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2020 (9) TMI 1260 - HC - Indian LawsSuit for recovery of money with interest - Allegation is that the suit pronote has been fabricated to wreck vengeance - main defence taken by the defendant is that the pro-note was not executed by him - HELD THAT:- The subject matter of the suit is Ex.A- 1 pro-note. The lender and the witness to the Pro-note had deposed their presence during the execution of the pro-note by Ex.A-1. No contra evidence to dislodge the case of the plaintiff adduced by the defendant - Relatives witnessing the pro-note transaction, is not a circumstances to draw suspicion. In addition to the witness to the execution, the scribe PW-3 also examined by the plaintiff and he has deposed that he saw the defendant affixing his signature and thumb impression. The defendant who denies the signature and thumb impression, not taken any steps to refer the disputed signature and thumb impression for comparison by experts. The Courts below pointing out this, had compared the disputed signature with the admitted signature found in the vakalat and summon and found to be from same person. Ex.A-1 being a negotiable instrument, the special rules of evidence under chapter XIII of the Negotiable Instruments Act is applicable. Under section 118 of the Negotiable Instruments Act, until the contrary is proved, the presumption of consideration and date are in favour of the plaintiff. The plaintiff burden is only to prove it execution - In this case, the plaintiff had satisfactorily proved the execution through PW-2 and PW-3. Thus the burden has shifted to the defendant to prove the contrary. He has not taken any steps to positively prove the contrary. In the said circumstances, the Courts below after recording the reason for invoking section 73 of the Evidence Act had proceeded to arrive at a conclusion. The defendant though had pleaded that the pro-note was not executed by him, he has not placed any acceptable proof to disbelieve the ocular evidence of PW-2 and PW-3. The best way to disprove is by calling the expert. This option was not exercised by the defendant - this Court is of the view that this is a fit case to exercise section 73 of the Evidence Act. This Court finds that the final Court of facts had held the plaintiff has proved the execution of the pro-note by the defendant and the said debt still un discharged - there are no substantial question of law for interfering the concurrent finding of the Courts below - appeal dismissed.
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