Judgment : M. Jeyapaul, J. 1. The suit is filed praying for a decree and judgment against the defendants jointly and/or severally to pay plaintiffs a sum of Rs.10,73,250.00 together with interest. 2. The brief case of the plaintiffs. (i) The first plaintiff is the manufacturer of Bare and Super enamalled Copper and Aluminium Wires and Conductors. The second plaintiff is the Ex-Director of the first plaintiff company. The first defendant representing himself as Disposal Officer in the second defendant factory approached the first plaintiff on 8. 1996 about the sale of surplus Cooper Wire and rods by tender by the second defendant. (ii) The plaintiffs believing the second defendant’s representation asked the first defendant to do the needful in the purchase of surplus Copper Wires and Rods by tender from the second defendant. The first defendant met the first plaintiff in its factory premises in Raipur and informed that the first plaintiff’s tender was accepted at Rs.12,79,000/-. On 28. 1996, the first plaintiff was asked by the first defendant to obtain two Demand Drafts in favour of Central Aromac Factory payable at Chennai and also to come down to Chennai so that the material confirmed as over the tender can be delivered to the first plaintiff. The first plaintiff obtained two Demand Drafts drawn on Union Bark of India, Raipur in favour of the second defendant. (iii) The second plaintiff along with another Director of the first plaintiff reached Chennai on 28. 1996 and stayed at Hotel Picnic in Chennai. Both the Demand Drafts were shown to the first plaintiff. A yellow tender document was shown to the son of the second plaintiff. The first defendant put those two demand Drafts in the tender document cover and the same was sealed and handed over to the son of the second plaintiff. No material was supplied. (iv) On verification, the plaintiffs came to know that there was no Central Aromac Factory at Chennai. The two Demand Drafts were also encashed through the fourth defendant by opening an account in the name of the second defendant by the second defendant. (v) The defendants 1 to 4 colluded with each other in opening an account in the name of the second defendant, who is a fictitious person. The two Demand Drafts were also encashed through the fourth defendant by opening an account in the name of the second defendant by the second defendant. (v) The defendants 1 to 4 colluded with each other in opening an account in the name of the second defendant, who is a fictitious person. The account in the name of the second defendant was opened in the bank of the fourth defendant based on the introduction given by the third defendant. Had the fourth defendant being vigilant at the time of opening the account, the fraud could not have been committed. The fourth defendant without making full enquiry about the credentials of the second defendant opened the account and thereby facilitated the second defendant to encash the Demand Drafts. Therefore, the plaintiffs are entitled to the draft amounts with interest and cost. 3. The defendants 1, 2, 3 and 5 remained ex parte. 4. The counter case in brief of the fourth defendant: .(i) The fourth defendant is an unnecessary party to the suit. The plaintiffs intended to pay the amounts to Central Aromac Factory at Chennai by obtaining two Demand Drafts payable to them. The entire story of the plaintiffs is found to be unacceptable. (ii) There is nothing unusual in the conduct of the fourth defendant in opening the account in the name of the second defendant after proper introduction by a customer of a long duration. No occasion arises to embark upon an enquiry of a person, who was introduced by a regular customer. The fourth defendant had acted in good faith and without negligence throughout the transaction. The Demand Drafts were payable to the second defendant. The Demand Draft amount was collected for the second defendant, to whose favour those Demand Drafts were drawn. The fourth defendant is not liable to pay any amount to the plaintiffs. In view of the above, the fourth defendant submits that the suit may be dismissed against the fourth defendant. Issues framed for determination: .(i) Whether the fourth defendant bank had opened an account in the name of the second defendant, a fictitious person without exercising due care and caution? .(ii) Whether all the defendants have colluded together in opening the account with the fourth defendant? Issues framed for determination: .(i) Whether the fourth defendant bank had opened an account in the name of the second defendant, a fictitious person without exercising due care and caution? .(ii) Whether all the defendants have colluded together in opening the account with the fourth defendant? (iii) Whether, the fourth defendant bank can seek statutory protection under Section 131 of Negotiable Instruments Act in a situation, when the opening of the account and deposit of draft formed part of one scheme? .(iv) Whether the defendants are jointly and severally liable to pay the suit claim? .(v) Whether the plaintiff is entitled to get a decree as prayed for? .(vi) To what relief, the parties are entitled? 5. On the side of the plaintiffs, the son of the second plaintiff was examined as P.W.1 and the Managing Director of the first plaintiff was examined as P.W.2 and as many as 18 documents were marked as Exhibits P-1 to P-18. On the side of the fourth defendant, the then Branch Manager of the UCO Bank, Purasawalkam Branch was examined as D.W.1 and the then officer, who opened the account in the name of the second defendant was examined as D.W.2 and Exhibits D-1 to D-16 were marked. 6. It has been very casually stated in the plaint that the defendants 1 to 4 colluded together in opening the account with the second defendant in the fourth defendant bank. During the course of argument, the Court felt that the account opening form submitted by the third defendant and the statement of accounts maintained by him were important for the disposal of the issues involved in this matter. 7. A per the directions of this Court, the fourth defendant bank submitted the account opening form of the third defendant, which was marked as Exhibit C-1 and the statement of account of the third defendant which was marked as Exhibit C-2 on 11. 2008. There is virtually no evidence worth mentioning let in on the side of the plaintiffs to establish the wild allegation made in the plaint that the opening of the account in the name of the second defendant with the fourth defendant was outcome of the collusion between the defendants 1 to 4. 8. The learned counsel for the plaintiffs also not advanced argument with respect to the said issue. 8. The learned counsel for the plaintiffs also not advanced argument with respect to the said issue. Therefore, it is held that the plaintiffs failed to established the charge of collusion leveled as against the defendants 1 to 4. Issue No.1: 9. Submissions by the plaintiffs’ counsel: The learned counsel for the plaintiffs would submit that the second defendant is now found to be a fictitious person. Neither D.W.1 nor D.W.2 took care to adhere to the rules and regulations of the bank in opening a current account by a new customer. Within 10 days, the opening of the account and the encashment of draft were completed by the second defendant. No precaution was taken by the fourth defendant bank officials in verifying the business transaction of the second defendant. Not even the account number of the third defendant, who introduced the second defendant to the fourth defendant was referred in the account opening form Exhibit P-7. The statement of accounts Exhibit C-2 has no connection with the account opening form Exhibit C-1. 10. Submissions made be the fourth defendant’s counsel: The evidence of D.W.1 and D.W.2 would go to establish that they have taken care in opening the account in the name of second defendant. There is material to show that the third defendant, who introduced the second defendant to the fourth defendant, is a reputed customer of the fourth defendant. Therefore, even the necessity to refer to his bank account in the account opening form Exhibit P-7 has not arisen. D.W.1 has categorically stated that he enquired about the business transaction with the longstanding customer, the third defendant herein. In the normal course of business, the account was opened in the name of the second defendant. There was no suspicious circumstance in the request made the second defendant to collect the amount. There was no negligence on the part of the fourth defendant in opening the account in the name of the second defendant. 11. Evidence of Bank Officer D.W.2: D.W.2 was the officer in charge, who processed the current account opening form Exhibit P-7 submitted by the second defendant. He deposed that M.K. Enterprises, the third defendant herein, have their account in their branch right from the year 1992. In his estimation, the third defendant has maintained business integrity. He was well known to the bank, as he was a very good account holder. He deposed that M.K. Enterprises, the third defendant herein, have their account in their branch right from the year 1992. In his estimation, the third defendant has maintained business integrity. He was well known to the bank, as he was a very good account holder. The proprietor of M.K. Enterprises introduced the second defendant to the fourth defendant bank. He would further depose that Narendra Kumar, the Proprietor of M.K. Enterprises came with Anil Kumar Jain, the proprietor of the second defendant to the bank and opened the account. Anil Kumar Jain put his signature in Exhibit P-7 in his presence. While he was processing the account opening form Exhibit P-7, he enquired with Narendra Kumar about Anil Kumar Jain. Narendra Kumar had informed D.W.2 that Anil Kumar was his family friend and he lived for about 5 years close by his shop. Thereafter, he went along with the second defendant and the third defendant to the then Branch Manager, D.W.1 who granted sanction for opening the account in the name of the second defendant. .12. The evidence of Branch Manager D.W.1 He would depose that he authorized the opening of the account in the name of the second defendant based on the account opening form Exhibit P-7 and also on the strength of the report of the officer of the Branch D.W.2. It is his evidence that the opening of the account was done in accordance with the rules and regulations and the manual instructions of their bank. .13. Operation of the account by the second defendant: .The second defendant opened current account on 28. 1996 with the fourth defendant bank. The Demand Draft Exhibit P-10 was deposited on 28. 1996. After the collection of Demand Draft and credit made to his account, a sum of Rs.3,50,000/- was withdrawn by the second defendant on 30.8.1996. The second defendant also secured a pay order for a sum of Rs.3 Lakhs on 38. 1996. On the very same day, he also withdrew a sum of Rs.3,50,000/- from his account. The fact remains that a sum of Rs.14,451/-is still in his account. 14. The relevant documents concerning the issue: Exhibit P-7 is the account opening form dated 28. 1996 submitted by the second defendant and accepted by the fourth defendant. 1996. On the very same day, he also withdrew a sum of Rs.3,50,000/- from his account. The fact remains that a sum of Rs.14,451/-is still in his account. 14. The relevant documents concerning the issue: Exhibit P-7 is the account opening form dated 28. 1996 submitted by the second defendant and accepted by the fourth defendant. Exhibit P-9 is the copy of the Demand Draft drawn on the fourth defendant in favour of the second defendant for a sum of Rs.5 Lakhs. Exhibit P-8 and Exhibit P-10 are current account pay-in-slips dated 28. 1996 for a sum of Rs.5001/- and Demand Draft dated 28. 1996 for a sum of Rs.9 Lakhs respectively. Exhibits P-11 to P-13 are the documents relating to the banking transactions done by the second defendant with the fourth defendant on 30.8.1996 and 38. 1996. Exhibit P-15 is the Xerox copy of the statement of current account opened and operated by the second defendant. True copy of the manual of instructions was marked as Exhibit D-2 on the side of the bank. Account opening form submitted by the third defendant was marked as Exhibit C-1 and the statement of accounts of the third defendant was marked as Exhibit C-2 on production of the same by the fourth defendant, as per the direction of this Court. .15. Discussion on negligence alleged against the petitioner: .Certain special precautions in opening of the accounts of the sole proprietary firms and unregistered partnership firms have been adumbrated in Clause 9 of the Manual of Instructions Exhibit D-2. An account of the firm should be to by introducing a party, who maintains high bus int. integrity and posses good means. He should also be well known to the branch. The person introducing the account is no way directly or indirectly connected with the firm. 16. It has been established before this Court by producing the account opening form Exhibit C-1 and the statement of Current Account of the third defendant that the third defendant has been associating with the third defendant right from the year 1992 and he has been a frequent operator of the bank account with the fourth defendant. That may be one of the reasons why D.W.2 has not chosen to note down even the account number of the third defendant in the account opening form Exhibit P-7 concerning the second defendant. That may be one of the reasons why D.W.2 has not chosen to note down even the account number of the third defendant in the account opening form Exhibit P-7 concerning the second defendant. Further, the third defendant has informed D.W.2 that he knew him for about 5 long years and that he resided close by his business establishment. The photograph on the file of the second defendant also is found a place in the account opening form Exhibit P-7. The entire operations were not completed in a day or two. There had been operations of the accounts of the second defendant for 10 days. A sum of Rs. 14,451 is still lying in his account. 17. The fourth defendant should have thoroughly verified his business dealings. It is found that they have been completely guided by a reputed longstanding customer, the third defendant herein. There was no scope for them to doubt the veracity of the particulars furnished by the second defendant in the very presence of a good customer, the third defendant in the suit. .18. The scheme of operation of the account put into the practice by the second defendant would leave nobody to doubt his integrity. He opened the account on 28. 1996 with the deposit of Rs.5,001/-. The very same day he received a cheque book. The next day also he came to the branch and obtained another cheque book. There was no operation by him for about 8 days. Thereafter he came down to the on 30.8.1996 and deposited the Demand Draft for a sum of Rs.9 Lakhs drawn in his favour by the first plaintiff. If at all he had withdrawn the entire amount of Rs.9 Lakhs deposited through the Demand Draft, there is scope for doubting the operation made by the second defendant with the fourth defendant. Only about 1-3 of the amount was withdrawn by him at the first instance. Thereafter, the next day he proceeded to the Branch to withdraw only a sum of Rs.2,40,000/-. He took pay order for Rs.3,00,450/-. It is quite natural that the aforesaid pattern of operation did not rise any doubt in the mind of the banker on the integrity of the second defendant. 19. Thereafter, the next day he proceeded to the Branch to withdraw only a sum of Rs.2,40,000/-. He took pay order for Rs.3,00,450/-. It is quite natural that the aforesaid pattern of operation did not rise any doubt in the mind of the banker on the integrity of the second defendant. 19. The Division Bench of this Court way back in the year 1953, in Bharat Bank Limited v. Kishinchand Chellaram (1954) 1 MLJ 560 : (1955) ILR 411 has held that if the opening of the account and the deposit of the cheque were really part of one scheme, then negligence in the matter of opening of the account must be treated as negligence in the matter of realization of the cheques. That was a case where a cheque, which was stolen, was forged and encashed. 20. The above ratio has been followed in the later decision rendered by the Bench of this Court in Vysya Bank Ltd. V. Indian Bank, Madras I, AIR 1988, Madras 256 : (1987) 2 MLJ 390 . In the instant case, it has been established that the account was opened with the introduction of a valued customer of longstanding. D.W.1 has categorically deposed that he enquired with the valued customer about the second defendant and having been guided by his information that D.W.2 was known no him for 5 years and that he resided close to his business establishment opened the account in the name of the second defendant. Therefore, the Court finds that the above ratio will not apply to the facts and circumstances of the case. 21. The learned counsel appearing for the plaintiffs cited yet another decision of this Court in Indian Bank v. Catholic Syrian Bank, AIR 1981 Madras 129.That was a case where without proper introduction, an account was opened by the bank. The customer, who recommended for opening an account was also found to be not a respectable person. In such circumstances, it was held that the bank was negligent in opening an account without proper introduction. But, in the instant case, there is substantial evidence to show that D.W.2 having fully depended on the valuable customer, the third defendant herein, opened the account in the name of the second defendant. The current account of the third defendant would also demonstrate that the third defendant had consistent and long association with the fourth defendant bank. But, in the instant case, there is substantial evidence to show that D.W.2 having fully depended on the valuable customer, the third defendant herein, opened the account in the name of the second defendant. The current account of the third defendant would also demonstrate that the third defendant had consistent and long association with the fourth defendant bank. Therefore, no negligence can be attributed to the fourth defendant bank in opening the account in the name of the second defendant. Issue No. 1 is answered in favour of the fourth defendant. Issue No. III 22. Submissions of the learned counsel for the plaintiffs: The first plaintiff is the true owner of the Demand Drafts encashed by the second defendant, who opened the account with a fictitious name with the fourth defendant without proper verification. The Demand Draft was not voluntarily handed over to the first defendant intending to encash the same by him. It is his submission that P.W.1 and P.W.2 categorically depose that the Demand Draft was stealthily taken by the first defendant, who opened the account in the name of the second defendant and encashed the draft. Therefore, the fourth defendant cannot seek statutory protection under Section 131 of Negotiable Instruments Act. .23. Submissions made by the learned counsel for the fourth defendant. .The story of the first plaintiff that the draft taken in the name of the second defendant was not handed over to the first defendant, but it was dubiously taken away by the first defendant, is found to be quite artificial. The first plaintiff, who had taken a draft of Rs.9 Lakhs in the name of the second defendant and parted with the same to the first defendant for the purpose of clinching business transaction with him, cannot now claim that the first plaintiff is the true owner of the Demand Draft. It is his submission that the plaintiffs have come out with an ingenious story that the Demand Draft was stealthily taken by the first defendant in order to set up a plea that the first plaintiff is the true owner of the Demand Draft. As the first plaintiff is not the true owner of the Demand Draft, he cannot make any claim as against the fourth defendant, it is submitted. .24. Statutory protection under Section 131 of Negotiable Instruments Act. As the first plaintiff is not the true owner of the Demand Draft, he cannot make any claim as against the fourth defendant, it is submitted. .24. Statutory protection under Section 131 of Negotiable Instruments Act. .A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment. 25. Though Section 131 deals only with the cheque, Section 131-A extends the operation of Section 131 to the Drafts also. A true owner of the cheque shall make a claim as against the banker. The banker should have received payment for a customer. The banker should have acted in good faith and also without negligence. In such circumstances, if the title to the cheque is proved to be defective, then the banker is not liable to the true owner. 26. In the instant case, as rightly contended by the learned counsel appearing for the fourth defendant, the plaintiffs have come with a cock and bull story that the Demand Draft taken in the name of the second defendant was stealthily taken away by the first defendant. It is the admitted case of the plaintiffs that the Demand Draft was taken by the first plaintiff in favour of the second defendant. .27. The version of the plaintiffs that the first defendant put the Demand Draft in a cover along with tender form, sealed and handed over to P.W.1, but when it was opened after some days, the draft was not found in the cover, but only empty papers were found, is not all believable. In the facts and circumstances of the case, in can be easily concluded that the first defendant having taken a Demand Draft in the name of the second defendant handed over the same to the first defendant at Chennai, who opened an account in the name of the second defendant and encahsed the same. The facts and circumstances would strongly indicate that the plaintiffs had intended to pass on the title in the draft to the first defendant. In such circumstances, the plaintiffs cannot claim that they are the true owners of the cheque. The fourth defendant bank is liable to answer only the true owner. The facts and circumstances would strongly indicate that the plaintiffs had intended to pass on the title in the draft to the first defendant. In such circumstances, the plaintiffs cannot claim that they are the true owners of the cheque. The fourth defendant bank is liable to answer only the true owner. Though the plaintiffs have taken the Demand Draft, the moment they had parted with the Demand Draft to the person in whose favour it was drawn, they ceased to be the owners of the Demand Draft and the person in whose favour the Demand Draft was drawn becomes the owner of the same. In such circumstances, the plaintiffs, who are not the owners of the Demand Draft cannot make any legal claim against the fourth defendant. 28. The plaintiffs have passed the title in the Demand Draft to the first defendant. When it was presented for encashment, the Demand Draft was not found defective. The Court has also held that only in good faith based on the recommendation of a valuable customer, the account in the name of the second defendant was opened. No negligence also can be attributed to the fourth defendant, who made an enquiry with the valuable customer about the second defendant. Therefore, the fourth defendant has got statutory protection under Section 131 of Negotiable Instruments Act. 29. This Court in Manager, Mandvi Cooperative Bank Ltd. Bombay v. Viswa Banchu and Others. (2005) 5 CTC 41 has held that the collecting banker, who failed to establish that they opened an account with proper introduction is liable to answer the claim of the true owner of the Demand Draft, when the Demand Drafts were encashed by a stranger. 30. In the aforesaid case, it is found that the Demand Draft, which was sent by post was lost and ultimately fell into the hands of a stranger, who was not entitled to the Demand Draft. The true owner approached the Court, claiming the amount under the draft. But the facts and circumstances of the case as set out above are totally different. Therefore, the above ratio does not apply to the facts of this case. 31. In Law Lexicon, a ‘customer’ was defined as a person with whom business house or a business man, has regular or repeated dealings. But the facts and circumstances of the case as set out above are totally different. Therefore, the above ratio does not apply to the facts of this case. 31. In Law Lexicon, a ‘customer’ was defined as a person with whom business house or a business man, has regular or repeated dealings. A ‘customer of a bank’ was defined as a person, who has habitual or consecutive business relation with a bank. The aforesaid definitions only reflect the general meaning of the word ‘customer’ and the phrase ‘customer of a bank’. .32. It is true that there was a “duration theory” earlier. Under the aforesaid theory, a person, who had single transaction with the bank would not fall under the definition of ‘customer’. But such a theory has been later on exploded by the march of law. The relation of a banker and customer begins the moment an account is opened and the first transaction takes place with the person, who opened the account. Therefore, the submission made by the learned counsel appearing for the plaintiffs that the second defendant was not a customer of the fourth defendant, does not hold water. 33. The payee is a person named in the instrument to whom or to whose order the money is directed to be paid under the instrument. As per Section 8 of Negotiable Instruments Act, the “holder” of a promissory note, bill of exchange or cheque means any person entitled in his name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. .34. Section 10 of the Negotiable Instruments Act reads as follows: .“Payment in due course”: “Payment in due course” means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.” 35. In the instant case, as already held by this Court, the payment has been made by the fourth defendant to the second defendant in good faith and without any negligence. The amount was paid only with the authority found under the instrument by the banker. There was no occasion for the fourth defendant to doubt the title of the second defendant to the instrument. The amount was paid only with the authority found under the instrument by the banker. There was no occasion for the fourth defendant to doubt the title of the second defendant to the instrument. When such being the case, the payment made by the fourth defendant to the second defendant is payment in due course, as per Section 10 of the Negotiable Instruments Act, 1981. 36. In view of the above facts and circumstances, it is held that the fourth defendant bank is protected statutorily under Section 131 of the Negotiable Instruments Act. The issue is answered in favour of the fourth defendant. 37. It has been held that the plaintiffs have almost given up their plea that there was collusion amongst the defendants 1 to 4. Of course the plaintiffs can make a claim as against the second defendant, who duped them. But the entire cause has been directed only against the fourth defendant in this Suit. Further, on their own showing, the second defendant is turned out to be a fictitious person. Therefore, the plaintiffs are not entitled to get a decree as against the defendants as prayed for. The above issues are answered in favour of the fourth defendant in the result, the plaintiffs are not entitled to the relief as sought for. Consequently, the Suit stands dismissed. There is no order as to costs.