Delhi District Court
M/S Tola Ram & Sons vs State Bank Of India on 17 December, 2018
IN THE COURT OF SH. SANJEEV KUMARI,
ADDITIONAL DISTRICT JUDGE12, TIS HAZARI COURTS, DELHI
CS No.197/16 (Old No.)
CSDJ No.609968/16 (New No.)
1. M/s Tola Ram & Sons,
A registered partnership firm,
B194, Sabzi Mandi,
Azadpur, Delhi110033
Through partner Shri Sudesh Sachdev.
2. Sh. Sudesh Sachdev
S/o Shri Tola Ram,
Partner, Tola Ram & Sons,
B194, Sabzi Mandi,
Azadpur, Delhi110033 .....Plaintiffs
Versus
1. State Bank of India,
Through Regional Manager,
Delhi Zonal Office,
11, Sansad Marg,
New Delhi110001.
2. Branch Manager,
State Bank of India,
Azadpur,
Delhi110033 .....Defendants.
Date of institution : 19.05.1995
Date of reserving Judgment : 11.12.2018
Date of decision : 17.12.2018
SUIT FOR RECOVERY
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JUDGMENT
1. Present suit filed by the plaintiff for recovery of Rs. 5,53,470/. before the Hon'ble High Court of Delhi, however later on assigned to District Court on being enhancement of the jurisdiction.
2. Brief facts as stated in the plaint are that plaintiff no.1 is a registered partnership firm and suit is fie through plaintiff no.2 who is its one of partner. Defendant no.1 is a nationalized bank and defendant no.2 its manager of defendant no.1 Azad pur branch . The plaintiff was having current account no.31930 with defendant no.2. As per the system prevalent with defendant no.2, plaintiff was depositing its cheques in the said account for realization for which plaintiff was required to fill up payin slips provided by defendant no.2 with the particulars of the cheque and deposit the same at the payin counter of the bank. The defendant no.2 used to affix rubber stamp on the payin slip as a mark of acknowledgment of receipt of cheques.
3. It is further stated by plaintiff that on 25.07.1991, plaintiff no.1 deposited 06 payin slips containing 16 cheques amounting to Rs.2,19,679.77 with defendant no.2 and plaintiff deposited 05 cheques bearing no.270105 for Rs.40,513/, 267338 for Rs.2,210/, 925095 for Rs.12,473/, 224011 for Rs.15,554/ and 268968 for Rs.45,955/ with a single payin slip which were not credited to the current account of plaintiff no.1 though other cheques for Rs.1,02,974.77 on 25.07.1991 in the same manner through separate payin slips were credited.
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4. It is further averred that on 27.09.1991 plaintiff had deposited 06 cheques (01 cheque with one payin slip and 05 cheques with other payin slip). While one cheque deposited with separate payin slip was realized, the 05 cheques of Rs.61,113.61 bearing no.316722 for Rs.11,110/, 524587 for Rs.10,983.74, 429291 for Rs.31,121/, 102656 for Rs.3,774.87 and 840793 for Rs.4,124/ were not realized.
5. It is further averred that on 03.10.1991, the plaintiff deposited 07 cheques one cheque with one pay in slip and 06 cheques with other payin slip with While one cheque deposited with separate payinslip was realized, the 06 cheques amounting to Rs.77,202/ bearing no.209195 for Rs.10,000/, 799753 for Rs.10,226/, 799756 for Rs.9,910/, 292838 for Rs.20,000/, 292839 for Rs.13,936/ and 599631 for Rs.13,130/ were not realized.
6. It is further averred that the plaintiff contacted the manager of the bank i.e. defendant no.2, however no satisfactory reply was received and after its own inquiry he found that these cheques have been credited to the account of the same name "Tola Ram & Sons" in Punjab National Bank, Darya Gunj, Delhi which was a fake account and after the cheques were deposited, money was withdrawn. He immediately lodged an FIR bearing no.344/91 dated 21.11.1991 with PS Adarsh Nagar and also served a letter dated 14.11.1991 to the defendant no.1 requesting him to credit the cheque amount in his favour and he received a letter dated 23.11.1991 signed by defendant no.1 that they are taking the matter with the branch and shall revert back to him and received a letter dated 25.11.1991 from defendant no.2 stating that the cheques referred by him had not been received by CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 3 of 37 their branch. He further stated that defendant no.2 has mishandled the cheques depositing by the plaintiff no.1 and thus liable to pay the amount of the cheques and therefore sent letters dated 20.12.1991 and legal notice dated 29.04.1992 requesting to credit the amount but same was not done. Hence he filed the present suit for recovery of Rs.5,53,470/.
7. Both the defendants have contested the suit by filing the written statement jointly. In the written statement, they have taken the preliminary objections that :
(i) suit is barred by limitation;
(ii) suit is liable to be dismissed being hit by the provisions of Section 69 of the Partnership Act as plaintiff has failed to file FormA with the plaint.
8. On merits, defendants have denied the contents of the plaint. It is denied by them that the cheques were deposited with defendant no.2 and defendant no.2 have lost these cheques. Further it is stated that police of PS Adarsh Nagar investigated the matter under FIR No.344/91 registered on 21.11.1991 U/s 420 IPC and found that the said cheques were deposited in the account opened in the name of Tola Ram & Sons with Punjab National Bank, Darya Ganj, Delhi and proceeds of the said cheques were encashed and the police took cognizance against one Sh. Harbans Lal Bhola and arrested him and later on filed the challan against him in the Court of Metropolitan Magistrate having jurisdiction of PS Adarsh Nagar and said proceedings have consigned to record room on 25.03.1995 on the ground that accused had died during the proceedings on 08.04.1994 and the proceedings stand abated against the accused and thus defendants have prayed for dismissal of the CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 4 of 37 suit.
9. The replication was filed by the plaintiff in which he replied to the preliminary objections that the plaintiff firm is a registered firm. Rest of the contents of the preliminary objections were denied. The contents on merits of written statement have also been denied and contents of plaint were reiterated as true and correct.
10. On the basis of the pleadings of the parties, following issues were framed vide order dated 11.10.2010:
1. Whether the plaintiff is a partnership firm duly registered with the Registrar of Firms? OPP
2. Whether the plaint has been signed and verified and the suit instituted by a duly authorized person? OPP
3. Whether the suit is barred by limitation? OPD
4. Whether Punjab National Bank is a necessary party? OPP
5. Whether the plaintiff deposited 16 cheques as mentioned in paras 14 and 19 of the plaint with the defendant bank in current account No.31930 or current account no.31910? OPD
6. Whether the rubber stamps, alleged to have been affixed on the Pay inslips by the defendant Bank, are not genuine? OPP
7. Whether the defendants would not be liable for their negligence, resulting in the diversion of the abovementioned cheques from the CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 5 of 37 incounter of the defendant bank to a bogus account in Punjab National Bank and their ultimate encashment from Punjab National Bank? OPD
8. Whether the defendants are liable to Pay to the plaintiffs the amount of monetary loss and damages as claimed in the Suit? OPD
9. Relief.
11. In order to prove its case, plaintiffs have examined Sh.Sudesh Sachdev, the plaintiff no.2 as PW1, HC Gajender as PW2, Sh. HC Ved Singh as PW3, Shiv Dayal record clerk, record room Tis Hazari as PW4, Satayvir Suhag LDC Office of Registrar Firm as PW5 and V.N. Sehgal as PW6.
12. On the other hand defendant examined Dr. S.C. Mittal as DW1, Sudhir Kumar Manager PNB DW2, K.L. Relan Manager SBI as DW3.
13. Arguments were heard from Sh. S.C. Juneja Ld. Counsel for the plaintiffs as well as Sh. J.C. Tirkha Ld. Counsel for the defendants.
EVIDENCES:
14. Plaintiff no.2/ PW1 led his evidence by way of affidavit Ex.PW1/A in which he deposed the same facts as stated by the plaintiff firm in the plaint and he relied upon the following documents:
i) Copy of letter written by plaintiff to the defendant for crediting the cheques in their account is Ex.1.
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ii) Copy of letter received from defendant in response to the above letter is Ex.2.
iii) Copy of letter from defendant no.1 to the effect that the cheques have not been received at their end is Ex.3.
iv) Copy of letter dated 20.12.1991 written by plaintiff is Ex.4.
v) Copy of another letter written by plaintiff is Ex.5.
vi) Copy of application moved by plaintiff in the Court of
Sh.Rajesh Kumar, MM for return of pay in slips is Ex.6.
vii) Photocopies of pay in slips dated 19.7.91 are Ex.PW1/B.
viii) Photocopies of pay in slips dated 04.10.91 are Ex.PW1/C.
ix) Photocopies of pay in slips dated 24.9.91 are Ex.PW1/D.
(Vide order dated 03.08.2005, Ex.PW1/B to PW1/D are deexhibited)
15. In his crossexamination, he has deposed that his firm is registered with the Registrar of Firm and he is one of the partner of the firm and the Form A was issued by registrar which contain his name as one of the partners but it is not filed on court record. He denied the suggestion that wrong pay in slip were filed alongwith the suit. He denied the suggestion that he has got registered the FIR U/s 420 IPC only against the employee of Punjab National Bank and not against the employee of State Bank of India and volunteered that he only filed FIR only against the SBI. He do not know the report of CFSL qua the pay slip. He do not know the name of the bank who cleared the cheque. He do not CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 7 of 37 know whether it was SBI or PNB.
16. PW2 HC Gajender Singh has proved certified copy of the FIR No.344/91 registered in P.S. Adarsh Nagar as Ex.PW2/1. He was not crossexamined.
17. PW3 HC Ved Singh has deposed that he has brought the original pay in slips three in number. The first slip is dated 25.07.1991. It is with regard to account no.31910 being maintained in the SBI, Azadpur branch in the name of Tola Ram & Sons for depositing of 4 cheques amounting to Rs.1,16,705/ and proved the said counterfoil as Ex.PW3/1. The second counterfoil dated 27.09.1991 is for Rs.61,113.67. He proved the same as Ex.PW3/2. The third counterfoil is dated 03.10.1991 with regard to deposit of six cheques total sum of Rs.77,202/. He proved the same as Ex.PW3/3. He further deposed that original paper sheet containing various specimen rubber stamps with some remarks pertaining to FIR No.344/91 as Ex.PW3/4. The envelop in which all these documents were lying in sealed cover in PS Adarsh Nagar as Ex.PW3/5. He admitted that these documents were sent to CFSL by PS Adarsh Nagar. In his cross examination he stated that exhibit were sent to the police.
18. PW4 Sh. Shiv Dayal, Record Room Clerk, Tis Hazari Court has deposed that he has compared certified copy of FIR on the court record with the FIR brought by him which is already Ex.PW2/1 and also compared the certified copy of the seizure memo with the original brought by him which is Ex.PW4/1 and copy of challan form/ chargesheet as Ex.PW4/2.
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19. In cross examination, he deposed that there are 8 original cheques on the record of FIR No.344/91 PS Adarsh Nagar having account payee cheque no.267338 of Rs.2210/ dated 25.07.1991 showing the stamps of PNB, Darya Ganj branch, second cheque bearing no.270105 dated 25.07.1991 for Rs. 40513/ in favour of Tola Ram & Sons was deposited with Punjab National Bank. The third cheque dated 30.09.1991 bearing no.292838 for Rs. 20,000/ was deposited with Punjab National Bank, Darya Ganj showing the stamp of PNB, Darya Ganj in favour of Tola Ram & Sons. The fourth cheque bearing no.292839 dated 30.09.1991 for Rs.13936/, the fifth cheque bearing no.799753 dated 28.9.1991 for Rs.10226/, the sixth cheque bearing no.799756 dated 02.10.1991 for Rs.9910/, the seventh cheque bearing no.268968 dated 24.7.1991 for Rs.45955/, the eighth cheque bearing no.925095 dated 21.07.1991 for Rs.12473/, all drawn in favour of M/s Tola Ram & Sons and shows the bank rubber stamp deposited in Punjab National Bank, Darya Ganj Branch, New Delhi.
20. PW5 Sh. Satyavir Singh, LDC of the office of Registrar of Firms & Industries Department, GNCT has proved the copy of Form A and B respectively as Ex.PW5/1 and Ex.PW5/2. He was not crossexamined.
21. PW6 Sh. V.N. Sehgal was directly examined in the Court. He has deposed that he is retired Director CFSL, CBI where he was working as ExOfficio Chemical Examiner to the Government of India. His biodata is Ex.PW6/1. He deposed that he has given his report dated 20.04.2010 running into 28 pages Ex.PW6/2. The original counter foils which CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 9 of 37 are in two card bound volumes in original which he had submitted alongwith his report are Ex. PW6/3 collectively i.e. bound volume I and Ex.PW6/4 collectively i.e. bound volume II and has prepared the report after comparing the rubber stamps on disputed documents i.e. 3 counterfoils sent to CFSL by the police which were taken from the original counter foils bearing the rubber stamp impression of SBI, Azad pur Delhi dated 25.07.1991.
22. In his crossexamination, he denied the suggestion that he has prepared his report without examining all the original documents and volunteered that impression of only one stamp was sent to him. He further stated that there was no question for him for ask for any other document or impression and he has prepared his report on the basis of material supplied to him by the plaintiff.
23. On the other hand, defendants in order to prove their case have examined Dr. S.C. Mittal, Retired Principal Scientific Officer of CFSL/CBI as DW1 who has deposed that police in the case FIR No.344/91 PS Adarsh Nagar sent few questioned and specimen documents to CFSL vide memo no.167/SHO/AD Nagar dated 12.02.1992 and he has examined the same and found that the questioned rubber seal impression Marked Q1 on Ex.PW3/1, Q2 on Ex.PW3/2 and Q3 on Ex.PW3/3 do not tally with the specimen rubber seal impression marked S1 (consist of 12 seal impressions) collectively Ex.PW3/4 and proved his report as DW1/1.
24. In his crossexamination, he stated that all the 12 impressions on Ex.PW3/4 are of only one rubber seal and not of different rubber seals and he did not ask the police officer CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 10 of 37 or the concerned bank whether there were any other rubber seals.
25. DW2 Sh. Sudhir Kumar, Manager, Punjab National Bank Darya Ganj has deposed that the record of account no.9176/1991 opened by Madan Lal proprietor of Tola Ram & Sons is not traceable. However, he was shown the account opening form Mark Y1 and he stated that same has been issued by the bank but he is not in a position to identify the signatures of officials of the bank appearing at Point A. Thereafter his cross was deferred and again he appeared and proved the certified copy of account opening form of M/s Tola Ram & Sons as Ex.DW2/1, certified copy of Statement of account of M/s Tola Ram & Sons from 01.07.1999 to 13.06.2005 as Ex.DW2/2, the certified copy of cheque deposit slips all dated 25.07.1991 as Ex.DW2/3 to Ex.DW2/5 regarding depositing of the cheques in their bank and certified copy of the cheque deposit slip dated 04.10.1991 as Ex.DW2/6. He deposed that all these cheques Ex.DW2/3 to Ex.DW2/6 were deposited in the Punjab National Bank, Darya Ganj however signatures appearing on the account opening form and on these cheques were not matching and there is possibility that these were deposited by the agent of the account holder or by any other person.
26. In his crossexamination, he stated that the name of the account holder is Mr.Madan Lal who open the account in the proprietorship of M/s Tola Ram & Sons. The bank officials did not verify the credentials of Mr. Tola Tam because he was properly identified and introduced by one Sh.H.L. Bhola. The PAN card, sales tax number of the firm i.e. M/s Tola Ram & Sons and registration with Registrar of Firms of M/s Tola Ram & CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 11 of 37 Sons are not with the bank. He admitted that the signatures on the account opening form Ex.DW2/1 is of bank official and official number is 9554. He further deposed that the account opened on 22.07.1991. Police seized the record on 25.06.1992 vide seizure memo Ex.DW2/P1. He cannot say that M/s Tola Ram & Sons is a registered firm and not a proprietorship concern but volunteered that as per the account documents, M/s Tola Ram & Sons is a proprietorship concern. He further deposed that the address of M/s Tola Ram & Sons is H.No.635, Chhatta Lal Mian, Gali Baharawali, Delhi. He stated that Ex.DW2/3 does not bear the details of the cheque deposited but name of the bank i.e. Bank of Baroda is mentioned. The details of the person by which cheques were drawn does not appear on the slip vide which cheques were deposited in the bank for clearance but such details are mentioned on the cheque itself and that is why such detail is missing in Ex. DW2/3.
27. DW3 K.L. Relan, Manager State Bank of India, Azadpur Branch led his evidence by way of affidavit Ex.DW3/A in which he has deposed that bank had filed written statement in the said suit which was signed by Sh. S.P. Jain, then Chief Manager of SBI. He further deposed that the plaintiff firm had current account no.31910 in Azadpur Branch of the State Bank of India since long. The plaintiff did not deposit the cheques as mentioned in the plaint in various paras with Azadpur Branch, SBI on 25.07.1991, 27.09.1991 and 03.10.1991 through payin slips and as such the said cheques were not credited in the account no.31910. He further deposed that bank had filed the statement of CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 12 of 37 account of the said account which is proved as Ex.DW1/4. He further deposed that the payin slips dated 25.07.1991, 27.09.1991 and 03.10.1991 does not bear the rubber stamp seals of SBI, Azadpur Delhi and the cheques mentioned in the plaint were collected by Punjab National Bank, Darya Ganj and credited in the account of M/s Tola Ram & Sons. A challan U/s 420 IPC related to the said cheques was filed by the police in the Court of Sh.Mahavir Singhal, Ld.MM against Sh.Harbans Lal Bhola, an official of Punjab National Bank, Darya Ganj vide FIR No.344/91 PS Adarsh Nagar and said case was abated on the death of accused Harbans Lal Bhola on 25.03.1995. He relied upon the following documents:
1. Gazette notification dated 06.06.1955 Ex.DW3/1.
2. Gazette notification dated 17.09.1959 Ex.DW3/2.
3. Written Statement Ex.DW3/3.
4. Statement of account of M/s Tola Ram & Sons from 28.06.1991 to 03.12.1991 Ex.DW3/5.
28. In his crossexamination, he again stated that only one rubber stamp was given to the police for investigation of the case which was registered against defendant bank and at that time there was only one stamp and one counter. He denied that there were several rubber stamps available with the bank in those days which were used on counter foils. He stated that account of the plaintiff firm was opened in 197172 and as per the record same was closed in 1993 and he was not posted in accounts branch in 1993. He do not CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 13 of 37 remember the date, month or the year when the record of account of the plaintiff firm was destroyed but generally the record is destroyed when it is 10 years old. Hence there is a probability that the same was not destroyed till 2003. Branch Manager is the competent authority to destroy the record. No opinion of the legal department was obtained for destruction of the record as there was no such provision. He further deposed that rubber stamp are got prepared by the bank locally. The record of payment for those stamps is maintained by the bank. He admit that this branch of SBI is one of the oldest and several rubber stamps were got prepared one after another. No record is available which rubber stamp is available in the Branch in 1991.
ARGUMENTS
29. It is submitted by Ld. Counsel for the plaintiffs that plaintiffs have deposited the 11 cheques as mentioned in the plaint on 25.07.91 (05), 27.07.91 (05) and 03.10.91 (06) vide payin slips (Ex.PW3/1 to Ex.PW3/3) which were not encashed in the plaintiff's firm account, therefore plaintiff firm has filed the complaint in the bank and when the bank refused to make the payments they also filed the complaint before the police as it comes to know that the said cheques were got encashed by one person Madan Lal by opening an account in the name of M/s Tola Ram & Sons, a proprietorship concern in the Punjab National Bank, Darya Ganj Branch. He submitted that since the cheques were deposited with the defendant's bank, therefore the cheques might have been stolen by the employee of defendant bank and given to the said Madan Lal and thus bank is liable to pay the CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 14 of 37 amount. Ld. Counsel for the plaintiff further contended that during the police investigation, defendant bank has deliberately and intentionally given only one rubber stamp seal to the police so that the sale does not match on the seal which were affixed on the cheque deposited in defendant bank vide payin slips Ex. PW3/1 to Ex.PW3/3 and submits that there were other seals used by the bank is proved by the testimony of PW6 V.N. Sehgal who has categorically deposed that original counter foils which are in two card bound volumes containing the counter foils (03) of pay in slips having the rubber stamp of SBI Azadpur Branch matches with the rubber stamps of the bank in these three counter foils available in the card bound volumes Ex.PW6/3 and Ex.PW6/4. He submitted that in these circumstances, plaintiff is able to prove its case that the cheques were lost by the defendants or same were given by his official to the Madan Lal which was encashed in the Punjab National Bank and thus the plaintiff is deprived up of his money due to the negligent and illegal act of the defendant employees, hence defendant is liable to pay the amount.
30. On the other hand, Ld. Counsel for the defendant has argued that first of all the suit of the plaintiff is barred by limitation as allegedly the cheques were deposited on 25.07.1991, 27.09.1991 and 03.10.1991 and plaintiff came to know about not crediting the amount of these cheques in the account of the plaintiff in the year 1991 itself as plaintiff has lodged an FIR on 21.11.1991 and even sent a letter to the defendants on 14.11.1991 for making the payment of the said cheques which was refused by the defendant. CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 15 of 37 Admittedly on 12.12.1991 as plaintiff has admitted that defendant informed the plaintiff that they had not received the cheques at their end. Hence, limitation period will start from 12.12.1991 whereas the present suit has been filed by the plaintiff on 19.05.1995. Hence same has been filed after 03 years which is prescribed period of limitation. Hence, suit of the plaintiff is liable to be dismissed on this ground alone. He further argued that on merits plaintiff has failed to prove that the cheques which are allegedly deposited by three payin slips receipts were deposited with the defendant/ SBI Bank as from the report of CFSL Ex.DW1/1 prepared by DW1 Dr. S.C. Mittal that the stamp on the said counter foils/ pay in slips is not of the defendant bank. He submitted that the testimony of PW6 is not reliable because he is not an independent witness and has been paid by the plaintiff to prepare the false report and further submit that even otherwise also since plaintiff has not proved that he has handed over the cheques to the official of the bank as plaintiffs have not examined any witness who has deposited the said cheque in the State Bank of India, hence plaintiff has failed to prove that these cheques were deposited in the State Bank of India. He further submits that since the cheques have been encashed in the Punjab National Bank which clearly proved that cheques were not deposited in the State Bank of India but were deposited in the Punjab National Bank and no evidence has been led by the plaintiffs that same were given by the official of the defendant bank to one Madan Lal who got encashed these cheques in the account of M/s Tola Ram & Sons, the proprietorship concern. He submits that if any liability is made out for making payment to the plaintiff, same is made CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 16 of 37 out of Punjab National Bank where the cheques have been encashed and the account was opened in the name of M/s Tola Ram & Sons without verifying the documents of the firm M/s Tola Ram & Sons and not with the State Bank of India. Hence, defendant is able to prove that he is not liable to make any payment and suit is liable to be dismissed. Issuewise findings ISSUE NO.1 "Whether the plaintiff is a partnership firm duly registered with the Registrar of Firms? OPP"
31. The onus to prove this issue was upon the plaintiff. The plaintiff has examined Sh. Sudesh Sachdev, one of its partner. He has deposed that plaintiff no.1 is a registered partnership firm carrying on business of agricultural product and he is one of the partners of the plaintiff firm. He has proved the documents Ex.PW1/B to Ex.PW1/D but none of these documents is pertained to the registration of the firm, nor shows that he is one of the partner of the firm on the day when the present suit was filed. In his crossexamination, he has admitted that though the FormA was issued by Registrar that contain his name as one of the partners.
32. The testimony of PW1 is corroborated by PW5 Sh. Satyavir Suhag, LDC from the office of Registrar of Firms and Industries Department who has proved the Forms A and B which he proved as Ex. PW5/1 and Ex. PW5/2 respectively and he stated that as per the original record there are four partners of the plaintiff firm. On perusal of Ex.PW5/1 (Form CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 17 of 37 A), it is proved that firm M/s Tola Ram & Sons is registered at serial no.247/1974 and it has four partners M/s Tola Ram, Sudesh Kumar, Raj Sachdev and Madhu Sachdev.
Further from Ex.PW5/2 (FormB) it is proved that the said firm was registered at serial no.247/74 on 08.02.1974. Hence, in these circumstances I held that plaintiffs have been able to prove that plaintiff no.1 is a registered firm and plaintiff no.2 is one of the partner of the said firm. Therefore I decide the issue no.1 in favour of the plaintiffs and against the defendant.
ISSUE No.2 "Whether the plaint has been signed and verified and the suit instituted by a duly authorized person? OPP"
33. The onus to prove this issue was also upon the plaintiff. PW1 in his testimony led through affidavit Ex.PW1/A has deposed that he is plaintiff no.2 in the said suit and he is fully conversant with the facts and circumstances of the case being one of the partner of the plaintiff firm. On perusal of the plaint, I found that same has been signed by plaintiff no.2. As stated in findings of issue no.1, I have already held that plaintiff firm is a registered firm and plaintiff no.2 is one of its partner, therefore in my view being partner he was competent to sign the plaint, hence I held that plaintiff has been able to prove that plaint has been signed and verified and instituted by a duly authorized person. Issue no.2 is decided in favour of the plaintiffs and against the defendant. CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 18 of 37 ISSUE No.3 "Whether the suit is barred by limitation? OPD"
34. The onus to prove this issue was upon the defendants. The defendants in the written statement has taken the preliminary objections that suit is barred by limitation and liable to be dismissed. Though it is not specified in the written statement how the same is barred by limitation but I presumed that since the period for filing of a suit for recovery of money is three years, therefore the said plea has been taken by the defendants which has been further confirmed by the defendant during the final arguments as Ld. Counsel for the defendant has contended that the suit of the plaintiff is barred by limitation as allegedly the cheques were deposited on 25.07.1991, 27.09.1991 and 03.10.1991 and plaintiff came to know about not crediting the amount of these cheques in the account of the plaintiff in the year 1991 itself as plaintiff has lodged an FIR on 21.11.1991 and even sent a letter to the defendants on 14.11.1991 for making the payment of the said cheques which was refused by the defendant. Admittedly on 12.12.1991 as plaintiff has admitted that defendant informed the plaintiff that they had not received the cheques at their end. Hence, limitation period will start from 12.12.1991 whereas the present suit has been filed by the plaintiff on 19.05.1995. Hence same has been filed after 03 years which is prescribed period of limitation. Hence, suit of the plaintiff is liable to be dismissed on this ground alone.
35. On the other hand to counter the said contention, Ld. Counsel for the plaintiffs submitted that the plaintiffs have been approaching to the defendants for payment of the CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 19 of 37 cheques amount as the same were got deposited in the defendant bank and from there it were mishandled by the officials of bank and reached to the Punjab National Bank from where it came to the hand of one person Madan Lal who after opening forged account in the name of M/s Tola Ram & Sons got the same encashed and since plaintiff was making the complaint and served the legal notice dated 29.04.1992 to the defendant to credit the amount and further on 15.05.1992 when plaintiff went to claim from the bank amount on the assurance given by the defendants that amount will be credited to his bank by 10.05.1992. Hence suit is within limitation.
36. I have heard the submissions of the parties. Admittedly as mentioned in the plaint the cause of action first arose on 25.07.1991, 27.09.1991 and 03.10.1991 when he has presented the said cheques and then he alleged that the cause of action further arose on 15.05.1992 when he came to claim the money from the bank on the assurance given by defendants that the amount will be credited to his bank by 10.05.1992 but neither in the plaint nor in the evidence led by plaintiff through its partner Sh. Sudesh Sachdev/ PW1, plaintiff has stated that who has given assurance to him that the amount will be credited in the bank account of plaintiff by 10.05.1992. Rather plaintiff itself in para 28 of the plaint as well as in the testimony of PW1 stated that plaintiff sent a letter dated 14.11.1991 to the defendant bank requesting him to credit the amount of the cheques and he received letter dated 23.11.1991 that they are taking the matter with the branch and then received letter dated 12.12.1991 that cheques referred in the letter of the plaintiff has not been received CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 20 of 37 in the bank which clearly proved that the defendant bank has refused to credit the amount to the plaintiff on 12.12.1991 itself hence no question of his giving him assurance that amount will be credited in his account by 10.05.1992 arise.
37. Even otherwise PW1 in his testimony has not deposed which official of the defendants have given him assurance that amount of disputed cheques was paid in his account and when the same were given, whether same were given orally or in writing hence I held that plaintiffs have failed to proved that defendants have given any assurance to plaintiffs to credit the disputed cheques amounts in the plaintiff accounts. Hence, in these circumstances in my view, the limitation period will start from at least 12.12.1991 when plaintiff received letter that the cheques have not been deposited in his account as same amount to refusal of making payments by the defendants. As stated above the period of limitation is three years which expired on 11.12.1994 whereas the present suit has been filed on 19.05.1995, hence in my view same is barred by limitation. Issue no.3 is accordingly decided in favour of the defendants and against the plaintiffs. ISSUE NO.4 Whether Punjab National Bank is a necessary party? OPP
38. It is admitted by both PW1 and DW3 in their respective testimonies that the disputed cheques dated 25.07.1991, 27.09.1991 and 03.10.1991 which were allegedly deposited by plaintiff vide payin slips Ex.PW3/1 to Ex.PW3/3 were not encashed in the State Bank of India but have been encashed in the account of M/s Tola Ram & Sons a CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 21 of 37 proprietorship firm in Punjab National Bank opened by one Madan Lal. It is also proved from the testimony of DW3 Sudhir Kumar that the said account was opened by the Punjab National Bank without verifying the documents of the Madan Lal only on the recommendations of one of the employee Harbans Lal Bhola who was one of the employee of PNB and later on made accused in the FIR no.344/91 filed in the PS Adarsh Nagar. Hence, in my view atlest there was contributory negligence of the Punjab National Bank that they opened the account without proper verification if I presume that all the averment of plaintiff were correct i.e. cheques were deposited Hence, in these circumstances in my view the Punjab National Bank was the necessary party and since plaintiffs have not made the Punjab National Bank as party, hence suit is liable to be dismissed for nonjoinder of necessary party. Hence, issue no.4 is decided in favour of the defendants and against the plaintiffs.
ISSUE NO.5 Whether the plaintiff deposited 16 cheques as mentioned in paras 14 and 19 of the plaint with the defendant bank in current account No.31930 or current account no. 31910? OPD AND ISSUE NO.6 Whether the rubber stamps, alleged to have been affixed on the Payinslips by the defendant Bank, are not genuine? OPP CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 22 of 37
39. Issue no.5 and 6 are interlinked, therefore same will be decided together. The onus to prove issue no.5 has been placed upon the defendants and issue no.6 has been placed upon the plaintiffs.
39. The dispute between the parties is that plaintiff has contended that he has deposited the following cheques :
1. Cheque No. 270105 JKB 25.7.91 40,513.00
2. Cheque No. 267338 JKB 25.7.91 2,210.00
3. Cheque No. 925095 CB 25.7.91 12,473.00
4. Cheque No. 224011 BOB 25.7.91 15,554.00
5. Cheque No. 268968 JKB 25.7.91 45,955.00 1,16,705.00
1. Cheque No. 316722 CBI 27.9.91 11,110.00
2. Cheque No. 524587 BOI 27.9.91 10,983.74
3. Cheque No. 429291 PNB 27.9.91 31,121.00
4. Cheque No. 102656 VCAB 27.9.91 3,774.87
5. Cheque No. 840793 CB 27.9.91 4,124.00 61,113.61
1. Cheque No. 209195 AB 3.10.91 10,000.00
2. Cheque No. 799753 BOI 3.10.91 10,226.00 3 Cheque No. 999750 BOI 3.10.91 9,910.00
4. Cheque No. 292838 JKB 3.10.91 20,000.00
5. Cheque No. 292839 JKB 3.10.91 13,936.00
6. Cheque No. 599631 SB 3.10.91 13,130.00 77,202.00 (hereinafter referred to as disputed cheques) whereas the the defendant has contended that the same have not been deposited with the defendant bank. CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 23 of 37
40. To proved that plaintiff have not deposited the disputed cheques in the bank Ld. Counsel for defendant has relied upon testimony of DW3 K.L. Relan its bank manager. He has deposed that the cheques in question have not been deposited in State Bank of India and payin slips dated 25.07.1991, 27.09.1991 and 03.10.1991 does not bear rubber stamp/ seal of State Bank of India.
41. In his crossexamination, he has deposed that only one rubber stamp was given to the police during investigation of the case as at that time there was only one rubber stamp and one counter. He has denied the suggestion that there were several rubber stamps available with the bank in those days which were used on counter foils. He also deposed that rubber stamps are got prepared by the bank locally and record of payment of those stamps is maintained by the bank. He deposed that several stamps were got prepared one after the another and no record of the rubber stamps which are available in the branch in 1991 is available. Thus from his testimony nothing much has came out in favour of the plaintiff that the cheques in question were deposited by the the plaintiff vide payin slips dated 25.07.1991, 27.09.1991 and 03.10.1991. In my view nothing much has came out in his cross examination to disbelieve the testimony of DW3 that cheque in question have not been deposited in the defendant bank.
42. To corroborate the testimony of DW1 that plaintiff have not deposited the disputed cheques in the bank defendant has also examined the DW1 Sh.S.C. Mittal retired Principal Scientific Officer, CFSL/ CBI. DW1 in his testimony he has deposed that police in the case CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 24 of 37 FIR No.344/91 PS Adarsh Nagar sent few questioned and specimen documents to CFSL vide memo no.167/SHO/AD Nagar dated 12.02.1992 and he has examined the same and found that the questioned rubber seal impression Marked Q1 on Ex.PW3/1, Q2 on Ex.PW3/2 and Q3 on Ex.PW3/3 do not tally with the specimen rubber seal impression marked S1 (consist of 12 seal impressions) collectively Ex.PW3/4 and proved his report as DW1/1. Thus from the testimony of DW1, it is proved that the stamp which was given by the bank to the police during investigation does not tally with the three pay in slips by which plaintiffs have allegedly deposited the cheques in disputes. Since he was a government servant and an independent witness there is no ground to disbelieve his testimony.
43. Even otherwise also the case of the plaintiffs is not that the comparsion of the stamps on the slips and given to the police by bank is not correct but the defence of the plaintiffs is that the bank was using the other stamps also which were not given for comparison. Hence, in these circumstances I held that from the testimony of DW1, it is proved that the stamps which were given by the bank to the police has been affixed on the pay in slips dated 25.07.1991, 27.09.1991 and 03.10.1991.
44. On the other hand, to proved that disputed cheques were deposited with the bank Ld. Counsel for plaintiff have relied upon the testimony of PW1 and PW6. The plaintiffs through the testimony of PW1 Sh. Sudesh Sachdev has deposed that as per the practice, on 25.07.1991 the plaintiff no.1 has deposited 06 payin slips containing 16 cheques amounting to Rs.2,19,679.77 in Azadpur Branch of defendant bank and 05 cheques out of 16 cheques amounting to Rs.1,16,705/ were deposited by the plaintiff along with a single CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 25 of 37 payin slip which are cheques no. 270105, 267338, 925095, 224011 and 268968 and plaintiff no.1 has deposited remaining 11 cheques amounting to Rs. 1,02,974.77 on the same day in the same manner but these 11 cheques were realized and amount was credited. He has further deposed that on 27.09.1991 the plaintiff no.1 deposited two payin slips containing 06 cheques (01 payin slip with one cheque and the other with 05 cheques). While one cheque deposited with a separate pay in slip was realized, the five cheques amounting to Rs. 61,113.61 bearing no.316722, 524587, 429291, 102656 and 840793 were not realized. He further deposed that on 03.10.1991, 07 cheques were deposited by plaintiff no.1, one with one payin slip and other 06 cheques with one payin slip. While the one cheque deposited with separate payin slip was realized, the other 06 cheques deposited with other pay in slip amounting to Rs. 77,202/ bearing no. 209195, 799753, 799756, 292838, 292839 and 599631 were not realized.
45. In his crossexamination, he has stated that he do not know the name of the bank who clear these cheques whether it was State Bank of India or Punjab National Bank. However as per the case filed by the plaintiff as plaintiffs the cheques were realized in the Punjab National Bank in the bank account open by one Madan Lal in the name of M/s Tola Ram & Sons, the proprietorship concern and even in his examination in chief led through affidavit Ex.PW1/A he has mentioned the said cheques. Hence he even was not aware about the contents of his evidence affidavit and it appears that same has not been prepared on his instruction otherwise he would have been aware about the said fact. CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 26 of 37
46. PW1 has not deposed in his testimony that he has deposited the cheque in the defendant bank. He has not deposed on behalf of the plaintiff firm who has deposited the said cheques or who has filled the pay in slips by which the disputed cheques were deposited. In my view the best person to proved that disputed cheques were deposited with the defendant bank would have been the person who have gone to the bank to deposit the said cheques as he was the primary witness whereas the testimony of PW1 regarding depositing of the cheques is only hearsay. He stated that he has himself gone to the bank to deposit the cheques, hence his testimony is inadmissible to the extent that plaintiff no.1 has deposited the said cheques in the State Bank of India.
47. Plaintiff have not even led any evidence that disputed cheques were given to the plaintiff firm as no witness has been examined who had issued these cheques to the plaintiff.
48. Furthermore as per testimony of PW4 Shiv Dayal LDC only 8 cheques were seized in FIR no. 344/91 i.e. cheque no. 267338 of Rs. 2210/ dated 25.07.1991 , cheque bearing no. 270105 dated 25.07.1991 for Rs. 40,513/, cheque dated 30.09.1991 bearing no.292838 for Rs. 20,000/,cheque bearing no. 292839 dated 30.09.1991 for Rs.13,936/, cheque bearing no.799753 dated 28.9.1991 for Rs.10226/, cheque bearing no.799756 dated 02.10.1991 for Rs.9910/, cheque bearing no.268968 dated 24.7.1991 for Rs.45,955/, and the eighth cheque bearing no.925095 dated 21.07.1991 for Rs. 12,473/. From the testimony of PW4 it is also proved that above said cheques were deposited in the bank account of M/s. Tola Ram and sons has been encashed in PNB Bank, Darya Ganj Branch but it does not proved that these cheques were deposited in the defendant bank CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 27 of 37 and from there, it was misappropriated and deposited in PNB.
49. From the testimony of DW2 Sudhir Kumar also it is proved that account no.9176/1991 was opened by one Madan Lal in the name of M/s Tola Ram & Sons, a proprietorship concern. From account opening form it is proved that the account in the name of Madan Lal was opened on 22.07.1991 i.e. 3 days before the cheques in dispute allegedly deposited in the SBI bank.
50. Further DW2 has proved that the cheque were deposited vide deposit slips dated 25.07.1991, Ex. DW2/3 to Ex. DW2/5 and cheques deposit slip dated 04.10.1991, Ex. PW2/6 vide which cheques were deposited in the Punjab National Bank. Further DW2 has in his crossexamination, has deposed that account of M/s Tola Ram & Sons which is a proprietorship concern was open by Madan Lal on the basis of recommendation of Sh. H.L. Bhola who was an employee of PNB.
51. On perusal of pay in slip Ex. DW2/4 it is evident that cheque no. 268968 of Rs. 45,955/, 270105 of Rs. 40,513/ and 267535 of Rs. 2210/ has been deposited on 25.07.1991. Pay in slip EXDW2/5 proved that 925095 of Rs. 12,473/ has been deposited on the same day in PNB bank. This create doubt that the above said cheque were deposited in the defendant bank as it look very unlikely that on the same day from defendant bank somebody taken it to PNB Bank. It appears to be a deep conspiracy and appears to be involvement the official of the plaintiffs company who took the same to the PNB instead of depositing in the defendant bank i.e. why the fake account with the name CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 28 of 37 of plaintiff firm was opened three days ago. It look very unlikely that defendant bank official will be involved in this case as they could not know that someone from the plaintiff will come to deposit cheques. Hence in these circumstances it appears more probable that if any loss has been caused to the defendant same has been caused by the official of the defendant and not by the negligence/culpability of the defendant officials.
52. One more reason which creates doubt about the depositing of the cheques with the defendant bank is that on 05.07.1991 why only one cheque is deposited with one pay in slip and 06 cheques were deposited with other pay in slips and in my view it creates doubt that this has been done deliberately by the person who allegedly came to deposit the cheques with the bank so that he could misappropriate the cheques that is why he only deposited one cheque with the bank with one pay in slip which was got realized and did not deposit the other 5 cheques on 27.09. 1991, six cheque on 30.09.1991which he gave to the imposter Madan Lal who got fake account in Punjab National Bank in the name of defendant firm and got encashed and misappropriated the amount of the cheques.
53. Undisputedly police did not find any involvement of the official/employee of defendant bank that is why no employee of defendant bank has been made an accused in the criminal case registered on the complaint of plaintiff. This also lead to presumption that defendant's employees were not involved in misappropriation of the cheques and in conspiracy to give the same to the person who deposited the cheques in PNB.
54. Further from the testimony of PW4 only it is proved that police has seized only 4 CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 29 of 37 cheques deposited on. 25.07.1991 and 4 cheques which was allegedly deposited on 03.10.1991. Where as no cheque has been seized which was deposited on 27.09.1991. The total amount of these cheques is 1,55,223/. Whereas total amount which has not been credited in the bank account of defendant is 2,55,020/. Whereas from the payslip, DW2/4, DW2/5 and DW2/6 it is proved that 3,1 and 6 cheques respectively were deposited in the PNB bank totaling Rs. 1,78,353/.
55. The PW1 has not deposed that whether remaining cheques has also been encashed or not and if encashed than in which account same has been encashed which can be proved by the plaintiff by examining the parties who have given these cheques to the plaintiff. Further if same has not been encashed than plaintiff can recover the said amount from those account holder in which same were encashed or his parties who have issued the cheques if same has not been encashed and cannot claim these amount from the defendant.
56. Since from the testimony of PW4 it is proved that 8 cheques out of 16 cheques in disputes were encashed in the account of M/s Tola Ram & Sons, a proprietorship concern in the Punjab National Bank, hence now the only question left how these cheques has came into the possession of the Madan Lal who has deposited the same into his account. As stated above, the best answer to this question could be given by the person who has allegedly brought these cheques to deposit the same into the defendant/ State Bank of India but no person has been examined by the plaintiffs to prove that these cheques were deposited with the State Bank of India.
CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 30 of 37
57. As far as testimony of PW2 HC Gajender Singh is concerned, same is irrelevant on the aspect of depositing of cheques with the defendant bank as he has proved only certified copy of the FIR No.344/91 registered in PS Adarsh Nagar regarding the encashment of cheque in Punjab National Bank.
58. As far as PW3 HC Ved Singh is concerned, similar is the position of PW3. Though he is not the witness of depositing the cheques in the bank and has also brought the pay in slips Ex.PW3/1 to Ex.PW3/3 by which the above said cheques were allegedly deposited in the defendant bank. With regard to the payin slips I will discuss later on.
59. PW5 Satyavir Suhag is LDC from the office of Registrar of Firms and Industries and has only proved the documents regarding the registration of the plaintiff firm, hence this witness is also not relevant.
60. As far as the contention of the Ld. Counsel for plaintiff that from the testimony of PW6 V.N Sehgal it is proved that pay in slip by which disputed cheques was deposited matches with pay in slip by which other cheques were deposited hence it is proved that defendant bank has intentionally gives only one stamp to the police due to which report of CFSL came that stamp given by bank does not matches with the stamp on the pay in slip by which disputed cheques were deposited.
61. PW6 Sh. V.N. Sehgal, Ex. Director CFSL/ CBI has deposed that he has worked in CBI till 1996 and has examined number of documents and after his retirement he has started practicing as a consultant forensic science. He has also deposed that his detailed CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 31 of 37 report is Ex.PW6/2 and the original counter foil which are two card bound volumes are Ex.PW6/3 and Ex.PW6/4 and those three counterfoils of pay in slips bearing rubber stamp impression of the SBI dated 25.07.1991 as shown at Point C and dated 27.09.1991 at Point D and 03.10.1991 at Point E in his report which he used for comparing the impression of rubber stamp on the banks with the original counterfoils available in the hard bound volumes Ex.PW6/3 and Ex.PW6/4 and on examination of two hard bound volumes he found that the bank had a large number of rubber stamps being used for giving reciept to the customers who deposited cheques for encashment or receipt given in respect of cash by the bank on the counterfoil as receipt/acknowledgment. Some of the stamps on the bundle of counterfoils matching with the questioned impression on counter foils Marked Q1, Q2 and Q3.
62. On perusal of the report Ex.PW6/2, it is evident that he has given opinion that the questioned rubber seal impression marked Q1 and Q3 have been affixed from the same rubber seal from which the specimen rubber seal impressions Mark S1, S2, S4, S5 to S17, S22, S26, S27, S31 to S34, S38 to S41, S81 to S83, S99 and S100, S104, in booklet No.1 and S6 to S9, S13, S24, S29, S30, S33, S43, S101, S105, S107, S112, S113, S122, S123, S126, S127, S129, S130, S142, S143, S147 and S148 in Booklet No.II have been affixed.
63. He has given opinion that on examination the questioned rubber seal impression Mark Q2 have been affixed from the same rubber seal from which the specimen rubber CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 32 of 37 seal impressions marked S89 to S94 and S151 in Book No.1 and S1 to S4, S38, S39, S41, S59 to S64, S67, S68, S70, S71, S75 to S78, S80, S82 to S86, S92 to S94, S96 to S100, S109, S110, S115, S152 to S156 in Book No.II, have been affixed. He has given reason for his report that rubber seals on the questioned documents and specimen are in general size, design, arrangement of letters and characters
64. From perusal of Mark Q1, Q2 and Q3, I found that same is the photocopies of the questioned documents. In my view it would be very difficult to give any conclusive opinion on the basis of impression of the stamp on photocopies that it matches with the impression of stamp on pay in slip in hard bound volume EXPW6/3 and PW4. Further no enlarged photos of the question stamp and specimen stamp from hard bound volume has been placed on record. Nothing is mention in the report EXPW6/2 what methodology has been adopted to compare the question stamp and specimen stamp. On perusal of the questioned documents, I found that even in questioned document Q1, the stamps of State Bank of India is not even completely legible whereas in questioned Q2 I found that full impression of stamp has not come.
65. Further in my view though PW6 has compare number of pay in slip but in my view best pay in slip to compare would be pay in slip dt. 25.07.1991, 27.09.1991 and 03.10.1991 by which disputed cheques have been allegedly deposited in defendant bank and not with the counter foil/ customer copy of pay in slips for comparison but plaintiff has made no attempt to call these pay in slips from the defendant. Furthermore, in my view CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 33 of 37 from the photocopies of pay in slip marked as Q1 to Q3 it can not be ascertained whether the same ink has been used which is used in specimen stamp impression on the pay in slip by which other cheques were deposited on 25.07.1991, 27.09.1991 and 03.10.1991.
66. Further on perusal of the card bound volume Ex. PW6/3, I found that there are six counter foils/ payin slips dt. 25.07.1991 out of which by first slip five cheques totaling Rs.40,702/, one cheque of Rs. 3017/ and two cheques totaling Rs. 20,382 have been deposited respectively, the same has been given number by PW6 as S23 to S25 there are number of stamps overlapping each other on the said pay in slips hence same are not fit for comparison where as by pay in slip S26 only one cheque of Rs. 5400/ and pay in slip S27 4 cheques totaling 33,472/ and by pay in slip S28 1,70,000/ in cash has been deposited. Out of this one stamp on pay in slip S 28 is round stamp where as on payslip Q1 to Q3 all are rectangle/ horizontal stamp. Hence pay in slip S28 does matches with Q1 to Q3. According to PW6 pay in slip S26 and S27 matches with Q1 and Q3 but on seeing the S26 and S27 I found that ink of impression of S26 and WS27 was not spreading hence in my view that it is difficult to ascertained whether size of the words/alphabets can be compare with Q1 and Q3 which itself as stated were photocopy.
67. On perusal of the hard bound volume Ex.PW6/4, I found that there are three counter foils/ payin slips dt. 27.09.1991 out of which by first slip S89 is regarding deposit on 1 cheque of Rs. 10,000/ and other pay in slip S90 and S91 was deposit of cash which was having round stamp hence same is not relevant as Q1 to 3 Q3 have rectangle/ CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 34 of 37 horizontal stamp. S89 has no stamp which also proved that even stamp has not been put on counter pay in slip by which the cheque which was encashed was deposited hence it create doubt that on counter pay in slip by which 5 disputed cheque were deposited stamp were put by the bank official.
68. On perusal of the card bound volume Ex.PW6/4, I found that there are three counter foils/ payin slips dt. 03.10.1991 out of which by first slip S101 is regarding deposit on 1 cheque of Rs. 5802/ and other pay in slip S102 and S103 are deposit of cash which was having round stamp. According to report of PW9 impressions of stamp S101 matches with Q1 and Q3. But in my view on seeing the impression on Q1 and Q3 it cannot be said conclusively that they have impression from same stamp.
69. Further undoubtedly, opinion of expert is admissible in the evidence by virtue of Section 45 & 73 of the Indian Evidence Act but opinion of an expert witness is not conclusive proof unless opinion is on undisputed scientific aspect like blood group or DNA, hence same is required to be corroborated from other evidence like oral testimony and documentary evidence. In the absence of any corroborating oral testimony of the person who deposited disputed cheques and documentary evidence i.e. payin slips by which cheques weer deposited which were encashed, it would not be appropriate to rely upon the report of an PW6 V.N. Sehgal to conclude that pay in slip PW3/1 to PW3/3 have same rubber stamp impression which were on the pay in slip which were in the pay in slips contain in hard bound book PW6/3 and PW6/4.
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70. Moreover these pay in slip does not bear signature of any staff of the defendant regarding receiving of cheque. The court can take judicial notice that usually in the banks rubber stamp are kept on bank counter and any body can take and put impression on pay in slip for the purpose of acknowledgement that cheque has been deposited though after putting stamp he may or may not deposit with bank hence even if I presume that pay in slip PW3/1 to PW3/3 were having rubber stamp of defendant bank it is not sufficient to proved that disputed cheques were deposited with the defendant bank. As stated above same can be proved only through the testimony of person who deposited the same in the defendant bank but plaintiff for the reason best known to them did not examined them. Hence in these circumstances, I do not find sole testimony of PW6 sufficient to prove that the dated 25.07.91, 27.09.91 and 03.10.91 were deposited through the payin slips ExPW3/1 to PW3/3.
71. In view of above I held that that plaintiff has failed to prove that pay in slips Ex. PW3/1 to Ex. PW3/3 were having genuine stamp of defendant bank or that cheques in question were deposited with the defendant bank or that pay in slip. Hence I decide both issue no. 5 and 6 against the plaintiffs and in favour of the defendant. ISSUE NO.7 "Whether the defendants would not be liable for their negligence, resulting in the diversion of the above mentioned cheques from the incounter of the defendant bank to a bogus account in Punjab National Bank and their ultimate encashment CS No. 609968/16 Tola Ram & Sons Vs. State Bank of India Page No. 36 of 37 from Punjab National Bank? OPD
72. In view of my findings of issue no.5 and 6, I held that when plaintiff has failed to prove that it has deposited the cheques in question with the defendant bank, no question of any negligency by the defendants arise. Therefore defendants is not liable for encashment of cheques in bogus account in PNB. Hence, issue no.7 is decided in favour of the defendant and against the plaintiff.
ISSUE NO.8 Whether the defendants are liable to Pay to the plaintiffs the amount of monetary loss and damages as claimed in the Suit? OPD
73. In view of my findings of issue no. , I held that defendant is not liable to pay any amount to the plaintiff.
RELIEF
74. In view of my findings of issue no. 3 to 8 I held that plaintiff is not entitle to any relief. Hence the present suit is hereby dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room. Digitally signed by SANJEEV SANJEEV KUMAR KUMAR Date: 2018.12.17 16:45:04 +0000 Announced in the open court (Sanjeev KumarI) on 17.12.2018 Additional District Judge12, Central Tis Hazari Courts, Delhi.
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