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3 The defendant no.1 the account holder of the plaintiff and indebted to the plaintiff having availed the temporary overdraft by withdrawing amount from the account against the deposit of cheque. The defendant no.1 is a borrower and liable to pay the amount claimed by the plaintiff. The defendant no.2 is bank on which the cheque, against which the money was withdrawn by defendant no.1, was drawn and who is not making payment of cheque. The defendant no.2 is also liable to make payment of the cheque. 4 The defendant no.1 opened an account with the plaintiff on 04.08.2003 and started operating the account. On 28.02.2008, the defendant no. 1 deposited a cheque no.10373 dated 25.02.2008 for a sum of Rs. 1,33,000/-. The said cheque was in the name of the defendant no.1 and was drawn on Punjab National Bank, Nizamuddin West, New Delhi-110013, defendant no.2.

8 That the defendant no.1 was informed about the dishonour of the cheque by the plaintiff and the return memo and the unpaid advise were handed over to the defendant no.1. The defendant no.1 assured the plaintiff to repay the said amount.

9 That when the defendant no.1 did not made the payment the bank officials visited his residence and he was requested to repay the amount withdrawn by him from the account. But the defendant no.1 did not make payment. The officials of the plaintiff bank continued to pursue the defendant no.1 for repayment of the temporary overdraft in the account. On this defendant no.1 requested the plaintiff bank to resubmit the cheque for the payment and assured that the payment would be received from the defendant no.2 on presentation of said cheque. However, the said cheque again returned dishonoured on 14.06.2008.

19 It is specifically denied that the defendant withdrew the amount of Rs. 1,10,000/- as temporary overdraft. The above said cheque was honoured and the amount was credited in the account of the defendant no. 1. Even the plaintiff has mentioned in the letter that the defendant has withdrawn Rs. 1,10,000/- up till 10.04.2008 from his account and thus there is no question of presenting the same cheque which is alleged to have been returned dishonoured on 14.06.08. It also seems very strange on the part of the plaintiff that till 10.04.08 it was not aware of its even though the defendant no. 1 continuously transacted with the bank by depositing and withdrawing money from his account.

27 Having examined the pleadings and the evidence adduced, I shall now deliver my findings on the issues framed.

28 Issue no. 1: Whether the defendant has obtained any overdraft facility against the deposit of cheque ? Onus of proving this issue was on the plaintiff. The case of the plaintiff is that a cheque was deposited with the plaintiff bank by the defendant on 28.02.2008. Defendant had deposited a cheque and he assured that in case the cheque was dishonoured, the amount shall be deposited by the defendant. Accordingly, the plaintiff credited a sum of Rs. 1,33,000/- in the account of the defendant. The defendant withdrew the amount of Rs. 1,10,000/- out of the said amount. The plaintiff sent the cheque for encashment on 01.03.2008 and the same was returned dishonoured. Defendant no. 1 was informed about the non payment of the cheque and the return memo was handed over to defendant no. 1 on which the defendant assured to repay the amount. A temporary overdraft was credited in favour of the defendant. The defendant again requested the plaintiff to represent the cheque for encashment. However, the cheque returned dishonoured on 14.06.2008. Letters were sent in July, 2008. However, in the cross examination, the witness gave the following answers:-