Re: Legal Opinion regarding alleged fraudulent collection of Tk. 15,02,000.00 (Taka fifteen lac two thousand) only through Bangladesh Bank Clearing House and return of the said amount.
We have perused the contents of your letter dated 19.02.2006 on the above subject matter. It appears from your letter that Mr. x (the “customer”) opened a Current Account being No. 3130 with the Bank 1, ………….. (the “BANK 1”) under the name and style of his proprietor concern Company 1. The customer deposited 32 FDDs (the “DDs”) amounting to Tk. 15,50,000.00 (Taka fifteen lac fifty thousand only) drawn on Bank 2, …………… (the “Bank 2”). Upon receipt of the DDs, in good faith and without any negligence, BANK 1 placed the same in the Clearing House. Subsequently, the DDs were duly honoured by Bank 2 and the customer withdrew the DDs amount from his account on different dates. Thereafter, BANK 1 received a letter dated 07.02.2006 from the Bank 2 alleging fraudulent payment against 31 DDs of Tk. 15, 02,000.00 out of 32 DDs. Now the matter has been referred to us and we are requested to provide legal opinion regarding the aforesaid matter.
Section 131 & 131A of the Negotiable Instruments Act, 1881 (the “Act”) which deals with non-liability of banker receiving payment of cheque. The sections are quoted below:
“131. Non-liability of banker receiving payment of Cheque – Subject to the provisions of this Act relating to cheques crossed “account payee”, where a banker in good faith and without negligence receives payment for a customer of a cheque crossed generally or specially to himself, and the customer has no title or a defective title thereto, the banker shall not incur any liability to the true owner of the cheque by reason only of having received such payment.
Explanation– A banker receives payment of a crossed cheque for a customer within the meaning of this section notwithstanding that he credit his customer’s account with the amount of the cheque before receiving payment thereof.
131A. Application of Chapter to drafts- The provisions of this Chapter shall apply to any draft, as defined in section 85A, as if the draft were a cheque.”
Since the BANK 1 placed the DDs in question in the clearing house without any negligence and the same were honoured by the Bank 2 and as such BANK 1 received payment for a customer on his behalf and thus acted as a mere agent in collection of the amount of the said DDs. It is well settled that a bankers draft is a Bill of Exchange and as such it is negotiable instrument. Moreover, the customer withdrew the DDs amount from his account on or before 07.02.2006 when the Bank 2 informed the alleged fraudulent payment. In view of the above facts and circumstances, we are of the opinion that BANK 1 as a collecting bank comes within the purview of section 131 of the Act and is legally entitled to be protected under said section.
If you have any further query, please do not hesitate to contact the undersigned.
For: “The Lawyers & Jurists”