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Bills of Exchange Act, 1964 (Act No. 34 of 1964)

Chapter II

Crossed cheques

81. True owner of stolen or lost crossed cheque marked 'not  negotiable' entitled to compensation from certain subsequent posessors

 

(1) If a cheque was stolen or lost while it was crossed as authorized by this Act and while it bore on it the words 'not negotiable', and it was paid by the bank upon which it was drawn, under circumstances which do not render such bank liable in terms of this Act to the true owner of the cheque for any loss he may sustain owing to the cheque having been paid, the true owner shall, if he suffered any loss as a result of the theft or loss of the cheque, be entitled to recover from any person who was a possessor thereof after the theft or loss, and either gave a consideration therefor or took it as a donee, an amount equal to the true owner's said loss or the amount of the cheque, whichever is the lesser.

[Sub-section (1) substituted by section 38 (a) of Act 56 of 2000.]

 

(2) If a person has after the theft or loss paid any such cheque into his account with a bank after having paid, or for the purpose of paying, the amount of the cheque or part thereof to the person from whom he received the cheque, or, on his direction, to any other person, he shall, for the purposes of subsection (1), be deemed to have been a possessor of the cheque and to have given a consideration therefor: Provided that the foregoing provisions of this subsection shall not apply to a collecting bank employing another bank as its agent for the collection of any such cheque.

[Sub-section (2) substituted by section 38 (a) of Act 56 of 2000.]

 

(3) If a person took any such cheque into his possession or custody after the theft or loss, and fails to furnish the true owner or any person who has in terms of subsection (7) the rights of a true owner, at his request, with any information at his disposal in connection with the cheque, he shall for the purposes of subsection (1) be deemed to have been a possessor of the cheque and either to have given a consideration therefor or to have taken it as a donee.

 

(4) Every possessor of any such cheque shall, for the purposes of this section, and until the contrary is proved, be deemed either to have given a consideration therefor or to have taken it as a donee.

 

(5) For the purposes of subsection (1), a bank which receives payment of any such cheque for a customer shall, subject to the provisions of subsection (3), not be regarded as having given a consideration therefor, merely because it has in its own books credited its customer's account with the amount of the cheque before receiving payment thereof, or because any such payment is applied towards the reduction or settlement of any debt owed by the customer to the bank.

[Sub-section (5) substituted by section 38 (b) of Act 56 of 2000.]

 

(6) If in any action under this section the defendant proves that when he became the possessor of the cheque, it did not appear to be crossed or to have had a crossing which had been obliterated, and to bear on it the words 'not negotiable', or to have borne on it any words which might have been the words 'not negotiable' and had been obliterated, he shall, subject to the provisions of subsection (3), not be held liable under this section.

 

(7)

(a) A person who has discharged his liability under subsection (1) and who took the cheque in good faith and without notice of any defect in the title of the transferor, shall as against any prior possessor of the cheque, who became a possessor thereof after the theft or loss and either gave a consideration therefor or took it as a donee, have the rights conferred upon a true owner by subsection (1).
(b) The provisions of paragraph (a) shall mutatis mutandis apply to a person who has discharged his liability under the said paragraph or under the said paragraph as applied by this paragraph.

 

(8) For the purposes of this section the giving of a consideration includes the receiving of any such cheque in reduction or settlement of any debt or liability.