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2022 (5) TMI 1110 - HC - Indian LawsDishonor of cheque - legal presumptions arising before dismissing the suit by reversing the well considered reasonings of the trial Court - scope of Section 118 of the Negotiable Instruments Act - suit promissory notes under Section 20 of the Negotiable Instruments Act - holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount or not? - defendant has categorically admitted the “execution” and “issuance” of Ex.A1 to Ex.A3 in his written statement and in evidence before the Court - HELD THAT:- On perusal of the evidence of PW1 and PW2 and the written statement filed by the defendant and the oral evidence of PW1, it is found that the execution and issuance of the pro-notes, viz., Ex.A1 to Ex.A3 are not in dispute. In fact, the defendant has categorically admitted the same in the written statement as well as in his evidence. However, the first Appellate Court has committed an error in giving findings as to the execution. Once the signature found in the suit documents have been admitted, there is no need or necessity for the plaintiff to give explanation for not obtaining the thump impression in the suit promissory note. There is no such law to get the thump impression in the suit promissory note. There is no such law to get the thump impression also in the promissory note, particularly, when the execution and issuance of Ex.A1 to Ex.A3 were not in dispute. When there was no dispute as to the execution of Ex.A1 to Ex.A3, the first Appellate Court ought not to have compared the suit documents by naked eye, as if, the defendant has denied execution and therefore, based upon the above evidence both in oral and documentary pleaded and evidence of the plaintiff side, it is found that in terms of Section 4 of the Indian Evidence Act, whenever it is provided by the Act that the Court shall presume a fact, it shall record such fact as proved unless and until it is disproved. Applying the said definitions of “proved” or “ disproved” under Section 5 of the Indian Evidence Act to the principle behind Section 118 (a) of the Negotiable Instruments Act, the Court shall presume that Ex.A1 to Ex.A3 were supported by consideration. Presumption under Section 118 of the Negotiable Instruments Act is one of law, and thereunder, the Court below shall presume inter alia that the promissory notes were made for consideration. Once statutory presumption is raised, onus of proving absence of consideration is on the executant and hence, it is found that the lower Appellate Court has miserably failed to consider the pleading and evidence in the proper prospective and has wrongly thrown the burden of proof on the plaintiff with gross ignorance of legal presumption. The defendant had admitted the execution of Ex.A1 to Ex.A3. There is no mandatory provision under the Negotiable Instruments Act that both the signature and thump impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable Instruments Act. This Court comes to the conclusion that the evidence of DW3 is too inform to discharge onus of proof as stated, the statutory provision under Section 118 of the Negotiable Instruments Act. The approach adopted by the lower Appellate Court is condemnable. The finding rendered by the lower Appellate Court that suit pro-note is not valid in the absence of thumb impression is sustainable in law, more so, when the defendant has not disputed the signature and hence, all the Substantial Questions of Law are answered in affirmative in favour of the appellant/plaintiff against the defendant/respondent - Appeal allowed.
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