048-NLR-NLR-V-59-BANK-OF-CEYLON-Appellant-and-KULATILLEKE-Respondent.pdf
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13 ASSNTAY AKLE, O.J.—Bank of Ceylon v. JCul-alillckc
1957. Present- :Basnayake, C.J., and Pulle, J.
BANK OF CEYLON, Appellant, and KULAT1LLKKE,
.Respondent
S. C. 90—D. C. Colombo, 16903jM
Cheque*—Crossed cheque—Fraudulent alteration—Liability of collecting banker—•Civil Law Ordinance, s. 3—Bills of Exchange Ordinance, s. 82.
Tho drawer of a crossed '' JCot Negotiable ” cheque the amount of which issubsequently altered fraudulently by a third party is entitled to recover fromthe collecting banker the amount by which the cheque is so fraudulently raised.Tn such a case tho collecting banker cannot claim the benefit of section S2 of theBills of Bxehango Ordinance..
i^k-PPEAL from a judgment of the District Court, Colombo."
S. Nadesan, Q.C., with C. Jtenganathan, and Sirimevan Amerasinghe,for Defendant-Appellant.
K. Choksy, Q.G., with G. T. Sameraicickrame and Miss MaureenSeneviralne, for Substitutcd-PIaintifF Respondent…
Cur. tide. full.
November 14, 1957. Basxavake, C.J.—.
Tile question that arises for decision on this appeal is whether theplaintiff, the drawer of two cheques crossed “ Not Negotiable.5’ anti the
.BASNAYAKE, C.J.—Bank of Ceylon v. Kulatilleke 'IS9
amounts of wliich had been fraudulently raised by Ills clerk, is entitledto recover from the defendant the collecting banker the amount bywhich the cheques had been so fraudulently raised. -'
;i V
The material facts are not in dispute and need not be recapitulated.It would appear from the English cases1 and the work on “Banking”1 2cited by learned counsel for the respondent that if this question hadarisen for decision in England it would on the facts of this case bs decidedagainst the collecting banker. As our law on the subject of a banker’sliability is the same as in England (Section 3 of the Civil Law Ordinance),except where special provision has been made in our law, the defendantwould be liable to pay to the plaintiff the amount that has been paidto the defendant by his bank without his authority.
In the instant case the defendant claims the benefit of section 82 ofour Bills of Exchange Ordinance. The learned District Judge has held ■that the defendant is not entitled to the benefit of that section on theground that a cheque the amount of which is fraudulently raised is not a“ cheque ” within the meaning of the expression hi that section3. Itspeaks of a cheque to which the customer “ has no title or a defectivetitle ”. Those words presuppose that the cheque is a good and validcheque and that the only question is one of title to it. The sectionapplies to cheques which do not have the taint of forgery or fraudulentalteration, a cheque which is the drawer’s cheque in aU respects and whichcarries the authority of the drawer. A cheque which has been alteredfraudulently as in this case by raising the amount is invalid. I agreewith the learned trial Judge that in the instant case the defendant, isnot entitled to the benefit of section S2.
The appeal is dismissed with costs.
Pctlle, J.—I agree.
Appeal dismissed.
1 Slingsby A others v. Westminster Bank Ltd., (1931) L. It., K. B. D. 5S3.
Ogden v. Bcnas, (IS 1-3—7-1) L. It., C. P., Vol. IX, p. 513.-
Fine Arts Society v. Union Bank of London, (1SS6) L. R., X VII, Q. B. D. 705.it I cCombie v. Davies, (1S05) G Bast 53S at 540. •
Lloyds Bank v. The Chartered Bank of India, Australia, A China, (1929) 1 K. B. 40at 55..
Hollins v. Fowler, (1S74) L. R. 7, H. L. 757 at 795.''
Morrison v. London Courtly A Westminster Bank Ltd., (1914) 3 K. B. 364.'
* Paget.on Banking (5th Edit.)..•-■-
3 Slingsby A others v. Westminister Bank Ltd., (1931) L. R., K. B. D. 583 at 586.■Slingsby v. District Bank Ltd., (1932) 1 K.. B. 544 at 559.-‘.
Morrison v. London County A Westminster Bank Ltd., (1914) 3 K. B. 364 ai 382. -Imperial Bank of Canada v. Bank of Hamilton (1903) A. C. 49 (P. C.).'' '