The original plaintiff has filed this second appeal challenging reversing judgment delivered by the first appellate Court. The appellant/plaintiff filed Special Civil Suit No.2 of 1986 in the Court of Civil Judge Senior Division, Buldhana for recovery of amount Rs.27.170/- towards the price of jaggery which he sold. He also claimed interest @ 18% from 17/5/1987 till filing of the suit. He pointed out that he sold 87.35 qt. of jaggery and in part payment respondents/defendants gave one cheque for Rs. 11,835.94 to plaintiff which was postdated. When the cheque was presented in the Bank, it was dishonoured. Defendants then issued four postdated cheques. Upon assurance given by respondents/defendants, he again presented the cheques in October, 1984 and were again dishonoured. The defence of the present respondents was that they never purchased jaggery worth Rs.27.170/- from the plaintiff on 17/5/1983 nor they had issued any cheque towards price of said Jaggery. They contended that plaintiff was doing money lending business without valid license and they had borrowed money from the plaintiff on different dates and cheques were given as security for it. The trial Court framed 7 issues. Insofar as material issues are concerned, it found that plaintiff proved that he had supplied jaggery worth Rs.27.170/- to defendants and it further found that defendants had issued cheques which were dishonoured. The defence of defendants about money lending business or about loan transaction, etc. was negatived by it. Aggrieved by this judgment, the defendants filed Regular Civil Appeal No.83 of 1987 which came to be allowed by 2nd Joint Additional District Judge. Buldhana on 28/9/1990 by holding that the trial Court was not justified in using presumption under Section 118 of the Negotiable Instruments Act in favour of plaintiff in the Circumstances of the case. The plaintiff thereafter filed this second appeal which was admitted on point Nos.1 to 5 on 25/1/1991. The appeal was heard finally and was allowed on 26/8/2004. The judgment and decree of trial Court was therefore restored. The Hon'ble Apex Court in Civil Appeal No. 1187 of 2007 vide its order dated 07/3/2007 observed that the second appeal was allowed without formulating substantial question of law and, therefore, set aside the judgment and remanded the second appeal back for fresh hearing.

2. Accordingly, this Court has on 27/11/2007 formulated the following question as substantial question of law:

"Whether the first appellate Court was justified in holding that the cheques issued by defendants were without consideration, in view of presumption contained in Section 118 of the Negotiable Instruments Act?"

3. In this background I have heard Advocate Shri. Khapre for the appellant/plaintiff and Advocates Shri. Padhye with Shri. Jaiswal for the respondents/defendants.

4. By narrating facts as mentioned above, Advocate Khapre has invited attention to Division Bench' s judgment repol1ed at A.I.R. (36) 1949 Bomhay 257 - Tarmahomed Haji Abdul Rehman Vs. Tayeb Ebrahim Bharmchari to contend that the presumption that negotiable instrument was with consideration continues to operate till it is rebutted by proving the contrary. He further states that mere fact that consideration mentioned in negotiable instrument turns out to be wrongly described does not rebut presumption under Section 118 and the burden still lies on defendant to satisfy the Court that there was no consideration for the instrument. He states that while considering such evidence. the Court has to bear in mind the statutory presumption and also the fact that the burden of proof lies upon defendant and that burden has got to be discharged by the defendant. He places reliance upon the observations of Division Bench which held that where plaintiff attempts to prove a particular consideration, the mere fact that he failed to prove that consideration does not, in any way, relieve the defendant of his obligation in law to establish