Under S.118 of the Negotiable Instruments Act, once the execution of a promissory note is proven, the burden to prove lack of consideration shifts to the defendant.

1. This is an appeal by the first defendant. The suit is on a promissory note. The promissory note is Ext.Al. It is dated 20-6-1975. The first defendant executed a promissory note, Ext.A2 on 15-12-1972 in favour of second defendant. The amount covered by Ext. A2 promissory note was Rs.7,500/- The second defendant endorsed this promissory note in favour of the plaintiff on 5-6-1973. Thereafter, the first defendant executed a promissory note in favour of the plaintiff showing the consideration of Ext.A2 and the interest on the amount advanced under Ext.A2 as the consideration for Ext.Al promissory note. Even after demand, the first defendant did not pay the amount. So, the plaintiff instituted the suit.

2. The first defendant contended that he has not executed the promissory note. He also contended that there is no consideration for the promissory note. The only question that has to be decided is whether the promissory note is a genuine one or not. Otherwise, the only point that has to be seriously considered is whether the first defendant has executed the promissory note. Normally, the promissory note does not require witnesses. It is really a difficult task for the plaintiff, who institutes a suit on promissory note to prove execution of the promissory note when the defendant denies the execution of the promissory note. In this case, the promissory note is in the handwriting of P.W.2. He has been examined as a witness. His examination is plain and clear. He plainly stated that the promissory note was executed in the presence of the first defendant and that he has signed the promissory note. This evidence was not shaken at all in the cross examination of this witness. P.W.1, the plaintiff has corroborated the evidence of P.W.2.

3. The trial court has rightly believed the evidence of P.W.1 and P.W.2 and found that the promissory note has been executed by the first defendant. Counsel for the appellant submitted that the court below ought not have believed P.W.2. I do not see any reason to disbelieve the evidence of P.W.2. No circumstance was pointed out to disbelieve P.W.2. In the circumstances, I have to hold that the trial court has rightly held that the first defendant has executed the promissory note.

4. When the court finds that the promissory note has been executed by the first defendant, the presumption under S.118 of the Negotiable Instruments Act is attracted. A controversy is raised in regard to the question whether, in a case where both execution and consideration are denied, the burden to prove lack of consideration is on the defendant, even when the plaintiff was able to prove the execution of the promissory note. According to me it is not fully correct to say that there is any controversy on this matter. No admission of execution is required under S.118 of the Negotiable Instruments Act. What is required is the proof of execution of the promissory note.

5. S.118 of the Negotiable Instruments Act is mandatory in nature, though it deals with a presumption. A presumption has always a limitation in the sense that only in very exceptional cases, there will be an irrebuttable presumption. It is difficult to say that the presumption in S.118 of the Negotiable Instruments Act is a presumption against which no evidence can be adduced in order to take away the rigour of the presumption. In other words, it is a rebuttable presumption; but imperative in its terms and so, the presumption under it continues with all its rigour until the contrary is proved. The reason for the presumption is that a negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and the negotiability of the instrument impossible, unless such a presumption was made. Passing of consideration must be presumed in a negotiable instrument; then alone the instrument can earn the hall-mark of negotiability. Such a presumption has therefore to be made. So the principle is embedded as a rule of equity, justice an