation. The facts of the case pleaded by the plaintiff respondent were that he lives in District Ballia and doing his business there. He has opened a Savings Bank Account in his name being Account no. 4162 in the State Bank of India, City Branch, Ballia where he used to deposit and withdraw moneys from time to time. On 13.8.1984 he withdrew Rs. 5000/- by filling and signing the withdrawal form and gave his Bank Pass Book for making the necessary entry but was told to come later on to collect his Pass Book because there was rush of customers in the Bank. When he went to collect the Pass Book in the evening the defendant no. 2 Anil Kumar who was employee of the Bank told the plaintiff to come and collect the Pass Book on the next date. On 18.8.1984 the plaintiff respondent went the Bank to deposit moneys in his other account with the Bank and asked the employee of the Bank Sri Anil Kumar to give him his Pass Book of the Savings Bank Account. When he received the Pass Book of his Savings Bank Account no. 4162 he found that on the very date i.e. 18.8.1984 a sum of Rs. 15,000/- had been withdrawn from his Savings Bank Account and entered in his Pass Book. According to the plaintiff he has not withdrawn the amount and immediately he approached the Branch Manager who took the Pass Book and issued receipt of the same and assured that necessary action will be taken whereafter the Pass Book will be returned. The plaintiff alleges that on the very same date i.e. 18.8.1984 he lodged First Information Report in Police Station Kotwali, District Ballia where the police authorities also took his specimen signature and got it examined from the handwriting and finger print expert. The plaintiff alleges that he gave notice dated 15.7.1985 and 24.6.1986 to the Bank which was replied by its letter dated 9.7.1986 denying the allegations of the plaintiff regarding fraud played upon him. The Bank stated that the plaintiff had withdrawn Rs. 15,000/- from his own account on 18.8.1984. Consequently, the plaintiff filed the instant suit for recovery and damages.
(4) The defendant appellant filed written statement and stated that the plaintiff had two accounts in the Bank one being the Savings Bank Account no. 4162 opened on 5.11.1979 and another Current Account in the name of M/s Lakhi Chand Trading Company. The case of the defendant's was that the plaintiff had withdrawn Rs. 5000/- from his Savings Bank Account on 13.8.1984 and another sum of Rs. 15,000/- from his Savings Bank Account on 18.8.1984. A plea of misjoinder of the parties was also raised by the defendants.
(5) On the aforesaid pleadings the Trial Court framed five issues. The first issue was, whether the suit is not maintainable. It was answered by the Trial Court in the negative holding that the suit was maintainable. The second issue was, whether the plaint is bad for misjoinder of parties. The issue was answered in the negative and it was held that the suit is not bad for misjoinder of parties.
(6) Issue no. 3 was, as to whether the plaintiff did not withdraw Rs. 15,000/- on 18.8.1984 and the fourth issue was, whether the plaintiff was entitled to be paid Rs. 19,668/- along with interest and compensation. The fifth issue was as to what relief the plaintiff is entitled. On issue no. 3 the Trial Court considered the evidence led by the parties and decided the issue in the affirmative holding that the plaintiff did not withdraw Rs. 15,000/- from his Savings Bank Account on 18.8.1984.
(7) Issue no. 4 and 5 were decided together and the Trial Court found the plaintiff entitled to a sum of Rs. 19,668/- along with interest @ 5 percent per annum. The Trial Court therefore decreed the suit of the plaintiff.
From the above facts the point for determination in this First Appeal would be:-
'Whether the plaintiff did not withdraw Rs. 15,000/- on 18.08.1984 from his A/c No. 4162 in the defendant Bank?' (8) The plaintiff-respondent produced five witnesses in support of his pleadings. Two of the witnesses were handwriting and fingerprint experts. Both deposed that the disputed signature was not made by the plaintiff-respondent. PW-3 and PW-5 namely Jagat Kumar and Kanhaiya Lal deposed that after withdrawal of Rs. 5000/- from his account the plaintiff left his Bank Pass Book at the Bank and he asked for its return from the Bank's Cashier in their presence who told the plaintiff to collect it in the evening. The plaintiff himself appeared as PW-4 to prove his case.
(9) The defendant-appellant also produced four witnesses. DW-1 Anil Kumar was a permanent employee of the Bank and was stationed on the Savings Bank Counter. He deposed that the Pass Book was returned to the plaintiff on 13.08.1984 but in the cross-examination he admitted that he does not remember that fact. DW-2 Ravi Shankar was a clerk in the Bank. On 13.08.1984 and on 18.08.1984 he was the Passing Officer for Savings Bank Account and Current Account. He admits that his prescribed duty was to compare the signature on the withdrawal form with that kept with the Bank as specimen signature and upon verifying it to pass it for payment. He deposed that the withdrawal form had the signature of the plaintiff although it was not signed before him. DW-3 Sarvadev Tiwari, Head Clerk was working on the Savings Bank Counter on 13.08.1984. He deposed that the plaintiff took away his Pass Book but did not sign the withdrawal form in his presence. DW-4, Balram Prasad was the Cashier on 13.08.1984 and 18.08.1984 and he used to take the token from the customers and then make the payment. He deposed that he knew and recognised the plaintiff and had made both the payments to him on 13.08.1984 and 18.08.1984. He admitted that he does not recognise the signature of the plaintiff and did not remember whether he took a second signature of the plaintiff at the time of making the payment.
(10) In the F.I.R. lodged by the plaintiff against the Bank a report of one S.B.Gupta, Handwriting and Fingerprint Expert had been obtained and produced by the Bank which stated that the signature on the withdrawal form dated 18.08.1984 was of the plaintiff. The police had therefore, filed a Final Report. That report was also filed before the Trial Court by the defendant-appellant and was relied upon by them.
(11) On the other hand the plaintiff-respondent had filed two expert reports. One was of the PW-1 Sheo Prasad Misra, Visheshagya Vidhi Prayog Vidhishala, U.P. Lucknow and the other was of PW-2 Madan Mohan Kakkar Handwriting and Fingerprint Expert. Both these Experts deposed that the signature of the plaintiff on the withdrawal form did not match with the admitted signature of the plaintiff available as specimen signature with the Bank.
(12) Faced with contradictory expert reports the Trial Court proceeded to peruse them itself and concluded that the withdrawal form dated 18.08.1984 did not bear the signature of the plaintiff and it was a forged signature. It found difference in the letters and hence affirmed the expert report of Madan Mohan Kakkar. The relevant finding is quoted hereunder:-
"fookfnr foM~zky QkeZ fnukad 18-8-84 to i{kdkjksa esa Lohdkj fd;k x;k foM~zky fnukad 13-8-84 vkSj uewuk gLrk{kj ds voyksdu ls Li"V gS fd v{kj "y" ds mijh vkSj fupys fgLls ds e/; Hkkx dh xksykbZ pUn esa "lh" ,oa vkSj izlkn esa v{kj "ih" ,d nwljs ls fHkUu gS mlesa eksM+ vkQ izksMD'ku v{kjksa ls fHkUu gS vkSj blls enu eksgu dDdM+ ds }kjk fn;s x;s izfrosnu vkSj muds c;ku ls iq"V gksrk gSA fookfnr foM~zky QkeZ fnukad 18-8-84 dks fdlh vU; O;fDr us eseksjh QthZ gLrk{kj cukdj foM~zky fd;k gSA"
(13) The disputed signature on withdrawal form dated 18.08.1984 is scanned from the original and reproduced here under:-
(14) The admitted signature on withdrawal form dated 13.08.1984 is scanned from the original and reproduced here under:-
(15) A perusal of the admitted signature of the plaintiff and his disputed signature does not indicate a resemblance in appearance when sighted by the eyes. To detect a forgery the flow of writing in the two can be examined to find out whether both the signatures were made by one and the same person or by two different persons. Where a signature is attempted to be forged the writing flow of the forgery will have to be slower than as signed by the original person. The forgerer has to ensure a resemblance with the admitted signature. The forger has to attempt that his dots and crosses as also the curves in the letters of words are matching. Where one letter is used twice in a signature it is a give-away when the signature is forged.
(16) In the withdrawal form dated 13.08.1984 the signature of the plaintiff does not at all resemble the signature on the withdrawal form dated 18.08.1984. The slant, the flow and the curves do not show any similarity. They have been made by different persons. In fact none of the letters of the disputed signature match with the admitted signature. The disputed signature is a forgery and it has been rightly held so by the Trial Court.
(17) The finding of forgery in the withdrawal form dated 18.08.1984 clearly reveals that the plaintiff did not withdraw Rs. 15,000/- from his Bank Account on 18.08.1984. The withdrawal form dated 18.08.1984 was signed by a forgerer and the money was withdrawn from the plaintiffs Bank Account on 18.08.1984 by some other person. The question framed for determination in this appeal is answered in the affirmative and it is held that the plaintiff did not withdraw Rs. 15,000/- on 18.08.1984 from his A/c No. 4162 in the Bank. The finding of the Trial Court is therefore, affirmed.
(18) Clearly a fraud has been committed on the plaintiff. The responsibility of such a fraud has to be fixed. The appellant is a statutory entity and it is its employees who are conducting its business. Therefore to hold the appellant responsible for the fraud would not be a sufficient identification of the fraudster. This court has to therefore find out the individual who has played fraud on the plaintiff and on the court.
(19) The evidence indicates that there were several employees of the Bank who were involved in the process of clearing the withdrawal form dated 18.08.1984. Some of them were not responsible for verifying the signature. They were to perform their prescribed duties after the signature was verified by the competent person. The case of the appellant Bank in the evidence adduced by them is clearly that the DW-2 Ravi Shanker was the employee whose duty it was to verify the signature on the withdrawal form with that of the specimen signature available with the Bank. He has deposed that he did verify both the signatures and found that the signature of the plaintiff on the withdrawal form dated 18.08.1984 was the same as the plaintiff's signature available with the Bank as specimen signature.
(20) Clearly the DW-2 has falsely deposed before the court below. There is no similarity or even a remote resemblance in the two signatures. The DW-2 was the person responsible to pass the withdrawal form dated 18.08.1984 for payment if the signatory was genuine. The fraud committed on the plaintiff is therefore by the DW-2 namely Ravi Shanker. Had he not approved the disputed signature the payment would not have been made on the basis of withdrawal form dated 18.08.1984. Since the payment was released upon his verifying the signature and it was a payment made not to the account holder but to some other person the fraud was committed on the plaintiff. The DW-2 Ravi Shanker is the fraudster in this case . Therefore the appellant Bank being responsible for the conduct of its employees has to make good the loss to the plaintiff and recover the same from the employee who committed the fraud.
(21) The suit has been rightly decreed by the Trial Court. The appellant has to pay the plaintiff the decreetal amount and recover the same from its employee who has committed the fraud. However since such employee is not a party to these proceedings the Bank must initiate appropriate proceedings against him in accordance with his service rules and give him opportunity for defence. Whereafter in case it is revealed that the loss to the Bank has been caused by such employee the Bank must take appropriate action against him as permissible in law. The appellant Bank is reminded that it is a Public Sector Institution and the moneys of the public are kept with it in trust.
(22) Another aspect that requires serious consideration is the role of the Handwriting and Fingerprint Expert who has given his report that the disputed signature is a genuine signature when compared with the admitted signature. Clearly that report of the Expert is false.
(23) Both the signatures have been reproduced herein above. No person having a normal eye sight can say that the disputed signature is identical and same as the admitted signature. Even the principles of identifying signatures when applied would not enable an Expert or a non-Expert to hold that both the signatures have resemblance and have been signed by the same person. The Expert who has given his report to the court that both the signatures are the same and resemble each other is definitely not an Expert who has truly made his report. Such Expert has given a false report to the court below. He has tried to mislead the court in the garb of an Expert opinion which is patently false. There is no way that any person either an Expert or a normal person can vouchsafe that the disputed signature and the admitted signature are the same, that they resemble each other or that both signatures have been made by the same person. This court too finds that both the signatures are totally alien to each other in flow, in curves, in formation of individual letters of the words in the crosses and the dots and also in resemblance and appearance with the eyes. An Expert cannot say that upon sight of these two signatures there is any similarity and resemblance.
(24) Therefore while dismissing this appeal this court finds it appropriate to direct the appellant Bank to satisfy the Trial Court decree within one month from today in case it has not been satisfied.
(25) In view of the findings recorded by the Trial Court as confirmed in this appeal this First Appeal has no merit and is liable to be dismissed.
(26) The judgment and decree of the Trial Court are accordingly confirmed. This First Appeal is dismissed.
(27) Parties to bear their own costs of suit an appeal.
Order Date :- 14th March, 2012 Lbm/-