Tag: Legal Responsibilities

Paying banker is the bank on which a cheque is drawn and which makes payment to the holder of the cheque. In simple words, it is the customer’s bank that pays money when a cheque is presented. For example, if a person issues a cheque from his SBI account, SBI becomes the paying banker. The paying banker must pay the cheque only when it is properly written, signed by the account holder, and sufficient balance is available in the account. It has a legal duty to verify the cheque carefully to avoid fraud, forgery, or wrong payment. If the bank pays a wrong person or ignores clear defects, it can be held liable under banking law. The concept of paying banker is mainly governed by the Negotiable Instruments Act, 1881. Thus, the paying banker plays an important role in ensuring safe and lawful cheque payments in India’s banking system.

Duties of Paying Bankers:

1. Duty to Pay Cheques Properly

The paying banker must honour the customer’s cheque when it is correctly drawn, properly dated, duly signed, and sufficient balance is available in the account. The cheque should not be altered or damaged. If the banker refuses payment without valid reason, it may be held liable for dishonour. This duty ensures smooth business transactions and maintains customer trust. However, payment should be made only during banking hours and at the correct branch.

2. Duty to Verify Customer’s Signature

The paying banker must carefully compare the signature on the cheque with the specimen signature available in bank records. If the signature differs or appears forged, payment should be stopped immediately. If the bank pays a cheque with a forged signature, it cannot debit the customer’s account and must bear the loss itself. This duty protects customers from fraud and misuse of their funds.

3. Duty to Check Adequate Balance

Before making payment, the banker must ensure that sufficient funds are available in the customer’s account. If balance is insufficient, the banker has the right to dishonour the cheque. Paying without enough balance may lead to loss for the bank. This duty helps maintain proper account management and prevents overdrawing without permission, unless an overdraft facility is granted.

4. Duty to Observe Stop Payment Instructions

If a customer issues clear instructions to stop payment of a cheque, the paying banker must strictly follow them. Even if sufficient funds are available, the banker should not pay the cheque once stop payment notice is received. If the bank ignores such instruction and pays the cheque, it will be responsible for the loss. This duty protects customers from wrong or unwanted payments.

5. Duty to Note Legal Orders

The paying banker must not make payment when there is a legal restriction such as court attachment orders, garnishee orders, insolvency notice, or death of the account holder. Once such information is received, the banker must freeze or restrict the account as required by law. Paying after receiving legal notice makes the banker legally liable.

6. Duty to Check Crossing of Cheques

The banker must carefully examine whether a cheque is crossed or open. A crossed cheque must be paid only through a bank account and not in cash. If the banker pays a crossed cheque in cash wrongly, it will be liable for any loss caused. This duty ensures safe transfer of funds and reduces chances of theft or fraud.

7. Duty to Make Payment in Due Course

The paying banker must make payment in good faith, without negligence, and according to banking rules. Payment should be made to the right person and in the proper manner. If payment is made honestly after proper verification, the banker gets legal protection under the Negotiable Instruments Act. This duty balances customer safety and banker’s legal security.

Responsibilities of Paying Bankers:

1. Duty to Honour Cheques

The primary responsibility is to honour a customer’s cheque when it is presented for payment, provided:

• The customer’s account has sufficient funds.

• The cheque is properly drawn and authentic (no material alterations).

• There is no legal bar (e.g., garnishee order) or instruction to stop payment.

• The cheque is presented within validity period (3 months).
  Failure to honour a valid cheque without proper cause makes the banker liable for damages for wrongful dishonour.

2. Duty to Exercise Reasonable Care & Skill (Negligence)

The banker must act with the care and skill expected of a professional. This includes:

• Verifying the signature of the drawer against the specimen.

• Checking for material alterations (which render the cheque void unless authenticated).

• Ensuring the cheque’s form and essential elements comply with the NI Act.

• Confirming the endorsements on order cheques are regular and in sequence.
  Payment made on a forged cheque is generally at the banker’s own risk, as they cannot debit the customer’s account in such cases.

3. Duty to Make Payment in Due Course

Payment must be made “in due course” as defined by Section 10 of the Negotiable Instruments Act, 1881. This means:

• Payment is made in accordance with the apparent tenor of the instrument.

• Payment is made in good faith and without negligence.

• Payment is made to the holder of the cheque.

• Payment is made at or after the maturity (for bills/notes) or during banking hours for cheques.
  Payment made in due course discharges the banker’s liability, even if the payee’s title is later found defective.

4. Duty to Act on Proper Mandates & Stop Orders

The banker must strictly comply with the customer’s mandates:

• If a customer issues a valid stop payment instruction (oral/written), the banker must refuse payment. Failure to do so makes the banker liable.

• On receipt of a Garnishee Order (Court order) under Order 21, Rule 46 of the CPC, the banker must attach/freeze the customer’s account and cannot honour cheques up to the attached amount, under penalty of contempt of court.

5. Duty to Maintain Secrecy of the Customer’s Account

Governed by an implied contract, the banker must not disclose account details, financial standing, or transactions to third parties, except:

• Under compulsion by law (e.g., court order, IT authorities).

• Duty to the public to disclose (e.g., preventing fraud).

• With express or implied consent of the customer.

• For banking practice (e.g., status enquiries from other banks).
  Unauthorized disclosure is a breach of trust and can lead to legal action for damages.

6. Duty to Claim Statutory Protection

To be shielded from liability, the banker must ensure payments are made under statutory protection:

• Section 85(1) NI Act: Protection for cheques payable to order, if paid to the wrong person, provided it was done in due course and with no negligence.

• Section 85(2) NI Act: Protection for cheques payable to bearer, if paid in due course.

• Section 10 & 128 NI Act: General protection for payments made in due course.
  To avail this protection, the banker must prove absence of negligence in verifying the instrument.

7. Duty to Follow Proper Procedure for Dishonour

If a cheque must be dishonoured, the banker has a strict procedure to follow:

• Mark the cheque with the specific reason for dishonour (e.g., “Insufficient Funds,” “Payment Stopped,” “Signature Differs”).

• Issue an official Dishonour Memo/Return Memo citing the reason.

• Promptly notify the presenting bank/holder.
  An incorrect or vague reason can make the banker liable for defamation, as dishonour questions the drawer’s creditworthiness.

8. Duty to Operate as per Terms of Account

The banker must adhere to the specific contract governing the account type:

• For savings accounts, follow restrictions on withdrawals and number of transactions.

• For current accounts, honour cheques up to the available balance.

• For loan/overdraft accounts, operate within the sanctioned limit.

• Follow joint account mandates (e.g., “Either or Survivor,” “Former or Survivor”).
  Deviating from these terms, like allowing an overdraft without arrangement, is a breach of contract.