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TMI Blog2024 (11) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff. Subsequently, the plaintiff requested the defendant to repay the same but the defendant failed to respond, hence, the plaintiff has issued a legal notice on 23.11.2010, calling upon the defendant to repay the entire loan amount with interest. But the defendant though received the same has not come forward to repay the same thereby, the plaintiff has come forward to file the suit for recovery of money. 4. The defendant filed his written statement and contested the suit on the ground that he received only a sum of Rs.42,000/- along with his friend Kumar from one Raj on 15.12.2007. On the same day, they executed unfilled promissory note and handed over the same to his friend Kumar. Similarly, he had also executed an unfilled promissory note to one Rajasekar, Neiveli Township on behalf of P.K. Subramanian. Subsequently, his friend Kumar died and therefore, the defendant has repaid the entire loan amount borrowed through A.Kuravan Kuppam Ramachandran, Periyakurichi Selvam, Township Rajasekar and settled entire loan amount to Raj. These payments were made due to threat made by the said Raj. After repayment of the entire loan amount, he demanded to return of promissory no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missory note when the plaintiff failed to prove the consideration by producing the account books, bank statement, income tax returns, etc.? 4. Whether in law the Judgment and decree passed by the Courts below are sustainable when they have failed to consider and appreciate the oral and documentary evidence on record in their proper perspective and based their conclusions on mere surmises and conjectures?" 11. The learned counsel appearing for the appellant/defendant submits that the defendant has examined almost 3 independent witnesses to prove the fact that the defendant had executed a promissory note only in favour of one Raj, who was examined as P.W.4. Even though, P.W.4-Raj has not supported the case of the defendant but from the other independent witnesses, the defendant has probabilized his case that he had received loan only from P.W.4 - Raj. Admittedly, the plaintiff has not proved the passing of consideration, by way of cash and by production of independent documents other than the promissory note. Since passing of consideration has not been established by the plaintiff, relying on presumption under Section 118 of the Negotiable Instruments Act is not proper. After ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also stated that the promissory note was written by P.W.2-Kumar and P.W.3-Karthick had subscribed his signature as witness. They have also stated in favour of execution of promissory note-Ex.P1. The only suggestion put by the defendant to P.W.2 and P.W.3 is that they are the friends of P.W.1 and thereby, they have come forward to adduce false evidence in favour of the plaintiff. Even though they admit that they are known to P.W.1 they denied that they are tendering false evidence. The evidence of P.W.1 for execution of promissory note which includes the receipt of Rs.1,50,000/- has been accepted by both the Courts below. This Court while hearing the Second Appeal against the concurrent finding, is not entitled to once again reappreciate the evidence which were thoroughly analysed by the courts below. 16. The role of this Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure has been considered by the Apex Court in various Judgments and in Hero Vinoth vs. Seshammal [2006 (5) SCC 545 : AIR 2006 SC 2234] has considered the various previous Judgments as held as follows: "The principles relating to Section 100 of CPC, relevant for this case, may be summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b impression or signatures. After the plaintiff has proved the consideration and the execution of the promissory note, then, the burden shifts on the defendant to probabilize his case that the promissory note was not executed in favour of the plaintiff. 18. The Apex Court in Kundan Lal Rallaaram vs. Custodian Evacuee Property, Bombay (AIR 1961 SC 1316) declared that the Section 118 of the Negotiable Instruments Act lays down a special rule of evidence. It enables the Court to presume that the negotiable instruments or the endorsement was made or endorsed for consideration and the burden of proof of failure of consideration is thrown on the maker of the note or the endorser as the case may be. 19. In Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal [1993 (3) SCC 35] the Apex Court has considered the scope of both Section 118 of Negotiable Instruments Act and burden of proof in paragraph No.12 it is observed as follows: "12. This Court in Kundan Lal Rallaaram v. Custodian Evacuee Property, Bombay MANU/SC/0422/1961 : AIR (1961) SC 1316 declared the Section 118 of the Act lays down a prescribed special rule of evidence applicable to negotiable instruments. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s proved, Section 118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling , the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in Section 114 and other Sections of the Evidence Act. Under Section 114 of the Evidence Act "The Court may presume the existence of any fact which it think likely to have happened, regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case." Illustration (g) to that Section shows that the Court may presume that evidence which could be and is not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of promissory note executed in favour of Raj is to be proved by the defendant herein. Even though their evidences only shows that they have received loan from Raj there is no evidence to substantiate their oral evidence. They are not able to establish any collusion between P.W.4-Raj and the plaintiff. Whereas, the evidence of D.W4 shows that the defendant himself has filed the Civil Suit against Raj for recovery of money. 24. In the absence of any proof establishing the collusion between the plaintiff and the said Raj, and in the absence of any repayment of loan as stated by the defendant in his evidence and pleadings, the evidence adduced on the side of the plaintiff's side, shall be placed on higher pedestal since their evidence is supported by the promissory note-Ex.A1 and consequent legal notice issued which was not replied by the defendant. The defendant had come forward to lodge a complaint only the year 2011 that too, after decree being passed against him. 25. A Learned Single Judge of this Court in Kuppayammal Vs. A. Sitheswaran and Ors. in S.A. Nos. 281, 282, 283 and 284 of 1998, dated 30.06.2011 was considered the meaning for the word 'Execution' and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26. As per section 20 of the Negotiable Instrument Act, where one person signs and delivers to another a person a paper stamped in accordance with the law relating to negotiable instruments then in force, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. 27. It is further stated that a person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount. It was also provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. Therefore, as per section 20 of the Negotiable Instruments Act, authority was given to the holder of the blank promissory note by the executant to complete the same and the person signing such instrument is liable to any holder in due curse for such amount. According to me, this section can be considered only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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