BANK OF MAHARASHTRA Vs. AUTOMOTIVE ENGINEERING CO

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the High court of Bombay dated 3/03/1981 passed in Second Appeal No. 661 of 1974 affirming the judgment and decree passed by the learned Additional Joint Judge, Thana, in Civil Appeal No. 170 of 1973 dated February 22, 1974, affirming the judgment and decree of the Joint Civil Judge, Junior Division, Thana, in Civil Suit No. 363 of 1970 dated 27/04/1973. The plaintiff-Bank of Maharashtra, the appellant herein, instituted the said Civil Suit No. 363 of 1979 for recovering a sum of Rs. 7,452. 00, comprising Rs. 5,920. 12 on account of principal and the balance on account of interest. The relevant facts concerning the instant appeal may be stated as follows.

(2.) The plaintiff is a nationalised bank carrying on the business of banking under the name of Bank of Maharashtra and it opened a branch at Wagle Industrial Estate, Thana. The defendant-respondent, M/s Automotive Engineering Company, is a partnership firm and the said partnership firm opened a current account with the same branch of the plaintiff-Bank. One firm named M/s Imperial Tube and Hardware Mart opened an account with the Union Bank of India Ltd. , Thana Branch on 26/05/1967. The said ac- count was represented by its proprietor, Mr B. M. Shah. The said Mr Shah presented a cheque being Ex. 54 to the Union Bank of India Ltd. , Thana Branch, for crediting the amount in his account in the said bank. Such cheque bore the date 29/05/1967 and was issued in the name of Imperial Tube and Hardware Mart and the amount under the cheque was Rs. 6,500. 00. The said cheque was sent to the clearing house by the Union Bank of India Ltd. and on presentation of the said cheque for payment the plaintiff-Bank passed the cheque for Rs. 6,500. 00 and debited the said amount to the account of the defendant. At the time of debiting the amount, the defendant firm had a credit of Rs. 20,000. 00 in its account with the plaintiff-Bank. In the first week of June 1967, the plaintiff-Bank forwarded statement of account to the defendant. The defendant thereafter raised an objection some time in the third week of June 1967 that the amount of cheque at Ex. 54 was wrongly debited for Rs. 6,500. 00. The agent of the plaintiff-Bank thereafter went to the Union Bank of India Ltd. , Thana Branch, and on examining the cheque un- der the ultraviolet ray lamp it transpired that the original cheque was issued in favour of one Shri G. R. Pardawala and the amount under the said cheque was Rs. 95.98. The writing on the cheque was chemically altered with regardto the date, the name of the payee and also the amount. The defendant there- after made demands to the plaintiff Bank to credit the same amount to his account. In the aforesaid facts, the said Suit No. 363 of 1970 was instituted by the Bank of Maharashtra. The agent of the plaintiff-Bank at the relevant time was examined as a witness for the bank and he has stated that before passing the said cheque for payment, he had checked the serial number and the date of the cheque and also compared the signature of the defendant appearing on the cheque with the specimen signature of the defendant. The endorsement on the cheque was also verified by him and after such verification the cheque was passed by him for payment. The said agent has further stated in his evidence that from the visual appearance of the cheque, no infirmity was noted by him and from the tenor of the cheque it appeared to be a genuine one. It, however, transpires from the evidences adduced in the said suit that the said Thana Branch of the plaintiff-Bank had no ultraviolet ray lamp for scrutinising the cheques although in other branches of the said bank, such lamp was made available.

(3.) The trial court after considering the facts and circumstances of the case and evidences on record, came to the finding that apparently on visual scrutiny the cheque in question did not appear to be fabricated or altered but on closer scrutiny some suspicion could have been raised. The trial court was also of the view that the bank should have provided the facility of ultraviolet ray lamp to the said Thana Branch for scrutinising the cheques and for not providing such ultraviolet ray lamp, the bank had failed to discharge proper care. In the aforesaid circumstances, it should be held that the bank did not pass the cheque with the due diligence. In that view of the matter, the trial court dismissed the said suit with costs.