High Court Division
(Civil Appellate Jurisdiction)
Md. Nuruzzaman J
Quazi Reza-ul-Haque J
Abdul Hakim Miah……….
……………Appellant
vs
Agrani Bank, Purana Paltan Branch, Dhaka and others……….Respondents
Judgement
February 7th, 2012.
Evidence Act (1 of 1872)
Section 72
Section 73 of the Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerious and therefore the finding as to the genuineness of Exhibit 14 cannot be questioned only on this account…………..(15)
Ishaque vs Ekramul Haque Chowdhury, 54 DLR (AD) 26 Ref.
Abdus Salam Khan with Md Shahed Razmul Bari, Advocates-For the Appellant.
Md Abdus Samad, Advocate-For the Respondent No.1.
Judgment
Quazi Reza-ul-Hoque J: The instant appeal was preferred by the defendant-appellant against the judgment and decree dated 23-2-1998 (decree signed on 2-8-1998) passed by the learned Subordinate Judge, Commercial Court No.2, Dhaka in Money Suit No. 99 of 1999 decreeing the suit.
2. The facts, in short as has been stated in the plaint is that the Defendant NO.1 opened an account with the plaintiff Bank being Current Account No. 1362 and approached the defendant No.2, the then Manger of the plaintiff Bank to provide him with some loan facilities. The Defendant No.2 most illegally and unauthorised allowed temporary overdraft facilities to the Defendant No.1, without obtaining any sanction from the head office of the bank and also without obtaining necessary papers and documents from the defenant No.1 as a pre-requisite to secure the repayment.
3. The defendant No.1 utilized the said over draft facilities from time to time, the first being on 7-2-78 and the last being on 31-5-78. The Defendant No.1 deposited different amounts on different dates in the said account towards liquidating its dues to the plantiff bank and the last deposit being an amount of Taka 1,00,000 on 9-11-79 and since then he did not deposit any amount with the plaintiff bank towards liquidating the outstanding dues. A legal Notice was issued to the Defendant No.1 on 24-8-81 requesting him to adjust the outstanding liabilities in the said account but he did not pay any amount towards adjusting the outstanding dues of the plaintiff bank until filing of the case, as such, the said account showed a debit balance of Taka 2,33,692 as on 24-10-82 (interest charged up to 23-10-82) against his account. As the Defendant abstained from paying the outstanding dues against the said account, so the plaintiff bank instituted the suit.
4. The defendant appellant contested the suit by filing written statement contending that he availed the first over-draft facility on 7-2-1978 and through subsequent withdrawals lastly on 31-5-1978 he withdraw Taka 4,75,000 through 5 cheques and paid back Taka 3,44,500 through 16 deposit slips, the last one on 9-11-1979, which this defendant-appellant disputed having not been signed and deposited by him and thereby raised the plea of limitation that the suit is not maintainable as being barred by limitation. The calculation of the un-paid amount has been miscalculated and he also contended that he did not receive any legal notice as had been claimed by the plaintiff opposite party to have been sent on 24-8-1991. The defendant-appellant further contended that the last amount he paid against the over-draft default was for an amount of Taka 500, which was on 13-10-1975.
5. Both the parties adduced one witness each in support of their respective claims.
6. The PW 1, Abdul Karim, the branch Manager of the respondent petitioner bank exhibited all the cheques through which the defendant appellant withdraw the said amount of OD benefits and the deposit slips through which he paid Taka 3,45,000 having been signed by the petitioner himself. The outstanding amount until 23-10-1982 with interest stood at Taka 2,33,609, payable by the petitioner defendant.
7. The DW 1, the petitioner defendant himself conceded to have availed the over draft facilities and did not controvert any of the cheques of deposit except the deposit slip dated 9-7-1999 and also have conceded as defaulter of payment amounting to Taka 2,33,692.
8. Mr Abdus Salam Khan with Mr Md Shahed Razmul Bari, the learned Advocates appearing for the appellant submitted that the defendant No.1 made the last payment to the Bank on 13-10-1979 and the suit was field on 4-11-1982 and since then the defendant No.1 have specifically stated it in his deposition, which remained unchallenged and thus the suit was barred by limitation but the learned Sub-ordinate Judge, Commercial Court No.2 disregarding this material evidence erroneously held that the suit was not barred by limitation and arbitrarily decreed the suit, as such his decision was not in accordance with law.
9. He further submitted that the defendant No.1 denied that he did not deposit Taka.1,000 on 9-11-1979 and the learned Judge of the Commercial Court No. 2 also found that the word “Md” before the name of the defendant No. 1 was penned through and thus it was deposited by the bank itself to save limitation, yet he opined that it vas deposited by the defendant No. I and on such wrong findings, illegally decreed the suit, and as such, the decision is contrary to law.
10. Mr Khan further submitted that without arriving at a definite conclusion by comparing the available signature of the defendant No. 1 available in other documents. i.e, deposit slip with the deposit slip dated 9-11-1979, the Court below abruptly held that it was the handwriting of the defendant No. 1 very hastily and without applying his judicious mind illegally decreed the suit.
11. He again submitted that the Court below should have held that the deposit of Taka 1,000 dated 9-11-1979 was fraudulently deposited by the plaintiff Bank to save limitation and for not doing so his decision is not done according to law.
12. He again submitted that the Court below without referring to the balance amount and the principal loan amount and the interest accrued thereon for the specific period arbitrarily decreed the suit for Taka 2,33,692 as such, the decision is arbitrary and not done according to law and thus it is liable to be set-aside.
13. Mr Md Abdus Samad, the learned Advocate appearing for the respondent submitted that the learned judge of the trial Court sifted through all the material evidence, both oral and documentary and reached its conclusion finding the accused guilty of the offence complained of in the plaint. There is no room to shift away from the verdict of the trial Court as no stone remained unturned and therefore the impugned judgment calls for no interference by this Court.
14. On perusal of the petition, the impugned judgment, L/C record containing the plaint, written statements, witnesses and on perusal of submissions of the learned Advocates of both the parties, it is found that the sole contention of the defendant is the date of deposit of the last amount dated 13-11-1979, which took us on scrutiny of the original deposit slips and the cheques having been signed by the petitioner-defendant himself, looks very flimsy. The defendant petitioner claimed not to have signed the deposit slip dated 13-11-1979, which on its scrutiny with the cheques through which he withdraw the money and the other deposit slips found different and clearly reflects his own accord of using different signatures. He himself claimed to have made last deposit slips, which in fact were un-signed and all other 15 deposit slips were found by the trial Judge as being signed by the same person.
15. In, Ishaque vs Ekramul Haque Chowdhury, 54 DLR (AD) 26, it was observed inter alia that:
It is well-settled that section 73 of the Evidence Act permits the Court to make comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous and therefore the finding as to the genuineness of Exhibit 14 cannot be questioned only on this account.
16. So, the genuiness of signature may be scrutinised by the trial Judge himself and we also fell that unless the signatures in bare eyes in normal scrutiny are found different or anomalous, or the contender claims for an expert for the same, the opinion and conclusion drawn by the trial Judge is conclusive. Since the basis of contention was limitation, as such once the falsity of the deposit slip dated 9-11-1979 stood against the defendant, as such the ground of limitation also falls through. And as regards to the calculation of the payable amount of the over-draft facility, it has also been found that the petitioner-defendant himself mis-calculated without taking the payables with interest in account, and as such, we do not find any merit in the appeal.
17. In the result, the appeal is dismissed. The judgment and decree dated 23-2-1998 (decree signed on 2-8-1998) passed by Sub-Ordinate Judge, Commercial Court No.2 Dhaka, in Money Suit No. 99 or 1990 is affirmed.
The order of stay granted earlier stand vacated. Office is directed to send a copy of this judgment to the concerned Court below along with the LCR immediately.
