JUDGMENT : Kalyan Rai Surana, J. Heard Mr. B. Sarma, learned Standing Counsel for the N.F. Railways, the appellant herein and also heard Mr. H.P. Barman, learned counsel for the respondent. 2. By this appeal under section 23 of the Railway Claims Tribunal Act, 1987, the appellant has challenged the judgment and order dated 01.02.2008 passed by the learned Railway Claim Tribunal, Guwahati Bench, Guwahati, in Claim Application No.518/2007, thereby allowing the claim application of the respondent to the extent of Rs. 30,511/-, inclusive of compensation of Rs. 28,329/- and application fees of Rs. 1682/- and Rs. 500/- as lump sum counsel fees. The appellant was directed to pay the said amount to the respondent within 2(two) months, failing which the amount would carry interest @ 6% per annum till realization. 3. The facts of the case is a short one. The respondent is the claimant in Claim Application No.518/07 and the respondent had filed a claim application for Rs. 2,00,000/- as compensation for the loss of the damage of 1145 cement bags weighing 57250 kgs @ Rs. 175/- per bag, alleging therein that the loss had occurred due to negligence or misconduct on part of the servants of the appellant. 4. As per the impugned judgment, the learned tribunal had recorded that the counsel for the respondent has stated that the amount of Rs. 1,26,246/- was paid to the respondent during the pendency of the claim and, as such, the said payment would become a part of the payment against the claim and that the respondent was entitled to get the balance amount from the appellant as per the decision of the Hon'ble Madhya Pradesh High Court, rendered in the case of Union of India and another Vs. M/s. Ganga Ram Bhagawan Das, (1977) AIR M.P. 215. 5. The learned Tribunal, by holding that the cases cited by the respondent was applicable in the present case, it was further held that the appellant could not submit any document which could prove that the respondent had accepted the cheque amount in full satisfaction of their claim. Accordingly, having found that there was a loss of damage of 1154 bags of cement i.e. 57250 kg, compensation was assessed at Rs. 3/- per kg to be a fair compensation and the compensation was calculated as follows- Rs. 3X 57250 kg= Rs. 1,71,750/- less 10% salvage i.e. Rs. Accordingly, having found that there was a loss of damage of 1154 bags of cement i.e. 57250 kg, compensation was assessed at Rs. 3/- per kg to be a fair compensation and the compensation was calculated as follows- Rs. 3X 57250 kg= Rs. 1,71,750/- less 10% salvage i.e. Rs. 17,175/- and the net claim was found to be i.e. Rs. 1,71,750/- Rs. 17,175/- =Rs.1,54,575/- and therefore, the compensation amount was reduced by Rs. 1,26,246/-, already paid by cheque, and the balance payable was calculated to be at Rs. 28,329/- 6. The learned counsel for the appellant submits that on requisition issued by this Court for LCR, the learned Railway Claims Tribunal, Guwahati Bench, had sent a reconstructed LCR to this Court and therefore, in the absence of documents, he has produced a copy of the forwarding letter by which payment order No.010040/53 dated 03.03.2005 and cheque No.213563 dated 23.03.2005 drawn on SBI was sent to the respondent, after which, the said cheque was encashed by the respondent. 7. It is submitted that the payment of Rs. 1,26,246/- was received and encashed by the respondent without any demur and without lodging any protest prior to the encashment of the cheque and therefore, the acceptance and encashment of the cheque discloses that the respondent had accepted the cheque as full and final payment of all their claims in terms of the forwarding letter, and, as such the case of M/s. Gangaram Bhagwan Das was not applicant in the present case. 8. In support of his submission that the acceptance of the offer without protest amounted to unequivocal acceptance of the offer of the appellant as in terms of the offer. It is submitted that till encashment of the cheque of Rs. 1,26,246/- no protest was made. Moreover, if the offer was not acceptable then the original cheque ought to have been returned in terms of the offer letter, and to buttress the point, reliance is placed on the case of: 1. M/s. Bhagawati Prasad Pawan Kumar Vs. Union of India, (2006) 5 SCC 311 ; 2. Union of India and another Vs. M/s. Rameshwarlall Bhagchand, (1973) AIR Gauhati 111. 9. M/s. Bhagawati Prasad Pawan Kumar Vs. Union of India, (2006) 5 SCC 311 ; 2. Union of India and another Vs. M/s. Rameshwarlall Bhagchand, (1973) AIR Gauhati 111. 9. Advancing his submission in support of the impugned judgment, the learned counsel for the respondent has submitted that the decision of the Hon'ble Madhya Pradesh High Court in the case of M/S Gangaram Bhagwan Das, was referred to by the Hon'ble Supreme Court in para 16 of the judgment rendered in the case of M/s. Bhagawati Prasad Pawan Kumar and therefore, the judgment rendered by the Hon'ble Madhya Pradesh High Court in the case of M/s. Gangaram Bhagwan Das would constitute a binding precedent. 10. It is submitted that the cheque was encashed during the pendency of the claim petition and, as such, there can be no presumption that the respondent had waived a right to their entire claim and that the respondent was not obliged to submit a protest in respect of payment received in the pendency of the case as the respondent was perusing the claim. 11. A similar issue came up before this Court on an earlier occasion in the case of: 1. General Manager, N.F. Railway Vs. M/s. Charu Enterprises, MFA 28/2009, decided on 20.07.2017, 2. General Manager, N.F. Railway Vs. M/s. Binaykia Trade, (2017) 4 GauLR 71 . 12. In the case of Charu Enterprises, this Court had adjudicated a similar case where during the pendency of the claim petition, payment was made by the N.F. Railway and which was accepted by the respondent therein. The present counsel appearing for the respondent therein had also relied on the case of M/s. Gangaram Bhagawan Das and M/s. Bhagawati Prasad Pawan Kumar. 13. On the issues raised, this Court had placed reliance on the ratio laid down by the Hon'ble Apex Court in the case of M/s. Bhagawati Prasad Pawan Kumar, and those two appeals were allowed by holding that the judgment by the learned Railway Claims Tribunal, Guwahati was not sustainable as the respondent had not made/lodged any protest before the encashment of the cheque payment and it was held that such payment was received without any protest as full and final payment of the claim and that the burden of disproving the same could not be shifted on the appellant. 14. The present case is found to be similar on facts. 14. The present case is found to be similar on facts. In the present case also before encashing of the cheques, the respondent did not communicate to the appellant that he did not intend to accept the offer made by the Railway vide their letter dated 03.03.2005. 15. As per the impugned judgment, it is seen that there is no finding to the effect that any protest was lodged before encashing of the cheque and, as such this Court is constrained to hold that the respondent had accepted the offer of compensation by conveying its acceptance of the payment by accepting and encashing the cheque without any protest or reservation. 16. In the absence of any material on record to show that any protest was lodged before the encashment of the cheque, applying the ratio of the case of M/s. Bhagawati Prasad Pawan Kumar, this Court is inclined to hold that it was the duty of the respondent to plead and prove that they had not accepted the offer of Rs. 1,26,246/- as full and final payment of all claims and accordingly, they had called upon the appellant to pay the balance amount. 17. Hence, the respondent by their conduct had accepted the offer of Rs. 1,26,246/- made by cheque which was the mode of acceptance as per the offer letter dated 03.03.2005 of the appellant. 18. Following the ratio laid down in the case of M/s. Charu Enterprises as well as ratio laid down by the Hon'ble Supreme Court in the case of M/s. Bhagwati Prasad Pawan Kumar, as well as the case of M/s. Rameshwarlall Bhagchand, this appeal stands allowed. 19. The impugned judgment and order dated 01.02.2008 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in Claim Application No.518/2007, is found to be not sustainable and the same is set aside. Resultantly, the said claim petition stands dismissed. 20. The parties are left to bear their own costs. 21. Let the LCR be returned back.