JUDGMENT

Abdul Wahab Patail J:

[1] Having made a declaration to the customs on the Customs K1 Form No. W11103021323 dated 26 March 1998 for a consignment on behalf of its client Ericsson Telecommunications Sdn. Bhd. wherein the import duty was RM93,813.24, the plaintiff had on or about 30 March 1998 instructed its bank, Malayan Banking Berhad ("MBB"), to issue a banker's cheque payable to "Pengarah Kastam Negeri Subang". MBB accordingly issued the said banker's cheque bearing the number 213709 for the sum of RM93,813.24 payable to "Pengarah Kastam Negeri Subang".

[2] Believing that it had paid the said import duty to the customs, as it was endorsed on the said K1 form as having been paid, the plaintiff had taken out the consignment and delivered it to its client.

[3] Nearly a year later, on or about 16 March 1999, the plaintiff was informed by the Customs Preventive Officer, Encik Saleh A. Majid (PW2) that the import duty payable on the plaintiff's K1 form had not been paid as yet.

[4] Upon investigation, it was found that the said banker's cheque bearing the number 213709 had been paid to the Pengarah Kastam Negeri Subang. The defendant had filed two declarations under K1 forms numbered 10306382 dated 17 March 1998 and 10306377 dated 17 March 1998 for the sums of RM32,578.43 and RM8,360.82. These were endorsed with receipt numbers IM013002 and IM013003 as evidencing payment. The said banker's cheque bearing the number 213709 was used to pay the sum due of RM40,939.25.

[5] On the back portion of the said banker's cheque were endorsed four receipt numbers 050213IM, 050214IM, 050215IM and 050216IM, which are receipts corresponding to K1 forms filed by the defendant bearing the numbers W11103017271 dated 23 March 1998, W11104008511 dated 9 April 1998, W11104016019 dated 15 April 1998 and W11104023269 dated 23 April 1998 for the sums of RM28,557.92, RM11,099.44, RM11,416.96 and RM1,796.29 respectively, totaling RM52,870.61. The balance of RM3.38 would have been returned to the defendant in cash. The customs duties were paid by the defendant in respect of imports by its client, Tenaga Nasional Berhad.

[6] The plaintiff commenced this action to obtain the following orders against the defendant:

a) Satu perisytiharan bahawa pembayaran melalui banker's cheque bernombor 213709 sebanyak RM93,813.24 adalah satu pembayaran sah oleh plaintif bagi bayaran duti import dan cukai jualan bagi Borang Kastam (K1) Nombor Pendaftaran W11103021323;

b) Secara alternatifnya, defendan membayar kepada plaintif jumlah wang sebanyak RM93,813.24 sebagai gantirugi bagi pembayaran yang telah digunakan oleh defendan melalui banker's cheque plaintif bernombor 213709;

c) Bahawa pihak Jabatan Kastam Diraja Malaysia membuat tindakan pembetulan sewajarnya terhadap pembayaran duti konsignment plaintif, iaitu dengan mengkreditkan jumlah RM93,813.24 terhadap Borang Kastam (K1) Plaintif No. Pendaftaran W11103021323;

d) Kos tindakan ini ditanggung oleh defendan dan dibayar kepada plaintif;

e) Gantirugi am yang akan ditaksirkan; dan

f) Lain lain perintah dan/atau relif lain yang difikirkan sesuai dan berpatutan oleh Mahkamah Yang Mulia ini.

[7] Counsel for the plaintiff argued that by the fact of the endorsements of receipt numbers on the back of the said banker's cheque, the plaintiff had discharged the heavy burden upon it of proving that the defendant had fraudulently and dishonestly used the plaintiff's said banker's cheque to pay for the customs duties payable by the defendant.

[8] Counsel for the defendant, inter alia , argued that:

a) the defendant did not dispute the facts as summarised above;

b) the defendant did not have knowledge about the use of the plaintiff's said banker's cheque and of the plaintiff being informed that their import duty had not been paid; and

c) as far as the defendant is aware, the findings by the customs' investigation did not say that the defendant had used the plaintiff's said banker's cheque illegally, wrongfully and/or fraudulently.

[9] Counsel for th