( 1 ) THIS revision petition is directed against an order passed by the First Munsiff, Bangalore, in O. S. No. 6 of 1954 on his file, rejecting I. A. No. I filed by the present petitioner and refusing to recast the issues raised in the case. The facts necessary for the present purpose briefly stated are : the petitioner is a customer of the respondent bank and has a current deposit account in its Head Office at Bangalore. By a resolution passed by the Board of Directors of the petitioner Bank sri S. S. Ramamurthy, the President of the Bank, had been authorised to operate on the account. A copy of the resolution along with the specimen signature of the President had also been sent to the respondent. The petitioner was drawing cheques and was operating on the current account. On 19-11-1952 sri S. S. Ramamurthy, the President of the' petitioner Bank, drew a cheque for a sum of Rs. 4,000 against the current account and sent it for collection through the Canara Banking Corporation ltd. , Virajpet. On 24-11-1952, the Canara Banking Corporation, limited, informed the present petitioner that the cheque issued by him had been returned on the ground that the funds were not sufficient to meet the demand. According to the present petitioner the amount in the account of the Petitioner Bank on the date of the issue of the cheque was Rs. 5,885-0-5. The petitioner on being informed by the collecting Bank that the cheque had been returned to him dishonoured wrote a letter to the respondent on 24-11-1952 asking for clarification and received a reply from the respondent to the effect that he (the petitioner) had obviously failed to take into account two sums of Rs. 2,300 and Rs. 2,000 under cheques Nos. 275563 and 275562 respectively drawn in favour of one Ramiah Setty and cashed on 17-10-1952 and 9-10-1952 respectively. The petitioner wrote back to the respondent saying that he had not issued the cheques to Ramiah setty and that the two cheques cashed in the respondent Bank were forged ones and as such the respondent had no right to debit these sums of money to his account. Fortunately for the parties, the cheque bearing No. 275562 had been endorsed in favour of messrs. Fortunately for the parties, the cheque bearing No. 275562 had been endorsed in favour of messrs. Remington Rand of India, Ltd. , Madras, by Ramiah Setty and the cheque had been presented by the said Company on 9-10-1952 for collection and had not been paid to Ramiah Setty by the Remington Rand Company. On being informed of the fraud Messrs. Remington Rand of India, Ltd. , paid the amount collected by them to the present petitioner. The petitioner called upon the respondent to credit the sum of Rs. 2,300 that had been paid on the forged cheque to Eamiah Setty to his account. The respondent refused to credit the amount and contended that since the cheque had been paid in the usual course of business, the petitioner was not entitled to contend that the same was forged and that he was not liable to accept the loss on that account. The respondent repudiated the allegations of the petitioner that he had negligently and carelessly paid the amount. Then the petitioner filed a suit for recovery of a sum of Rs. 2,300 covered by the cheque alleged to have been drawn by him in favour of Ramiah setty, which according to him was a forged one, with damages computed at 6 per cent per annum. The respondent resisted the claim of the petitioner and contended amongst other things that the payment of the amount by the Bank was entirely due to the negligence of the petitioner and that since the payment had been made in due course, the defendant was not liable to make good the amount. The learned Munsiff framed several issues on the pleadings of the parties. The first issue was as follows : "did the defendant act negligently and carelessly in paying the amount of Rs. 2,300 on cheque No. 275563 ? ". The fourth issue was : "had the cheque been forged by a third party ? ". ( 2 ) THE present petitioner filed an application under Order XIV rule 5 read with Section 151 of the Code of Civil Procedure for recasting the above two issues particularly the first issue and to throw the burden on the respondent to prove that the cheque was a genuine one and the Bank did not act negligently and carelessly in paying the amount covered by it. It was urged for the petitioner that the liability of the respondent was absolute and not moulded by any contributory negligence on the part of any customer, who had opened an account with it and that unless the respondent was able to prove that the cheque in question was a genuine one the Bank could not escape the liability. The respondent opposed the application. The learned Munsiff was of the opinion that since the petitioner alleged that the respondent had paid the amount to the drawee negligently and carelessly and without properly verifying as to whether the cheque was a genuine one or a forged one and the respondent had denied those allegations, the burden of proving that the cheque in question was not a genuine one and that the respondent had acted negligently and carelessly in paying the amount was on the petitioner and rejected i. A. No. I. It is against this decision that the present petition has been filed by the petitioner. ( 3 ) IT was contended by Sri V. Krishnamurthy, the learned counsel for the petitioner, that under Section 85 of the Negotiable instruments Act, once it is alleged that the cheque honoured by the Bank is a forged one, the burden of proving that the cheque on which the payment was made by the Bank is a genuine one and that the employees of the Bank did not act negligently or carelessly in making such payment, is on the Bank. He further contended that the liability of the Bank was absolute and was not moulded by any contributory negligence on the part of its customers and as such the learned Munsiff was not justified in throwing the burden of proving that the cheque was not a genuine one and that the respondent acted negligently and carelessly in paying the amount, on the petitioner. The relationship of a banker and a customer is that of a debtor and a creditor. The banker is under an obligation to honour his customer's cheques if there is sufficient amount at his credit. A cheque drawn by a customer is an order or mandate to the Banker to make the payment, provided it is genuine. The Banker for the purpose of ascertaining the genuineness is bound to verify the cheque with all care. The banker is under an obligation to honour his customer's cheques if there is sufficient amount at his credit. A cheque drawn by a customer is an order or mandate to the Banker to make the payment, provided it is genuine. The Banker for the purpose of ascertaining the genuineness is bound to verify the cheque with all care. Payments made on cheques duly drawn and presented by or on behalf of the customer will discharge the liability of the bank to the extent of the sums of money covered by those cheques. It cannot be and it is not disputed that when a customer draws a cheque and the same is presented to a Bank and the amount paid thereon, the Bank is entitled to charge the payment against its customer and the liability of the Bank to that extent stands discharged. But the question for consideration is whether a payment made by a Bank on a cheque which is alleged to have been forged and not genuine enables a Banker to contend that he can charge the payment against its customer. In other words, whether a payment made by a Banker on a forged cheque discharges the liability of a Banker ? This point is covered by the several authorities. Dealing with a similar proposition their lordships of the Eangoon High Court held in Ahmed Moola dawood and another v. S. R. M. M. C. T. Pereinan Chetty Firm, A. I. R. 1924 Bang. 264, that it would not be sufficient to make a customer bear the loss which resulted from the forgery of a cheque stolen from his cheque book and the fraudulent use of his stamps, if the Bankers cashed the forged cheques and have not been able to establish such negligence as would in law render the customers liable and that in order to make a customer liable for the loss, the neglect on his part must be in or intimately connected with the transaction itself and must have been the proximate cause of the loss. The several decisions of the Privy Council and other Courts in England relating to the liability of the Bankers who make payments on forged cheques were all reviewed by their lordships in the above said case. Almost to the same effect is pirbhu Dayal v. The Jwala Bank, A. I. R. 1938 All. 374. The several decisions of the Privy Council and other Courts in England relating to the liability of the Bankers who make payments on forged cheques were all reviewed by their lordships in the above said case. Almost to the same effect is pirbhu Dayal v. The Jwala Bank, A. I. R. 1938 All. 374. In that case a cheque leaf had been stolen from the plaintiff's possession and had been forged and amount drawn on presenting it to the Banker. It was held in that case that it is the duty of the employees of the bank to be able to identify the signatures of their customers and if they fail to discharge their duty and thereby suffer loss, there is no reason why the customer should make good that loss. It was further held that the money paid by the servant of the Bank under a forged cheque cannot be debited to the customer merely on the ground that the customer was negligent to this extent that he allowed his cheque book to remain unlocked. The following passages in the judgment will clearly indicate that the burden of establishing that the Banker or its employees did not act negligently or carelessly in making the payment is entirely on the Banker. ( 4 ) "in the present case there is a finding that the cheque in question was forged and the signature on the cheque bore no resemblance to the admitted signatures of the plaintiff. It was, therefore, incumbent on the defendant bank to show affirmatively that the servants of the bank were misled by some negligence on the part of the plaintiff which led them to cash the cheque. In Bhagwan Das v Creet, I. L. R. 31 Cal. 249 it was held that when a Banker makes a payment on a forged cheque, he cannot make the customer liable except on the ground of negligence imputable to the customer. The only negligence imputed to the customer in the present case is that he did not take sufficient care of the cheque book and because of that some one was in a position to steal a form fiom the cheque book which was utilised in drawing money from the defendant bank. In Bank of Ireland v. Trustees of Evans Charities, (1855) 5 H. L. C. 389 at page 410 Mr. In Bank of Ireland v. Trustees of Evans Charities, (1855) 5 H. L. C. 389 at page 410 Mr. Baron Parke observes as follows: 'if such negligence could disentitle the plaintiffs, to what extent it is to go ? If a man should lose his cheque book or neglect to lock the desk in which it is kept, and a servant or stranger should take it up, it is impossible in our opinion to contend that a banker paying his forged cheque would be entitled to charge his customer with that payment. Would it be contended that, if he kept his goods so negligently that a servant took them and sold them, he must be considered as having concurred in the sale, and so be disentitled to sue for their conversion on a demand and refusal ? It is clear, we think, that the negligence in the present case, if there be any, is much too remote to affect the transfer itself, and to cause the trustees to be parties to misleading the bank in making the transfer on the forged power of attorney". ( 5 ) HIS Lordship farther quoted with approval the following passage from Beven on Negligence :"the bankers obligation is to honour his customer's cheque. To that end he is bound to know his customer's handwriting. If in any way he is deceived without the instrumentality of his customer, he must himself abide the loss". ( 6 ) IN London Joint Stock Bank, Ltd. v. Macmillan and arthur, 1918 A. C. 777, their Lordships dealing with a similar question held that unless a banker proves that contributory negligence of the customer was proximately responsible for the payment of the cheque by a Bank, it is the Bank that should bear the loss incurred on account of the payment made on a forged cheque. ( 7 ) HIS Lordship Lord Shaw of Dunfermline in the course of his judgment observed at page 823 as follows :" A Cheque with the signature of a customer forged is not the customer's mandate or order to pay. With regard to that cheque it does not fall within the relation of Banker and customer. ( 7 ) HIS Lordship Lord Shaw of Dunfermline in the course of his judgment observed at page 823 as follows :" A Cheque with the signature of a customer forged is not the customer's mandate or order to pay. With regard to that cheque it does not fall within the relation of Banker and customer. If the Bank honours such a document, not proceeding from its customer, it cannot make the customer answerable for the signature and issue of a document which he did not sign or issue ; the banker paying accordingly has paid without authority and cannot charge the payment against a person who was a stranger to the transaction. " ( 8 ) IN Lloyds Bank Ltd. v. B. B. Savory and Company, (1933) A. C. 201 (228) it was held that unless the appellants (Lloyds Bank) can establish that they acted without negligence, they, like other bankers in a similar position, are responsible in damages for conversion if their customers had no title or a defective title. . . . . . . As it is for the banker to show that he is entitled to this defence, the onus is on him to disprove negligence. ( 9 ) AGAIN in Bhagawan Das v. Creet, I. L. R. 31 Cal. 249 it was held that when a banker makes a payment on a forged cheque, he cannot make the customer liable except on the ground of negligence imputable to the customer, and it is for the banker to prove the negligence on the part of the customer. ( 10 ) IT is clear from the above review that there is a heavy burden on a Banker to make proper enquiries before a cheque presented on behalf of his customer is honoured and amount paid and if he fails to make such enquiries and makes payment on a forged cheque there is a heavy burden on him to show that he did not act negligently or carelessly before he could charge the amount against the customer. This principle is entirely based on the fact that it is the duty of the banker to know its customer's signature and to satisfy itself that the cheque tendered has been drawn by its customer before any payment is made. This principle is entirely based on the fact that it is the duty of the banker to know its customer's signature and to satisfy itself that the cheque tendered has been drawn by its customer before any payment is made. Applying these principles to the facts of the present case it cannot reasonably be urged that it is for the petitioner to establish that the cheque in question is a forged one and that the respondent bank did act carelessly or negligently in making the payment before he can succeed in the case. The burden of proving that the cheque is a genuine one and that the payment was made by the employees of the Bank without any negligence or carelessness on their part is entirely on the respondent. The learned munsiff was therefore not justified in refusing to recast the issues. ( 11 ) ISSUE No. 1 as it now stands throws the burden of establishing that the respondent Bank acted negligently or carelessly on the petitioner. This burden should have been, as already stated, thrown on the respondent. The proper issue in the circumstances should be as follows : "is the cheque bearing No. 275563 honoured by the defendant a genuine one ? and did the defendant make the payment without negligence or carelessness ? " issue No. 4 raised by the learned Munsiff is unnecessary and should have been deleted. ( 12 ) IN the result, therefore, this revision petition is allowed and the order passed by the learned Munsiff rejecting I. A. No. I is set aside. The learned Munsiff is directed to recast Issue No. I as suggested above and to proceed with the trial of the suit. The petitioner will get his costs of this petition from the respondent. --- *** --- .