by Protection in case of order cheque
In case of an order cheque, Section 85(1) provides statutory protection to the paying banker as follows: “Where a cheque payable to order purports to be endorsed by or on behalf of the payee, the drawee is discharged by payment in due course”. However, two conditions must be fulfilled to avail of such protection.
(a) Endorsement must be regular: To avail of the statutory protection, the banker must confirm that the endorsement is regular.
(b) Payment must be made in Due Course: The paying banker must make payment in due course. If not, the paying banker will be deprived of statutory protection.
Protection in case of Bearer Cheque
Section 85(2) provides protection to the paying banker in respect of bearer cheques as follows : “Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or blank appearing thereon and notwithstanding that any such endorsement purports to restrict or exclude further negotiation”. This section implies that a cheque originally issued as a bearer cheque remains always bearer. In other words it retains its bearer character irrespective of whether it bears endorsement in full or in blank or whether any endorsement restricts further negotiation or not. So the banks are not required to verify the regularity of the endorsement on bearer cheque, even if the instruments bears endorsement in full. The banker shall free from any liability (discharged) if he makes payment of an uncrossed bearer cheque to the bearer in due course. If such cheque is a stolen one and the banker makes its payment without the knowledge of such theft, he will be discharged of his obligation and will be protected under Section 85(2).
Protection in case of Crossed cheque
The paying banker has to make payment of the crossed cheques as per the instruction of the drawer reflected through the crossing. If it is done, he is protected by Section 128. This section states “Where the banker on whom a crossed cheque is drawn has paid the same in due course, the banker paying the cheque and (in case such cheque has come to the hands of the payee) the drawer thereof shall respectively be entitled to the same rights, and be placed in if the amount of the cheque had been paid to and received by the true owner thereof”.
It is clear that the banker who makes payment of a crossed cheque is by the Section -128 given protection if he fulfils two requirements:
(a) That he has made payment in deuce course under Section -10 i.e. in good faith and without negligence and according to the apparent tenor of the cheque
(b) That the payment has been made in accordance with the requirement of crossing (Section 126), i.e. through any banker in case of general crossing and through the specified banker in case of special crossing.
Thus, the paying banker is free from any liability on a crossed cheque even if the payment was received by the collecting banker on behalf of a person who was not a true owner. For example, a cheque in favour of X is stolen by Y. He endorses it in his own favour by forging the signature of X and deposits it in his bank for collection . In this case, the paying banker shall be discharged if he makes payment as mentioned above and shall not be liable to pay the same to X, the true owner of the cheque.
The drawer of the cheque is also discharged since protection is also granted to him under this Section. There is, however, one limitation to the protection granted under this Section. If the banker cannot avail of the protection granted by other Section of the Act, the protection under Section 128 shall not be available to him.
For example, if the paying bankers makes payment of a cheque crossed with
- Irregular endorsement
- A material alteration
- Forged signature of the drawer,
He loses statutory protection granted to him under the Act for these lapses on his part. Hence he cannot avail of the statutory protection under Section -1289, even if he pays the cheque in accordance with the crossing.
