TMI Blog1963 (2) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar Sharif branch of the Bank for ₹ 50,000/- and approached the Manager for immediate advance of ₹ 35,000/- as they required that amount for paying the price of certain cloth allotted to them by M/s. Manohardas jainarain, wholesale dealers of Patna. Then according to the Bank, an arrangement was entered into between the Firm and the Manager of the Bihar Sharif branch of the Bank under which the Firm was allowed to draw on the security of the promissory note on its agreeing to pledge the bales of cloth as further security after they were received from the wholesalers. On the basis of this agreement, the Firm drew a cheque for ₹ 35,000/- on August 29, 1947 in favour of the second defendant, which was, according to the Bank, actually passed for payment by the Manager of the Bihar Sharif Branch of the Bank and the amount was paid to the second defendant. Further, according to the Bank, on August 30, 1947 a false and mischievous telegram purporting to be from defendant No. 2, Mahabir Lal, was received by the Manager of the Bihar Sharif branch of the Bank saying that the Potdar of the Bank who was sent along with him with the money by the Manager had not deposited i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar Sharif branch of the Bank. According to the Firm, a cheque was drawn at 5.00 a. in. on the next morning and after it was handed over to Mr. Kapur, he went inside the treasury of the Bank alone with the potdar and returned with something wrapped in a gamchha and tied it round the waist of the Potdar and said that the latter would hand over the money to M/s. Manohardass jainarain, take delivery of the goods and bring them to the premises of the Bank where they would be kept in pledge. Thereafter the Potdar and the second defendant, along With one Mahadeo Ram, a servant of the Firm left for Patna by bus. On reaching the ekka stand of Patna, the Potdar asked the second defendant to proceed to the premises of M/s. Manohardas jainarain saying that as he had to go to, the Patna City Branch of the Bihar Bank, he would follow later. He assured the second defendant that he would bring along with him the sum of ₹ 35,000/-. The second defendant then went to the promises of M/s. Manohardass jainarain and waited for the Potdar to turn up. As he did not come within a reasonable time, he went to the Patna City Branch of the Bank only to discover that the Potdar was not there either. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent has filed an affidavit which counters the Statement made on behalf of the Bank. In our opinion where a statement appears in the judgment of a court that a particular thing happened or did. not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless of course both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. If the High Court had proceeded on an erroneous impression that Mr. De had conceded that the money was taken along with him by Ram Bharosa Singh to Patna, there was nothing easier for the Bank than to prefer an application for review before the High Court after the judgment was pronounced or if the judgment was read out in court immediately draw the attention of the court to the error in the statement. Nothing of the kind was done by the Bank. It is too late for the Bank now to say that the statement was wrong. It appears to have been argued on behalf of the Bank in the trial court alternatively that even on the assumption that the money was taken to Patna by Ram Bharosa Singh, the suit must be decreed. We, therefore, see nothing strange in Mr. De making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual custody of the Firm or that of the custody of a per-son who was a servant or agent of the Firm, the Firm cannot be held liable for it. In regard to s. 85 of the Negotiable Instruments Act, 1881 (26 of 1881) and the decision of Jagjivandas, Jamnadas v. The Nagar Central Bank Ltd., (1925) I.L.R. 50 Bom. 118, which is founded on that section upon which reliance was placed before the High Court, it is sufficient to say that before the provisions of s. 85 can assist the Bank, it had to be established that payment had in fact been made to the Firm or to a person on behalf of the Firm. Payment to a person who had nothing to do with the Firm or a payment to an agent of the Bank would not be a payment to the Firm. Section 118 of the Negotiable Instruments Act on which reliance was placed before us does not have any bearing upon the case at all. It was then urged on behalf of the Bank that even assuming that the money was misappropriated by the Potdar the Bank could not be held responsible for his act because his act was a criminal act. In support of this contention the learned counsel relied upon the decisions in Gopal Chandra Bhattacharjee v. The Secretary of State for India, (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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