JUDGMENT : V.R.K.KRUPA SAGAR, J. 1. Two out of three defendants in O.S.No.410 of 2009 preferred this appeal under section 96 CPC read with Order XLI Rule 1 CPC impugning the judgment dated 04.02.2016 of the learned Additional Senior Civil Judge, Ongole. R1 is the plaintiff in the suit. R2/ Sri Y.Seshaiah is D3 in the suit. During pendency of this appeal R2/D3 died. After availing large amount of time, the appellants failed to implead legal representatives and consequently, appeal stood abated as against R2/ D3 on 19.09.2023. 2. Heard arguments of Sri Tagore Yadav Y, the learned counsel representing on behalf of Sri G.V.S.Ganesh, the learned counsel for appellants and Sri Ashok Kondeti, the learned counsel representing on behalf of Sri Panga Sivanarayana, the learned counsel for respondent No.1. 3. The following are undisputed facts: - L&T Company was engaged in certain contract works relating to Velugonda Project. They required sand. Sri Venkateswara Rao Transport represented by Sri Voleti Venkateswarlu agreed to supply the sand and over a period of time, sand worth Rs.67,80,704.40/- was supplied. Payments have always been made through cheques. Rs.60,44,945/- was paid and received. There remained a balance of Rs.7,35,759.40/- as on 10.09.2008. The dispute pertains to only this amount of money. By the time, the suit was filed after addition of interest, it became Rs.8,54,726/-. As Sri Venkatewara Transport supplied the required sand and as the payments have always been made through cheques, L&T company issued a cheque bearing No.475406 dated 30.08.2008 payable to Sri Venkateswara Transport. It is an account payee cheque drawn for Rs.7,38,976/-. Copy of this cheque is Ex.X8. It was handed over by L&T to Sri Y.Seshaiah/R2/D3. He got it encashed on 06.12.2008. Sri Venkateswara Rao Transport represented by Sri V.Venkateswarlu claimed that he did not receive the amount overdue to him and he did not receive any such cheque from Sri Y.Seshaiah/R2/D3. Praying for recovery of that money, he filed O.S.No.60 of 2009. D1 is Project Manager. D2 is General Manager of L&T company. He got it encashed on 06.12.2008. Sri Venkateswara Rao Transport represented by Sri V.Venkateswarlu claimed that he did not receive the amount overdue to him and he did not receive any such cheque from Sri Y.Seshaiah/R2/D3. Praying for recovery of that money, he filed O.S.No.60 of 2009. D1 is Project Manager. D2 is General Manager of L&T company. D1 filed a written statement denying its liability stating that it discharged its dues by handing over the cheque to Sri Y.Seshaiah/R2/D3, to whom they have been on many occasions handed over cheques which were received by the plaintiff and encashed by the plaintiff and therefore mischief, if any, played by Sri Y.Seshaiah/R2/D3 is a matter of concern between plaintiff and Sri Y.Seshaiah and they prayed for dismissal of the suit. Initially, Sri Y.Seshaiah was not a party to the suit. After the pleadings of defendants, plaintiff got him impleaded. D3 filed a written statement stating that plaintiff and he are partners and plaintiff had to pay nearly Rs.9 lakhs to him towards rent of lorries arranged by him to the plaintiff for supply of sand. He pleaded that he was not a necessary party to the suit and prayed for dismissal of the suit. 4. Learned trial court settled the following issues for trial: - 1. Whether the defendants 1 and 2 issued cheques to Y.Seshaiah under proper authorisation, and whether Seshaiah was authorised to receive the cheques? 2. Whether the cheques were encashed by the plaintiff ? 3. Whether the plaintiff is entitled to recover the suit claim ? 4. To what relief? 5. Sri V.Venkateswarlu testified as PW.1 and got examined PW.2 to 5 and got marked Exs.A1 to A40. On behalf of L&T company incharge of Accounts and Administration presented examination in chief by way of affidavit as DW.1 but he was not tendered for cross-examination and therefore trial court eschewed his evidence. Then the Accounts Manager of the company testified as DW.2. Sri Y.Seshaiah/R2/D3 testified as DW.3 and in proof of his reputation he got examined DW.4 and 5. Exs.B1 to B9 were marked for defendants. Before the trial court, Exs.X1 to X9 were also placed for consideration. 6. The learned trial court extensively discussed the oral and documentary evidence. Then the Accounts Manager of the company testified as DW.2. Sri Y.Seshaiah/R2/D3 testified as DW.3 and in proof of his reputation he got examined DW.4 and 5. Exs.B1 to B9 were marked for defendants. Before the trial court, Exs.X1 to X9 were also placed for consideration. 6. The learned trial court extensively discussed the oral and documentary evidence. In its lengthy judgment of 42 pages, it stated that D1 and D2/ L&T company had no authority to hand over the cheque to Sri Y.Seshaiah and that Sri Y.Seshaiah had no authorization from plaintiff to receive the cheque from the Company. Therefore, the money due to be paid to the plaintiff by the company remained overdue and therefore D1 and D2 had to pay it. It positively recorded that cheque was unauthorizedly and illegally encashed by Sri Y.Seshaiah and even criminal prosecution was initiated against him on the information lodged by plaintiff with the police. It passed the judgment in favour of the plaintiff in the following terms. “In the result, suit is partly decreed with costs against defendants 1 and 2 directing the defendants 1 and 2 to pay a sum of Rs. 8,54,7261-to the plaintiff with future interest @ 12% per annum from the date of suit till the date of decree, and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the principal sum of Rs.7,38,976/-. Suit is dismissed against 3rd defendant. The plaintiff is at liberty to prosecute 3rd defendant according to Law as he is dishonestly misappropriated by encashing the cheque.” 7. In the memorandum of grounds of appeal, the following contentions are urged. • Trial court approached the issues mechanically and failed to consider rival contentions appropriately and failed to follow the principles about burden of proof. • Trial court misconstrued the pleadings. • The views taken by the trial court during impleadment of Sri Y.Seshaiah were not kept in view by the trial court while taking decision in the suit. • Trial court’s failure to decree the suit as against D3 results in multiplicity of proceedings. • These appellants having established before the court below that very bonafidely they had issued the cheque and that was encahsed are unnecessarily slapped with the judgment directing them to pay the decree amount to the plaintiff. • Trial court’s failure to decree the suit as against D3 results in multiplicity of proceedings. • These appellants having established before the court below that very bonafidely they had issued the cheque and that was encahsed are unnecessarily slapped with the judgment directing them to pay the decree amount to the plaintiff. • The findings of the trial court that Sri Y.Seshaiah was not an agent of the plaintiff is wholly misconceived and is contrary to the evidence on record. • The business transactions as are involved in the suit permit oral agreements and contracts among parties and the trial court failed to appreciate the same. • The evidence established Sri Y.Seshaiah encashing the cheque issued by these appellants and the trial court ought not to have allowed him to be unjustly enriched by its judgment which dismissed the case of the plaintiff against Sri Y.Seshaiah. • The suit was not maintainable against these appellants/D1 and D2 since M/s.L&T company was not made a party. 8. In support of the contentions so raised meticulous arguments were advanced by the learned counsel for appellants referring to various parts of the evidence that are relevant for consideration. 9. Learned counsel for R1/ plaintiff contends that the elaborate discussion of oral and documentary evidence of trial court discloses its appropriate appreciation of evidence and the trial court reached to the conclusions only based on evidence and in reaching to its conclusions, it never failed to keep in view the principles of law either substantive or adjudicative and there is no warrant to interfere with the well considered judgment of the trial court and that this appeal lacks merit and therefore it is required to be dismissed. 10. The following points fall for consideration: - 1. Whether the evidence on record had established Sri Y.Seshaiah/R2/D3 is partner along with Sri V.Venkateswarlu in running Sri Venkateswara Transport? 2. Whether the evidence on record had established Sri Y.Seshaiah/R2/D3 is an agent of Sri V.Venkateswarlu? 3. Whether the appellants/D1 and D2 who claimed that they bonafidely handed over the cheque to Sri Y.Seshaiah acted diligently after bestowing requisite care and caution? POINTS 1,2 and 3: - 11. 2. Whether the evidence on record had established Sri Y.Seshaiah/R2/D3 is an agent of Sri V.Venkateswarlu? 3. Whether the appellants/D1 and D2 who claimed that they bonafidely handed over the cheque to Sri Y.Seshaiah acted diligently after bestowing requisite care and caution? POINTS 1,2 and 3: - 11. If the material on record discloses that Sri Y.Seshaiah was acting on behalf of Sri V.Venkatewarlu/plaintiff either as his partner or as agent, then the necessary conclusion should be to exonerate any liability on part of appellants since the appellants had proved that they had given Ex.X1 cheque to Sri Y.Seshaiah which Sri Y.Seshaiah encahsed. If on the other hand, the material on record does not disclose Sri Y. Seshiah was not representing on behalf of Sri V.Venkateswarlu then the liability of appellants towards plaintiff/R1 has to be upheld. 12. The oral evidence led by both sides before the court below and the oral arguments submitted by both sides before this court are to the effect that there has been no partnership deed between Sri Y.Seshaiah and Sri V.Venkateswarlu and that there was no written authorization given by Sri V.Venkateswarlu authorizing Sri Y.Seshaiah to collect cheques or payments from the appellants or the company. It is also not disputed in this appeal that as per the documents produced at the trial, Sri Venkateswara Transport is a sole proprietary firm run by Sri V.Venkateswarlu/ plaintiff /R1. Therefore, to decide the questions that arose in this appeal nothing more is required to be stated on the above referred undisputed submissions on both sides. 13. The straight forward evidence of plaintiff/ PW.1 is that as proprietor of Sri Venkateswara Transport, Dappalampadu Village, Gudluru Mandal of Prakasam District, he holds bank account bearing No.293010200005975 of Axis Bank, Ongole. DW.2 speaking on behalf of L&T company and the appellants in his cross-examination dated 17.08.2015 spoke from the records of his company and stated that earlier to the disputed cheque transaction there were 9 cheques that were issued by the company to Sri V.Venkateswarlu/ Sri Venkateswara Transport and they were all encashed at Axis Bank, Ongole. Thus, between the parties transactions have been held with Axis Bank, Ongole where there is bank account in the name of Sri Venkateswara Transport operated by Sri V.Venkateswarlu. 14. Ex.X8 cheque is the one and only time the company had drawn it on SBI, Markapur Branch. Thus, between the parties transactions have been held with Axis Bank, Ongole where there is bank account in the name of Sri Venkateswara Transport operated by Sri V.Venkateswarlu. 14. Ex.X8 cheque is the one and only time the company had drawn it on SBI, Markapur Branch. In Ex.A22 charge sheet filed by the state as against Sri Y.Seshaiah/R2/D3, it was disclosed that by the time of the disputed cheque dated 30.08.2008, enough funds were not there for L&T in Axis Bank and therefore it had drawn the original of Ex.X8 cheque on SBI. 15. Deputy Manager, SBI, Markapoor testified as PW.5. He stated that Sri Y.Seshaiah came to the Bank on 06.12.2008 and presented Ex.X6 application requesting bank to open an account in the name of M/s Sri Venkateswara Transport and the bank accordingly opened an account and that account bears No.30598922511 and on the same day, the original of Ex.X8 cheque was presented and the amount was credited to the account and on the same day, Sri Y.Seshaiah withdrew Rs.6 lakhs and in the same month, he withdrew the remaining balance amount and he closed the account in the same month on 30.12.2008. He stated that no other cheque transactions took place in that account during its currency. His evidence makes it clear that in his branch there was no account in the name of Sri Venkateswara Transport run by Sri V.Venkateswarlu/plaintiff/ R1. On behalf of appellants/D1 and D2, cross-examination was reported nil for this witness. Speaking on behalf of appellants, DW.2 had said that the plaintiff had accounts with Axis Bank as well as SBI. He did not substantiate it in any manner. Failure to elicit any information from PW.5/ the bank officer and failure to furnish any other oral or documentary evidence saying that the plaintiff had any such account with SBI is one determining factor in this dispute. 16. Plaintiff as PW.1 stated that Sri Y.Seshaiah/R2/D3 is not his partner in running Sri Venkateswara Transport. DW.2/ the officer of the appellants in his cross-examination dated 17.08.2015 categorically stated that with him there is no basis to show that Sri Y.Seshaiah is either a partner or proprietor of Sri Venkateswara Transport. Sri Y.Seshaiah through his evidence failed to demonstrate before the court below that he could be stated to be a partner with Sri V.Venkateswarlu in running Sri Venkateswara Transport. Sri Y.Seshaiah through his evidence failed to demonstrate before the court below that he could be stated to be a partner with Sri V.Venkateswarlu in running Sri Venkateswara Transport. Therefore, the finding of the trial court that they were not partners is a finding arrived at after meticulous examination of the evidence on record. Plaintiff as PW.1 in his examination in chief stated that Sri Y.Seshaiah has lorries and he used to work with the defendant company/ appellants herein. He further said that since Sri Y.Seshaiah was working with the company, on a few occasions, the cheques were sent by the company and were received by the plaintiff. This is the crucial piece of evidence in this entire litigation. As noticed earlier, the subject matter cheque which was original of Ex.X8 was handed over by appellants to Sri Y.Seshaiah is a fact admitted by all parties in the litigation. Now the question is whether Sri Y.Seshaiah was working for the appellants and thereby he could be stated to be their agent or is there material to show that Sri Y.Seshaiah was working on behalf of plaintiff/Sri V.Venkateswarlu. When PW.1 was tendered for cross- examination, there was extensive cross-examination led by counsel who represented these appellants/ D1 and D2. There was separate cross-examination by learned counsel representing Sri Y.Seshaiah/D3/R2. The appellants have been contending that in their bona fide opinion Sri Y.Seshaiah has to be considered as an agent of plaintiff. Therefore, they have to test PW.1 on that aspect. The evidence of PW.1 that Sri Y.Seshaiah was having lorries and was working with appellants was not even touched when the witnesses was cross-examined on behalf of the appellants. Thus, that statement of PW.1 remained unchallenged so far as these appellants are concerned. Coming to the evidence of DW.2, the officer of appellants, he stated that he had no basis to say that Sri Y.Seshaiah was acting on behalf of Sri V.Venkateswarlu. He did not even say that Sri Y.Seshaiah was not using his lorries with the company and for the company. Thus, the evidence of PW.1 with reference to his assertion that Y.Seshaiah was working with the company and on behalf of the company and he earlier brought the cheques on behalf of the company to him remained unshaken. He did not even say that Sri Y.Seshaiah was not using his lorries with the company and for the company. Thus, the evidence of PW.1 with reference to his assertion that Y.Seshaiah was working with the company and on behalf of the company and he earlier brought the cheques on behalf of the company to him remained unshaken. If that be the case, when the appellants handed over the original of Ex.X8 cheque to Sri Y.Seshaiah, the legal character of Sri Y.Seshaiah was that of an agent on behalf of the appellant’s company. Mischief played by him by fraudulently opening an account and encashing the cheque is thus a matter between the principal/company and the agent with which the third party such as plaintiff had no concern. If the plaintiff had not received the payment that is due from these appellants, the liability of the appellants did not cease. 17. At this juncture one may notice that prior to the institution of the suit, notices were exchanged and the officers of the L&T called Sri Y.Seshaiah to their office and they obtained Ex.B5 letter from him. In that Sri Y.Seshaiah mentioned that he received the cheque from the appellants and there were disputes between him and Sri V.Venkateswarlu and he would see that they were settled early. By then, the suit was not instituted. The appellants did not initiate criminal prosecution, but it was the plaintiff who initiated criminal prosecution against Sri Y.Seshaiah. It may be true that an agency could be express or implied. Admitted case on both sides is that there is no express agency in writing in this case. To find agency by conduct/ implied agency, the only evidence led by appellants is through DW.2 who said that he had no personal knowledge of any of the events. Thus, it is clear that appellants, failed to exercise reasonable care and caution and therefore their good hearts have no place when the liabilities and rights are considered on the touch stone of facts and law. Simply because appellants towards discharge of their liability towards plaintiff gave a cheque to their own agent/ Sri Y.Seshiah does not mean that they have discharged their debt towards plaintiff. The evidence on record probabilises the theory of the plaintiff that Sri Y.Seshaiah was only the man working at the behest of the company. Simply because appellants towards discharge of their liability towards plaintiff gave a cheque to their own agent/ Sri Y.Seshiah does not mean that they have discharged their debt towards plaintiff. The evidence on record probabilises the theory of the plaintiff that Sri Y.Seshaiah was only the man working at the behest of the company. In such circumstances, the view taken by the trial court is unassailable. 18. Since Sri Y.Seshaiah had played the mischief it was very well possible for the trial court to grant a decree as against him also as rightly contended by the learned counsel for appellants. In this appeal, the appellants did not choose to implead the legal representatives of R2/D3/ Sri Y.Seshaiah. Therefore, nothing further can be done in this appeal by this court as against the deceased. 19. In the result, this appeal is dismissed. Consequently, judgment dated 04.02.2016 in O.S.No.410 of 2009 of the learned Additional Senior Civil Judge, Ongole is confirmed. There shall be no order as to costs. As a sequel, miscellaneous applications, pending, if any, shall stand closed.