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2006 DIGILAW 390 (UTT)

STATE BANK OF INDIA v. PAWAN KUMAR

2006-07-28

IRSHAD HUSSAIN, LUXMI SINGH, SURENDRA KUMAR

body2006
ORDER Mr. Justice Irshad Hussain, President – This appeal arises out of impugned order dated 07.11.2003 passed by the District Forum, Dehradun allowing the complaint filed by the respondent and directing the appellant - bank either to pay in cash or to deposit a sum of Rs. 9,000/- in the bank account of the respondent together with interest @ 9% p.a. w.e.f. 24.07.1996 and also to pay Rs. 2,000/- as damages for mental agony and further sum of Rs. 1,000/- as cost. 2. The point for consideration in this appeal is whether the finding of the District Forum that the complainant had not withdrawn sum of Rs. 9,000/- from his Saving Bank Account No. 1551 with the appellant - bank on 24.07.1996 is not based on proper and fair appraisal of the material on record and the broad aspects of the case and is incorrect. 3. Complainant came up with an allegation that sum of Rs. 9,000/- by presentation of any withdrawal form had not been withdrawn by him on 24.07.1996 from his Saving Bank Account No. 1551 with the appellant - bank. Complainant did not admit his signatures on the disputed withdrawal form (Paper No. 26) and questioned the genuineness of his alleged signatures on it. Appellant - bank got the complainant’s admitted signatures on another withdrawal form with the bank and also on the account opening form (Paper Nos. 24 & 25) compared with the signatures on the disputed withdrawal form (Paper No. 26) by a handwriting expert Sh. Vinod Kumar Aggarwal and filed the xerox copy of the report on record of the District Forum. Complainant has, however, not filed any expert report to controvert the opinion of the expert of the appellant - bank. After filing their respective evidence, parties failed to appear before the District Forum on 27.10.2003 to put forward their arguments. The District Forum examined the material on record and passed the impugned order in favour of the complainant. It observed that it was unusual for the bank to have permitted withdrawal of Rs. After filing their respective evidence, parties failed to appear before the District Forum on 27.10.2003 to put forward their arguments. The District Forum examined the material on record and passed the impugned order in favour of the complainant. It observed that it was unusual for the bank to have permitted withdrawal of Rs. 9,000/- despite the fact that passbook was not produced with the withdrawal form on 24.07.1996 although withdrawal form carry a condition that “withdrawal form is not a cheque, payment will be refused if the passbook is not produced with this form” and that in a situation like this, the claim of the complainant that he had not presented any withdrawal form and had not received sum of Rs. 9,000/- from the bank on 24.07.1996 appear acceptable. The opinion of the handwriting expert of the appellant - bank was not accepted on the ground that only a xerox copy of the expert report was filed and that too was not made annexure of any affidavit of the handwriting expert. Therefore, no reliance on the opinion of the handwriting expert was placed by the District Forum and finding favour with the complainant’s case, the complaint was allowed in above terms. 4. Learned Counsel for the appellant persuasively argued that the condition referred thereto with reference to presentation of passbook with the withdrawal form for facilitating withdrawal of the money is by way of precautionary measure and in case of doubt as to the identity of the accountholder, the withdrawal of money may be refused if the passbook is not produced and that the condition cannot be read to mean that in every case when passbook is not produced, the payment on withdrawal form shall had to be refused by the appellant - bank. Learned Counsel further submitted that in this case there was no doubt about the identity of the complainant, the accountholder and the appellant - bank was fully authorized to permit withdrawal of sum of Rs. 9,000/- to the complainant on 24.07.1996 on the basis of the withdrawal form despite the fact that at that time the complainant had not produced his passbook of the bank. 9,000/- to the complainant on 24.07.1996 on the basis of the withdrawal form despite the fact that at that time the complainant had not produced his passbook of the bank. He also urged that District Forum by ignoring these peculiar aspects of the matter came to draw an incorrect inference that when the passbook was not produced, there was no occasion for the appellant - bank to permit withdrawal sum of Rs. 9,000/- to the complainant on 24.07.1996. On the other hand, Learned Counsel for the complainant supported the inference drawn by the District Forum by arguing that the appellant - bank was supposed to observe the measure of precaution and when the passbook was admittedly not produced on 24.07.1996 with the withdrawal form, the District Forum was justified in coming to the conclusion that sum of Rs. 9,000/- was not withdrawn by the complainant on presentation of any withdrawal form on that day. 5. Having carefully considered the respective submission of the Learned Counsel in the light of the material on record, it need to be stated at the outset that the submissions of the Learned Counsel for the appellant have force and the inference drawn by the District Forum cannot be sustained. The reason being that undoubtedly the precautionary condition referred above and printed on the withdrawal form do not give a mandate to refuse payment of money on failure of production of passbook with the withdrawal form and that the bank was well within its right to honour the withdrawal form and make the payment asked for by the accountholder whose identity was being duly ascertained and not doubted on 24.07.1996. Therefore, merely on the basis of non-production of the passbook with the withdrawal form, an inference could not have been drawn that the complainant himself had not presented the withdrawal form (Paper No. 26) with his signatures and withdrew sum of Rs. 9,000/- from the bank against his Saving Bank Account on 24.07.1996. It need to be stated that complainant had his Saving Bank Account with a small branch of the bank at Landour Cantt., Mussoorie and as such it was expected that Cash Officer of the branch Sh. 9,000/- from the bank against his Saving Bank Account on 24.07.1996. It need to be stated that complainant had his Saving Bank Account with a small branch of the bank at Landour Cantt., Mussoorie and as such it was expected that Cash Officer of the branch Sh. Raj Kumar Verma knew the complainant very well and asked the Counter Clerk to permit withdrawal of the money when complainant pleaded with him that he was in urgent need of money and shall bring the passbook on some other day and shall get the entry incorporated in his passbook. A clear averment to this effect had been made by Sh. Raj Kumar Verma in his affidavit (Paper Nos. 22 to 22) and it was further averred that the complainant was also then identified by Sh. Sanjay Kumar, the canteen boy of the bank at that time. Sh. Sanjay Kumar had also filed his affidavit (Paper Nos. 27 & 28) to corroborate the claim made by Sh. Raj Kumar Verma that sum of Rs. 9,000/- was withdrawn by the complainant on 24.07.1996 on presentation of withdrawal form (Paper No. 26) without production of the passbook and that at that time the complainant had also signed on the reverse of the withdrawal form in acknowledgement of receipt of the said sum of Rs. 9,000/- on that day. 6. In the face of reliable evidence of these witnesses, the District Forum was not justified in coming to the conclusion that since the passbook was not produced with the withdrawal form, the claim of the complainant that he had not withdrawn sum of Rs. 9,000/- on 24.07.1996 on presentation of withdrawal form warrant acceptance. As observed above, non-production of passbook with the withdrawal form could not be taken to discard the otherwise reliable evidence adduced in the case by the appellant - bank. 7. In addition to the above evidence which clearly rebut the interested averment in the affidavit by the complainant Sh. Pawan Kumar, there is also supporting evidence of the appellant - bank in the form of handwriting expert’s report dated 17.05.2002 (Paper Nos. 29 to 35). The original report was placed on record in the appeal and the report had been proved and its annexures duly connected by the clear and categorical averments in the affidavit of the expert Sh. Vinod Kumar Aggarwal (Paper Nos. 40 & 41). 29 to 35). The original report was placed on record in the appeal and the report had been proved and its annexures duly connected by the clear and categorical averments in the affidavit of the expert Sh. Vinod Kumar Aggarwal (Paper Nos. 40 & 41). He affirmed and proved his opinion that the signatures on the disputed withdrawal form (Paper No. 26) and signatures on the admitted withdrawal form and account opening form (Paper Nos. 24 & 25) are of one and the same person (Pawan). The District Forum instead of disbelieving the handwriting expert’s report could have asked the appellant - bank to place on record before it the original report of the expert but it failed to exercise the jurisdiction vested in it and proceeded to decide the case and thereby ignored the import and merit of the expert’s evidence. The science of identification of handwriting is well established as aid to the discovery of truth before courts or adjudicatory forums. The opinion of expert as to identity of handwriting is a relevant fact. The averment of the affidavit of the expert reveal that he has acquired a special experience and knowledge about handwriting comparison scientifically and has an experience of about 33-34 years in this field. He had examined the documents pertaining to cases pending in the courts, govt. offices and banks numbering more than six thousand. Therefore, the expert of the appellant - bank is a competent witness and his evidence need proper consideration in regard to the dispute about the genuineness of the signatures of the complainant on the disputed withdrawal form. We have gone through the report of the expert and observed that the expert has made keen observations of the similarities in the formation of the letters of the signatures and placed all the data on which he based his opinion referred above. We have, therefore, no cogent reason to dispute correctness of his opinion that the signatures on the disputes withdrawal form (Paper No. 26) and others on the admitted withdrawal form and account opening form (Paper Nos. 24 & 25) are of one and the same person (Pawan). 8. We have, therefore, no cogent reason to dispute correctness of his opinion that the signatures on the disputes withdrawal form (Paper No. 26) and others on the admitted withdrawal form and account opening form (Paper Nos. 24 & 25) are of one and the same person (Pawan). 8. To discredit the testimony of the expert and his opinion, Learned Counsel for the complainant submitted that though the specimen signatures of the complainant were taken on 26.04.2002 before the District Forum but the same were not sent for comparison with the disputed signatures and designedly the other documents were selected for comparison of the signatures of the complainant and that in a situation like this, it would not be safe to place reliance on the opinion of the handwriting expert. In our view, the submission carry no conviction because the admitted signatures on withdrawal form and account opening form (Paper Nos. 24 & 25) were available and, therefore, there was absolutely no illegality in having the disputed signatures of the complainant compared with these admitted signatures on these forms. 9. Learned Counsel for the complainant also submitted that it will be in the fitness of things that the State Commission may itself prefer to obtain report of Govt. expert about the genuineness of the signatures of the complainant on the disputed withdrawal form so that the veracity of the opinion of the expert of the appellant - bank may be properly considered. We gave our thoughtful consideration to the submission and considering the well reasoned and considered report of the expert of the appellant - bank as referred above, we felt no need to have a report of Govt. expert and there can be no gain saying that the expert evidence in the case fully corroborate the other evidence on record which prove that the disputed withdrawal form bear signatures of the complainant (Pawan) who had also signed it on its reverse in acknowledgement of receipt of sum of Rs. 9,000/- from the bank on 24.07.1996. 10. For the reasons aforesaid and the evidence on record, we are convinced that the conclusion of the District Forum that the complainant had not withdrawn sum of Rs. 9,000/- from his Saving Bank Account No. 1551 on 24.07.1996 is not based on proper and fair appraisal of the evidence on record and the peculiar circumstances of the case and the same is therefore incorrect. 9,000/- from his Saving Bank Account No. 1551 on 24.07.1996 is not based on proper and fair appraisal of the evidence on record and the peculiar circumstances of the case and the same is therefore incorrect. The impugned order of the District Forum is, therefore, cannot be legally maintained and is liable to be set aside. 11. Appeal is allowed. Order dated 07.11.2003 of the District Forum is set aside and the complaint is dismissed. In the circumstances of the case, costs made easy.