United Bank of India, Salem Branch vs Naresh Lakshmanlal Bathija

S. Ashok Kumar, J.—The defendant is the appellant in this second appeal.

The plaintiff filed the suit for recovery of a sum of Rs. 18,600/= with interest and cost against the defendant contending that (i) the honouring of

cheque No. 3260 on 19.10.1982 for the sum of Rs. 11,900/= was invalid and (ii) the transfer of a sum of Rs. 6,800/= on 20.6.1983 by the

defendant Bank was without any authority. According to the plaintiff he was a minor at the time of instituting the suit was having a saving account

with the defendant bank at Salem Branch in SB A/c. No. 646 in the year 1980. The plaintiff subsequently closed his account on 4.1.1984. ON

receipt of the statement of accounts, the plaintiff come to know that a sum of Rs. 11,900/= has been debited as per cheque No. 3260 on

19.10.1982 and the sum of RS.6,700/= wa debited to his account by way of transfer on 20.6.1983 by the Bank without any authority. The

plaintiff issued a legal notice on 1.2.1984 demanding Rs. 6,700/= which has been transferred without any authority and also called upon the

defendant bank for a photo copy of the disputed cheque. On a perusal of the photo copy of the cheque furnished by the the plaintiff found that the

cheque was not issued by him. It s the case of the plaintiff that the alleged cheque dated 19.10.1982 has been issued by one Mr.Suresh Lal, in his

handwriting, a partner of M/s.Moolchand Lakshmanlal, who conspired with the partner of the said firm and forged his signature in the cheque.

Hence the suit.

The defendant filed a written statement stating that the father of the plaintiff Mr.Lakshman Lal was doing banking business in various names with

his family members as propertied and partnership concerns. In the business concern M/s.Moolchand Rameshlal, the next friend of minor plaintiff,

and Lakshmanlal''s younger brother were partners. The minor plaintiff''s account was opened on 3.6.1980 and he has been operating the account

in his own name by issuing cheques and the same were going on smoothly till October 1982. The family members of Lakshmanlal incurred loss

during October-November 1982 and they have left the residence in Salem. Several cases were filed against the family members of the plaintiff. The

father of the plaintiff, Lakshmanlal was adjudged as insolvent by this Court on his own petition in O.P.N.34/83.

The defendants in their usual course of business as on earlier occasions received the cheque and made the payment and there was nothing for

the defendant to doubt the bonafide of the cheque. The allegation of forgery of cheque by one Mr.Sureshlal is denied. Further, the Manager of the

defendant bank was residing in the first floor rental premises of Lakshmanlal, the father of the plaintiff. Advance of Rs. 1,200/= being 32 months

rent was paid by the bank to Mr.Lakshmanlal. The Manager of the defendant Bank had to vacate the premises of Lakshmanlal as credtors were

invading the premises for recovery of their dues from Mr.Lakhmanlal. The sum of Rs. 5,500/= which was due from M/s.Moolchand Rameshlal,

the partnership firm of the undivided family, and the sum of Rs. 1200/= being the rental deposit was adjusted in the plaintiff account on the

instruction given by Mr.Lakshmanlal. As the plaintiff never used to come to the Bank and was keeping quiet, there was no occasion to suspect the

advise of adjustment made in the plaintiff''s account or hounoring the cheque in favour of one another firm of the undivided family. Thus, he is

estopped from questioning the act of the defendant.

Before the trial court, the plaintiff himself examined as P.W.1. His father was examined as P.W.2 and Exs A.1 to A.9 were marked. On the side

of the defendant-Bank, the then Assistant Manger of Salem Branch was examined as D.W.1 and the Manger was examined as D.W.2. Exs.B.1 to

B.9 were marked. On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral

and documentary, the trial court partly decreed the suit holding that the defendant Bank is liable to pay a sum of Rs. 5,500/= only from 29.6.1983

with interest at 9% till payment. The trial court disallowed the claim of the plaintiff with regard to the cheque holding that the same was not forged

and the bank had not acted negligently after satisfying itself by comparing the admitted signature of the plaintiff marked as Ex.B.1, B.2 and B.6.

The trial court also disallowed the sum of Rs. 1,200/= out of the sum of Rs. 6,700/= holding that the said amount has been admitted by the plaintiff

and the other witness. On appeal, by the plaintiff, the first appellate court reversed the findings of the trial court and allowed the suit in toto holding

that as per the Hindu Minority and Guardianship Act the natural guardian has no right to sell the property of the minor unless he/she obtains the

permission from the competent court. The first appellate court also was of the view that the defendant-Bank is liable to prove that the cheque bears

the original signature of the plaintiff by seeking expert opinion and the defendant has failed to prove the same and that the bank has acted

negligently and has abutted the forger who has presented the cheque. It was also held that the provisions of laws relating to Banking will not bind

the minor when the Minority and Guardianship Act provides that the property of the minor cannot be sold even by natural guardian. As against the

same, the defendant\Bank has preferred this Second Appeal.

The following substantial questions of law were framed at the time of admission of the Second Appeal:-

(i)Whether the provisions of Banking Laws can be ignored and the law relating to Hindu Minority and Guardianship Act aloe will apply as held by

the lower appellate court

(ii)Whether the lower court is right in not applying the principles laid down in Sections 45, 47 and 73 of the Evidence Act

(iii)Whether the lower appellate court is right to its conclusion that the appellant has not discharged its burden of proof in proving that the cheque

dated 19.10.1982 for Rs. 11,900/= was issued only by the respondent/plaintiff

(iv)Whether the lower appellate court is right in decreeing the suit in its entirety as prayed for by the plaintiff?

(v)Whether the lower appellate court erred in not applying the prescribed method under Sections 45 and 47 of the Evidence Act in which signature

can be proved

Learned counsel for the appellant/defendant-Bank contended that the minor plaintiff has been issuing cheques in favour of third parties. It is the

evidence of P.Ws 1 and 2 that all the transactions were made by the father of the plaintiff (P.W.2). P.W.2 has also admitted that Ex.A.1 cheque

was filed by him. He also admitted that the transactions of all the bank accounts of the various firms run by their family were carried on by him

only. He also admitted that the minor plaintiff was also a partner of M/s.Moolchand Lakshmanlal firm which has been adjudged as insolvent by this

Court. P.W.2 has also stated that he has already advised the bank for transferring amounts to his own account from the account of the minor

plaintiff being his father.

Learned counsel for the appellant also contended that the lower appellate court failed to appreciate the evidence considering the fact that no

allegation of misappropriation of the amounts claimed by him has been made upon any employee of the bank. The main element of forgery being

the intent to defraud has neither been averred in the plaint nor any evidence has been let in regarding the same. The lower appellate court also

failed to consider the fact that on the earlier occasion as well, the minor had already issued a cheque for a sum over and above Rs. 10,000/= and

the same had been honoured by the Bank.

Learned counsel for the appellant also contended that the lower appellate court had omitted to consider Section 73 of the Evidence Act which

deals with comparison of signature, writing or seal with others admitted or proved. Admittedly in the present case the trial court had compared the

signatures found in Ex.B.1 and B.2 with the disputed signature found in Ex.A.1 and held that there is no forgery of signature. But the first appellate

court without considering the same has wrongly shifted the burden on the defendant to disprove the same.

Learned counsel for the appellant further contended that the The Negotiable Instruments Act is an Act to define and amend the law relating to

promissory notes, bills of exchange and cheques and as per Section 26 of the Act, a minor may draw, endorse, deliver and negotiate such

instrument so as to bind all parties except himself and the Banking Laws which contain special provisions would prevail over and exclude the

general provisions of laws namely Hindu Minority and Guardianship Act is an Act in the instant case.

Learned counsel for the appellant ultimately submitted that even the trial court had erred in allowing the suit in part. When the trial court had

held that the transfer of a sum of Rs. 1,200/= in favour of the bank which was paid as rental advance by the bank to P.W.2 was done by the bank

based on the instruction of P.W.22 who is the father of the plaintiff, the trial court should have also held that the transfer of a sum of RS.5,500/=

which was due and payable by M/s.Moolchand Lakshmanlal firm, a firm in which the plaintiff and the father of the plaintiff were partners was done

accordingly.

On the other hand, learned Counsel appearing for the respondent/plaintiff contended that the the issue of whether the Banking laws are

prevailing over the Hindu Minority Guardianship Act has not been raised before the courts below and accordingly the same cannot be the subject

matter of decision in this second appeal. As regards the burden of proof the signature in the cheque is that of the guardian has to be proved by the

appellant and the said burden has not been discharged. In addition to that, the Bank Manager has accepted the fact that he did not follow the

banking practice in regard to the passing of cheque for Rs. 11,900/=. Section 45 of the Evidence Act deals with comparison of signatures by

obtaining opinion from experts. In this case the signatory to the cheque himself forged the signature of the minor. There is no discussion in the

judgment regarding comparison of signatures by the lower appellate court and therefore, Section 73 of the Evidence Act has no application.

As rightly contended by the learned Counsel for the appellant-Bank, P.W.2, the father of the plaintiff has admitted in his evidence that all the

transactions were made by him and Ex.A.1 cheque was filed by him, that the minor plaintiff was also a partner of M/s.Moolchand Lakshmanlal

firm which was adjudged as insolvent by this Court. He also deposed that he has already advised the bank for transferring the amounts to his own

account from the account of the minor plaintiff. It is also to be noted that no allegation of misappropriation of the amounts claimed by him ha been

made upon any employee of the bank. The main element of forgery being the intent to defraud ha neither been averred in the plaint nor any

evidence has been let in regarding the same. The lower appellate court also failed to note that the cheque amount was transferred to a firm in which

the plaintiff and his father are partners and also that the father of the plaintiff was transacting the accounts. The first appellate court also failed to

scan the statement of account filed in the trial court which clearly proves that the minor had already issued cheque for the sum over and above Rs.

10,000/= and the same had been honoured by the bank on the earlier occasion.

Section 73 of the Evidence Act provides for comparison of signature, writing or sea with others admitted or proved. by the court itself. In this

case, the learned Judge of the trial court himself scrutinised the admitted signatures of the plaintiff in Exs. B.1 and B.2 and the disputed signature in

Ex.A.1 and satisfied himself that the signatures is not forged. Further the learned trial Judge held that no doubt would have arisen for the defendant

bank to honour the cheque. When the parties to the suit had adduced both oral and documentary evidence, the question of burden of proof would

not be of much importance.

In AIR 1999 SC page 2544, it has been held by the Supreme Court that the trial court is entitled to compare the signature the parties as

provided in Section 73 of the Indian Evidence Act. In AIR 1973 RAJ it has been held that it cannot be laid down as a general rule that whenever a

defendant chooses to deny his signature, the plaintiff must examine a handwriting expert to prove his case. Nor is the court bound to accept the

evidence of the handwriting expert produced by the defendant as true. The court has to apply its own mind to the evidence of expert and it is open

to it either to believe it or to disbelieve it. In AIR 1998 SC 310, the Supreme Court held that when both sides leading evidence, the question of

burden of proof pales into insignificance.

As regards interference u/s 100 CPC, it has been held by the Supreme Court in R. Srinivasan Vs. M/s. Muthusamy Chettiar and Sons, , that

when the first appellate court failed to advert to material position of evidence and admission in the plaint, the High Court in Second Appeal can

interfere. In The Chief General Manager, State Bank of India, Circle Top House, 21 Rajaji Salai, Chennai 1 Vs. M. Balakrishnan and another, it

has been held by this Court that when the lower appelalte court omits to consider the law declared by the Supreme Court, and any relevant

provision of law, the High Court in Second Appeal should rectify the error committed by the lower appellate court and such rectification is within

the powers u/s 100 CPC. In the present case the first appellate court failed to note that both the parties had adduced evidence and the question of

burden of proof pales into insignificance as held by the Apex Court and has wrongly held that the defendant has not disproved the signature

without even considering that the trial court has satisfied itself that the signature is not forged after comparing the same with admitted signature.

As regards the substantial question of law whether the provisions of banking law and cheques can be ignored and the law relating to Hindu

Minority and Guardianship alone will apply, it has to be held that the Banking laws will prevail over the general provisions of law. Section 26 of the

Negotiable Instruments Act provides that a minor may draw, endorse, deliver and negotiate such interments so as to bind all parties except himself.

As per Section 89 of the Act, where a promissory note, bill of exchange or cheque has been materially altered but does not appear to have been

so altered, or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing

which has been obliterated, payment thereof by a person or Banker liable to pay, and paying the same according to the apparent tenor thereof at

the time of payment and otherwise in due course, shall discharge such person or banker from all liability thereon; and such payment shall not be

questioned by reason of the instrument having been altered, or the cheque crossed.

In the above background if we look at the following case laws, it would be clear that only the special provision of law will prevail over the

general provision of law. In Jogendra Lal Saha Vs. The State of Bihar and others, it has been held that if there is any quarrel only the special

provision would keep away the application of the general law and contracts. In 1984 SC 1543 it has been held that if a special provision made on

certain matter, that matter is excluded from the general provision. Similarly, in AIR 1991 SC 1148, it has been held by the Supreme Court that the

principal regarding the special provision excluding a general provision will be applied in resolving a conflict between two different Acts.

Thus, from a plain reading of Section 26 of the Negotiable Instruments Act, it is unambiguous that a minor can execute a cheque. The very

object and purpose of the Act is to define and amend the law relating to promissory notes. bills of exchange and cheques. Chapter 3,4 & 5 of the

said Act exclusively deals with Cheques, its negotiation, its presentment etc., and the later chapters deals with discharge from liabilities on cheque,

notices of dishsonour of cheque, of noting and protest etc., The Bill of Exchange Act 1882 is the Act to codify the law relating to bills of exchange,

cheues and promissory notes and the cheque Act 1957 is the Act to amend the law relating to cheques and certain other instruments. The

Negotiable Instrument Act and other acts highlighted above exclusively deals with and provides for execution of a cheque by minor, its implications

etc., as held by the Supreme Court, these special Acts will exclude other general provisions regarding the authority of the guardian in disposing of

an immovable property when the issue relates to cheques. Thus the first appellate court failed to appreciate the laws relating to the cheque as

provided, which prevails over the other general provisions. For the reasons stated above, all the substantial questions of law are answered in

favour of the appellant-Bank.

In the result, the Second Appeal is allowed setting aside the judgment and decree of the first appellate court and confirming the judgment and

decree of the trial court. No costs.