Monoranjan Mallick, J. - (1.) The plaintiff has filed this suit against the State Bank of India Bikaner and Jaipur, Brabourne Road Branch for recovery of Rs. 5,716.60p and for interim and further interest under the following circumstances.
(2.) The plaintiff carries on the business under name and style of H. B. Transport Co. at 72/73, Old China Bazar Street, Calcutta as the sole proprietor of the said business and has opened and maintained a current account with the defendant bank at its Brabourne Road Branch at 4, Synagogue Street, Calcutta and used to operate the said account by drawing cheque duly signed by the plaintiff under the seal of the said H. B. Transport Co. On or about 14th Aug. 1978 the plaintiff found to his utter surprise that one cheque bearing serial number 998385 was missing from the cheque book of the plaintiff kept in his custody and upon enquiry it was found out that a sum of Rs. 5,000/ - was drawn on the 12th Aug. 1978 from the said account by virtue of that cheque. Upon further enquiry it was also found that the said cheque was self drawn and the signature of the plaintiff was forged thereon. The defendant passed the said cheque for payment for a sum of Rs. 5000/ -' without actually and diligently verifying the signature of the plaintiff and/or the genuineness thereof. But due to the said act of negligence and/or misconduct on the part of the defendant and/or its employees the plaintiff suffered loss and damages to the extent of Rs. 5,000/ -. The plaintiff immediately i.e. on 16th Aug. 1978 duly intimated the defendant about the said fraud and lodged a diary with Burra Bazar Police Station. The defendant is bound to make good the loss. The defendant is also liable to pay interest at the rate of 6% per annum on and from 12th Aug. 1978. So the total claim of the plaintiff is Rs. 5,716.60 p. The defendant in its written statement denies that cheque bearing serial number 998385 was missing from the relevant cheque book or the signature of the plaintiff was forged on the said cheque as alleged or at all. It is contended that the said cheque was passed for payment as usual in due course of business according to its apparent tenor and after due and proper scrutiny and verification thereof including the signature appearing thereon. The officers concerned of the defendant bank duly checked and compared the signature appearing on the said cheque and found it tallying with the specimen signature of the plaintiff kept in the records of the defendant bank. Further and in any event there were no circumstances giving rise to any suspicion In the mind of the Officers of the bank that the said cheque or the signature thereon was not genuine but forged as alleged or at all. Even assuming though not admitting that signature on the said cheque was forged as alleged the defendant states that the signature appearing on the said cheque tallied so closely with the specimen signature of the plaintiff kept on the records of the defendant bank that the employees of the bank could not detect such forgery by due exercise of care and caution as they actually did. The defendant Bank did mot receive any intimation from the plaintiff as to the alleged forgery on the said cheque nor did the plaintiff raise any claim upon the Bank with regard thereto until the institution of the present suit. The defendant, however, admits that three or four days after the said cheque was duly honoured by the defendant by payment at the counter according to its apparent tenor the plaintiff called at the different bank and made enquiries whether the said cheque was presented by anybody and if so far what amount but the defendant adds that at that point of time it was alleged and admitted by the plaintiff to the defendant Bank that the cheque after his signature thereon was missing, that upon ascertaining the position from the bank that the said cheque was presented at the counter for payment on or about 12th Aug. 1978 for Rs. 5,000/ - and that the defendant Bank paid out the said sum to the person presenting the said cheque, the plaintiff left the defendant bank without making any further enquiry. It is therefore submitted that the plaintiff was under a duty and obligation to take due and proper care of the said cheque and/or the relevant cheque book and in facts of the case, the alleged forgery, if any, is, due to carelessness and/or gross negligence on the part of the plaintiff by not keeping the said cheque and/or the cheque book in a place safe and secure, and in that view of the matter the plaintiff is responsible for and should bear the alleged loss. It is further the case of the defendant that subsequently the defendant bank duly forwarded a statement of account to the plaintiff in due course of business showing entries up to Sept. 1978 including the debit entry in respect of the said disputed cheque but the plaintiff did never raise any dispute regarding any of the said entries and as a matter of fact the plaintiff subsequently regularly operated the relevant account with the defendant Bank up to Nov. 1979, that the plaintiff at all material times acquiesced in the position of the said accounts as per the aforesaid statement of account and is now estopped from challenging the validity or the correctness thereof. Then the defendants thus denies the plaintiff's claim in the suit. From file pleadings the following issues have been framed : - - 1. Is the signature of the plaintiff forged on the cheque No. 998385 as pleaded in para 3 of the plaint? 2. Did the defendant pass the cheque No. 998385 for payment and paid Rs. 5,000/ -without actually and diligently verifying the signature of the plaintiff or the genuineness thereof as pleaded in para 4 of the plaint? 3. Is the defendant guilty of any negligence or misconduct as pleaded in para 5 of the plaint? 4. Is the plaintiff entitled to interest at 6% per annum from the date of the cheque dt. Aug. 12, 1978 until realisation as pleaded in para 8 of the plaint? 5. Was the alleged forgery occasioned due to any carelessness or negligence on the part of the plaintiff as pleaded in para 2 of the written statement and if so, what is the effect thereof? 6. What relief or reliefs is the plaintiff entitled to?
(3.) I would First take up the issue Nos. 1 and 5. It is the Plaintiff's case that on or about 14th Aug. 1978 the plaintiff found that one cheque bearing serial No. 998385 was missing from the cheque book of the plaintiff kept in his custody and that he approached the defendant bank on that date and was informed that Rs. 5,000/ - was drawn from the defendant bank from his current account on the strength of that cheque. The plaintiff has made out the clear case that the said cheque was neither signed by him nor did he encash the cheque, that the signature on that cheque was forged and the defendant bank and/or its officers without properly verifying the signature in that cheque passed that cheque and that the plaintiff having suffered loss and damage the defendant bank is not entitled to debit the same from his account and must pay the said amount of cheque together with interest at the rate of 6% per annum from the date of encashment of that forged cheque till the date of filing of the suit.;