TMI Blog2022 (8) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has not denied the signature found in Ex.A1-Promissory note, but the denial is that the promissory note was not given to the respondent and it was given to Sri Rajalakshmi Finance while borrowing a sum of Rs. 7,00,000/- as loan. Once the signature is admitted and execution is proved by the appellant by examining the independent witnesses, there is a presumption that the appellant has executed a promissory note for the valuable consideration. Therefore, under Section 118 of the Negotiable Instruments Act, no doubt, the said presumption is rebuttable presumption. The appellant has not rebutted the said presumption in the manner known to law. No doubt, the appellant need not prove his defence by direct evidence, it can be substantiated through preponderance of probabilities. Once execution and signature found in Ex.A1 are proved, the onus will be shifted to the appellant. Therefore, in this case, a reading of the materials, oral and documentary evidence show that the appellant admitted the signature and he has not substantiated his defence as taken in the written statement and as already stated, the appellant has not examined any of the independent witnesses for proving that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the defendant to repay the dishonoured amount and it was returned as intimation given not claimed . Thereafter, he has filed a criminal complaint against the defendant in C.C.No.324/2013 before the Fast Track Court at Magistrerial Level, Karur. Since the defendant has not paid the amount, the plaintiff has filed the suit for recovery of money. 4. The defendant resisted the suit by filing a written statement denying each and every averments stating that he has not borrowed any amount from the plaintiff on 12.04.2012 or any other date and executed a promissory note in the presence of witnesses. He has also denied the allegation that the plaintiff has demanded to repay the amount. He has denied the allegation that he issued a cheque on 21.03.2013 in discharge of part of the amount to the plaintiff. He has stated that he was not aware of the criminal case in C.C.No.324/2017 pending on the file of the Fast Track Court at Magisterial Level, Karur. He has stated that he is a bus operator having office at Puducherry and having spare bus in his name. The bus is used for tourist and spare for other buses. Now, Siraj Ahamed of Puducherry and Murugan of Sorappattu have asked for financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unfilled promissory note and unfilled cheques from the appellant. Subsequently, Sri Rajalakshmi finance set up the respondent and filed the present suit and also the respondent has filed a criminal case in C.C.No.324 of 2017, on the file of the Fast Track Court at Magisterial Level, Karur and the same is pending. The appellant has never borrowed any money from the respondent and executed any document. Originally, he has borrowed a sum of Rs.7,00,000/- from Sri Rajalakhsmi Finance and issued a unfilled signed promissory note and unfilled signed cheques. The said Rajalakshmi Finance utilised the cheque and promissory note and filed a criminal case and suit for recovery of money. The respondent has not proved that the appellant has borrowed a sum of Rs.10,00,000/- from him and executed the suit promissory note. The learned Judge has failed to appreciate the evidence of P.W.2 and P.W.3 and they have stated in their evidence that they have used one pen to write and sign the promissory note, but on perusal of the promissory note it was written by three different inks and shows that the evidence of P.W.2 and P.W.3 are not believable. The learned trial Judge has failed to appreciate the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has proved his case by producing the suit promissory note and also examining the witnesses. The trial Court has rightly appreciated the evidence since the signature in the promissory note was admitted though he has denied that he has not executed a promissory note as stated by the respondent. He has stated that he has given the promissory note to Sri Rajalakshmi Finance for repayment of loan borrowed from the Sri Rajalakshmi finance and the same was not proved by the appellant by examining any of the witnesses or any other independent witness to establish his defence. Therefore, the appeal has to be dismissed and the judgment and decree passed by the trial Court are liable to be confirmed. 10. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondent, perused the pleadings, issues framed by the trial Court, oral and documentary evidence adduced and produced by both parties. 11. The case of the respondent is that the appellant had borrowed a sum of Rs.10,00,000/- from him on 12.04.2012 and executed a promissory note as well as the cheque. Since the appellant has not repaid the money, the respondent has sent legal notice and filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f probabilities. Once execution and signature found in Ex.A1 are proved, the onus will be shifted to the appellant. Therefore, in this case, a reading of the materials, oral and documentary evidence show that the appellant admitted the signature and he has not substantiated his defence as taken in the written statement and as already stated, the appellant has not examined any of the independent witnesses for proving that the suit promissory note was not given to the respondent and it was given to Rajalakshmi Finance. Onus of proof lies only on the appellant. The respondent has proved his case with cogent evidence. However, the appellant has not rebutted the presumption by preponderance of probabilities. Even though the appellant need not proved his case by direct evidence, it can be proved by preponderance of probabilities. In this case the appellant has failed to discharge the onus shifted to the appellant. It is the duty of the appellant to discharge his onus and therefore, under these circumstances, since, the first appellate Court is a fact finding Court it can re-appreciate the entire materials and give independent findings and this Court does not find any merit in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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