This is a second appeal from the judgment and decree of the learned Special Sub-Judge, Assam Valley Districts, dated 30th January 1945, by which he set aside the judgment and decree of the trial Court which had dis­missed the plaintiff's suit against defendants 1 and 2 with costs while decreeing the suit for Rs. 1000 against defendants 3 and 4. On appeal by the plaintiff, the lower appellate Court decreedthe suit against defendants 1 and 2 also with coats. The facts material to the appeal are these. [2] It appears that appellant-defendant 2, Jethmal Ganeshmal, a firm, drew a cheque in the sum of Rs. 1000 upon the Tripura Modern Bank, defendant 1 in favour of defendant 3 one Lohit, who endorsed the cheque in favour of the plaintiff for consideration. When the plaintiff presented the cheque on the drawee bank, it dishonoured the cheque on the strength of in structions received in that behalf from the drawer Jethmal Ganeshmal. The plaintiff in­formed defendants 2 and 3 of the dishonour of the cheque but they took no notice of the dis­honour and the plaintiff instituted the present suit. Defendants 3 and 4 are alleged to be father and son and parties. [3] The case of the appellant was that defen­dant 3 Lohit who had contracted to supply paddy had taken the cheque from him for the price of the paddy but that as he failed to supply the paddy, he instructed the drawee bank to dis­honour the cheque. The drawee bank alleged that they had dishonoured the cheque on instruc­tions received from the drawer. The drawee bank admitted that the drawer had an account with the drawee bank. Defendants 3 and 4 denied the plaintiff's claim. On the pleadings the trial Court framed the following issues. The liability of defendant 4 does not appear to have been put in issue. 1. Whether the plaintiff has any cause of action against tbe defendant ? 2. Whether the plaintiff is entitled to present or cash cheque in question ? 3. Whether defendant 3 broke the contract as alleged in the written statement of defendant 2 ? 4. Whether defendant 3 endorsed the cheque in favour of the plaintiff ? 5. To what relief, if any, the parties are entitled ? 2. Whether the plaintiff is entitled to present or cash cheque in question ? 3. Whether defendant 3 broke the contract as alleged in the written statement of defendant 2 ? 4. Whether defendant 3 endorsed the cheque in favour of the plaintiff ? 5. To what relief, if any, the parties are entitled ? [4] The trial Court took the view that defen­dant 2 who drew the cheque had power to countermand payment and was therefore not liable. The trial Court also held that defendant 1, the drawee bank, was not liable because it bad acted in accordance with the instructions of defendant 2, and accordingly dismissed the plain, tiff's suit against defendants 1 and 2. There were no cross-objections filed by defendants 3 and 4 against the judgment and decree of the trial Court and the question of their liability does not arise. The lower appellate Court decreed the suit against defendants 1 and 2 in view of the provi­sions of Ss. 36 and 37, Negotiable Instruments Act. [5] The drawee bank had not appealed. Mr. Sen for the appellant-defendant 2 has contended that the cheque drawn in favour of defendant 3 was obtained by him by fraud within the meaning of S. 17, Contract Act. But the only allegation inthe written statement of the appellant was that the payee, defendant 3, had committed a breach of the contract for the supply of paddy. We are unable to accept the view that every breach of, contract amounts to a fraud within the meaning: of S. 17, Contract Act. On the facts before us it is open to the appellant to contend that there was, a failure of consideration undertaken by defen­dant 3. But the instrument having been trans­ferred the rights of the parties to the instrument would be governed by the provisions of S. 43, Negotiable Instruments Act. The plaintiff being a holder in due course would be entitled to re­cover the amount from the appellant. We think the lower appellate Court was right in decreeing the suit against the appellant. [6] The result is that the appeal is dismissed with costs. Appeal dismissed.