S. THANGARAJ, J.

The unsuccessful second defendant/appellant in A. S. No. 73 of 1985 on the file of the Subordinate Judge, Madurai, has filed this second appeal challenging the judgment and decree passed by the said court.

The first respondent/plaintiff filed a suit against defendants Nos. 1 to 3 for recovery of a sum of Rs. 5, 790 with future interest at 18 per cent. per annum on the sum of Rs. 4, 000. The third defendant remained ex parte. The trial court passed a judgment and decree as prayed for with costs against the second and third defendants and dismissed the suit against the first defendant. The second defendant filed A. S. No. 73 of 1985 and the first defendant filed a cross appeal. The first appellate court dismissed the appeal filed by the second defendant and allowed the cross appeal filed by the first defendant. The second defendant has filed the second appeal challenging the judgment and decree of the first appellate court.

The substantial questions of law framed in the second appeal are -

"(1) Whether the appellant is not protected under section 131 of the Negotiable Instruments Act

(2) When the entire negligence and absolute liability is on the first respondent/plaintiff who passed a forged cheque of its own customer, can the appellant (collecting banker) be made liable "

The third defendant one Natarajan opened an S. B. account on January 7, 1978, in the appellant bank by depositing a cash of Rs. 10. Within five days on January 12, 1978, he deposited an order form for collection of Rs. 4, 000 purported to have been issued by the first defendant A. Padma who was having S. B. A/c No. 1517 in the Indian Bank, Town Hall Road Branch, Madurai, the plaintiff/first respondent herein. Then exhibit A-2 order form was presented in the appellant Syndicate Bank, Madurai, who in turn sent the same to the first respondent-bank for collection of the amount. The first respondent-bank honoured exhibit A-2 and paid a sum of Rs. 4, 000 by making deduction from the account of the first defendant. The appellant-bank after collection brought a sum of Rs. 4, 000 into the account of the third defendant who withdrew a sum of Rs. 3, 800 on January 16, 1978. When the fact was made known to the first defendant, she wrote a letter objecting to the deduction a sum of Rs. 4, 000 from her account as she has not issued exhibit A-2. Immediately, the first respondent-bank complained to the Inspector of Police, Crime Branch, Madurai, the copy of which is exhibit A-5. In the meantime, the first respondent-bank issued a notice through its lawyer to the appellant-bank bringing out the facts. The appellant-bank issued a reply notice exhibit A-9 stating that it was done in the usual course of business and there was no negligence on its part. As no action was taken by the police, the first respondent bank filed the present suit.The appellant who is the collecting bank has claimed protection under section 131 of the Negotiable Instruments Act, 1881, and further contended that there was no negligence on their part and on the contrary, it was the first respondent/plaintiff who was negligent in passing the forged cheque of its own customer and the liability is entirely on them only.

When we consider the negligence on the part of the appellant or the first respondent we have to see certain facts. The third respondent Natarajan opened the S. B. Account with the appellant-bank on January 7, 1978 by depositing a cash of Rs. 10 only. Exhibit A-2 is dated January 6, 1978, i.e., one day earlier to the opening of the account by the third respondent in the bank of the appellant. The fact remains that he has deposited the minimum amount of Rs. 10 to open the said account. On January 12, 1978, within five days, he has deposited exhibit A-2 for collection and it is not a cheque as contended by the appellant-bank. A perusal of exhibit A-2 shows that it is only an order form commonly known as withdrawal slip. It has got the necessary characteristic features for a bill of exchange and definitely it is not a cheque. When it was produced within five days and especially when exhibit A-2 was dated January 6, 1978, a day prior to the opening of the account, the appellant-bank without taking into consideration of those facts sent exhibit A-2 for collection to the first respondent bank. The opening of an account is entirely a different transaction and the negligence in collection on the part of the collecting bank is a fact which has to be considered separately. In certain circumstances the opening of an account and the negligence of the collecting bank in collecting the cheque go together. The courts below have considered the same to arrive at the decision.In Commissioner of Taxation v. English, Scottish and Australian Bank 1920 AC 683, it was held that a negligence in collection is not a question of negligence in opening an account, though the circumstances connected with the opening of an account may shed light on the question whether there was negligence in collecting a cheque.

A Division Bench of this court in Bharat Bank Ltd. v. Kishinchand Chellaram, held that if the opening of the account and the deposit of cheque are really part of the same transaction or if the cheque was put into the account so shortly after the opening of the account, it may lead to an inference that the collection was part of the opening of the account, then the negligence on the part of the bank in the opening of the account must be treated as negligence in the matter of realisation of the cheques as well.

This view was further strengthened by a Division Bench decision of this court in Indian Bank v. Catholic Syrian Bank Ltd., 1981 AIR(Mad) 129. Therefore, if the opening of the account may lead to an inference that the collection was part of the opening of the account, in such circumstances, the negligence, if any, on the part of the collecting bank in opening of the account can be also considered.

As already stated, exhibit A-2 was dated one day earlier to the opening of the account and the third respondent has opened the account by depositing Rs. 10 only and he has presented exhibit A-2 order form on the fifth day thereafter. He has not gone to the plaintiffs bank for collection of exhibit A-2 and on the contrary, when we see the circumstance, it will lead to the inference that he has opened S. B. account only for the purpose of encashing exhibit A-2 by making use of the appellant-bank for the purpose of collection. The appellant-bank has examined DW-2 assistant manager to speak about the facts of this case and she has admitted that she never worked in the S. B. account section in the bank. According to the appellant, one Mr. Ramasubramaniam was the assistant manager and K. Thangavelu was the clerk of the S. B. account section of the appellant-bank during the relevant time. Admittedly, both of them were in service of the respondent-bank and for reasons best known to the appellant, they were not examined in the trial court. As held in the decisions cited supra, it is a case where the circumstances connected with the opening of the account by the third respondent would throw sufficient light on the negligence of the appellant-bank.The appellant-bank has tried to shift the responsibility on the first respondent-bank saying that exhibit A-2 was given by the first defendant Padma who had S. B. Account No. 1517 in their bank and they were negligent in passing exhibit A-2 without verifying the facts. Learned counsel for the first respondent has argued that since exhibit A-2 was presented for collection by the appellant-bank which is also having its office at Madurai, they have honoured exhibit A-2 after sufficient scrutiny and paid the amount to the appellant-bank who in turn credited the same in the S. B. account of the third respondent Natarajan. In Indian Overseas Bank v. Industrial Chain Concern, their Lordships have considered such circumstances and held (page 265) :

"Except when the circumstances of a case so justify, in making inquiries, the bankers attitude may be solicitous and not detective."

When we consider the facts and circumstances of the case, it is clear that the first respondent bank by believing exhibit A-2 sent by the appellant-bank for collection paid the amount to them after observing usual procedure and in such circumstances, it cannot be said that they acted negligently and the appellant cannot fasten any liability on them alleging negligence on their part.

A Division Bench of this court in United Commercial Bank Ltd. v. Reliable Hire Purchase Co. (P.) Ltd. held :

"An examination of these and other cases like Babulal Premchand v. Nath Bank Ltd., shows that the question of good faith and negligence is a question of fact in the light of the material in each case. In the instant case, we are of the opinion, in the light of the circumstances mentioned, that the obligation on the part of the second defendant to satisfy itself was not fulfilled. In the circumstances, therefore, we are unable to hold that the second defendant has shown that it acted in good faith and without negligence in making the collection on the basis of the guarantee of the forged endorsements."

In the instant case also, the said decision is applicable to the first respondent-Indian Bank, as they have acted in good faith and without negligence.

This court in United Bank of India v. Central Scientific Supplies Company Ltd., has held that :

"The finding as regards the negligence is a pure question of fact and in the second appeal, it is not possible to reappreciate the evidence."

When the courts below have come to a concurrent finding regarding the question of negligence, which is the question of fact, this court in the second appeal cannot reappreciate the evidence and come to its own conclusion. Their Lordships of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, have held :

"The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex court, or was based upon inadmissible evidence or arrived at without evidence."

In Karnataka Board of Wakf v. Anjman-E-Ismail Madris-Un-Niswan their Lordships of the Supreme Court have held :

"High Courts reversal of the concurrent findings of the trial and appellate courts and substituting its subjective satisfaction in the place of that of the lower courts was wholly unwarranted."

The appellant has claimed protection under section 131 of the Negotiable Instruments Act. According to the appellant, they have acted in good faith and therefore, they are not liable as contemplated under the said section.

In Woodbriar Estate Ltd. v. Catholic Bank of India Ltd., 1958 AIR(Ker) 318, it was held that the onus of proving good faith and absence of negligence as contemplated under section 131 of the Negotiable Instruments Act is on the banker claiming protection under the said section and it is always a question of fact to be proved.The same view was reiterated in Central Bank of India Ltd. v. V. Gopinathan Nair, 1970 AIR(Ker) 74. As we have already seen, the appellant-bank has not let in any evidence absolving them of negligence and they had acted in good faith. As already stated, they have not examined the concerned employees of their bank by name Ramasubramaniam and Thangavelu who were in service in the appellant-bank at the time when witnesses were examined in the trial court. They have no explanation to offer regarding the date of exhibit A-2 which was one day earlier to the opening of the S. B. account by the third respondent Natarajan and especially when the circumstances show that the said account was opened by depositing Rs. 10 for the purpose of encashing exhibit A-2 through the appellant-bank. Exhibit B-5 shows that the third respondent has not transacted with the appellant-bank with such amount. The fact remains that he has withdrawn Rs. 3, 800 on January 16, 1978, out of Rs. 4, 000 collected by the appellant-bank.

Learned counsel for the appellant has relied on a decision of the Supreme Court in Indian Overseas Bank v. Industrial Chain Concern, wherein their Lordships have held (page 269) :

"To enable a bank to avail of the immunity under section 131 as a collecting banker he has to bring himself within the conditions formulated by the section. Otherwise he is left to his common law liability for conversion or for money had and received in the case of the person from whom he took the cheques having no title or defective title. The conditions are, (a) that the banker should act in good faith and without negligence in receiving a payment, that is, in the process of collection; (b) that the banker should receive payment for a customer on behalf of him and thus acting as a mere agent in collection of the cheque and not as an account holder; (c) that the person for whom the banker acts must be his customer; and (d) that the cheque should be one crossed generally or especially to himself. The receipt of payment contemplated by the section is one from the drawee bank. It is settled law that the onus of bringing himself within the section rests on the banker."

When we look into the facts and circumstances of the case, most of the conditions are against the appellant-bank and this decision cannot be taken in favour of the appellant.

Learned counsel for the appellant has argued that exhibit A-2 is defective and it is not at all a cheque. In support of his contention, he has relied on a decision in Bihta Co-op. Development and Cane Marketing Union Ltd. v. Bank of Bihar Ltd., wherein it was held that a forged cheque is not a cheque at all. Learned counsel has pointed out the decision in Indian Overseas Bank v. Industrial Chain Concern, also in support of his contention.

A perusal of exhibit A-2 shows that it is not a cheque, as printed it is only an order form for withdrawal of money which is in the deposit of the customers. The fact that exhibit A-2 is forged was brought to the knowledge of the first respondent-bank on receipt of the letter exhibit A-6 on June 24, 1978, from the first defendant. In the circumstances of the case, as already stated, no liability can be fastened on the first respondent-bank and they had acted in good faith whereas the appellant-bank was negligent and their act cannot be taken as bona fide.

For the foregoing reasons, the substantial questions of law framed in this appeal are decided against the appellant.

In the result, the judgment and decree in A.S. No. 73 of 1985, on the file of the Subordinate Judge, Madurai, are confirmed and S.A. No. 635 of 1988 is dismissed with costs throughout.