The judgment emphasizes the importance of evidence of consideration, the presumption of consideration under S. 118 of the Negotiable Instruments Act, and the prima facie nature of payments by cheques in determining the nature of the transaction.

BHASKARAN, J. :-- Defendant in a suit for realisation of money is the appellant. Respondents are the legal heirs of the original plaintiff. Plaintiffs filed the suit for realisation of Rs.1,50,000/- with interest at 18% being the amount borrowed by the defendant from the plaintiff. The case of the plaintiffs is that the defendant is a contractor and for the purpose of contract work, he had obtained on various dates a total amount of Rs. 2, 10, 000/- from the plaintiff. The defendant had agreed to repay the amounts and 50% of the profits obtained by the defendant to the plaintiff. The further case of the plaintiffs is that when the defendant did not pay back the amount as agreed, the plaintiff demanded the amount and in the presence of mediators two cheques for Rs.75,000/- each with different dates were given to the plaintiff. It is also stated that the balance amount of Rs.60,000/- will be paid without further delay when one of the bills is presented for payment. The plaintiff further stated that he obtained Rs. 60,000/- as authorised by the defendant. However, when the plaintiff presented the two cheques for payment, the same were bounced for want of sufficient money in the account. It is stated that the defendant is liable to pay the amount as claimed in the plaint. Though a notice was sent claiming the amount, no reply was sent by the defendant.

2. In the written statement , the defendant admitted issuance of the two cheques for Rs.75,000/- each. It is stated that the plaintiff was a partner in the contract work and he had invested Rs. 50,000/- in it. Since it was the defendant who was to account for the income, the plaintiff had obtained two cheques as security for the due payment of the amount and the cheques were not issued for repayment of the amount as advanced by the plaintiff.

3. The trial Court found that though the plaintiff had issued a notice claiming the amount, the defendant did not send any reply. It was only after the suit was filed and the defendant"s property was attached that a reply was sent by the defendant. The trial Court held that there is a presumption under S. 118 of the Negotiable Instruments Act that every negotiable instrument is supported by consideration and it is for the defendant to adduce evidence to rebut the presumption. The trial Court also believed the evidence of PW-1 who deposed in accordance with the case set up by the plaintiff. The trial Court also found that the case set up by the defendant is improbable. In view of the above finding, the trial Court decreed the suit allowing plaintiffs 2 to 9 to realise a sum of Rs. 1,54,835/- with future interest at the rate of 6% per annum for the principal amount of Rs.1,50,000/-.

4. In this appeal, it is contended that the suit was misconceived as the suit should have been for settlement of accounts and not for realisation of money on the basis of the cheques issued by the defendant. The evidence of PW-1 is relied on to show that the arrangement between the parties was one of partnership and not that of a debtor and creditor. It is also stated that non-production of the account books by the plaintiff disentitles him to get a decree as prayed for. At any rate, it is contended that after giving credit to the payment of Rs. 60,000/-, the plaintiff is entitled to get only Rs.90,000/-.

5. We heard counsel for the appellant and the counsel appearing for the respondents in detail. The learned counsel for the appellant argued that the plaintiff has not discharged the burden to prove that the amount claimed by the plaintiff is due from the defendant. He relied on the decision of the Supreme Court in Kundan Lal v. Custodian, Evacuee Property, AIR 1961 SC 1316 in which it is stated as follows at page 1319:

"A plaintiff who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account book to show that he was in possession of the goods so