JUDGMENT 1. The plaintiff who has a Current Deposit Account with tins defendant, has instituted this suit fox the recovery of Rs. 6,000/-; interests and costs. On the 9th July 1947 it is alleged the plaintiff went to the defendant Bank for the purpose of ascertaining the amount lying to his credit in his Current Account and on enquiry he found that he had been debited with the sum of Rs. 6,100/- under date 13th May, 1947. On that date the plaintiff drew a cheque No. A761058 for Rs. 100/- and not for Rs. 6,100/- for which he was debited. The amount of the cheque was fraudulently altered to Rs. 6,100/ - and if the defendant Bank had exercised due care and caution it could have detected the forgery. The defendant Bank is wrongfully refusing to make good the loss caused to the plaintiff inspite of demands. 2. The defence is that the plaintiff's Account was debited on the 13th May, 1947 with the sum of Rs. 6,100/- in respect of the cheque drawn by the plaintiff in favour of one P. K. Mitra and the plaintiff was informed about the same when he visited the defendant Bank on the 9th July. 1947. The plaintiff again visited the defendant bank on the 10th July, 1947 when pursuant to his request the defendant handed over the cheque to him on his signing a receipt for the same. The defendant denies that on the 13th May, 1947 the plaintiff drew a cheque for Rs. 100/- and not Rs. 6,100/ -. The defendant does not -admit that the cheque was fraudulently altered to Rs. 6,100/- as alleged by the plaintiff, or that if the defendant had exercised due care or caution, it could have detected the forgery or fraudulent alteration or that there was any failure on the part of the defendant to exercise due care or caution. The defendant does not admit that the appearance of the cheque should have put the Bank on suspicision or enquiry or that instead of making payment forthwith the Bank should have referred the matter to the drawer as alleged in the plaintiff's solicitor's letter dated 4th February, 1948 furnishing particulars of paragraph 5 of the plaint (Vide Exhibit 5' and Exhibit 'e' ). The cheque when presented for payment did not appear to have been materially altered. The cheque when presented for payment did not appear to have been materially altered. The defendant paid the cheque according to the apparent tenor thereof at the time of payment and otherwise in due course in good faith and without negligence. In the premises, it is not open to the plaintiff to question the payment of the cheque. The plaintiff in drawing the cheque failed and neglected to take usual or reasonable precaution and the manner in which the cheque was drawn by the plaintiff was calculated to facilitate material alteration or forgery in respect of the cheque. The plaintiff, in the circumstances, is stopped from questioning the debiting of the amount of the cheque against his account. The defendant denies that it caused loss to the plaintiff or it is acting wrongfully in refusing to make good the alleged loss. The defendant denies that the plaintiff is entitled to recover the sum of Rs. 6,000/ -. The following issues were raised :- 1. Did the plaintiff draw the cheque for Rs. 6,100/-? 2. Was there any fraudulent alteration of the amount of the cheque ? 3. Is the plaintiff stopped from questioning the payment of the cheque for Rs. 6,100/- by reason of the plaintiff's negligence in drawing the cheque? 3. Was the defendant, due to any circumstances, put to enquiry in paying the cheque ? 4. Was the cheque paid according to the apparent tenor thereof at the time of payment in due course? To what relief, if any, is the plaintiff entitled? 4. The evidence of the plaintiff is that the cheque was drawn at the Monte Carlo Restaurant in Calcutta. The plaintiff did not carry his Cheque Book but took out a leaf from the book. One Santosh Kumar Ghose and one Ashim Kumar Das were with him. At the suggestion of Santosh the plaintiff intended to pay Rs. 100/- to P. K. Mitra who was appointed an Auditor in connection with the plaintiff's appointment as Guardian-ad-litem of his minor brothers. The objects for which payment was intended to be made do not seem to be laudable but they are irrelevant for the purposes of this suit. The plaintiff has half developed fingers since his birth. He took out the cheque. Santosh told him that he was ready to fill up the cheque. The plaintiff did not object because of his defective fingers. The plaintiff has half developed fingers since his birth. He took out the cheque. Santosh told him that he was ready to fill up the cheque. The plaintiff did not object because of his defective fingers. After the cheque was written out it appeared that Santosh had left gaps between 'rs. ' in print and 100' in figures on the bottom of the left hand side of the cheque and between 'rupees' in print and 'one hundred' in words in the middle of the cheque. When the plaintiff saw the cheque written in that manner he told Santosh that it was not proper to leave the blank spacer. Thereafter the plaintiff put cross marks in both the blank spaces and wrote 'Rs. before the amount 100' in figures. The plaintiff admits that he has put three signatures on the cheque. These are his full signatures which tally with his signature on the specimen signature card in the possession of the Bank. One of the signatures is at the bottom at the left hand side underneath the space for waiting the amount of the cheque in figures: One is in the middle of the cheque under the space for writing the amount in words: and the third at the bottom on the right hand side which is the usual place for signatures on cheques. He had put the other two signatures apart from the usual one at the request of Santosh because the letters 'Rs. ' were written by him and the other portions of the cheque were in the handwriting of Santosh. One of the reasons for putting the signature in the middle was to initial the cross marks. On the 9th July, 1947 the plaintiff went to the Bank for withdrawing money. He looked at the Ledger to ascertain the amount to his credit. He was taken by surprise to see the amount which was much less than the amount which should have been lying to his credit. On the 13th May, 1947 he saw that a sum of Rs. 6,100/- instead of Rs. 100/- only had been withdrawn in favour of one P. K. Mitra. After putting three signatures on the cheque he had handed over the cheque to Ashim Kumar Das. He said to the Bank that he did not draw any cheque for Rs. On the 13th May, 1947 he saw that a sum of Rs. 6,100/- instead of Rs. 100/- only had been withdrawn in favour of one P. K. Mitra. After putting three signatures on the cheque he had handed over the cheque to Ashim Kumar Das. He said to the Bank that he did not draw any cheque for Rs. 6100/- in favour of P. K. Mitra, Thereafter he took his solicitor to the Bank and got the cheque from the Bank. The amount in words and figures on the cheque had been struck out and above the portions struck out a sum of Rs. 6,100/- had been interpolated both in words and in figures. The plaintiff instituted a criminal case against Santosh and Ashim. Both of them were convicted. Santosh was sentenced to three years' imprisonment and Ashim Kumar to a year and half. 5. On behalf of the defendant Biswa Nath Das at present a Passing Clerk who was employed as a Ledger Keeper on the 13th May, 1947 when the cheque was drawn, has been examined. William Martin Benette the Accountant of the Bank has also been examined. Benette has been in Calcutta since May, 1957. He had nothing to do with this cheque. In his evidence he has expressed certain opinions on the manner of authentications of the alterations in the cheque from his experience as an employee of the Bank in support of his contention that the cheque has been duly passed for payment. 6. Biswanath Das was, as I have said, the Ledger Keeper at the material time. The duty of a Ledger Keeper is to make debit entry in the Ledger if there be sufficient fund to the credit of the constituent whose cheque is presented for payment. Biswanath has identified his initials on the cheque in suit which indicate that he made the debit entry in respect of the cheque. The Ledger Keeper then sends the cheque to the passing clerk. It is the duty of the passing clerk to examine the cheque and scrutinise the genuineness of the drawer's signature. After the passing clerk is satisfied he puts his initials on the cheque and the cheque is sent to the Officer-in-charge of the Department. Biswanath recognizes the signature of Pravash Chandra Roy on the cheque who was then the passing clerk. If the cheque be for more than Rs. After the passing clerk is satisfied he puts his initials on the cheque and the cheque is sent to the Officer-in-charge of the Department. Biswanath recognizes the signature of Pravash Chandra Roy on the cheque who was then the passing clerk. If the cheque be for more than Rs. 10,000/-the passing clerk after scrutiny places before the Officer-in-charge the cheque and the specimen signature card but if the cheque be for less than Rs. 10,000/-the specimen signature card need not be placed before the Officer-in-charge. The Officer-in-charge puts his signature and cancels the cheque. The Officer-in-charge in this case was H. P. Dewar. Biswanath points out certain initials at the bottom of the right-hand side of the cheque in red ink which he says 'seems to be' the signature of H. P. Dewar. There are similar initials on the plaintiff's cheques No. A761055 dated April 12, 1947 (Exhibit 1), No. A761056 dated April 25, 1947 (Exhibit 2) and No. A761057 dated April 28, 1947 (Exhibit 3 ). According to Biswanath the cheque was duly and properly paid. 5. Mr. R. P. Lahiri appearing for the plaintiff has contended that "payment in due course" under section 10 of the Negotiable Instruments Act means 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 a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned. The onus of proving good faith and absence of negligence, is on the Banker claiming protection : Brahma Shumshare v. Chartered Bank (1) A.I.R. 1956 Cal. 399. The defendant Bank in the present case has failed to discharge the onus. Kenneth Crawford, Accountant of the defendant Bank who has verified the Written Statement has not been called. There is no explanation as to where he is. H. P. Dewer, the Officer-in-charge who was responsible for finally passing the cheque has not been called. Provash Chandra Roy, the Passing Officer whose duty was to examine and scrutinise the cheque, has not also been called. What impression the Passing Officer has at the time of encashment of the cheque is not before the Court. 6. Bennett has said that Roy has retired and is a pensioner. He travels in various parts 01 the country as is devotee. His address is not known. What impression the Passing Officer has at the time of encashment of the cheque is not before the Court. 6. Bennett has said that Roy has retired and is a pensioner. He travels in various parts 01 the country as is devotee. His address is not known. He occasionally returns to Calcutta and it is difficult to contact him. He had sent several people and particularly a friend of Roy to Roy's residence but he could not be found. Mr. S.K. Dutt for the defendant contends that if the plaintiff had denied the three signatures on the cheque the evidence of Roy, Dewar and Crawford might have been relevant. But since the plaintiff admits the signatures, it is immaterial that these witnesses have not been examined. To my mind Mr. Dutt's contentions are justified. 7. Mr. Lahiri has also argued that if a cheque on the face of it discloses any traces of alterations or obliterations at the time it is presented for encashment, the payment made by the Bank is not a payment in due course. I do not agree with Mr. Lahiri. When an alteration is duly authenticated by the customer, I do not see why the Bank should not make the payment. 8. Mr. Lahiri relies on the decision in Abbu Chettiar v. Hyderabad State Bank (2) A. I. R. 1954 Mad. 1001. In this case the signature of a customer on a cheque had been forged. It was held that the Banker could not charge his customer with any money with which he had parted without the customer's authority. Where the customer's signature is forged, the document purported to be a cheque is not a cheque at all and is not drawn on a Banker. Ramaswami, J. at page 1006 observes as follows:- "the discussions can be summarized in. Where the customer's signature is forged, the document purported to be a cheque is not a cheque at all and is not drawn on a Banker. Ramaswami, J. at page 1006 observes as follows:- "the discussions can be summarized in. the following live propositions: (i) it is for the customer to establish affirmatively that the signature on the disputed cheque is not that of the customer but a forgery, (ii) if the drawer's cheque is forged or unauthorised, however the clever the forgery is, the banker cannot debit his customer's account in case he pays the sum unless he establishes adoption or stopped (iii) what amount to adoption or stopped is dependent upon the circumstances of each case, (iv) in order to make the customer liable for the loss the neglect on his part must be in, or intimately connected with, the transaction itself and must have been the proximate cause of the loss, (v) the Banker cannot set up either stopped or adoption if his own conduct or negligence has occasioned or contributed to the loss, the well-settled principle being that where one of two innocent parties must suffer for the fraud of a third, that party should suffer whose negligence facilitated the fraud. " Mr. Lahiri has also referred to Bansilal v. Sadasheo (3) A. I. R. 1944 Nagpur 17, and Brahma v. Chartered lank (1) A. I. R. 1956 Cal. 399. Strong reliance was placed by learned Counsel for the plaintiff on the decision of the Judicial Committee in Colonial Bank of Australasia Limited v. Marshall and another (4) 1906 A. C. 559. In this case the two respondents Marshall and Day and one Myers were executors of Ann Mysers. They opened an account with the Appellant Bank at Melbourne. The Bank was informed that cheques would be signed by all of them and their specimen signatures were also sent. The course of business followed by the three executors amongst themselves was this. Myers drew each of the cheques, sent it for signature to Marshall, who signed fist, then to Day, who signed second, and finally added his own signature. Five cheques which as originally drawn by Myers and signed by Marshall and Day were for 10; 2 6s. 4d; 50; 10; and 10. Myers drew each of the cheques, sent it for signature to Marshall, who signed fist, then to Day, who signed second, and finally added his own signature. Five cheques which as originally drawn by Myers and signed by Marshall and Day were for 10; 2 6s. 4d; 50; 10; and 10. But each of the cheques was so written out as to leave space between the left hand margin and the statement of the amount of the cheque, both as given in words and as given in figures, and in that condition it was signed by Marshall and Day. Myers, by acts amounting to simple forgery added words and figures to the left of those originally written in the cheques so turning them apparently into cheques for 110; 32 6s. 4d; 150; 110 and 110. Cheques in their altered forms were presented to and paid by the Bank. Their Lordships of the Judicial Committee accepted the finding of the Lower Court that the Bank could not, by the exercise of ordinary care and caution, have avoided paying the cheques as altered. But their Lordships acceded to the view that "whatever the duty of a customer towards his Banker may be with reference to the drawing of cheques, the mere fact that the cheque is drawn with spaces such that a forger can utilize them for the purpose of forgery is not by itself any violation of that obligations", and that "there was no evidence, to be left to the jury, of negligence on the part of the respondents. " The appeal was dismissed. 9. Lastly Mr. Lahiri contends that assuming that the plaintiff was negligent in putting over and above his usual signature on the cheque two other signatures near the amount in words and figures, the negligent act of the plaintiff was not the proximate cause of the cheque being cashed by the defendant Bank and the plaintiff" is, therefore, entitled to recover the amount claimed: The Punjab National Bank Ltd. v. The Mercantile Bank of India Ltd. (5) 36 Bom. 455. 10. Learned counsel for the defendant Bank has urged that Biswanath Das who at the material time was a Ledger Keeper of the Bank and is now a Passing Clerk, has said that as a Ledger Keeper his duty was to ascertain whether the plaintiff had sufficient funds to his credit. 455. 10. Learned counsel for the defendant Bank has urged that Biswanath Das who at the material time was a Ledger Keeper of the Bank and is now a Passing Clerk, has said that as a Ledger Keeper his duty was to ascertain whether the plaintiff had sufficient funds to his credit. After making a debit entry in the Ledger he sent the cheque to the Passing Clerk Prabhas Chandra Roy. The Passing Clerk was to compare the signatures on the specimen signature cards with the signature or signatures on the cheque. The initials of the Passing Clerk have been identified by Biswanath. The cheque then went to the Officer-in-charge whose initials appeared on the cheque. Last of all the cheque went to the Cash Department for payment. In other words, the cheque in suit, learned counsel contends, passed through a chain of officers and an inference should be drawn that the cheque was dealt with normally according to the practice and business routine of the Bank. Deletion and insertion according to the learned counsel are concurrent. Signature anywhere near deletion and insertion would authenticate both of them. In the alternative cancellation must be supported by a signature in approximate area of the cheque and insertion is supported by the original signature. On the evidence on record the Court ought to come to the conclusion that the Bank took the normal and usual precautions. The plaintiff has said there were gaps left by Santosh both in writing out the amount in figure as well as in words. The plaintiff could have drawn a line or put a series of cross marks to fill up the gaps. The line or the cross marks would not have necessitated the second and third signatures of the plaintiff to support them. These two signatures in the way they have been placed on the cheque, misled the defendant Bank. The plaintiff has said that he had put the other two signatures at the request of Santosh inasmuch as he wrote 'rs. ' before the amount 100' and it was in a different handwriting. He had also put in cross marks to fill up both the blank spaces. The plaintiff has failed to take reasonable precaution to present forgery. The plaintiff has said that he had put the other two signatures at the request of Santosh inasmuch as he wrote 'rs. ' before the amount 100' and it was in a different handwriting. He had also put in cross marks to fill up both the blank spaces. The plaintiff has failed to take reasonable precaution to present forgery. By inserting two other full signatures against the amount of the cheque in words and figures, the plaintiff created the possibility of some fraudulent person taking advantage of these signatures and using them as authentications of alterations fraudulently made. In the circumstances, an stopped arises as against the plaintiff. 11. The arguments of the learned counsel for the defendant are based principally on the decision of the House of Lords in the case of London Joint stock Bank Limited and Macmillan and Arthur (6) 1918 A. C. 777. In this case Macmillan and Arthur had a clerk who was in the habit of preparing and presenting for signature to one of the partners cheques for petty cash of small amounts. The clerk made out a cheque inserting a 2' in the space for figures, with available blanks before and after the numeral, and putting nothing where the sum should appear in words. The cheque was uncrossed and to bearer. The cheque in this form was placed before one of the partners who was hurriedly leaving the office. He failed to notice anything unusual, and being told that it was for petty cash and that two pounds would be sufficient, forthwith signed it. The clerk filled in "one hundred and twenty pounds" in writing, inserted a "1" before the "2" and a "0" after it. He presented the cheque to the Bank received 120/ - and absconded. At page 789 of the report Lord Findlay L. C. observes as follows :- "a cheque drawn by a customer is in point of law a mandate to the Banker to pay the amount according to the tenor of the cheque, it is beyond dispute that the customer is bound to exercise reasonable care to prevent the Banker being misled. At page 789 of the report Lord Findlay L. C. observes as follows :- "a cheque drawn by a customer is in point of law a mandate to the Banker to pay the amount according to the tenor of the cheque, it is beyond dispute that the customer is bound to exercise reasonable care to prevent the Banker being misled. If he draws a cheque in a manner which facilitates fraud, he is guilty of a breach of duty as between himself and the Banker, and he will be responsible to the Banker for any loss sustained by the Banker as a natural and direct consequence of this breach of duty. . . . "as the customer and the Banker are under a contractual relation in this matter it appears obvious that in drawing a cheque the customer is bound to take usual and reasonable precautions to prevent forgery. Crime is, indeed, a very serious matter but every one knows that crime is not uncommon. If the cheque is drawn in such a way as to facilitate or almost to invite an increase in the amount by forgery, if the cheque should get into the hands of a dishonest person, forgery is not a remote but a very natural consequence of negligence of this description. " The decision of the Judicial Committee in Marshall's case was also considered in this case. Lord Findlay, L. C. and Lord Shaw went to the extent of laying down propositions contrary to those of the privy Council. Lord Haldane and Lord Parmoor, however, were not prepared to be parties to the overruling of Marshall's case. In fact, that was not necessary to the decision of the case before the House of Lords. 12. As to the standard of care required of a Banker, Mr. Dutt specially relies on the following observations of Lord Shaw at pages 824 to 825 of the report in Macmillan's case:- "My Lords, it appears to me that a crucial consideration in a case such as the present is this, namely, what is the point of time at which these respective obligations meet. The point of time is the presentation of the cheque. The point of time is the presentation of the cheque. Not until that moment is the Banker confronted with any mandate or order, and in my opinion the responsibility for the cheque and all that has happened to it between its signature and its presentation is not, and ought not to be, laid upon the Banker. If at that moment three things are satisfied namely (i) that the cheque is duly signed, (ii) that its appearance and statement of contents present no reasonable ground for suspicion, and (iii) there are customer's funds available-then the Banker is bound to pay. But if a Banker were bound to enquire in regard to every cheque with a genuine signature what had been the history of that cheque from the time that the customer lifted his pen from it until the time when it was presented at the Bank, Banking business would be greatly impeded or impossible and in my humble view it would be subjected to risks for which there is no foundation in legal principle. " It is unnecessary to discuss propositions of law any further for. my decision in this suit. In the absence of any pronouncement by the Supreme Court the judgment of the Judicial Committee (4) in 1906 A. C. 559 must be taken to be the law in India. The Privy Council held that the mere fact that a cheque was drawn with spaces such that a forger could utilise them for the purpose of forgery, was not by itself any violation of the obligation of a customer towards his Banker. But where there are other elements of negligence on the part of the customer, the customer would surely be stopped from questioning the payment of the cheque by the Banker. Each case must be determined on its own circumstances. On the evidence of the plaintiff I am inclined to agree with the propositions advanced by learned counsel for the defendant Bank. The plaintiff by putting two additional full signatures against the amount of a bearer cheque in words and in figures, by his own act or conduct opened the door to, or created the possibility of, perpetration of forgery of fraudulent alteration of the amount. To my mind the plaintiff's act or conduct in this case can be regarded as the proximate cause of the cheque being cashed for Rs. 6,100/ -. To my mind the plaintiff's act or conduct in this case can be regarded as the proximate cause of the cheque being cashed for Rs. 6,100/ -. When the cheque was presented to the Rank the amount thereof had been altered from Rs. 100/- to Rs. 6,100/- Alterations had been made both in words and in figures but each of these alterations appeared to be supported or authenticated by the full signatures of the plaintiff. If the plaintiff had not inserted those two additional signatures, the result of the suit might have been different. But looking at the cheque it seems to me that the cheque as it stands does show that the amount for which it was originally drawn had been struck out by cross marks and otherwise in both the spaces and a new amount had been inserted both in words and in figures but these alterations are authenticated by the plaintiff's signatures against each of them. By reason of the negligent act or conduct of the plaintiff the defendant bank, in my opinion, must be deemed to have been induced to pay the sum indicated by the apparent tenor of the cheque. These two additional signatures removed, in my view, the possibilities of arousing suspicions in the minds of the officials of the Bank. Biswanath Das and William Martin Bennett the employees of the Bank who have deposed before me, have both stated that in view of these two additional signatures which suggest authentications of alterations, the Bank in its ordinary course of business would be justified in making payment. On a careful consideration of the matter I agree with them. 13. On the facts of this case, therefore, I hold that the plaintiff is stopped from questioning the payment of the cheque far Rs. 6,100/- by reason of the plaintiff's negligence in drawing the cheque. The cheque was paid according to the apparent tenor thereof. Sections 10, 31 and 89 of the Negotiable Instruments Act, 1881. So far as the first two issues raised in this suit are concerned, on the evidence of the plaintiff which I accept I hold that the plaintiff drew a cheque for Rs. 100/- and not Rs. 6,100/- and there was fraudulent alteration of the amount of the question. The answers to the issues are as follows :- 1. No. 2. Yes. 3. Yes. 4. No. 5. Yes. 100/- and not Rs. 6,100/- and there was fraudulent alteration of the amount of the question. The answers to the issues are as follows :- 1. No. 2. Yes. 3. Yes. 4. No. 5. Yes. In the result, therefore, this suit is dismissed. In view of the circumstances of this case each party will bear and pay its own costs of the suit.