Henry Richards, Kt., C.J. and Tudball, J.
1. This appeal arises out of a suit instituted on foot of a hundi. It appears that the appellant Nanhe Mal sent certain potatoes to Hari Kishore a firm in Calcutta. Nanha Mal drew a bill payable at sight on Hari Kishore at Calcutta, The bill was in favour of Mathura Dass Mohan Lal, who sold it the very same day to the plaintiffs, that is, on the 2nd of April, 1913. The plaintiffs sent the hundi in an unregistered letter to their agent at Cawnpore. The letter and the bill appears to have miscarried in the post; but owing to the carelessness of the plaintiffs the loss was not discovered for nearly fourteen months afterwards, Some negotiations proceeded between the plaintiffs and Nanhe Mal with a view to getting a duplicate. Exactly what form those negotiations took is not clear, but it would seem that if the plaintiffs had given satisfactory evidence of the loss and had offered an indemnity to Nanhe Mal, the latter might have been compelled by proper proceedings to give a duplicate. No such proceedings were in fact ever taken--but the present suit was instituted on the 14th of April, 1915. Hari Kishore was made a party, as also was Nanhe Mal, Admittedly the bill of exchange was never presented either for acceptance or payment to Hari Kishore, nor apparently was even a demand made from the latter. The court of first instance dismissed the suit as against Hari Kishore, but gave a decree as against Nanhe Mal. The lower appellate court confirmed the decree. Nanhe Mal appeals, The other parsons who were parties to the appeal in the court below are not parties to this appeal. The question is whether Nanhe Mal is liable under the circumstances. Section 64 of the Negotiable Instruments Act provides that a bill of exchange must be presented for payment in the manner mentioned in that and subsequent sections, Section 76 provides that no presentment for payment is necessary in certain circumstances. The section says 'no presentment for payment' is necessary and the instrument is dishonoured at the due date for presentment in any of the following circumstances.' Clause (d) says 'as against a drawer if the drawer could not suffer damage from want of such presentment,' This Court has held that the onus of showing that the drawer could not suffer damage from want of presentment lies on the holder suing on the bill. Admittedly in the present case no such proof was given. As, a matter of fact in the present case Hari Kishore received potatoes from Nanhe Mal for the value of the hundi, in other words it was the way in which Hari Kishore was paying for the potatoes. It is quite impossible to say under these circumstances that Nanhe Mal could not have suffered damage by reason of the non-presentation for payment of the bill to Hari Kishore. The person in whose favour this bill was drawn has gone bankrupt and a similar fate conceivably might have happened to Hari Kishore. We allow the appeal, set aside the decrees of both the courts below and dismiss the suit as against the appellant with costs in all courts.