Prakash Shrivastava, J. - (1.) By this first appeal u/S.96 of the CPC, the defendants have approached this Court challenging the judgment of the trial court dated 22/3/1999 whereby CS No.4-B/1998 filed by the respondents plaintiff has been decreed.
(2.) The appellants are the wife and children of Abdul Razaq and the respondent No.2 Nizam Bhai was father of Abdul Razaq and on the death of Nizam Bhai his L.Rs have been impleaded in the appeal as respondent No.2(1) to 2(6). Abdul Razaq was the original defendant in the suit who had died pending the suit and the appellants have been brought on record as his L.Rs.
(3.) The respondent No.1 bank had filed the suit for recovery of a sum of Rs.2,65,756.55 as against the original defendant Abdul Razaq Sheikh with the plea that Abdul Razaq was a contractor who had the current account in the respondent No.1 bank and on 22/4/1992 at 12.30 PM Abdul Razaq came to the main branch, Dewas of the respondent No.1 bank and had given the Cheque No.477359 dated 22.4.1992 of Rs.1,50,000/- to current account window clerk Smt. Deepika Moriswala for encashing it and had received token No.4171 by saying that he has given two cheques amounting to Rs.two lakhs in the government counter which will be deposited in his current account soon. Trusting it, Smt. Deepika Moriswala had given the token, but on the same day at 1.30 PM one person came with the application to Smt. Deepika Moriswala for stop payment on the ground that Cheque No.477359 was lost. Meanwhile Abdul Razaq had withdrawn the amount of Rs.1,50,000/- from the bank, therefore, he had committed fraud and cheating. Hence, the bank was entitled to recover a sum of Rs.1,48,615.35 as principle amount, Rs.90/- as notice expenses, Rs.40/- as typing expenses along with the interest @ 23.25% per annum.;