Special rule of evidence applicable to negotiable instrument.

M.Karpagavinayagam, J.

The suit was filed by Marappa Gounder, the respondent herein on two promissory notes for a sum of Rs.6,000/- and Rs.20,000/- respectively. The suit was decreed in favour of the plaintiff. Hence, this First Appeal by Natarajan, the defendant.

2. The case of the respondent/plaintiff is as follows:

The appellant/defendant borrowed a sum of Rs.6,000/- from the respondent/plaintiff and executed Ex.A-1 promissory note in favour of the plaintiff on 29.1.1979. Again on 1.3.1979, the defendant borrowed another sum of Rs.20,000/- from the plaintiff and executed Ex.A-2 promissory note in favour of the plaintiff. Repeated demands were made by the plaintiff for repayment. Since the defendant did not choose to pay the amount due under the abovesaid promissory notes, the suit has been filed by the plaintiff claiming the said amounts on the basis of the two promissory notes with interest.

3. The suit was contested by the defendant, the appellant herein with the following contentions:

It is true that the defendant received Rs.6,000/- and executed Ex.A-1 promissory note. The defendant has subsequently paid the entire amount of Rs.6,000/- to the plaintiff. In spite of several demands, though the plaintiff promised to return the suit promissory note, he has not done so. He never received Rs.20,000/- nor he executed any promissory note. Ex.A-2 promissory note is a rank forgery, fabricated by the plaintiff for the purpose of harassing the defendant. So, the claim for the amounts on the basis of the two promissory notes would fail and consequently, the suit has to be dismissed.

4. The trial Court, on framing appropriate issues, allowed the parties to adduce their evidence. The plaintiff examined himself as P.W.1 and marked Exs.A-1 and A-2. The defendant examined himself as D.W.1; no document was marked on his side. Since the thumb impression found on Ex.A-2 promissory note was disputed, a report was called for from the finger print expert, who was examined as P.W.2 and the said report is Ex.C-1.

5. The trial Court, on evaluating the materials available on record, rejected the case of the defendant and decreed the suit in favour of the plaintiff. Aggrieved by the same, this First Appeal has been filed.

6. The main contention urged by learned counsel for the appellant/defendant is that the respondent/plaintiff has failed to prove the proper execution of Ex.A-2 promissory note and without considering the same, the trial Court has committed a grave illegality by drawing presumption under Section 118 of the Negotiable Instruments Act and decreed the suit in favour of the plaintiff. It is also submitted that the trial Court has not considered the evidence adduced by the parties in proper perspective and therefore, the appeal has to be allowed.

7. In reply, learned counsel for the respondent/plaintiff justified the reasonings in the judgment rendered by the trial Court.

8. The points for determination in this appeal are as to:

(i) Whether the trial Court is correct in holding in favour of the plaintiff in the absence of the evidence to the effect that Ex.A-2 promissory note was supported by consideration.

(ii) Whether the presumption under Section 118 of the Negotiable Instruments Act could be drawn in favour of the plaintiff in the facts and circumstances.

(iii) Whether the burden of proof could be shifted on the defendant in the absence of proof for the proper execution of Ex.A-2 promissory note.

9. We have heard the learned counsel for the parties and considered their submissions and perused the records.

10. According to the plaintiff, the respondent herein, as seen from his plaint, the appellant/defendant borrowed a sum of Rs.6,000/- on 29.1.1979 and executed Ex.A-1 promissory note and again on 1.3.1979, he borrowed another sum of Rs.20,000/- and executed Ex.A-2 promissory note. In consonance with the contents in the plaint, the plaintiff as P.W.1 would state that the two promissory notes, namely Exs.A-1 and A-2 have been executed