Judgment :- 1. In this appeal by the defendant from a decree obtained against him by the plaintiff bank, the State Bank of Travancore, in a suit for money, on the basis of an overdraft agreement the appellant had entered into with the predecessor-in-interest of the plaintiff bank, a very important question of law has been raised. This question of law, as is often the ;case, depends on questions of fact and regarding these questions of fact there is no specific pleading and the evidence is unsatisfactory. But we have to decide the question particularly in view of the direction in the order of remand passed by this Court in A. S. No, 164 of 1964. 2. The question of law is whether the want of a notice of dishonour to an endorser would exonerate him from liability not only on an action on the negotiable instrument, but even on an action on the original consideration. This question must necessarily depend on the further factual questions as to whether a notice of dishonour was in fact given and if such a notice bad not been given, circumstances existed which excused the issue of such a notice. 3. The pleadings are cursory in this regard. The defendant contended himself by stating in Para.5 of the written statement that he had paid several amounts to the bank, and bad endorsed a cheque drawn in his favour, for Rs. 8500/- to the bank and that deducting all the amounts paid, as well as the amount of the cheque referred to, be owed the plaintiff bank, as on 14 7 58, only Rs. 887.50. The reply to this is contained in Para.4 of the replication. Therein it was asserted by the plaintiff that the statements in Para.5 were totally incorrect. "The payment as contended by him is denied. A certified copy of the account is produced along with the Plaint." 4. In this unsatisfactory state of pleadings in regard to a technical contention that materialised later the parties proceeded to lead evidence and the plaintiff's evidence was confined to the examination of an accountant of the plaintiff bank. The dealings that the appellant bad were with the Kottayam Bank, The cheque in question was admittedly endorsed by the appellant is favour of the Kottayam Bank and handed over to that bank. The dealings that the appellant bad were with the Kottayam Bank, The cheque in question was admittedly endorsed by the appellant is favour of the Kottayam Bank and handed over to that bank. The Kottayam Bank was amalgamated with the Kottayam Oriental Bank Ltd. which was later amalgamated with the plaintiff bank and there is no dispute that the plaintiff bank stood in the shoes of the Kottayam Bank. The cheque had been drawn by one Narayanaswamy in favour of the appellant on the Coimbatore branch of the then Travancore Forward Bank Ltd. On receipt of the cheque, the Kottayam Bank sent it for collection to the Central Bank, Coimbatore which bank sent it to the payee bank, and it appears payment was refused for lack of funds, on the 24th December, 1952. There is no evidence in the case when this information was conveyed to the Central Bank or by the Central Bank to the Kottayam Bank. Ext. P2 accounts kept by the Kottayam Bank in the name of the appellant showed that a credit entry had been made in favour of the appellant on the 24th December, 1952 to cover the amount of the cheque. This entry, it is seen from the same accounts, Ext. P2, was reversed on the 3rd January, 1953. The appellant in his evidence stated that no notice of dishonour had been issued to him. He proceeded to state that no statement of account was ever sent to him from the bank and his signature obtained after the 3rd January, 1953. Regarding the assertion by the appellant in his chief-examination as dw.1 that no notice of dishonour was issued to him, there is at the end of his cross-examination a question which is in these terms: 5. This was denied by the defendant by stating . Apart from this, there was no other cross-examination on the assertions of the appellant that he was not aware, at any material time, of the cheque having been dishonoured and of a debit having been made in his account by reversing the credit entry made on 24-12-52-The trial court accepted the contention of the appellant that there was do notice of dishonour and upheld his plea that there has been a discharge of the liability of the defendant to the extent of the amount covered by the cheque, namely Rs. 8492, as on 24-12-52, and decreed the suit in regard to the balance amount. The plaintiff bank appealed in A. S. No. 164 of 1964 to this Court and it was contended that the defendant (the appellant here) bad not specifically pleaded lack of notice of dishonour and therefore the trial court was not justified in dealing with this question. The matter was dealt with by this Court in this manner: "There is no contention in the written statement that the debit entry was unauthorisedly made or that no notice of dishonour was in due time sent to the respondent or that on account of his not having received the notice of dishonour in time he sustained any damage." 6. This Court having noticed this proceeded to state as follows: "In spite of thai we think that those matters are also involved in the plea of discharge set up by him, that they should also be considered before a finding is entered on the plea of discharge and that the parties should be given an opportunity to adduce evidence relating to the same." 7. The case was therefore remitted to the trial court. After the remand the only evidence that was called was the evidence of pw.1 on his further examination. The trial court then proceeded to formulate four issues as arising from the decision of the High Court in these terms: 1. Whether the concerned cheque was received by the Bank only as a conditional payment? 2. Whether the defendant was entitled to notice of dishonour of the cheque? 3. Whether notice of dishonour was actually given or the defendant was aware of the debit entry soon after it was made. 4. Reliefs and costs." 8. On the first issue so formulated the trial court came to the conclusion that the cheque was received by the bank only as a conditional payment. This finding is not challenged before us by the appellant and we will therefore have to proceed to decide this case on the footing that the cheque was taken by the bank only as a conditional payment. 9. This finding is not challenged before us by the appellant and we will therefore have to proceed to decide this case on the footing that the cheque was taken by the bank only as a conditional payment. 9. On issue No. 2 the trial court found basing its decision on the wording of S.93 of the Negotiable Instruments Act, 1881 that a notice of dishonour is unnecessary in cases where the suit is instituted on the original consideration and on Issue No. 3 the court held that there was notice of dishonour. On the basis of those findings the suit was decreed for the entire amount claimed. 10. The first question arising for decision in the appeal is whether there was notice of dishonour and if there was no notice, the further question is whether a notice of dishonour was necessary. 11. As we indicated, we have to decide these questions of fact on insufficient material and on insufficient pleading. But we can't state as the trial court has done that "the omission on the part of the defendant to plead want of notice of dishonour is fatal to his defence", in the light of the direction of this Court in the judgment in A. S. No. 164 of 1964. We have to proceed on the basis that there has been a plea that the action has to fail because of lack of no tic 2 of dishonour. In fact the lower court itself proceeded to consider the question though it bad said earlier in its judgment that the lack of a plea was fatal to the defence. The trial court relied on Ext. P8, a despatch register, said to have been maintained by the Kottayam Bank at the relevant time and was able to spell out from the entry made in that despatch register on the 6th January ,1953, against the name of the appellant to the effect "C. C. John, cheque returning for Rs. 8500/-" and the evidence pw.1 gave after remand when he was recalled and examined again, that there had been a notice of dishonour or at least that the appellant had notice of facts and circumstances which implied that the appellant will be held liable as an endorser of the cheque as the cheque had been dishonoured. The appellant's counsel challenged these findings and raised various contentions. He urged that Ext. The appellant's counsel challenged these findings and raised various contentions. He urged that Ext. P8 had not been proved, because, admittedly, pw.1 had nothing to do with this register, that the register does not prove the fact of the issue of the notice of dishonour, that the copy of the communication said to have been despatched on 6th January, 1953 had not been produced, that there was no proof of the despatch of that communication and finally that even if for argument's sake it was assumed that a communication was sent on the 6th January, 1953, it will not amount to due notice of dishonour as contemplated by the Negotiable Instruments Act, 1881. 12. Excepting the deposition of pw.1 there is nothing to show that the dishonoured cheque was returned to the appellant. pw.1 was not anywhere in the scene in January 1953 as has been clearly admitted by him. On what basis he has sworn as to what had been done is not at all clear. In these circumstances, it is difficult to assume on the basis of the entry in Ext. P8 that a notice of dishonour had been seat. No one who can speak about the contents of the notice has been examined. pw.1 could not have known about it. The copy of the communication has not been produced. No one competent to speak about the fact of the issue of the notice has been examined. There is also no evidence about the practice followed by the bank in cases of this nature. 13. Even if we assume that there was a notice sent on 6-1-1953 and that it contained all the requirements of such a notice, that notice, would not be due notice. It is clear from the entry in Ext. P2 made on the 3rd January, 1953 that the dishonoured cheque had come back to the Kottayam Bank either on that day or earlier to that day for, we find that the credit entry made on the 24tb December, 1952 had been reversed and a debit entry made on the 3rd. January, 1953, for the amount covered by the cheque and for the collection charges of the cheque. The full information required for the issue of notice of dishonour was therefore with the bank on the 3rd January, 1953. We do not know at what time of the day this was received. January, 1953, for the amount covered by the cheque and for the collection charges of the cheque. The full information required for the issue of notice of dishonour was therefore with the bank on the 3rd January, 1953. We do not know at what time of the day this was received. The 3rd January, 1953 was a Saturday. Even granting the benefit of doubt to the bank, there is no reason why the notice of dishonour was not despatched on the following Monday, the 5th January, 1953. If it was not despatched on the 5th January, 1953 as admittedly it was nor, we think, there was no notice within a reasonable time in view of the statutory provision contained in S.106 of the Negotiable Instruments Act, 1881. There is no clear evidence whether the appellant was having his place of business or was residing at the same place where the bank was carrying on business. Assuming that the places were different, even then, the section requires that the notice must be despatched, if it is to be a notice within a reasonable time, by the next post or on the day next after the day of dishonour. The bank had information that the cheque had been returned unpaid at least on 3-1-53. The notice of dishonour was not issued on the 5tb, when it should have been, but if at all, only on 6-1-53. This is insufficient and therefore we have to proceed on the basis that there was no notice of dishonour. 14. Then the further question is whether the bank had been able to establish that the appellant could not suffer damage for want of notice or that the appellant had promised unconditionally to pay the amount due on the instrument falling within clauses (c) and (g) respectively of S.98 of the Negotiable Instruments Act, 1881 relied on by counsel for the respondent. The only material on which counsel could raise the plea that S.98 (c) is attracted was the information supplied by pw.1 that on the 24th December, 1952 when the cheque was presented to the Coimbatore branch of the then Travancore Forward Bank Ltd. the drawer of the cheque had only Rs. 66.30 in his account with the bank. The only material on which counsel could raise the plea that S.98 (c) is attracted was the information supplied by pw.1 that on the 24th December, 1952 when the cheque was presented to the Coimbatore branch of the then Travancore Forward Bank Ltd. the drawer of the cheque had only Rs. 66.30 in his account with the bank. This information is not sufficient to hold that the appellant could not suffer damage for want of information that the cheque had been dishonoured, for, the principles of mercantile law import that a delay of even hours in regard to these matters will result in injury or damage to the person entitled to the notice. That is the principle on which a notice of dishonour is insisted upon, the principle on which the proviso to S.35 of the Act is based. We are not'concerned with the principle behind this provision or the need for such a provision. But the law is that notice ought to issue. Such a notice, it is presumed, will enable an endorser sought to be made liable to proceed against a prior party to the instrument, including the drawer. The fact that the drawer had no money with the bank when the cheque was drawn does not mean that he did not have assets or other moneys from which the amount of the cheque could have realised. There is no whisper in this case about the means of the drawer of the cheque. The only evidence in this case regarding the drawer of the cheque is the information that had been elicited in the cross-examination of the defendant that the drawer of the cheque and the appellant bad dealings. It was suggested that they were partners. Whether they were really partners or whether they had only dealings is not clear from the evidence, for, what dw.1 (the drawer of the cheque) says is that he had dealings with Narayanaswamy and that as a result of the dealings, Narayanaswamy owed the appellant the amount covered by the cheque. This information and this alleged relationship do not improve matters and are not sufficient to satisfy S.98 (c). It appears to us that it is more difficult to contend, on the materials available, that clause (g) of the section has been satisfied. This information and this alleged relationship do not improve matters and are not sufficient to satisfy S.98 (c). It appears to us that it is more difficult to contend, on the materials available, that clause (g) of the section has been satisfied. The argument in this regard centred round a question that had been put to pw.1 when he was recalled for examination. We shall extract not only this question but a few sentences from the deposition before this question was put and the answer to the question. The question and the answer are underlined. 15. It is necessary to state that pw.1 had proved Exts. P3 and P4, P3 being the credit slip dated 24th December, 1952 on the basis of which the credit entry was made on the 24th December, 1952 and Ext. P4 the debit slip dated 3rd January, 1953 on the basis of which the debit entry was made on that day. The trend of the cross-examination on this aspect indicates that the suggestion was that the credit entry on the 24th December, 1952 was made by the bank after knowing that the cheque had been dishonoured. Counsel for the appellant who put that question apparently thought that such an entry could have been made after knowledge of dishonour only after cash bad been paid on the 24th December, 1952 to the bank. He therefore framed the question as to whether the drawer of the cheque had not paid the amount covered by the cheque and received the cheque back. In that question the date of such payment is not specified. But reading the relevant part of the deposition there is no doubt that the suggestion was that it was so paid on the 24th December, 1952. Counsel contended ;on the basis of this question that there was an unconditional promise to pay by the appellant. It was pointed out that the authority of counsel extended even to entering into a compromise and that therefore the implications of the question must be visited on the appellant and it must be taken that the appellant's case was that the money bad actually been paid in cash after the dishonour of the cheque. We find it difficult to accept this contention. The question apparently is based on a complete misunderstanding of the entry made on the 24th December, 1952. We find it difficult to accept this contention. The question apparently is based on a complete misunderstanding of the entry made on the 24th December, 1952. The appellant had no case that any money had been paid to cover the amount of the cheque. If an entry in an account book had been misunderstood and some question had been asked in cross-examination on that misunderstanding we cannot go further and imply from such a question that the appellant had a case that he would pay the amount covered by the cheque which he knew had been dishonoured. That, we think, will be going too far and importing too much into a question which, we think, had been asked on a misunderstanding of the facts. If this question implies an admission it also implies an assertion that the money had been paid on the 24th December, 1952. It is also not possible to bifurcate the implication of this question so as to infer a promise to pay and ignore the assertion that the money had actually been paid. Nor are we able to infer from this question, as has been suggested by counsel, that the appellant had knowledge on the 24th December, 1952 of the cheque having been dishonoured. 16. We hold that there was no notice of dishonour and that it has not been established that notice of dishonour was unnecessary. 17. We shall now deal with the question whether a notice of dishonour is necessary when the suit is on the original consideration. Though there have been observations in judgments that a notice of dishonour is unnecessary when the suit is based on the original consideration, we do not think that the matter has been dealt with after adverting to the principles as laid down by courts is England which have been noted with approval by the Indian High Courts. The earliest observation that a notice of dishonour is unnecessary when the suit is based on the original consideration is contained in a single sentence in the judgment of the Bombay High Court in the decision in Krishnaji Narayan Parkhi v. Rajmal Manakchand Marwadi (1900) (ILR. 24 Bombay 360). The relevant passage is in these terms: "It has been argued that notice of dishonour is not proved, but, even if this be so. 24 Bombay 360). The relevant passage is in these terms: "It has been argued that notice of dishonour is not proved, but, even if this be so. it would not avail the defendant, because the suit is not on the note, but on the consideration -Cundy v. Marriott (1831) 1B. and Ad., 696)". The decision in Cundy and another v. Marrioi (1831) 1B and Ad. 696) was also relied on. When we turn to this decision we find that the conclusion reached therein was on the footing that the bill of exchange given by the debtor was insufficiently stamped and was therefore of no value and that therefore a notice of dishonour of such a bill was unnecessary. We do not think we are called upon to examine the correctness or otherwise of that pronouncement, for, we think that the principle can apply only to such cases where the negotiable instrument was valueless in that it was inadmissible in evidence. That principle cannot be applied when there is no such invalidity attached to the negotiable instrument. It is clear from the provisions in the Negotiable Instruments Act, 1881 that the liability of an endorser is not that of a principal debtor, and the liability of the endorser can arise only if a notice of dishonour is issued to him and not otherwise. This is clear from the proviso to S.35. "35. In the absence of a contract to the contrary, whoever indorses and delivers a negotiable instrument before maturity, without, in such indorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, is case of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonour, provided due notice of dishonour has been given to, or received by, such endorser as hereinafter provided. Every indorser after dishonour is liable as upon an instrument payable on demand. No general principle of law or equity, if there is any, can be pressed into service to get over these statutory provisions and therefore if an endorser of a cheque is to be made liable on the instrument he must be given due notice of dishonour in the absence of a contract to the contrary. This seems to us to be evident from the provisions in S.35 and 93 of the Negotiable Instruments Act, 1881. This seems to us to be evident from the provisions in S.35 and 93 of the Negotiable Instruments Act, 1881. In what circumstances a notice of dishonour is unnecessary are detailed in S.98 of the Negotiable Instruments Act, 1881. It is well settled that it is for the party pleading that notice of dishonour is unnecessary to establish that one or other of the various conditions mentioned in S.98 of the endorsement is satisfied. The wording of S.93 has been relied on by the trial court in the judgment under appeal to hold that a notice of dishonour is unnecessary when the suit is on the original consideration. On this aspect all the English decisions brought to our notice are one way that the suit on the original consideration will also not lie in the absence of a notice of dishonour. All the text books dealing with this aspect, such as the commentaries in Chalmers on Bills of Exchange (Thirteenth Edition at pages 135 & 341), Shelldon on the Practice and Law of Banking (Ninth Edition at page 15) and Paget's Law of Banking (Seventh Edition at pages 216 and 217), say that notice of dishonour is necessary. Footnote (b) to Para.334 in Halsbnry's Laws of England (Third Edition Volume 3 at page 196) also states that lack of a notice of dishonour has the effect of releasing an endorser not only from the liability on the bill but also from the liability on the consideration thereof. A number of English decisions have been relied on by counsel for the appellant for this proposition; that in Peacock and another v. Pursell (Vol. 143 E. R.630 (1863), Bridges v. Berry (Vol. 128 E.R. 51-(1810), Smith and others v. Mercer and others (1867-8) Vol. III Exchequer 51), Hopkins v. Ware, Executor ( (1869) 4 Exchequer 268). All these decisions support counsel's contention and the reason for the rule is stated in Peacock and another v. Pursell (Vol. 143 E. R.630) thus: "The legal effect of taking a bill as a collateral security is, that if, when the bil arrives at maturity, the bolder is guilty of laches, and omits duly to present it and to give notice of its dishonour, if not paid, the bill becomes money in his hands as between him and the person from whom he received it. That being so, the plaintiff's debt is satisfied." 18. That being so, the plaintiff's debt is satisfied." 18. Williams, J. in the same case observed: "The laches of the plaintiffs in not duly presenting the bill constituted this a payment before action brought." 19. And Willes, J. observed thus: "But, if the creditor, when the bill falls due, is guilty of laches whereby the security becomes deteriorated or valueless, it becomes equivalent to actual payment." 20. This principle has been noticed by a number of decisions of the Indian Courts and accepted. Dargavarapu Sarrapu v. Rampratopu and others ((1902) 25 Mad. 580), Jambu Chetty and another v. Palaniappa Chettiar ((1903) 26 Mad. 526), Kuttayan Chetty v. Palaniappa Chetty and another (ILR. 27 Mad. 540), Behadur Chandprabh Dial v. Gulab Rai-Nanak Chd and others (AIR. 1929 Lahore 577) and Usman v. Rahmat and others (AIR. 1936 Lahore 797) are some such decisions. This principle is applicable to a case where a cheque or other negotiable instrument is taken in the first instance as a conditional payment. It is a well-known principle that when a negotiable instrument is accepted for a debt due, it is presumed to have been taken only as a conditional payment. This, we think, arises from the position that a creditor is entitled to a legal tender of the money due to him and a negotiable instrument is never a legal tender of money due. It is therefore open to a creditor to object payment by a negotiable instrument. But in ordinary practice, very often payments have to be made by cheques or bills and it has become a common usage to accept payments by cheques or bills. But, if, without specifying clearly that a cheque or bill is taken in absolute payment, a cheque is taken by a creditor, it is always presumed to have been taken only as a conditional payment with the necessary consequence that if the instrument fails, the creditor can fall back on the original consideration. A number of decisions have been quoted for this proposition which we consider unnecessary to refer to because the position is too well established, this Court itself having consistently held so and it is sufficient to refer to a single bench decision of this Court in Mohammed Kunju v. Harihara Iyer (1964 KLT. 950). A number of decisions have been quoted for this proposition which we consider unnecessary to refer to because the position is too well established, this Court itself having consistently held so and it is sufficient to refer to a single bench decision of this Court in Mohammed Kunju v. Harihara Iyer (1964 KLT. 950). It is notwithstanding this principle that the English Courts have evolved a further principle that a cheque taken as conditional payment will be treated as taken in absolute payment by the creditor if he did not give notice of dishonour. This, we think, arises from the principle that a person dealing with instruments which create liabilities on a number of persons has certain obligations imposed on him by the principles which have been evolved in the dealings with those instruments. This rule evolved by the English Courts has not been universally accepted by all countries and it is only necessary to refer to the comments made by Chalmers regarding this rule to understand the position. We shall extract a passage from Chalmers regarding this aspect. "The question of liability on the consideration, where the party liable is discharged by the holder's laches from liability on the bill was much discussed at the Hague Conferences, because under the continental systems the holder's duties are absolute duties, and not, as in England; duties to use reasonable diligence. The universal foreign opinion appeared to be that the party liable on the consideration was discharged only if and in so far as he proved actual damage resulting from the holder's laches. The English cases seem to assume teat the party liable on the consideration is discharged irrespective of damage-But it is to be noted that (a) the question has not been argued before the Court of Appeal: (b) in all the cases there was some evidence of damage; and (c) there has been no decision on an unaccepted bill. Suppose D sells a motor car to A for 500 pounds. A pays for it by a bill drawn on B in favour of D. B refuses to accept, and by some mistake D, the seller, gives notice to A, buyer, two days late. Can A keep the motor-car without paying for it? Suppose D sells a motor car to A for 500 pounds. A pays for it by a bill drawn on B in favour of D. B refuses to accept, and by some mistake D, the seller, gives notice to A, buyer, two days late. Can A keep the motor-car without paying for it? D has only a piece of paper on which no one is Liable." (Chalmers on Bills of Exchange (Thirteenth Edition at page 341) We do not know whether the effect of the rule would be to leave a worthless piece of paper in the hands of the creditor and the money in the bands of the debtor. But as we understand the provisions in the Act, it appears to us that the law codified in this country presumes that a lack of notice of dishonour always causes injury or damage to an endorser. That is why we think that the burden has been cast on the person asserting that there has been no such damage, to establish that an endorser could not have suffered any damage (S.98(c)). However the rule is that there must be proof of lack of damage, as the law presumes that there has been damage. We are not prepared to say that this is not a just rule. In cases of laches on the part of the bolder resulting in the presumption that an endorser has suffered damage the principle of the English decision that the instrument must be taken to have been accepted in absolute payment can be applied. This rule appears to us to flow from the principle and peculiarity of the law merchant, which we have accepted and codified in India. We see no reason therefore to strike a discordant note from the rule evolved by the English Courts. Our attention has been drawn to a number of decisions by counsel for the respondents. But we do not find that this rule evolved by the English Courts had been adverted to, discussed and dissented from in any of these cases. For instance in the decision in Abdul Majid v. M/s. Ganesh Das Kahoram Ltd. and another (AIR. 1954 Orissa 124), there is an assumption that when the action is on the original consideration there is no discharge of the liability do to lack of notice of dishonour. For instance in the decision in Abdul Majid v. M/s. Ganesh Das Kahoram Ltd. and another (AIR. 1954 Orissa 124), there is an assumption that when the action is on the original consideration there is no discharge of the liability do to lack of notice of dishonour. The English cases and those of the Indian Courts accepting the principle of the English decisions have not however been adverted to in the judgment. We find no support for the proposition that notice of dishonour is unnecessary from the decisions in Mohanlal Jogani Rice and Atta Mills v. Ramlal Onkarmal Firm and Others (AIR. 1957 Assam 133), Ramlal Onkarmal Firm and another v. Mohanlal Jogani Rice and Atta Mills (AIR. 1965 SC, 1679), James f inlay & Co. Ltd. v. St. John Demetruis and another (AIR. 1957 Calcutta 585), B. Shambumal Gangaram and another v. The State Bank of Mysore (AIR. 1971 Mysore 156) relied on by counsel. The well-known commentators on the Negotiable Instruments Act, Bashya and Adyga have no hesitation in stating that the law in India is the same as in England, namely that there will be a discharge of liability on the original consideration as well in cases where there had been no notice of dishonour. We may refer to page 500 of Bhasyamand Adiga on the Negotiable Instruments Act, 1881, Twelfth Edition where there is the following passage: "The drawer and the endorsers to whom notice of dishonour is not given, are discharged from the liability not only on the bill, but also in respect of the original consideration." 21. The trial court in negativing the appellant's contention relied on the decision in AIR. 1954 Orissa 124 which we have already adverted to. The question that arose there was about the applicability of S.84 of the Act. The section will be attracted only in cases where the cheque had not been presented for payment. It had been found that the cheque in question had not been presented for payment. The matter therefore fell squarely within S.84 of the Act. We shall extract a passage from the judgment: "The further point, we should like to observe in this connection, is that the question of dishonour does not arise in view of the finding of the lower appellate Court that there was no presentment of the cheques at all. The matter therefore fell squarely within S.84 of the Act. We shall extract a passage from the judgment: "The further point, we should like to observe in this connection, is that the question of dishonour does not arise in view of the finding of the lower appellate Court that there was no presentment of the cheques at all. So the case is really confined to the provisions of S.84." The decision cannot be an authority for the proposition that the principle laid down in the English decisions which we have referred to and which have been quoted with approval by many Indian decisions is not the correct principle. 22. In the light of the above, we set aside the decree of the court below and direct that credit be given to the defendant as on 2412 52 for the sum of Rs. 8492/- and the amount due to the plaintiff bank be determined afresh after giving credit also to any amounts paid by the appellant after the decree of the trial court. We remand the case for this purpose. We direct the court below to award costs in accordance with the success or failure of the parties. The parties will bear their costs in this appeal.