The burden of proof in a suit based on a promissory note lies on the plaintiff to establish the execution of the promissory note, and the passing of consideration must be established to apply the presumption under section 118 of the Negotiable Instruments Act.

( 1 ) IN a suit filed by the respondent for recovery of the amount covered by the promissory note dated 12-6-1996, executed by the appellants in his favour, appellants filed their written statement contending that they did not borrow any amount from the respondent and did not execute the suit promissory note and that is a forged document. It is their case that the 1st appellant worked as a mason under the respondent for some time and since respondent failed to pay the amounts due and payable to him, he stopped attending the works taken up by the respondent and so he must have forged the promissory note to spite him.

( 2 ) BASING on the pleadings, the trial court framed the following issues :1. Whether the suit promissory note is fabricated and forged one ? 2. Whether the plaintiff is entitled to recover the suit sum as prayed for ? 3. To what relief ?

( 3 ) IN support of his case, respondent examined himself as P. W. 1 and another person, who is said to have been present at the time of execution of the suit promissory note, as P. W. 2 and marked Exs. A1 and a2. In support of their case, appellants examined themselves as D. Ws. 1 and 2, but did not adduce any documentary evidence.

( 4 ) THE trial Court, after considering the evidence on record, held on issue No. 1 that the suit promissory note is not forged and on issue No. 2 that the respondent is entitled to recover the amount, and accordingly, on issue No. 3, decreed the suit. Appeal preferred by the appellants against the said decree to the Senior Civil Judge, gudur was dismissed. Hence, this second appeal.

( 5 ) THE contention of the learned counsel for the appellants is that since the courts below solely based on the presumption arising under Section 118 of the Negotiable Instruments Act, 1881 (for short the Act ) ignoring the fact that the respondent failed to prove Ex. A1 by examining its attestors or the scribe, those findings of the Courts below are unsustainable in view of the ratio in G. Vasu v. Syed Yaseen Sifuddin Quadri, 1987 (1) ALT 1, where it is held that if the defendant adduces evidence which is sufficient to rebut the presumption under section 118 of the Act, legal burden would be on the plaintiff in the suit to establish the execution of promissory note and the passing of consideration by adducing cogent evidence.

( 6 ) THE contention of the learned counsel for the respondent is that since both the Courts below concurrently found that the suit promissory note was executed by the appellants, the presumption under section 118 of the Act is automatic, because appellants failed to establish want of consideration and since no question of law much less substantial question of law arises for consideration, this appeal is liable to be dismissed.

( 7 ) AT the outset, it is to be stated that the trial Court was in error in framing the issue No. 1 in the suit in the manner in which it did, obviously, failing to keep in view the rules relating to burden of proof and especially Section 102 of the Evidence act, which lay down that the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side. In view thereof when the defence of forgery is taken by the defendant in a suit based on a promissory note, the burden of proof will always be on the plaintiff to establish that the suit promissory note is executed by the defendant because he will have to fail if no evidence is adduced on either side. In such a case the plaintiff should adduce evidence in the first instance to prove that the suit promissory note was executed by the defendant. Therefore, issue No. 1 should have been "whether the suit promissory note is executed by the defendants. " Not framing issue No. 1 properly by the trial Court does not have a bearing on this appeal because the respondent adduced evidence in the first instance to prove his case and appellants adduced evidence later.

( 8 ) IT is to be noted that 1st appellant is a signatory and th

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