IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.4.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.409 of 2010 M/s.Indian Bank Udumalpet Branch Represented by its Chief Manager 130, Palani Road Udumalpet (Now Tiruppur District) .. Appellant/Plaintiff -Vs- 1.Thirumathi V.Jothimani 2.V.Jagadeesh Chandran .. Respondents/Defendants Prayer: This Second Appeal is filed under section 100 of C.P.C against the decree and judgment dated 30.6.2009 of the Principal District Judge, Coimbatore and made in A.S.No.110 of 2006 confirming that of the Subordinate Judge, Udumalpet dated 28.09.2005 made in O.S.No.181 of 2001. For Appellant : Mr.V.Kalyanaraman for M/s.Aiyar and Dolia JUDGMENT The appellant herein viz., Indian Bank, represented by its Chief Manager, Udumalpet Branch, filed the original suit in O.S.No.181 of 2001 on the file of Sub-Court, Udumalpet for the recovery of a sum of Rs.2,22,222.64, the total amount due to the Bank from the respondents/defendants which comprises not only the principal, but also the interest. The claim was made against the respondents/defendants on the ground that Late Velusamy, the husband of the first respondent and the father of the 2nd respondent had committed malpractice while he was employed as a clerk in the plaintiff Bank at its Udumalpet Branch and committed misappropriation to the tune of Rs.6,30,000/- and that though such a larger amount was misappropriated by him, the Bank was not able to account for the alleged misappropriation except to the extent of a sum of Rs.1,50,000/- withdrawn by the said Velusamy on a particular day from his own Savings Bank account. In order to mulct the liability on the widow and son of the said Velusamy, the appellant/plaintiff relied on an alleged letter given by the first respondent on 30.8.1999. 2.The suit was resisted by the respondents contending that the letter was not a genuine one and it was obtained by fraud, https://hcservices.ecourts.gov.in/hcservices/ misrepresentation and undue representation making the first respondent to believe that they were getting her signature for providing compassionate appointment to her due to the death of her husband in harness. The trial Court, after trial, on an appreciation of evidence, both oral and documentary, adduced on either side, came to the conclusion that the above said letter marked as Ex.A3 was not genuine and the same was obtained by fraud, misrepresentation and undue influence as pleaded by the respondents. Based on the said finding, the trial Court dismissed the suit by its judgment and decree dated 28.09.2005. As against the judgment and decree of the trial Court dated 28.09.2005, the appellant/plaintiff Bank preferred an appeal on the file of the District Court, Coimbatore in A.S.No.110 of 2006, which came to be disposed of by the learned Principal District Judge, Coimbatore by the judgment and decree dated 30.6.2009 confirming the decree passed by the trial Court and dismissing the said appeal. Hence, the appellant Bank is before this Court. 3.The submissions made by the learned counsel for the appellant were heard. The material papers placed before the Court in the form of typed-set of papers including the copies of the judgments of the Courts below and the memorandum of appeal were perused. 4.The plaintiff, who proved to be unsuccessful before both the Courts below, is the appellant herein. The suit has been filed for the recovery of the amount allegedly embezzled by Late Velusamy, the husband of the first respondent and father of the second respondent, while he was employed as a clerk in the Udumalpet Branch of plaintiff Bank. Though the appellant would have made an averment in the plaint that the amount misappropriated by the said Velusamy was about Rs.6,30,000/-, admittedly, the appellant Bank was not in a position to collect evidence for the proof of embezzlement of Rs.4,80,000/- out of the said amount and hence, they chose to file the suit for the recovery of a sum of Rs.1,50,000/- alone with interest thereon. According to the appellant/plaintiff, the said sum of Rs.1,50,000/- was misappropriated by Late Velusamy by withdrawing the same from his Savings Bank account when there was no amount to his credit in the said account. But the appellant/plaintiff was not able to produce the account copies in full shape. The reason assigned by the appellant/plaintiff is that Late Velusamy himself tampered with the records and destroyed the ledger pages. When such is the case, this Court wonders how the appellant Bank is making a claim for a sum of Rs.1,50,000/- and interest for that amount, as the said amount had been withdrawn by Late Velusamy on a particular date. There is no concrete evidence to show that the deceased Velusamy did not have such an amount to his credit in his Savings Bank account. The contention of the appellant is based on one withdrawal slip on a particular day. When it is admitted by the appellant Bank itself that the copies of the Savings Bank account produced were only reconstructed and not true copies from the original ledgers, the same shall not be helpful for the appellant Bank to prove its case. On the other hand, the appellant Bank should have led evidence to prove each and every entry found in the said account copy produced as Ex.A10. The same cannot be protected by the provisions of the Bankers' Books Evidence Act 1981. https://hcservices.ecourts.gov.in/hcservices/ 5.Only because the appellant/plaintiff is not in a position to produce the accounts, they have chosen to rely on Ex.A3 letter obtained from the first respondent. It is not known on what basis, the plaintiff has filed the suit against the 2nd respondent when the 2nd respondent has not given any letter undertaking to pay any amount that was due from his father. Therefore, the claim made by the appellant as against the 2nd respondent was rightly held unsustainable by the Courts below. So far as the first respondent is concerned, it is the clear case of the first respondent that Ex.A3 was obtained by fraud, misrepresentation and undue influence. In support of her contention, she herself figured as DW1 and gave clear and cogent evidence to the effect that within 16 days from the date of the death of her husband, the bank officials came to her residence and got her signature promising her to help to get compassionate appointment and that the same was used to create the letter of undertaking by the Bank officials. 6.Admittedly, death of the late Velusamy was not natural and on the other hand he committed suicide on 14.8.1999. According to the plaintiff, complaint against Velusamy was lodged in the police station on 14.8.1999. But no document has been produced to show the date on which such a complaint was given. In fact on the 16th day of his death the signature in Ex.A3 letter seems to have been obtained while the first respondent/first defendant was in her residence and during the period of bereavement. The haste with which the Bank officials acted to get an undertaking from the wife to take the responsibility of making good the alleged loss caused by her husband, will make the contention of the respondents probable and the contention of the appellant/plaintiff improbable . The Courts below have meticulously considered the evidence in this regard adduced on both sides and on such consideration, came to a finding of fact that the document Ex.A3 was not proved to be genuine and on the other hand, was proved to be one brought into existence by fraud misrepresentation and undue influence. The said finding, can at no stretch of imagination be termed perverse. Therefore, this Court comes to the conclusion that there is no scope of interference with the said concurrent finding of the Courts below regarding claim of the appellant in respect of the first respondent also. 7.For all the reasons stated above, this Court comes to the conclusion that there is no defect or infirmity in the judgments of the Courts below and there is no scope for interference in the Second Appeal, as involvement of any substantial question of law is not established. 8.Accordingly, this second appeal is dismissed in limini. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gpa https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal District Judge, Coimbatore 2.Subordinate Judge, Udumalpet 3.The Section Officer, V.R.Section, High Court, Madras. + 1 cc to M/s.Aiyar & Dolia,Advocate,SR.26480 S.A.No.409 of 2010 CK(CO) EM/13.5.10 https://hcservices.ecourts.gov.in/hcservices/