FAMOUS CASES ON NEGOTIABLE INSTRUMENTS ACT* LIABILITY OF PAYING BANKER WHEN CUSTOMER’S SIGNATURE ON CHEQUE IS FORGED 1. When the customer’s signature on the cheque is forged there is no mandate to the bank to pay. As such a banker is not entitled to debit the customer’s account on such forged cheque. In Canara Bank vs. Canara Sales Corporation and Others [(1987)2 Supreme Court Cases 666] the company has a current account with the bank which was operated by the Company’s Managing Director.
The Company’s account in whose custody the cheque book was, forged the signature of the Managing Director in 42 Cheques totaling Rs. 326047. 92 over a period of time. This was detected by another accountant. The company immediately on detected of the fraud demanded the amount from the bank. The bank refused payment and therefore the company file a suit against the bank. The bank lost the suit and took the matter up to the Supreme Court.
The Supreme Court dismissed the appeal of the bank and held that: Since the relationship between the customer and the bank is that of a creditor and debtor, the bank had no authority to make payment of a cheque containing a forged signature. The bank would be acted against the law in debiting the customer with the amount of the forged cheque as there would be no mandate on the bank to pay. The Supreme Court pointed out that the document in the cheque form on which the customer’s name as drawer was forged was a mere nullity. The bank would succeed only when it would establish adoption or estoppel.
In dealing the case the Supreme Court relied on its earlier judgment in Bihta Cooperative Development and Cane Marketing Union Ltd vs. bank of Bihar (AIR 1967 Supreme Court 389). 2. In a joint account if one of the signature is forged then there is no mandate and banker cannot make payment. In Bihta Cooperative Development and Cane Marketing Union Ltd vs. bank of Bihar, the Cooperative Marketing Union had an account with the bank which was authorized to be operated by Joint Secretary and Treasure of the Cooperative Marketing Union.
On 16, April 1948 the bank made payment of Rs. 11000 on a loose leaf cheque and not on a cheque from in cheque book to the Society. Though the two signature appeared on the cheque one of them, the signature of the Joint Secretary was forged. The bank made payment, whereupon the Cooperative Marketing Union sued the bank for recovery of the money. Though the bank admitted negligence on its part, it argued that the employees of the Cooperative Marketing Union were dishonest in the discharge f their duties and as such it cannot succeed. The matter went to the Supreme Court and the Supreme Court while allowing the case of the Cooperative Marketing Union held that “one of the signatures was forged so that there never was any mandate by the customer at all to the banker and the question of negligence of the customer in between the signature and the presentation of the cheque never arose”. PAYMENT TO BE IN DUE COURSE FOR BANK TO SEEK PROTECTION 1. The Supreme Court in Bank of Bihar vs.
Mahabir Lal (AIR 1964 Supreme Court 397) held that a banker can seek protection under Section 85 only where payment has been made to the holder, his servant or agent i. e payment must be made in due course. In this case the Bank had agreed to grant to the firm cash credit facility against pledged of cloth bales on the firm fulfilling certain conditions, one of which was that the money for purchasing the cloth would not be directly given to the firm, but instead the supplier would be paid the amount by the bank and the cloth bales would be kept by the bank as pledge for the loan.
The firm thereafter was required to draw a cheque on itself which was handed over to the bank. The bank instead of handing over cash to the firms partner, to be paid over to the wholesalers it with one of the bank’s employees (Potdar) who accompanied the partner to the wholesales. However, before the money could be paid to wholesalers the Potdar absconded. The bank sought repayment of the money which was refused by the firm. The bank therefore sued the firm for the money relying on Section 85 and 118 of the Negotiable Instruments Act, 1881.
The matter reached the Supreme Court and it was held that before the provisions of Section 85 can assist the bank it had to be established that payment had in fact been made to the firm or a person on behalf of the firm. Payment of a person who had nothing to do with the firm or a payment to an agent of the Bank would not be a payment to the firm. 2. The Calcutta High Court had occasion to consider as to whether a bank had made payment in due course or not in the case of Bhutoria Trading Company (BTC) vs.
Allahabad Bank (AIR 1977 Cal 363) the facts of which are as follows; BTC, a limited company, had sold some jute to WFD another limited company, for payment of which WFD issued an uncrossed cheque payable to BTC or order which was delivered to one of the officials of BTC. The official using the company’s seal endorsed the cheque as manager and encashed it over the counter. BTC later sued the bank for recovery of the money on the grounds of damages or in the alternative on the grounds of money had and received by the bank.
The court held that: The expression “payment due course” has been defined in Section 10 of the Negotiable Instruments Act to mean payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof, under circumstances which do not afford reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned. It can hardly be questioned that the payment by the defendant bank of the cheque in question has been made by the defendant bank in accordance with its apparent tenor.
The cheque is an uncrossed cheque payable to the plaintiff. The cheque was endorsed by the plaintiff through its Manager. The fact that Jethmall is the Manager is borne out by the seal of the Company which is unquestionable an authentic seal. The seal of the Manager is also equally authentic. That the payment was made in good faith has not been disputed for all practical purposes. There is not a grain of evidence before the Court from which it remotely appears that the payment was not made in good faith.
Now that the entire evidence is before the court, the question of onus to prove good faith loses much of its importance. No negligence has been proved against the bank. The defendant bank insisted on identification of Jethmal and Jethmall was in fact identified by Krishanlal Maheswari, a constituent of the bank, the defendant No-3. The defendant bank therefore took all reasonable precaution even though the circumstances in which the cheque was presented for payment did not afford any reasonable ground for believing that Jethmall was not entitled to receive payment of the amount mentioned therein.
The plaintiff having failed to prove the trade practice which he alleged and the bank having paid the cheque, in accordance with the apparent tenor of the instrument, in good faith, and without negligence to Jethmall who was in possession thereof the defendant is entitled to succeed. There were no circumstances which afforded any reasonable ground for believing that he was not entitled to receive payment of the cheque. It must be held that the bank made the payment in due course.
The learned judge, in opinion has rightly pointed out that payment in due course is necessarily payment in the ordinary course. 3. Whether payment made by a bank was payment in due course would depend on the facts of a given case. In Madras Provincial Cooperative Bank Ltd vs. Official Liquidator, South Indian Match Factory Ltd (AIR 1945 Mad 30) the court held that payment to a liquidator against the cheque presented across the counter was not a payment in due course and the bank was not entitled to seek protection under Section 85 of the Negotiable Instrument Act.
In this case the Official Liquidator of the Company has sold certain properties of the company for which payment was made by the purchaser by giving a cheque in favour of the liquidator presented the cheque over the counter and obtained payment in cash which he misappropriated. He was later prosecuted and convicted and removed from office. His successor proceeded against the bank for recovery of the amount on the ground that the bank was negligent and the amount was wrong paid.
The court held that under Section 244A of the Indian Companies Act, 1913, an official liquidator was required to open an account with a bank and pay therein money received by him in the course of the liquidation. Rule 66 of the Rules framed by the Madras High court under the Act required that all bills and other securities payable to the company or to the liquidator should, unless the judge otherwise directs, shall as soon as they came into the hands of the liquidator, be deposited by him in the bank.
From the cheque itself the bank had notice that it was payable to the liquidator in his official capacity. That the bank realized this in full was shown by the fact that it called for the order of his appointment. The learned judge therefore concluded. We have no doubt that the officers of the bank did not realize, as they should have done, that the bank was doing something improper, but in the circumstances there was negligence.
They knew or must have deemed to have known that this money could only be collected by the payee through his own bank and therefore it was most improper on his part to ask for payment over the drawee’s counter. In our judgment there was a clear breach of a statutory duty placed upon the bank and the learned judge was right in holding the bank liable. PAYMENT OF GOOD FAITH, WITHOUT NEGLIGENCE OF AN INSTRUMENT ON WHICH ALTERATION IS NOT APPARENT 1.
The effect of Section 10 and 89, and Section 31 was considered by the Supreme Court in Bank of Maharastra vs. M/s Automotive Engineering Co. (1993) 2 SCC 97. The question which arose for consideration in this appeal was whether the paying bank was bound to keep an ultraviolet ray lamp and to scrutinize the cheque under the said lamp even if no infirmity on the face of the said cheque on visual scrutiny was found. Briefly stated, the respondent, a partnership firm, opened a current account with the Wagle Industrial Estate branch of the appellant bank.
The said branch was in the industrial area on the outskirts of City of Bombay, where forgery of cheques were rampant and although other branches of the appellant bank were provided with ultraviolet ray lamps, the said branch was not provide with such lamp. On 26, May 1967, one Sri Shah, as a proprietor of Messrs Imperial Tube and Hardware Mart, opened an account, in the name of his firm with a branch of the Union Bank of India. Sri Shah presented a cheque dated 29 May 1967 for Rs. 6500 in favour of his firm to Union Bank of India.
On presentation of the cheque through clearing the appellant bank passed the cheque and debited the amount to the account of the respondent. Later on, on receipt of the objection from the respondent defendant, the said cheque was examined under the ultraviolet ray lamp when it transpired that the original cheque was issued in favour of Sri GR Pardawala and the amount of the said cheque was Rs. 95. 98. The writing on the cheque was chemically altered with regard to date, the name of the payee and also the amount. The respondent made demands to the appellant bank to credit the amount to its account.
The appellant bank filed a suit which the agent of the appellant bank was examined, who stated that before passing the said cheque for payment he had checked that serial number and date of the cheque and had compared the signature of the respondent with the specimen signature and that from visual appearance of the cheque no conformity was noted by him and from the tenor of the cheque it appeared to be genuine one. The trial court dismissed the suit on the ground that by not providing the facility of ultraviolet ray lamp, the appellant bank had failed to discharge proper care and, thereof, did not pass the said cheque with the due diligence.
On appeal, the District Judge, while appearing that no abnormal features to suspect the genuineness of the cheque could found on visual inspection of the cheque, was of the view that the appellant bank was not entitled to protection for the lapse in the said cheque for scrutiny under the ultraviolet ray lamp. On further appeal, the High Court of Bombay, while accepting the finding that the cheque in question apparently did not show any sign of alteration, held that the appellant bank did not act with proper care and caution in not providing necessary device for detecting forged cheque.
Since the absence of such lamp amounted to negligence on the part of the appellant bank, no protection was available because payment was not made in due course. The appellant bank preferred this appeal to the Supreme Court. The Supreme Court allowed the appeal of the Bank on the following grounds. (i) Section 89 of the Negotiable Instruments Act gives protection to the paying banker of a cheque which has been materially altered but does not appear to have been so altered, if payment was made according to the apparent tenor thereof at the time of payment and otherwise in due course. ii) Section 10 of the said Act defines payment in due course to mean payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not a responsible ground for believing that he is not entitled to receive payment of the amount therein mentioned. (iii) Section 31 of the said Act obliges the drawee bank having sufficient funds of the drawer in its hands properly applicable to the payment of such cheque, to make payment of the cheque when duly required to do so. iv) On analysis the evidence, the courts below had held that on visual examination no sign of forgery or tampering with the writings on the cheque could be detected. It was found that the agent of the appellant bank had verified the serial number and signature on the cheque and had compared the signature on the cheque with the specimen signature of the respondent and on scrutiny of the cheque visually no defects could be detected by him. There was sufficient funds of the drawer with the appellant bank, which had no occasion to doubt about the genuineness of the cheque from the apparent tenor of the nstrument. There was no evidence to hold that the payment was not made in good faith. Simply because the ultraviolet ray lamp was not kept in the branch and the said cheque was not subjected to such lamp, would not be sufficient to hold the appellant bank guilty of negligence more so when it has not been established on evidence that the other branches of the appellant bank or other commercial banks had been following a practice of scrutinizing each and every cheque or cheques involving a particular amount under such lamp by way of extra precaution. v) In such circumstances, it is not correct legal proposition that the bank, in order to get absolved from the liability of negligence, was under an obligation to verify the cheque for further scrutiny under advanced technology or for that matter under ultraviolet ray lamp apart from visual scrutiny even though the cost of which scrutiny was only nominal and it might be desirable to keep such lamp at the branch to take aid in appropriate case. vi) The Courts below were not justified in holding that the bank had failed to take reasonable care in passing the cheque for payment without subjecting it for further scrutiny under ultraviolet ray lamp because the branch was in the industrial area where such forgery was rampant and other branches of the appellant bank were provided with such lamp. The appeal was, therefore, allowed and the suit of the appellant bank was decreed only for the principal amount without any interest on the same. b) The protection granted to a banker under Section 89 had come up for consideration before the Calcutta High Court in Brahma Shumshere Jung Bahadur vs. Chartered Bank of India, Australia and China (AIR 1956 Cal. 399). In this case B who was a member of the royal family of Nepal had an overdraft account with the bank for which certain securities were deposited with the Bank. The overdraft limit was not a fixed limit and fluctuated depending on the securities deposited. In April 1946, B requested the bank to enhance the overdraft limit which however was not agreed to by the bank and the limit was Rs. 70000.
In July 1946, B sent a cheque by post drawn on the overdraft account which was intercepted in the mail and the amount was raised from Rs. 256 to Rs. 234081. The cheque was put for collection in another bank which was paid by B’s bank. B oncoming to know about the forgery, sued both the paying and collecting bank contending that though the cheque was signed by him it was written out by the same person and as such it should have aroused the suspicion of the bank. The court, however, held that since no alternation or obliteration was visible at the time of payment, the payment was made according to the apparent tenor at the cheque.
Further since B had on other occasions also issued cheque signed by him and written by others, the bank suspicion could not have aroused. The court was held that the words “liable to pay” appearing in the third paragraph of Section 89 included a liability to pay appearing in the third paragraph of Section 89 included a liability to pay under the overdraft agreements as much as it applied to an ordinary deposit account. As regards exceeding the overdraft limit, the Court held that no definite limit was fixed at any time and it fluctuated according to the securities deposited by B.
In this case collecting bank was liable for other reasons for which we shall see in the next unit. 2. In the case of Tanjore Permanent Bank vs. S. R Rangachari (AIR 1959 Madras 119) the High Court was called upon to decide a case in which cheque was materially altered and the bank sought protection under Section 89. In this case R had an overdraft account with the bank and requested the Manager to advance him Rs. 16000 to debit of his account. The Manager asks R to send him three blank cheque signed. R accordingly did the same.
However,, of the three cheques only one was utilized for the payment of Rs. 16000. The other two cheques were alleged to have been filed by the accountant of the Bank for Rs. 7600 and Rs. 4200 and the names of two clerks were written as the payees. In both the cheques the alteration were apparent and visible but the bank paid these cheques. On R not clearing the debit because of his overdraft account, the bank sued him. R contended that the debit entries for Rs. 7600 and 4200 were made by the Bank wrongly and as such he cannot be held liable.
The court held that since the material alteration on both the cheques were visible and since they were not authenticated by the drawers, initials, the payment made by the bank was not according to the apparent tenor of the instrument and as such the bank cannot claim protection under Section 89 of the Negotiable Instruments Act. The Court in coming to the above conclusion relied on the following paragraph of Bhashyam and Adiga’s Negotiable Instrument Act; The bank has also to see whether there are nay alterations in the cheque and whether they have been properly authenticated.
Therefore, where an alteration in a cheque is initialed not by all the drawers but only some of them, the bank will be paying the amount on the said cheque at its own risk. In this connection it is necessary to notice that under Section 89 protection is afforded to the bank paying a cheque where the alternation is not apparent. It is to be noted as per Section 89 of the bank can seek protection only if there is material alteration in the cheque and does not appear to have been altered.
This, however, does not protect a banker in case the signature of the customer is forged. As stated earlier a forged cheque is no mandate of the customer and as such the bank cannot make payment on a cheque where the signature of the customer is forged. The question whether signatures is forged or not depends on the evidence and the court in coming to a conclusion that the signature is forged would look into the facts and circumstances that led to the payment of the cheque. 3. In Bareilly Bank Ltd vs.
Naval Kishore (AIR 1964 All 78) N opened an account with the bank by making a cash deposit of Rs. 19900. N was issued a cheque book containing 25 cheques. 17 months after the opening of the account N drew a cheque for the first time for Rs. 5900 which was dishonored by the bank. On enquiries N was informed that 11 months back three cheque aggregating Rs. 19500 were paid by the bank and the present balance in the account was a mere Rs. 437. N denied issuing of the cheque and sued the bank.
In evidence it came out that 3 cheques used to withdraw the amounts were not from the cheque book issued to N and were from a different cheque book. Though bank was not in a position to explain this lapse, they made an attempt to counter the contentions of N by producing his specimen signature, which appeared to be similar to the ones on the cheques. N however denied that the specimen signature was his and the court concluded that the specimen signature were totally different from N’s regular signature.
Evidence also was led to show that the bank’s own employees were involved in the forgery since the ledger page of N’s account showed that certain erasures and scorings were made and the signature of N missing in the cheque book issue register. Therefore, the court refused to accept the bank’s contention. PAYMENT BY BANK UNDER MISTAKE WHETHER RECOVERABLE The question whether a bank paying a forged cheque can recover the sale from the payee was considered by the Calcutta High Court in United Bank of India vs. Ali Hussan & Co. AIR 1978 Calcutta 169) In this case a cheque for Rs. 5000 purported to have been drawn by a company was presented by the collecting bank to the paying bank, and was paid. The signature, as well as other writings on the cheque, were forged. The forgery was perfect that it was not possible even for a trained eye to detect it. The paying bank, having subsequently come to know of the forgery, filed a suit against the collecting bank and the payee of the cheque, for recovery of the amount paid, on the ground of payment under mistake.
Defending the suit, the collecting bank contended that it received the cheque in the ordinary course of its business, and presented the same for encashment in good faith. The payee considered that he received the cheque from some persons claiming to be representatives of a company, in the ordinary course of business, towards payment of the price of the goods to be supplied by him, that he acted in good faith having no reason to suspect that the cheque was forged, and that he parted with the goods only on receipt of intimation from the collecting bank that the cheque had been encashed.
The Trial Court having dismissed the suit on the ground that the paying bank had no cause of action, an appeal was preferred to the High Court. Decision: The High Court dismissed the appeal and held that both from the point of view if equitable principles and the doctrine of estopple, the paying bank was disentitled to recover the money either from the collecting bank or the payee. In the course of his judgment, MM Dutt. J said; The evidence on record supports the findings of the learned Judge that the forgery was so accurate that it was not possible to a trained eye to deduct the same.
In these circumstances, it is difficult to hold that the plaintiff bank had acted carelessly or negligently. The encashment was made by the plaintiff bank on the mistaken belief that the cheque was a genuine one. The defendant United Bank had nothing to do with the question as to whether the cheque was genuine or forged. In due course of business it presented the cheque to the plaintiff bank for collection and after the cheque was encashed, intimation was given by it to its constituent, namely the defendant No. 1 and the latter, in its turn, sold goods to the persons who ame with the forged cheque as the representatives of the Metal Alloy Co. Thus it appears that the parties in the suit acted in good faith in due course of business. It was due to mistake that was committed by the plaintiff Bank that it had to suffer the loss of the said sum of Rs. 5200. Upon the consideration of the principles of law as noticed above, it seems to us that so long as the status quo is maintained and the payee has not changed his position to his detriment, he must reply the money back to the payer.
If, however, there has been a change in the position of the payee who, acting s good faith, parts with money to another without any benefit to himself before the mistake is detected, he cannot be held liable. Equity disfavours unjust enrichment. When there us question of unjust enrichment of the payee by reaping the benefit of an accidental windfall the should be made to suffer, for he would be as innocent as the payer who paid the money acting under a mistake. ——————————————– [ 2 ]. * compiled by Dr. S. C Bihari
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