Judgment :- BASHEER AHMAD SAYEED J. This appeal is against the judgment and decree of the learned Third Additional City Civil Judge dismissing the suit brought by the plaintiffs against the defendants for recovery of a sum of Rs. 5055-10-0 with interest thereon The plaintiffs who are the appellants carry on business in Madras under the name and style of Messrs. Multanmul Misrimul, and the defendants are the Central Bank of India Limited with their branch at No. 271 China Bazar Road, George Town, Madras. On 4th January, 1949, the plaintiffs entrusted the defendants a sum of Rs. 5, 000 for being transferred by telegram to Ferozabad, the same to be paid over to the plaintiffs' representative one Milapchand Mottaji at Ferozabad for the purchase of bangles on behalf of the plaintiffs' firm. The defendant bank which has an office at Ferozabad received the amount of Rs. 5, 000 and also the charges incidental for the telegraphic transfer from the plaintiffs, and undertook to transfer the same to Ferozabad and to pay over the said amount to Milapchand Mottaji. After payment of the said Rs. 5, 000 and the charges for telegraphic transfer to the defendant bank at Madras, the plaintiffs advised their representative, Milapchand Mottaji, to go to the defendant bank at Ferozabad and receive the amount. In pursuance thereof when the plaintiffs' representative, Milapchand Mottaji, went to the defendant bank at Ferozabad the bank officials carried out the formalities before payment could be made, viz., obtained a stamped receipt from the plaintiffs' representative after proper identification and attestation and gave in turn a metal token No. 5451 in accordance with the usual practice of the bank to the said Milapchand Mottaji for receiving payment. When Milapchand Mottaji was called for receiving payment and when he presented the token, the cashier of the bank offered him to pay only Rs. 1, 000 as against Rs. 5, 000, which the representative was entitled to receive. The said representative refused to receive Rs. 1, 000 and demanded payment of the sum of Rs. 5, 000 instead, which was the amount of telegraphic transfer payable to him. The defendant bank at Ferozabad informed the plaintiffs' representative thereupon that the sum of Rs. 5, 000 had already been paid and that the representative was entitle only to receive Rs. 1, 000. Thereafter, the representative was entitled only to receive Rs. 1, 000. 5, 000 instead, which was the amount of telegraphic transfer payable to him. The defendant bank at Ferozabad informed the plaintiffs' representative thereupon that the sum of Rs. 5, 000 had already been paid and that the representative was entitle only to receive Rs. 1, 000. Thereafter, the representative was entitled only to receive Rs. 1, 000. Thereafter, the representative of the plaintiffs' firm intimated to the plaintiffs the refusal of the bank to pay Rs. 5, 000 remitted through the bank and after exchange of notices, the plaintiffs' firm filed and suit to recover the said sum of Rs. 5, 000 and the incidental charges and interest thereonThe defendants in their written statement admitted the receipt of the sum paid by the plaintiffs for transmission to Milapchand Mottaji at Ferozabad and its transfer in due course to Ferozabad to be paid to the representative of the plaintiffs. With regard to payment the defendants stated that on the 5th January, 1949, the amount of Rs. 5, 000 was paid to the said Milapchand Mottaji after obtaining from him a stamped receipt attested by one who identified the said representative to the bank at Ferozabad. In paragraph 3 of the written statement, the defendant bank described the procedure for the payment of money received by them by telegraphic transfer and stated that when the cashier called out the name of Milapchand Mottaji, token No. 5451 said to have been given to Milapchand Mottaji was produced and that the cashier, after verifying the number of the token with the number noted on the receipt, paid the sum of Rs. 5, 000 to the person who produced the said token. The defendants further averred that they had reason to believe that after payment was made to him, the said Milapchand Mottaji conspired with another and attempted to play a fraud on the bank, but was not successful. The defendants also denied that there was any question of trust or entrustment in the case The learned City Civil Judge framed on the pleadings one single issue in the following terms "Are the allegations made by the plaintiff in paragraph 5 of the plaint true ?" After considering the documentary and oral evidence on both sides, he came to the conclusion that the evidence on the side of the defendants was acceptable and found the issue against the plaintiffs and dismissed the suit with costs. The plaintiffs have, therefore, preferred this appeal In this connection, it may be relevant to refer to the allegations contained in paragraph 5 of the plaint before the points that arise in this appeal are dealt with. They are to this effect "The plaintiffs understand that however the persons in charge at the defendants' Ferozabad office falsely and fraudulently informed Milapchand Mottaji that only a sum of Rs. 1, 000 was payable to him and no more. In spite of his protestations and expostulations the said persons refused to pay more than Rs. 1, 000. The plaintiffs' representative in the circumstances declined to accept the amount." * In view of the fact that the respondents' counsel has also sought to make out a point from the allegations contained in paragraphs 6 and 9 of the plaint, it seems necessary to refer to the relevant portions of those paragraphs as well. In paragraph 6, the plaintiffs state that they understand and believe the same to be true that the said refusal to pay and denial of the amount payable were actuated with a desire to wrongfully appropriate and convert the amount. In paragraph 9 the plaintiffs submit that in the circumstances by reason of the defendants' failure and fraudulent omission to pay in terms of the trust accepted by them at their Ferozabad office to the plaintiffs' representative, there has been a failure of consideration and of the object of the entrustment and so forth Though in the written statement the attitude taken was that Milapchand Mottaji, the representative of the plaintiffs, was paid Rs. 5, 000, that he had no more right to claim any further sum and that he having already received Rs. 5, 000 attempted to play a fraud upon the bank conspiring with another, but was not successful, the defendants took up in the course of the trial and the hearing of the appeal varying positions in order to escape from their liability to the claim made by the plaintiffs. When once the defendant bank admits that it received the sum of Rs. When once the defendant bank admits that it received the sum of Rs. 5, 000 by telegraphic transfer from Madras, the same to be paid over to the representative of the plaintiffs' from Milapchand Mottaji at Ferozabad, the question that arises for consideration is whether the defendant bank has proved that it has carried out the obligation which it undertook on behalf of the plaintiffs, viz., whether it paid the amount of Rs. 5, 000 actually to Milapchand Mottaji the representative of the plaintiffs' firm at Ferozabad. The burden to prove that the obligation undertaken by the defendants bank has been discharged lies only on the defendants when the plaintiffs firm has denied receipt of the amount. How far the defendants have succeeded in proving payment of the sum of Rs. 5, 000 to Milapchand Mottaji is the real point that has to be decided in this case in the first instanceAs already observed, the written statement sets out that the amount of Rs. 5, 000 was paid to Milapchand Mottaji after obtaining from him a duly stamped receipt therefor and attested by one who identified the said Milapchand Mottaji to the bank at Ferozabad. According to the bank's procedure described in paragraph 3 of the written statement and also as disclosed by the evidence of the defence witnesses, viz., D.Ws. 2, 3 and 4, and as elaborately set out in the Judgment of the learned City Civil Judge, a stamped receipt is obtained from the payee in the first instance. Identification, when the payee is not known to the bank, by a constituent of the bank takes place in the second instance. The signature is translated by the cashier, if need be, and attested by the said identifying constituent in the next place, and a token is given to the payee to be produced and to receive payment in due time on presentation of the same. The last stage is the actual disbursement of the amounts to the person entitled to receive the same. it is common ground between the plaintiffs and the defendants that a stamped receipt was taken when the payee Milapchand Mottaji was properly identified by another constituent of the bank, viz., P.W. 2, partner of a well known firm, and that his Hindi signature was translated and attested and a token was given to Milapchand Mottaji. So far, the facts are not in controversy. So far, the facts are not in controversy. It is admitted by the witnesses on the said of the defendants particularly D.Ws. 2 to 4 that actual payment of money takes place only after the stamped receipt is taken and the other formalities are gone through such as verification of the telegraphic transfer and endorsements thereon and when the name of the payee is called and the payee presents the token to the cashier for the receipt of the amount. Therefore, it is clear that the obtaining of the stamped receipt or the giving of the token after the signature, attestation and identification, cannot by itself tantamount to actual payment of the amount to the payee of the telegraphic transfer. This comes about only at the last stage after all formalities are completed. Even if the receipt has been obtained by the bank officials and the other formalities are gone through in full, the factum of payment of the sum, which the plaintiffs' representative was entitled to receive towards the telegraphic transfer made from Madras to the bank at Ferozabad, has still to be proved by the defendants. Mere possession by the bank of the stamped receipt obtained before payment cannot be proof of actual payment; for according to the practice and procedure followed by the bank and the evidence on behalf of the defendants, the stamped receipt is taken long prior to the actual payment and there is necessarily an interval, however short, between the taking of the receipt and actual payment to the party. Therefore delivery of the receipt to the cashier D.W. 4 in this case by the payee will not entitle the defendants to say that the amounts has already been paid to the payee and that there is consequently a complete discharge proved therebyThe case of the defendants is that when the cashier called the name of Milapchand Mottaji for payment of the sum of Rs. 5000 to him, the token given to him, viz., No. 5451, was produced by him and that the sum of Rs. 5, 000 was paid to him and was entered accordingly in the relevant bank's books and the token was put into the token box and the telegraphic transfer was filed in the filing wire. 5000 to him, the token given to him, viz., No. 5451, was produced by him and that the sum of Rs. 5, 000 was paid to him and was entered accordingly in the relevant bank's books and the token was put into the token box and the telegraphic transfer was filed in the filing wire. The only evidence on which reliance has been placed by the defendants to prove these facts and the payment to Milapchand Mottaji is that of D.W. 4, the cashier of the bank and the entries in the account book D. 27 and other records maintained by the bank. A close scrutiny of the evidence given by this witness, for which, however, there is no corroboration by any other witness, on the question of the actual payment of the said sum of Rs. 5, 000 to Milapchand Mottaji, discloses that D.W. 4 was not certain by any means that the amount of Rs. 5, 000 said to have been paid by him was actually paid to the said Milapchand Mottaji. This witness would say in the first instance that when he called the name of Milapchand Mottaji for payment, Milapchand Mottaji presented to him the token No. 5451 and that he (D.W. 4) received the token and before putting it in the token box, observed the formalities and paid the money to Milapchand Mottaji and that after receiving the amount, Milapchand Mottaji left the window. Subsequently within five or six minutes later he got the other telegraphic transfer for Rs. 1, 000 which was to be paid to one Hastimull, the said telegraphic transfer also having been transmitted through the Central Bank of India at Madras to their branch at Ferozabad the previous day to be delivered over to Hastimull. According to D.W. 4, by the time this telegraphic transfer for Rs. 1, 000 was received for payment, the person who had received Rs. 5, 000 and had gone away, according to D.W. 4, how he was again present in the Bank at the same time, as it transpired later, is not explained by D.W. 4. Again, after receiving the telegraphic transfer of Rs. 1, 000 for payment and after all the formalities had been gone through, when D.W. 4 called out the name of Hastimull, according to this witness, Hastimull came and handed over the token No. 5469. Again, after receiving the telegraphic transfer of Rs. 1, 000 for payment and after all the formalities had been gone through, when D.W. 4 called out the name of Hastimull, according to this witness, Hastimull came and handed over the token No. 5469. Then the witness stated that he ticked the token number and placed the token on the telegraphic transfer and made an entry in the payment cash book, etc. and then took out ten notes of Rs. 100 each and handed them over to the payee. The witness would say that by this time he did not know who was Hastimull and who was Milapchand Mottaji by face. If it was really the case that D.W. 4, the cashier, did not know who Hastimull was and who Milapchand was, when he was making payments of large amounts like Rs. 5000 and Rs. 1, 000, it passes comprehension as to how this witness could be believed, when he says that the first sum of Rs. 5, 000 paid out by him was actually paid to Milapchand himself, and not to some other person, if payment was made at all. It is also inconceivable that a responsible officer like the cashier of a bank of the standing of the Central Bank of India Ltd. should call the name of the payee and still should not satisfy himself before he made the payment that the person who presented himself to receive the payment was the very person whose name was called out and to whom the token was the very person whose name was called out and to whom the token was issued and who was entitled to received the amount, especially when this witness deposes to the very many details he attended to before he counted the 50 hundred rupee notes. It is wholly impossible to accept the theory adumbrated by the respondent bank in this connection that when once a receipt had been obtained from the payee and a token had been given to him, the bank is no more concerned with the person who actually receives the amount against the token. It is wholly impossible to accept the theory adumbrated by the respondent bank in this connection that when once a receipt had been obtained from the payee and a token had been given to him, the bank is no more concerned with the person who actually receives the amount against the token. Learned counsel for the respondent bank argued seriously that what the cashier was concerned with was merely the delivery of the token and the payment of the money against that token to any person who tenders the token, irrespective of whether he was the right or wrong person. If that were really the case, then the elaborate procedure of the bank spoken to by D.Ws. 2 to 4 and practice of the bank to call the name of the person who is entitled to receive the payment under the telegraphic transfer, seems to have no meaning nor serve any purpose whatsoever. If the token alone is the guiding factor in the matter of payment by the cashier, it is not explained as to why the cashier should call the name of the person to whom the token has been given in order to make payment to him. It should be sufficient, if the token number alone is called, and whoever presents the token, should be paid the money under the telegraphic transfer. It is inconceivable that the bank is not interested in seeing that the money is paid to the right person who is entitled to receive the same under the telegraphic transfer. For, if that were the case, then the elaborate procedure of the identification of the person who is entitled to receive the amount, the attestation of his signature on the receipt, the signing of the receipt itself and the issue of the token and further verifications and tallyings seems to be all quite unnecessary and irrelevant for the purpose of making payment. Such an elaborate procedure which has been spoken to by the witnesses on behalf of the respondents, if anything, is certainly intended to ensure that the money is paid to the person who is entitled to receive the money under the telegraphic transfer. It is the duty and responsibility of the bank which is bound to discharge the obligation they undertook when they agreed to transfer the money by telegram to their branch at Ferozabad to be paid over to a named person. It is the duty and responsibility of the bank which is bound to discharge the obligation they undertook when they agreed to transfer the money by telegram to their branch at Ferozabad to be paid over to a named person. If that obligation is not discharged, then they cannot escape from liability to reimburse the remitter of the amount. No reliance can also be placed on the evidence of D.W. 4 when he says that Milapchand presented himself when Hastimull's name was called and that he presented the token issued against the telegraphic transfer payable to Hastimull. For, if according to this witness a sum of Rs. 5, 000 had already been paid to Milapchand against the token No. 5451, and if Milapchand had already received the said sum of Rs. 5, 000, which he had already received. It is also incredible that at that hour in the bank Milapchand would have dated to present himself again having already received his Rs. 5, 000 to demand another sum of Rs. 5, 000 and that too against a token which was to his knowledge issued to Hastimull for only Rs. 1, 000 and could have caused an uproar when he was not paid the full amount of Rs. 5, 000. It is unthinkable further that Milapchand could have faced the bank officer D.W. 2 when he was questioned by him and could have persisted in his demand to be paid Rs. 5, 000 towards his telegraphic transfer, especially when Hastimull was himself present in body and flesh by the side of Milapchand and who stated to the officer of the Bank D.W. 2 when questioned that he had already received Rs. 1, 000 against his token issued for payment of his telegraphic transfer of Rs. 1, 000. The answer given by D.W. 4, according to his own evidence, when Milapchand asked for Rs. 5, 000 which he was entitled to receive is significant. D.W. 4 did not confront Milapchand with the fact that he (Milapchand) had already received Rs. 5, 000 against his token and that he was not entitled to demand another sum of Rs. 5, 000 against another man's token. On the other hand, what D.W. 4 told Milapchand was that the sum of Rs. 5, 000 had already been paid out and that he had only Rs. 5, 000 against his token and that he was not entitled to demand another sum of Rs. 5, 000 against another man's token. On the other hand, what D.W. 4 told Milapchand was that the sum of Rs. 5, 000 had already been paid out and that he had only Rs. 1, 000 more to be paid His further statement that he showed the token presented by Milapchand which, according to him, bore the number 5469, cannot be believed in the very nature of the circumstances. His evidence is that so far as the previous token received by him was concerned, he received it and put it in the token box after making the payment. But in the case of the token presented by Milapchand later, he would say that he placed it on the telegraphic transfer and the currency notes. When the usual and ordinary practice has been to receive the token and put it in the token box after the currency notes had been counted and tendered why there was a deviation resorted to in the case of the second token and why it was retained to be kept on the telegraphic transfer itself without being thrown into the token box, is not explained. On the contrary, as it is generally known, the usual practice generally followed by paying officers like cashiers is that when the token is received, it is thrown immediately into the token box and currency notes are then counted and tendered to the party. This is done on the basis that the paying officer has satisfied himself previously that the party who presents himself to receive the payment is the very party that is entitled to receive the amount and also on the footing that the cashier is fully aware of that fact by reason of the earlier preliminaries and formalities that have to be necessarily gone through before the party comes to the counter to receive payment. The story of D.W. 4 that he kept the token No. 5459 said to have been presented by Milapchand when he demanded payment of Rs. 5, 000 and that it was only the token representing the telegraphic transfer for Rs. 1, 000 is wholly unacceptable. The story of D.W. 4 that he kept the token No. 5459 said to have been presented by Milapchand when he demanded payment of Rs. 5, 000 and that it was only the token representing the telegraphic transfer for Rs. 1, 000 is wholly unacceptable. There was also no occasion nor had any necessity arisen by then to retain this token bearing No. 5469 or to be kept on the telegraphic transfer form; for, the uproar caused by Milapchand consequent upon the refusal of the cashier to pay the full amount was itself occasioned only after Rs. 1, 000 was tendered to Milapchand in currency notes and thrown back by Milapchand. In the nature course of events, by the time Rs. 1, 000 was tendered to Milapchand and he found that it was short of the amount which he was entitled to receive, the token must have already been placed in the token box, even as the cashier had done in regard to the other token. Therefore, it is extremely doubtful, whether the token presented by Milapchand bore the number 5469, as is sought to be made out by D.W. 4 and on this point, there is no other evidence on the side of the defendant bank. The evidence of D.W. 2 is only hearsay as he speaks only to what D.W. 4 had told him In order to prove payment of Rs. 5, 000 to the representative of the plaintiffs' firm as undertaken by the defendant bank as already observed, the defendant bank in the first instance took up the stand that the money had been actually paid to Milapchand as per the telegraphic transfer from Madras. For this, the oral evidence was only that of D.W. 4 and as already pointed out, it is neither cogent nor acceptable by any means. The other evidence consisted of the entries made by the cashier in the relevant books of the bank, viz., Exhibit D. 27(a) apart prior to the payment, in either case, these could not be of any avail to the defendants for proving the actual payment of the amount to Milapchand. The other evidence consisted of the entries made by the cashier in the relevant books of the bank, viz., Exhibit D. 27(a) apart prior to the payment, in either case, these could not be of any avail to the defendants for proving the actual payment of the amount to Milapchand. The making of these entries does not carry the case of the defendants any further, when what has to be proved by the bank is the actual payment to Milapchand The more significant part of the case of the defendant is that the cashier D.W. 4 was not quite certain of the identity of the person to whom he claimed to have paid Rs. 5, 000 in the first instance, or of the person to whom he offered in the second stage a sum of Rs. 1, 000. In cross-examination he gave up the whole case of the bank, viz., they had paid Rs. 5, 000 to Milapchand. His evidence is worth being noted in this connection. He says "When the T.T. for Rs. 5, 000 came to me I called out Milapchand. A man came and presented token No. 5451. I made the payment thinking that I was making payment to the person Milapchand entitled under the T.T. 9/3 to the sum of Rs. 5, 000 who had signed on the front and reverse of the said T.T. Sometimes afterwards I called out Hastimull. A marwari came. At that moment my consciousness was of having already paid Milapchand. So, I thought this man was Hastimull ..... I learnt a few minutes thereafter that that man was Milapchand, when he told the manager that he was Milapchand. Then I realised that the person entitled under the T.T. 9/3 to Rs. 5, 000 had not been paid Rs. 5, 000. Exhibit D. 27 is kept in the regular course of business." * On this evidence alone, the learned City Civil Judge ought to have held that Milapchand had not been paid the sum of Rs. 5, 000 which he was entitled to receive from the bank and that the bank had not succeeded in proving that the sum of Rs. 5, 000 was actually paid to Milapchand. 5, 000 which he was entitled to receive from the bank and that the bank had not succeeded in proving that the sum of Rs. 5, 000 was actually paid to Milapchand. The defendant bank not having succeeded in establishing the factum of payment to the plaintiffs' representative, there should have been a decree in favour of the plaintiffs against the bank especially when the plaintiffs could not be called upon in the circumstances of this case to prove that they had not received the amount When it turned out that Milapchand did not actually receive the said sum of Rs. 5, 000 which the bank was bound to pay, the defendant bank took up the stand during the trial of the suit that there was an exchange of the tokens between Milapchand and Hastimull, that Hastimull who was entitled to receive only Rs. 1, 000 got into his custody the token against which the sum of Rs. 5, 000 was payable, that when Milapchand's name was called Hastimull personated for Milapchand and received the sum of Rs. 5, 000, that after receiving the sum he passed out of the bank the entire amount or a sum of Rs. 4, 000 thereof through P.W. 2, retaining Rs. 1, 000 with him, and that thereafter when Hastimull's name was called, Milapchand presented himself with the token against which only Rs. 1, 000 was payable, but nevertheless with a view to make a wrongful gain to himself, demanded Rs. 5, 000, when Rs. 1, 000 in ten currency notes of Rs. 100 each was alone tendered to him. Except the evidence of D.W. 4, there is no other cogent or convincing evidence to prove this theory of false personation by Hastimull and the attempt of Milapchand to cheat the bank. The evidence of this D.W. 4 himself is incoherent and incredible on this point. It is sought to be inferred wholly from what he says as to the order in which he received the telegraphic transfers, the tokens and what he remembered of the numbers borne by those tokens. Besides, this theory of exchange of tokens and false personation is wholly inconsistent with the earlier stand taken by the defendant bank that Milapchand had already been paid the sum of Rs. 5, 000 and that notwithstanding such payment, he made a second demand for a similar sum of Rs. 5, 000. Besides, this theory of exchange of tokens and false personation is wholly inconsistent with the earlier stand taken by the defendant bank that Milapchand had already been paid the sum of Rs. 5, 000 and that notwithstanding such payment, he made a second demand for a similar sum of Rs. 5, 000. If Hastimull had personated for Milapchand, Milapchand could not have been the person who received the first payment of Rs. 5, 000. If Hastimull had really received Rs. 5, 000 to the knowledge of Milapchand, Milapchand could not deliberately present a token against which obviously only Rs. 1, 000 was to be payable and demand a sum of Rs. 5, 000. Further, this theory of exchange of tokens and false personation was not even hinted at either in the notices that were exchanged between the parties, nor was there any indication of this by the defendants in the written statement filed on their behalf. This theory for the first time appears to have been resorted to only during the stage of the trial. It is sought to be buttressed by the evidence of D.W. 5 who is an employee in a local glass works factory called Madhav Glass Works. He is a manual worker and manufactures bangles on daily wages of Rs. 10. This witness said that he went to the bank to cash a cheque for Rs. 1, 400 that he was standing at the counter after having got his signature translated into English by the cashier, and that a token was handed over to him after it was translated. At that time, he heard the name of Milapchand being called and a person presented a token. The cashier tallied the token number and afterwards gave him 50 currency notes of Rs. 100 denomination. That man took the notes and went away. Then when he enquired from the cashier as to when he was to get payment, the cashier told him that the cheque had not come and that there was some delay. Later he also came out and when he got down from the "Chabutra" of the bank, he saw the same man who got payment of Rs. 5, 000 handing over some notes to another person. But he did not know the name of the man to whom the notes were handed over. Later he also came out and when he got down from the "Chabutra" of the bank, he saw the same man who got payment of Rs. 5, 000 handing over some notes to another person. But he did not know the name of the man to whom the notes were handed over. After doing this, the man to whom the notes were given went away, and the man who handed over the notes went back into the bank's premises. Later on he heard that the man who was paid Rs. 5, 000 was entitled to receive only Rs. 1, 000 and that Rs. 5, 000 remained still to be paid to the person who was entitled to receive the same. He also gave a statement about this to the manager of the bank. A reading of the evidence of this witness strikes one to be most artificial and this witness, as has been pointed out by the learned counsel for the appellants, has been simply brought in the last moment to make out a story as though some person received Rs. 5, 000 and smuggled out of the bank some portion thereof. Though this witness has spoken to the translation of his signature into English, D-35 does not contain any such translation. In his cross-examination he betrayed himself to be a person whose evidence could not be relied upon. His written statement, of course, relied upon by the defence is inadmissible in evidence. It is impossible, therefore, from this state of evidence to say that any theory of false personation or exchange of token has been substantiated by the defence. Further P.W. 2 went into the box and no question was put to him about his having walked away with any sum paid by the bank either to Hastimull or to Milapchand or to any other person. P.W. 2 against whom suspicion has been cast in the course of the trial as being the party who went out with the money, is a respectable constituent of the bank and nothing has been shown to discredit him. He was the identifying witness in the case of both Hastimull and Milapchand. His evidence does not admit to any extent the possibility of his having taken away the sum of Rs. 4, 000 out of the sum of Rs. 5, 000 paid by the cashier. He was the identifying witness in the case of both Hastimull and Milapchand. His evidence does not admit to any extent the possibility of his having taken away the sum of Rs. 4, 000 out of the sum of Rs. 5, 000 paid by the cashier. Further, neither the conduct of Hastimull, nor that of Milapchand, nor does the situation that existed in the bank at the time when the alleged attempt to cheat the bank was made, warrant or justify the inference that Hastimull and Milapchand would have resorted to such a courseIt is in this connection that the theory of a conspiracy of Milapchand with another whose name, however, was not disclosed in the written statement, but was left to be inferred as if it was Hastimull, is resorted to, more especially when the bank found that its plea of discharge by payment could not be substantiated. This conspiracy as set out in the written statement does not seem to be consistent with the theory of false personation and exchange of tokens set up later by the defendant bank. The position originally taken up by the bank was that after Milapchand had actually received the sum of Rs. 5, 000, he wanted to play a fraud upon the bank by entering into conspiracy with another to deprive the bank of another similar amount. There is absolutely no basis for this theory of conspiracy set up by the defendant bank and the evidence adduced to prove this conspiracy is hardly worth consideration. The learned City Civil Judge rightly held that the theory of conspiracy was not proved by the defendant bank. When the Bank officer came on the scene after the uproar had been caused by Milapchand and after a search was made of the cashier and his counter etc., and accounts were checked, it is significant that no steps were taken by the bank officer to ensure himself that either Milapchand or Hastimull were actually in possession of the sum said to have been already parted by the cashier. On the contrary, Hastimull, who was still present there, was questioned by the bank officer and he admitted that he had received only Rs. 1, 000, paid by the cashier and that he did not receive anything more. On the contrary, Hastimull, who was still present there, was questioned by the bank officer and he admitted that he had received only Rs. 1, 000, paid by the cashier and that he did not receive anything more. It must simply have been a very clumsy conspiracy, if ever resorted to, especially when one remembers that Hastimull and Milapchand should have been both continuously present in the Bank and that Hastimull should have categorically stated that he had already received Rs. 1, 000 against his token and his telegraphic transfer. It is also extraordinary that Milapchand should have dated to demand a further sum of Rs. 5, 000 after he had actually received Rs. 5, 000; or that he should have been actually a party to the payment of Rs. 5, 000 by the bank to another person and should have kept that person in his company right through and demanded a further sum against a token which did not warrant the payment of Rs. 5, 000. The conspiracy set up by the defendant bank to cause loss to the bank either after payment of Rs. 5, 000 had been made or before it was made, has not been proved, to any the least extent and the plea of discharge set up by the respondents by payment of the sum of Rs. 5, 000 to Milapchand therefore stands without any substantiationLearned counsel for the respondents has also relied upon certain events that took place before the actual uproar was caused in the bank, viz., Hastimull and Milapchand and Bhavuthmull coming together to the bank, their staying in the bank together for some time, their having come to the bank even before intimations were received from the bank, and one of the three, viz., P.W. 2, having gone away from the bank after a payment was made, and also the order of payment as spoken to by D.W. 4 in order to establish a conspiracy to cheat the bank. But neither the evidence in regard to all these series of events, nor the events themselves, by any means can be considered or construed as constituting a conspiracy to deprive the bank of its funds. But neither the evidence in regard to all these series of events, nor the events themselves, by any means can be considered or construed as constituting a conspiracy to deprive the bank of its funds. On the evidence let in by the defence, considerable doubt exists even in regard to the order in which payment is said to have been made by the cashier, or the receipt by him of the telegraphic transfer forms. It is not possible to place any reliance upon the evidence of the cashier D.W. 4 on this point. It is also difficult to believe this witness D.W. 4 when he says that the telegraphic transfers did not go to him together but they came one after another with an interval of 5 to 10 minutes. The parties entitled to receive the telegraphic transfers having appeared before the concerned clerk together and the telegraphic transfers themselves being readily available at the time for their being endorsed on the reverse, and the identification and attestation of the signature having taken place seriatim in quick succession, and tokens also issued in succession, the probabilities are that these telegraphic transfer forms and the receipts therefor were both sent together to the officer and in turn they went to the cashier together and the cashier must have dealt with them one after the other without lapse of any interval. It is doubtful also as to whether he dealt with the Rs. 1, 000 telegraphic transfer, or the Rs. 5, 000 telegraphic transfer first. If we believe the evidence of Hastimull, P.W. 6, then payment of Rs. 1, 000 must have been made first and not Rs. 5000. The defendant bank relied upon the entries in the bank books in order to show that the first sum paid was Rs. 5, 000 and not Rs. 1, 000. But the way in which the cash book Ex. D.27 is kept and the manner in which the entries are made therein do not enable one to place much reliance upon the evidence furnished by the booksThere is further the conduct of the bank which throws considerable light on the whole question, apart from the evidence of the bank officers in regard to the intimation to Hastimull of the receipt of a telegraphic transfer in his favour which is wholly discrepant and unacceptable. The delivery of the intimation and the signature of the recipient are most suspicious and also impossible to be true in the nature of the circumstances, The way in which the bank had dealt with the sum of Rs. 1, 000 which alone was found to be in excess after and Officer had come and searched D.W. 4 and his counter etc., and checked up the accounts shows, that the bank acted in a manner thoroughly inconsistent with the standing and position of a reputed bank. It may be quite true that there was only Rs. 1, 000 in excess and it was claimed to be the amount payable to Hastimull P.W. 6. But this can only prove that a sum of Rs. 1, 000 had remained with the bank that day in respect of the amounts payable against telegraphic transfers, but by no means can it prove that Rs. 5, 000 had been paid to Milapchand, the representative of the plaintiffs. But P.W. 6 had told the bank officer that he had already received Rs. 1, 000 and nothing more was payable by the bank to him under his telegraphic transfer. If really Hastimull had not been paid and if his evidence is to be disbelieved, the obligation of the bank was to intimate to Hastimull's principals who had entrusted the bank with this sum to be paid over to Hastimull, that Hastimull refused to receive payment and that the amount was lying with them to be claimed by the transmitter any time he liked. On the contrary, no such steps have been taken until now by the bank to notify or to return the amount to the sender. It is the usual practice with banks to call upon the sender to take back the amount lying with them undisbursed. On the other hand, according to the evidence on behalf of the defendant bank, the amount seems to have been then and there transferred to the sundry creditors account of the bank and has remained with them ever since and kept in suspense in the name of K. M. G. Hastimull. On the other hand, according to the evidence on behalf of the defendant bank, the amount seems to have been then and there transferred to the sundry creditors account of the bank and has remained with them ever since and kept in suspense in the name of K. M. G. Hastimull. It carries no interest and the evidence of D.W. 2 is that they have not until now written to K. M. G. Hastimull or his principal telling him that the amount is lying to his credit and asking him how the bank was to treat it, though D.W. 2 would say that he had referred to the matter in his report to the controlling authority at Agra and Madras. Even that controlling authority at who made enquiries from the bank at Ferozabad in this regard does not appear to have made any reference about the further course to be taken in regard to that sum of Rs. 1, 000 which was payable to Hastimull P.W. 6. This conduct on the part of the defendant bank does not, by any means prove the bona fides of the bank in the stand taken up by them in regard to the discharge of their obligations to the parties, who employ their services for the transfer of funds from one place to anotherMuch stress was laid by the learned counsel for the respondents on the theory of the token, issued to a constituent of the bank, operating as a title to receive payment and that when once the token went back into the token box it was conclusive evidence, according to the learned counsel, that payment had been made to the right man. It is difficult to agree with the learned counsel. The token after all is only a convenient device which some banks have introduced. But the mere issue of a token cannot dispense with the duty cast upon the bank that it should make payment to the right man entitled to receive the amount. It is not incumbent upon every constituent of the bank who comes to receive any payment due to him from the bank to receive a token. No person can be prevented from approaching the bank direct to receive payment without the intermediary of a token, if he so chooses. It is not incumbent upon every constituent of the bank who comes to receive any payment due to him from the bank to receive a token. No person can be prevented from approaching the bank direct to receive payment without the intermediary of a token, if he so chooses. Nothing compels a constituent to receive the token before he could ask the bank to make payment to him against a cheque or telegraphic transfer. If a man refuses to receive the token and present it to the cashier or if he loses the token, it does not and cannot mean that the person who is entitled to receive the money becomes disentitled to do so, by reason of his not presenting the token. It will be an extraordinary situation, indeed, if token alone is to be the deciding factor in the matter of discharge of the obligations of the bank to ensure that payment is made to the party to whom the bank has been engaged to deliver telegraphic transfer or make any other payment. No authority has been shown to me by the learned counsel to the effect that token operates as a title and in turn discharges the bank from its responsibility, if the token is got back by the bank Learned counsel also sought to build up an argument on the averments in the plaint that the plaintiffs brought a suit against the defendant bank upon allegations of fraud and that since no fraud on the part of the bank was proved by the plaintiffs, the burden of which lay upon them, the suit was rightly dismissed. I fail to see any substance in this connection. The suit was not one for damages on proof of fraud by the bank. On the other hand, the suit is a simple one. Money was entrusted to the defendant bank to be transmitted and delivered over to the named representative of the plaintiffs and the bank did not discharge its obligation for which it was paid. There was, therefore, a breach of contract in respect of monies had and received by the defendant bank for a definite purpose, viz., delivery over to the party who was entitled to receive the amount at the other end, and the plaintiffs claimed only to recover that amount together with the charges paid as well as interest thereon. There was, therefore, a breach of contract in respect of monies had and received by the defendant bank for a definite purpose, viz., delivery over to the party who was entitled to receive the amount at the other end, and the plaintiffs claimed only to recover that amount together with the charges paid as well as interest thereon. To spin out a case of fraud from the averments contained in the plaint in paragraph 5, 6 and 9 which are merely to the effect that the refusal of the bank to pay a sum of Rs. 5, 000 to the representative of the plaintiffs was fraudulent or that the information furnished to the payee that only Rs. 1, 000 was payable to him and not Rs. 5, 000 was false or fraudulent, would not tantamount to the claim of the plaintiffs being based on some fraud committed by the bank. Nor does the averment in the plaint that the bank refuses and denies to pay the amount with a desire to wrongfully appropriate and convert the amount make the case one based on fraud by the bank. The characterisation of the defendants' failure to pay in terms of the trust, cannot also convert the suit into one based on fraud as has been wrongly understood by the defendants and by the learned City Civil Judge. The plaintiffs did not go to court with the case that the bank had committed any fraud against them but they went only to enforce their right to claim the sum which they had paid to the bank for being delivered over to their representative at Ferozabad. The whole theory adumbrated by the learned counsel for the respondents that the plaintiffs did not prove fraud against the bank and, therefore, they should be non-suited, and the judgment of the learned City Civil Judge that the plaintiffs failed to prove the fraud on the part of the bank and that, therefore, they should be non-suited, are wholly misconceived and without any warrantI do not want to further lengthen this judgment, except to refer to one more point before I conclude. The telegraphic transfer of money is not a negotiable instrument as has been rightly contended by the learned counsel for the appellants. The bank is not entitled to the same protection as is available in the case of a negotiable instrument. The telegraphic transfer of money is not a negotiable instrument as has been rightly contended by the learned counsel for the appellants. The bank is not entitled to the same protection as is available in the case of a negotiable instrument. As pointed out by the learned counsel, money was entrusted to the bank for sage delivery to the payee at the other end and it could not be likened to a cheque payable across the counter. If the bank is entitled to be exonerated in the case of the payment of a cheque to a wrong person, the same exoneration cannot be available to the bank if the bank delivers the money under a telegraphic transfer to the wrong person. So long as the money has not reached the person who is entitled to receive the same from the bank, the liability of the bank cannot be said to have been discharged, if the payment has been made to any person whether under a mistake or under a fraud or under any other circumstance In view of the evidence of D.W. 4, which is wholly unsatisfactory to prove payment of Rs. 5, 000 to Milapchand, and in view of the fact that the theory of false personation, exchange of tokens, conspiracy etc., has not been substantiated to any the least extent, the fact remains, and it has been proved beyond any doubt by the evidence let in on behalf of the plaintiffs, that the plaintiffs' representative at Ferozabad has not been paid the amount which was entrusted to the defendant bank for such safe delivery. There is no reason to doubt the testimony given by the witness on behalf of the plaintiffs. They are all respectable people and some of them are constituents of the bank in whom the bank itself has great confidence and for whom it entertains high regard. The mere fact that some entries are found in the accounts of the bank which are all before the actual payment cannot be of any avail to prove the factum of payment. The mere fact that some entries are found in the accounts of the bank which are all before the actual payment cannot be of any avail to prove the factum of payment. In so far as the bank did not discharge the burden of proving this payment of the sum entrusted to them by the plaintiffs, the only conclusion that the court can come to is that the defendant bank is liable to refund the amount to the plaintiffs' firmThere is no question of the respectability of the bank or its position or status involved in this transaction which should decide the issue involved. The bank cannot be attributed any motive as such, nor is it necessary for the plaintiff to prove any motive against the bank. The fact is that the plaintiffs' representative has not received the amount and that has been sufficiently proved. It is immaterial so far as the plaintiffs are concerned whether the bank has actually parted with the sum of Rs. 5, 000 or not. The question is whether the plaintiffs' representative has been paid the sum he was to receive from the bank If he had not receive it, as I hold that he did not, then the plaintiffs will be entitled to be paid back that sum. It is not necessary on the part of the plaintiffs to make out a case as to how exactly the money had gone out of the bank, if really it had left the hands of the cashier. The learned City Civil Judge, in my opinion, did not properly appreciate the scope of the suit or the hearing of the evidence and has, therefore, erred in the conclusions which he has arrived at In the result, the decree of the lower court is set aside, and there will be decree in favour of the plaintiffs for the sum claimed with interest at six per cent. per annum from the date when the money was entrusted to the bank, and also costs throughout inclusive of the costs of commission paid out by the plaintiffs Appeal allowed.