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2017 (11) TMI 356 - HC - Indian LawsSuit filed for recovery of money with interest - Money withdrawn by messenger and relative used to transact with the Bank on plaintiff's behalf by forging signatures in the cheque slips - Whether the plaintiff is entitled for the amount claimed? - whether the defendant Bank Officials had passed the cheques without due care and by gross negligence, which amounts to dereliction of duty and misconduct in the course of employment? Held that:- To seek protection under section 131, the Banker has to establish that it was not negligent while honouring the cheques presented by Thomas and it was acting in good faith, after following standard protocol for passing the cheques. In this case, the depositions of P.W.1 to P.W.6 satisfy the said requirements. To prove that there was negligent on the part of the bank, it is for the plaintiff to adduce the evidence satisfactory to the conscious of the Court. While the trial Court has cursorily gone through the evidence and allowed the suit, the lower appellate Court has pointed the lapses and lacunae in the finding of the trial Court and has reversed the finding 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 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. Next, in the absence of reasoning and the process undertaken by the trial Court to arrive at the conclusion that signatures found in the disputed signatures are forged, since finding deserves to be reversed. The lower appellate Court has rightly reversed the trial Court finding by allowing the first appeal.
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