JUDGMENT AND ORDER (ORAL) : Heard Mr. P. Saha, learned counsel appearing for the appellant as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. B. Chakraborty, learned counsel appearing for the respondent No. 1 and Mr. S. Lodh, learned counsel appearing for the respondent No.2. 2. This is an appeal under Section 100 of the CPC from the judgment dated 12.04.2013 passed by the District Judge, South Tripura, Udaipur [as he then was] in Money Appeal No. 01 of 2012. For hearing the appeal, by the order dated 19.08.2013, the following substantial question of law was framed : “Whether the first appellate court has misread the evidence as to the appropriation of the fund of the plaintiff-appellant Bank related to the dishonoured cheque in question?” 3. The essential facts that may be necessary for appreciating the ground of objection in this appeal may be introduced at the outset. The respondent No. 2 has an account in the United Bank of India, Killa Branch under No. 1198010102830. He admittedly issued a cheque infavour of the respondent No.1 for an amount of Rs. 2,39,427/on 24.04.2008. It is also admitted by the defendant No.1, the respondent No.1 herein, that he had deposited the said cheque for encashment in his account, maintained in the Union Bank of India under No. 571501010050026 [see Exbt.6]. It is also not in dispute that the said cheque issued by the defendant-respondent No.2. when the said cheque deposited for encashment in the account of the defendant-respondent No.1, maintained in the Union Bank of India, it was sent for collection. Since the said branch of the Union Bank of India was not a member of clearance as per the inter-bank agreement, the said cheque was pushed through for collection from the Union Bank of India, Udaipur Branch through the SBI, Udaipur Branch. It took a considerable time. It is the case of the plaintiff that at the insistence of the defendant-respondent No.1, the bank credited the entire cheque amount in his account, even without having the said cheque encashed and the said amount was allowed to be withdrawn by the defendant respondent No.1. 4. It is also not in dispute that after few days, the cheque issued by the defendant-respondent No.2 got dishonoured for insufficiency of fund in the account of the defendant-respondent No.2. 4. It is also not in dispute that after few days, the cheque issued by the defendant-respondent No.2 got dishonoured for insufficiency of fund in the account of the defendant-respondent No.2. Even though the defendant-respondent No.1 was entitled to the legal action against the defendant-respondent No.2, but he was not entitled to get any money from the plaintiff-bank. It surfaces that some officers of the plaintiff-bank had played the facilitators for the defendant-respondent No.1 to take out the said sum of Rs. 2,39,427/from his account. When the cheque was dishonoured, it is not in dispute that the plaintiff bank insisted the defendant respondent No.1 to deposit the said amount by a letter/notice dated 26.05.2001 [Exbt 3]. It is the case of the plaintiff-bank that having received the said letter (Exbt.3), the defendant-respondent No.1 had deposited a sum of Rs. 19,500/by few installments. The plaintiff-bank therefore has asserted that it is the acknowledgement of the liability by the defendant-respondent No.1. But the defendant respondent No.1 has against such pleading of the plaintiff-bank categorically stated that the said amount of Rs. 19,500/was never deposited by acknowledging the liability rather those deposits were part of usual transaction. When the defendant-respondent No.1 refused to adjust the amount that he had withdrawn without any title on such amount, the plaintiff-bank instituted the money suit being Money Suit No. 01 of 2011 in the court of the Civil judge, Senior Division, South Tripura, Udaipur. 5. On the face of the rival pleadings, the trial court formulated several issues including whether the plaintiff is entitled for a decree for recovery of an amount of Rs. 3,16,549/from the defendant Nos. 1 and 2 and whether the defendants are bound to pay back/return to the bank the aforesaid amount with interest? 6. After the evidence, both documentary and oral, was recorded, by the judgment dated 18.01.2012, the trial court dismissed the suit holding that the plaintiff-bank is not entitled for a decree for recovery for an amount of Rs. 3,16,545/from the defendant Nos. 1 and 2 nor the plaintiff-bank is entitled to get any interest on the said amount from the defendant Nos. 1 and 2. The primary reason for such finding can be available from the passage as reproduced hereunder from the judgment of the trial court : “On perusal of Ext. 3,16,545/from the defendant Nos. 1 and 2 nor the plaintiff-bank is entitled to get any interest on the said amount from the defendant Nos. 1 and 2. The primary reason for such finding can be available from the passage as reproduced hereunder from the judgment of the trial court : “On perusal of Ext. 7, it reveals that the Union Bank of India, Udaipur Branch issued notice to defendant No.1, that cheque No. 189262 dated 24.04.08 for Rs. 239427 on Union Bank of India was dishonoured due to insufficiency of fund. It is also mentioned that the said cheque was returned to them by SBI Udaipur on 25.5.08. It is also stated in the said notice that cheque amount was credited in the defendant No.1 account due to mistake and defendant No.1 was requested to adjust the debit (overdrawn) balance. The said notice was also received by defendant No.1. The Ext.7 also does not support the plaintiffs case that amount was credited in the defendant No.1 as he impressed upon the plaintiff bank that the cheque was issued by the village secretary and he was in urgent need of money. On perusal of Ext.7 it nowhere mentioned that defendant No.1 agreed and admitted the cheque and committed to deposit the entire amount of money withdrawn from the plaintiff bank.” 7. Being aggrieved by such finding returned by the trial court, the appellant herein filed an appeal under Section 96 of the CPC in the Court of District Judge, South Tripura, Udaipur [as he then was] being M.A. No. 01 of 2012. After hearing, the first appellate court by the impugned judgment dated 12.04.2013, has dismissed the appeal affirming the finding returned by the trial court. The first appellate court has adopted a similar view that of the trial court by observing as under : “It is an admitted and established fact that the cheque book, Exbt.A was issued by the Union Bank of India in the name of defendant-respondent No.2 against S.B. A/C No. 2830. From the Exbt. A it is found that cheque was issued by defendant-respondent No.2 and it was issued in the name of defendant-respondent No.1. Defendant-respondent No.1 accordingly submitted the cheque and was waiting for collection. Plaintiff-appellant bank was supposed to collect the amount and then disbursed it to the defendant-respondent No.1. But before collection, it is stated that the amount was disbursed to defendant-respondent No.1. Defendant-respondent No.1 accordingly submitted the cheque and was waiting for collection. Plaintiff-appellant bank was supposed to collect the amount and then disbursed it to the defendant-respondent No.1. But before collection, it is stated that the amount was disbursed to defendant-respondent No.1. Plaintiff-appellant bank, therefore, is to prove by convincing evidence that without collection of the cheque issued by defendant-respondent No.2, the amount was disbursed to defendant-respondent No.1 and if disbursed, then under what authority it was disbursed. Before collection, generally it cannot be done by the bank. Plaintiff-appellant Union Bank of India examined one Nitai Debbarma, as witness. He stated that on receipt of the cheque from defendant-respondent No.1, Subhajit Roy, plaintiff bank send the cheque to S.B.I., Udaipur Branch for collection of the amount from U.B.I., Killa Branch as the plaintiff bank was not the clearing bank. Before collection of the amount from the U.B.I., Killa Branch through State Bank of India, Subhajit Roy insisted the plaintiff bank to credit the amount stating that village secretary had issued the said cheque against some work order. Believing his words, the plaintiff bank credited the amount of the cheque of Rs. 2,39,427/. He did it without collection of the amount. How the bank could do it, no clarified. From the statement of A/c it is found that the cheque was not actually encashed but Subhajit Roy i.e. defendant-respondent No.1 got the cheque amount being credited by U.B.I. In such circumstances, Subhajit Roy had the scope to realize the amount received from defendant-respondent No.2, who issued the cheque because defendant-respondent No. 2 did not give proper A/c number in the cheque and also proper address was not given. But no action was taken by defendant-respondent No. 1, Subhajit Roy. Advocate notice was given to Subhajit Roy but he did not take any step against defendant-respondent No.2 as he did not cheat the bank and it was done on the persuasion made by Subhajit Roy, defendant-respondent No. 1. It is not proved by convincing evidence that how and under what authority on the request of Subhajit Roy the amount of Rs. 2,39,427/was credited. It is also not clear from the bank transaction and other documents produced by them to determine that amount was given as an advance against the cheque or as a security or any other form. It is not proved by convincing evidence that how and under what authority on the request of Subhajit Roy the amount of Rs. 2,39,427/was credited. It is also not clear from the bank transaction and other documents produced by them to determine that amount was given as an advance against the cheque or as a security or any other form. So, learned court below rightly decided that the claim of the appellant bank was not just and reasonable. From the plaint it is found that a criminal case already filed in respect of same matter but is yet under investigation. After consulting the statement of A/c (Exbt.10 series), cheques (Exbt.9 series), cash deposit vouchers (Exbt.8 series) cheque book (Exbt. A), pass book (Exbt. B) and also the statement of A/c from 09.04.08 to 16.06.11, entitlement of plaintiff-appellant bank for recovery of the amount of Rs. 3,16,549/from defendant-respondents No. 1 & 2 not comes out. The liability of the defendant-respondent No.1 & 2 to pay the amount being bounced by any promise or agreement, not established. After careful analysis of the evidence of witnesses and also the documentary evidence it is found that learned court below therefore rightly came to the conclusion that the plaintiff-appellant bank is not entitled to get the amount from defendant-respondent No. 1 & 2. They are also not entitled to get any other relief. Thus, both the issues are rightly decided by the learned court below and this court being the Court of Appeal finds no ground to interfere with the decision so arrived upon.” This appeal has been filed questioning the said finding of the first appellate court. 8. Mr. P. Saha, learned counsel appearing for the appellant has submitted that both the judgments passed by the courts below emanate from the nonappreciation of the material evidence such as the statement of account for the period from 09.04.2008 to 16.06.2011 of the account of the defendant-respondent No.1 which has been sent by the Branch Manager of Union Bank of India, Udaipur Branch. 9. It would be apparent from the said account that the defendant-respondent No.1 had been credited with a sum of Rs. 2,39,427/by the plaintiff-bank in his said account. But nowhere the defendant-respondent No. 1 had disclosed how the said amount had been credited in his account. 9. It would be apparent from the said account that the defendant-respondent No.1 had been credited with a sum of Rs. 2,39,427/by the plaintiff-bank in his said account. But nowhere the defendant-respondent No. 1 had disclosed how the said amount had been credited in his account. Therefore, it is quite conceivable and liable to be believed that the said amount was credited in his account by the bank either by the breach of the banking regulation or by an act of collaboration from any bank Officer. Since the defendant-respondent No. 1 could not establish the title over the said amount, it has to be held that the said amount of Rs. 2,39,427/which was the equivalent amount of the said cheque which was dishonoured is a part of the bank’s money on which the defendant-respondent No.1 had or has no title or right. When the cheque as deposited by the defendant-respondent No.1 was dishonoured, it was clear no money had come in his account by virtue of the said cheque. This aspect was all together ignored or not appreciated by the couts below, if appreciated properly there had been no other alternative but to hold that the said amount has been credited in the account of the defendant-respondent No.1 without his entitlement or title over it. Thus the bank was entitled or is entitled to recover the said amount from the defendant-respondent No.1. 10. In the said transaction with the bank, the defendant-respondent No. 2 has no role to play. What he has done is that he issued a cheque knowingfully well that the amount written in the cheque was not available in his account. For that, proper legal action, if any, could be adopted by the defendant-respondent No. 1 alone, not the bank in terms of Section 138 of the Negotiable Instrument Act. 11. Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. B. Chakraborty, learned counsel appearing for the defendant-respondent No.1 has candidly submitted that there is no evidence to show that the defendant-respondent No.1 had or has any title at all over the said sum of Rs.2,39,427/which was credited in his account and he has fairly admitted that this amount is of the bank and it has been credited by any bank Officer by breaching the banking regulation. Despite that he did not raise any issue to hold that any lien or entitlement was of the defendant-respondent No.1 over the said amount. 12. Mr. S. Lodh, learned counsel has reiterated that he has been made unnecessarily the defendant in the suit. However, he has submitted that he does not have any liability for the said transaction. The only point which falls for consideration in this appeal is whether the defendant No.1 had any title or any claim or lien on the said amount of Rs. 2,39,427/which was credited in his account, as would be evident from [Exbt.1] and ancillary to that, whether the bank is entitled to recover the said amount from the defendant-respondent No.1. 13. Having appreciated the evidence on record, this court is of the view that the defendant-respondent No. 1 does not have any title over the said amount of Rs. 2,39,427/. It is apparent on the face of the record and from the transaction as examined by this court that the said amount was, in breach of the regulation, deposited by the plaintiff-bank in the account of the defendant-respondent No.1. For mere crediting, the said amount in the account of the defendant-respondent No. 1, he cannot claim any title or lien over the said amount. It remains the bank amount. It had been credited in the account of the defendant-respondent No.1 without proper authority and without valid transaction. The money ought to have been returned by the defendant-respondent No. 1 to the bank. Since he has not returned the said money suit has been instituted for recovery. Having held thus, this court is of the further view that the plaintiff-appellant has got the title and claim over the said amount of Rs. 2,39,427/and the plaintiff-bank is entitled to recover the said money from the defendant-respondent No.1. Hence, the suit is decreed with costs. It is declared that the plaintiff-appellant is entitled to recover Rs.2,39,427/from the defendant-respondent No.1. Therefore the defendant-respondent No. 1 is directed to deposit the said amount to the plaintiff-bank within a period of 2 (two) months from today. If it is not so deposited within the said time, the plaintiff-appellant bank shall be entitled to recover the said amount pursuing the process of the law. Therefore the defendant-respondent No. 1 is directed to deposit the said amount to the plaintiff-bank within a period of 2 (two) months from today. If it is not so deposited within the said time, the plaintiff-appellant bank shall be entitled to recover the said amount pursuing the process of the law. It is made clear that the plaintiff-appellant bank shall not be entitled to any interest for the simple reason that its officials have contributed to this illegal transfer of the money to the credit of the defendant-respondent No.1. 14. On preparation of the decree, return the LCRs.