TMI Blog1978 (5) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... his petition was later registered as a regular suit in 1950. The plaintiff's case, as ,pleaded, was as follows : The plaintiff had, apart from 1,932/2/- admitted by the defendand-Bank, the under-noted amounts which were deposited by her :from time to time with the Bank : Rs.105deposited on September 17, 1945 Rs.4000deposited on September 17, 1945 Rs.8000deposited on December 7, 1945 Rs.100deposited on June 20, 1946 ------------------- Rs.12205 ------------------- These amounts were entered in the respondent's Pass Book by the ,employees of the Bank which had been confirming and ratifying those entries from time to time. Paragraph 3 of the plaint is material. It may be extracted There was a permanent clerk named Kapil Deo Shukla in the employ of the defendant Bank, who exercised much influence on other employees of the Bank and used to work at different counters. The Bank viewed his actions with approval and acted with negligence. The plaintiff as well as other constituents regarded him as an employee :and a responsible person of the Bank and quite often used to hand over the money and letter of instructions to him, while this clerk used to obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant bound by the entries therein ? (3) Did the plaintiff make any deposit in contravention of any rule of the Bank ? If so, to what effect ? On Issues (1) and (2), the trial court found that, except for the items of ₹ 105/- and ₹ 4,000/- entered in the Pass Book, the respondent had deposited the other amounts mentioned in it and that the Bank was bound by those entries. On Issue No. (3), it was held that the Rules were not strictly enforced by the Bank, and if the Bank had accepted an amount larger than the sum of ₹ 5,000/in contravention of its Rules, the respondent was not debarred from claiming such deposit. In the result, the trial court, on July 8, 1952, decreed the respondent's suit (in respect of two items) for ₹ 10,040/40/-, together with simple interest on this amount from January 1 1946, to August 14, 1947 @ ₹ 1/8/- per cent per annum, and from, August 15, 1947 to December 1948 @ ₹ 71-1- per cent per annum. It was further ordered that the respondent would get simple interest: on the decretal amount (after deducting ₹ 1,986/2/- which had been paid during the pendency of the suit) @ 6% per annum. Proportionate cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be made to suffer for the fraud committed by Kapil'Deo Shukla in the course of his employment in the Bank. With regard to the item of ₹ 105/- also, the High Court accepted Bhagwati Prasad's statement that amount ad been deposited by him on September 7, 1945. The High Court dismissed the Bank's appeal and allowed the plaintiff-respondent's cross-objections, decreeing the suit 'for' ₹ 14,145/10/-, together with simple interest thereon from January 1, 1946 to August 14, 1947 at the rate of ₹ 1/8/- per cent Or annum and from August 15, 1947 to December 1, 1948 at 6 per cent per annum. It was further directed that the respondent could get pendente litse simple interest from the appellant on the decretal amount at 6% per annum. As the amount of ₹ 1,986/2 had been paid to the respondent on September 16, 1950, it would be deducted from the total amount found due to the respondent and the decretal amount scaled down pro tanto. Costs of both the courts were also awarded to the respondent. Hence, this appeal by the Bank on a certificate granted by the High Court under Article 133 of the Constitution read with sections 109 and 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ima facie, sufficient to establish the plaintiff's claim and cast liability on the appellant. Our attention has also been drawn to the entries in the Bank's ledger showing the deposit of this amount of ₹ 4,000/- in the account of the plaintiff. It is maintained that if K. D. Shukla or any other employee of the Bank made these entries falsely in the Pass Book or in the Ledger, the plaintiff could not be made to suffer and that the Bank would for that fraud committed by the Bank's employees in the course of their employment, be liable. It is contended that in the face of the entries in the Pass Book, the burden had shifted on the Bank to show, how it was not liable to make good the loss. At the outset, it may be noted that the case of the plaintiff, as adumbrated in the plaint, was different from what was sought to be made out at the trial. It will bear repetition that in the plaint, it was pleaded that the plaintiff quite often used to hand over the money and letter of instructions to him (K. D. Shukla), while this Clerk used to obtain the signatures of the officer on the Pass Book as usual. The plaintiff used to believe that the money had been deposited and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The shipowners engaged a stevedore company to discharge and load. A servant of the stevedore company stole a brass plate, which wasa cover that could be removed to the access to a storm valve. Itsremoval rendered the ship unseaworthy as sea water could enter whenthe ship rolled. The resulting hole in the ship was concealed by part of the fresh cargo loaded. On her voyage after leaving the port the ship encountered heavy weather. Water entered through the hole end damaged part of the original cargo. In an action for damages by the owners of the damaged cargo, the shipowners contended that they were excepted from liability by Art. IV. Rule 2(q) of the Hague Rules, because the cause of the damage arose without their actual fault or privity and without the fault or neglect of the agents or servants of the shipowners. Dealing with this argument, Danckwerts, L.J. observed (at page 597 ) : It seems to me that the vital point in the case is whether the theft of the brass plate was made by the stevedore, at Port Sudan, in the course of his employment by the ship- owners. He was to be regarded as the agent of the shipowners for the purpose of unloading and loading cargo. There is no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o K. D. Shukla, an employee of the Bank for crediting in her Savings Bank- account with the defendant- Bank. But Shukla fraudulently misappropriated or converted the same to his own use. Therefore, the first question that falls to be considered is whether the amounts, in question, were handed over by the plaintiff or on her behalf by her husband, Bhagwati Prasad, to K. D. Shukla in the course of the Bank's business ? In other words, was K. D. Shukla, while receiving these amounts from the plaintiff, acting as an agent of the plaintiff or of the Bank in the course of his employment ? This question, further resolves into the issue whether these amounts in question were handed over in the usual course of business in the Bank ? Issue No. 1, framed by the trial court, is wide enough to cover this point. As already noticed, the trial court decided this issue, excepting with regard to the items of ₹ 4,000/- and ₹ 105/-, in favour of the plaintiff. The High Court, on appeal, decided this issue with regard to the item of ₹ 4,000/- in favour of the plaintiff. Since it is contended that the court below has misread the evidence and has not paid due attention to some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta National Bank. As testified by Shri A. Ganguli, who was Agent of the Imperial Bank at Allahabad in August 1946, the procedure for making deposits in an account with the Bank, was as follows:- When a depositor comes to deposit money in his or her Savings Bank account, the related voucher together with cash is tendered by him at the cash department counter in the Bank. The receiving Cashier counts and checks up the amount tendered, enters the items in the cash scroll maintained by him, certifies the voucher on, the back by his signature in token of having received the money and passes the voucher on to the Cashier for his signature. The Head Cashier after certifying the voucher sends it to the official in the Banking Department who enters the voucher in his cash scroll after branding, the voucher with the big 'received' round rubber stamp bearing the date of transaction. The voucher then goes to the ledger Keeper for entry in the relative account after which it is passed on to the Day-Book writer for entry. If the depositor had on that date lodged his pass-book with the Ledger-Keeper then the entry is also made in his pass-book and the pass-book together with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not be wrong to say that the decree passed by the High Court against the defendant-Bank proceed mainly on the ground that the false deposit entry in the Pass Book in respect thereto is in the hand of K. D. Shukla who was at the material time an employee of the Bank. There is no corresponding entry in the Ledger of the Bank, showing that the amount of this cheque was first debited in Bhagwati Prasad's account and then transferred to the plaintiff's account. The High Court was thus not right in reversing the finding of the trial court in respect of this item of ₹ 4000/-. The onus was on the plaintiff to show that she paid the amount to an employee of the Bank and was received by that employee in the course of his employment. The false and fraudulent entry about the deposit of this amount in the Pass Book, could not shift the onus on the Bank to prove the contrary. This takes us to the next big deposit in dispute. This deposit of ₹ 8000/- consists of two items. In examination-in-chief, all that Bhagwati Prasad stated with regard to the deposit of this cheque and the transfer of this amount from his account to that of the plaintiff was thus : On 7th D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported Bbagwati Prasad's word of mouth. It did not accept Mahadeo Prasad's testimony, who was at the material time, a Sub-Accountant of the Bank to the effect, that the initials purporting to be his against the items of ₹ 105/-, ₹ 4000/-, ₹ 400/, ₹ 432/- in the Ledger Account, were not executed by him, but were imitations of his initials. The High Court, at the appellate stage, admitted additional documentary evidence consisting of certain letters which passed between the defendant-Bank, the Agent of the Bharat Bank, Allahabad and Dass Bank Ltd. These letters would show that the Ledger Entry (Ex. P-9B) showing the withdrawal of ₹ 7000/- on December 7. 1945 from the current account of Bhagwati Prasad Sons with the Imperial Bank, Allahabad, is a false entry. The first of these letters is date.(1 October 7, 1946 (Ex. 1) addressed by the Imperial Bank of India to the Agent, Bharat Bank Ltd., Allahabad. It is marked 'Private and Confidential'. It reads : Dear Sir, Cheque No. 620149 dated 21st November, 1945 for ₹ 7000 drawn by Messrs Bhagwati Prasad Sons. We have been advised by Messrs Bhagwati Prasad Sons, the draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Respondent was dealt with. The letter, dated October 7, 1946 shows that Bbagwati Prasad had then advised the defendant-Bank that the 'cheque had been sent by him to them for credit of his account. Presumably, he sent it through K. D. Shukla treating him as his (or plaintiff's) agent. K. D. Shukla instead of depositing it with the Bank, manupulated to appropriate it himself. in such a situation, the act which caused the loss to the respondent could not be said to have been committed by Shukla in the course of his employment with the Bank. At the most, it could be said that the fact of his being an employee of the Bank and a friend of Bhagwati Prasad, gave him an opportunity to commit this fraud. The rule in Leesh River Tea Co.'s case (supra), squarely applies to this situation. The appellant-Bank was therefore, not liable to make good the loss of ₹ 7,000/- caused to the Respondent, by the act of K. D. Shukla, while the latter was acting as an agent of the plaintiff and not within the scope of his employment with the Bank. Nor could the fact that false and fictitious entries to cover up his fraud, were made by K. D. Shukla in the Pass Book of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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