1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.109 OF 2009 WITH CAS NO. 175 OF 2009 Ichalkaranji Mahila Sahakari Bank Limited .. Appellant (Org.Defendant No.1) V/s. Jaybharat Textile & Others .. Respondents. Shri A. M. Kulkarni, for Appellant Shri Amit Borkar, for Respondent. CORAM: J.H. BHATIA,J. DATED: 21st JULY, 2009. P.C.: 1. Heard learned counsel for the parties. Respondent No. 1 which is the proprietorship concern had an account with the Defendant No.1/ Appellant bank branch at Jawaharnagar. Defendant No.2  Shri Dattatray G. Sawant was the Branch Manager. The Plaintiff has filed the suit for recovery of Rs.1,42,569/- with interest and damages Srj 2 thereon. It was the contention that Defendant Nos.3 to 5, in collusion with the Branch Manager i.e. Defendant No.2 had opened a fake account in the name of the Plaintiff firm and the Defendant No.5 was shown as proprietor of that fake firm. Defendant No.3 had stolen certain cheques received by the Plaintiff from its customers and in stead of depositing those cheques in the account of the Plaintiff, he deposited the said cheques in the fake account. He had also secured cheque book of the fake account and withdrawn that money. Thus, amount of Rs.1,42,569/-which should have been deposited in the account for the Plaintiff, was deposited in the fake account and was withdrawn. 2. The Trial Court passed the decree for recovery of said amount with interest against Defendant No.1 bank, the legal heirs of Defendant No.3 and Defendant No.5. Claim against Defendant No.2 in his personal capacity was not proved. Defendant No.1 bank, preferred Regular Civil Appeal No.195 of 2005, challenging the said decree and judgment. The Appeal came to be dismissed. Therefore, the bank has filed this Second Appeal against concurrent findings of the facts. Srj 3 3. On perusal of the judgment passed by the Trial Court, it appears that the prescribed form for opening account in the bank was not properly filled in. In column meant for writing the name of introducing person the name of Dattatray G. Sawant i.e. Defendant No.2 was mentioned. In front of the printed words signature of the introducer , the some sign was there. In front of the word address of the introducer , form was left blank. In front of the words account number of the introducer , also the form was left blank. It also appears that the Branch Manager should have passed an order to open the account in the prescribed form used for opening the bank account, but only rubber stamp of the Manager of the Defendant No.1 was used, however,there was no signature of the Branch Manager. It shows that the columns required to fill in the details of the introducer of the new customer were left blank. The Branch Manager had not even signed below the printed order account be opened and without the order from the Branch Manager, the account was opened and that fake account was used for committing this fraud. It is true that the Defendant Nos.3 and 5 were personally responsible, but at the same time, without collusion from some staff member of the bank, the account could not have been opened. It is Srj 4 possible that the Branch Manager who was Defendant no.2 might not be personally responsible for the same, but that does not mean that Defendant No.1 Bank can be exonerated from its liability,when due to negligence of some employee, its customer had lost the amount from the account opened with the bank. The learned counsel for the Appellant relied upon State Bank of India v/s. Smt. Shyama Devi (1978) 3 Supreme Court Cases 399, wherein Their Lordships laid down the relevant legal principle governing vicarious liability of an employer for the loss caused to a customer whose account is opened with the bank. Their Lordships further observed that the employer is not liable for the act of the servant if the cause of the loss or damage arose without its actual fault and without the fault or negligence of its agents or servants in the course of their employment. 4. Taking into consideration the facts of these cases, this principle does not put in practical, because the negligence of some of the servants of the banks in the said branch, was responsible for opening of the fake account and their consequences. 5. In view of the above circumstances, I do not find any perversity in the concurrent findings of both the Courts below. No question of law is involved in this Srj 5 appeal. 6. In the result,appeal stands dismissed. As the appeal itself is dismissed, the application for stay does not survive and stands disposed of. (J.H. BHATIA, J.) Srj