Presumption u/s 118(a) may be rebutted by contrary presumption u/s 114 Evidence Act.

The second appeal by the defendant firm is against the judgment and decree the District Judge, Coimbatore, dated 7.2.1980 in A.S.No.81 of 1979, reversing judgment and decree of the Sub-Judge, Coimbatore in O.S.No.374 of 1976dated 13.9.1978. The suit is recovery of Rs.8,442.15, the amount due under the hundi Ex.A-1, dated 12.4.1973 for sum of Rs.5,000 with interest thereon. The suit was dismissed by the trial Court on ground that the suit hundi was not supported by consideration. But, the lower appellate court has decreed the suit on the ground that the suit hundi is supported by consideration. No doubt, there was some dispute even with reference to execution of the suit hundi. As the written statement, the defendant only admitted his signature in the suit hundi, and case is that at the time of the execution of a prior hundi, the plaintiff had obtained signature of the defendant in two blank hundies which ought to have been probably by the plaintiff in fabricating the document Ex.A-1. The prior hundi was executed 20.3.1969 was admittedly executed on 20.3.1969. The written statement does not give specific date as to when according to the defendant he put the signature in blank hundies. Only in the witness box, the defendant stated that at the time of execution of the prior the signature was obtained in a blank hundi. But, this cannot be true, as pointed out Courts below, since the seal of Ex.A-1 for purchase of the stamp paper on which executed is dated 10.2.1971. That is why the execution of the hundi by the defendant found by the Court below. In the second appeal there can be no serious challenge to the finding regarding execution and I uphold the said finding.

2. Then, coming to the other defence in the suit that the defendant did not receive above said sum of Rs.5,000 and that hence the hundi was not supported consideration, the onus lies on the defendant that the Ex.A-1 is not supported consideration, in view of the mandatory presumption arising under Sec.118 of the Negotiable Instruments Act. On this question, the trial Court has observed as follows: The plaintiff is admittedly a professional Money lender. Under law he is expected to maintain the regular books of account. The defendant has called upon the plaintiff to produce accounts to prove the payment of cash on the date of 12.3.1973. P.W.1 stated in the that he can produce the account within four hours and prove his payment. But when he was called upon to produce the account he was adopting delaying tactics and he produced the accounts inspite of adjournments as well as notice..... In fact the defendant took summons even to the auditor of the plaintiff, but without success because the evaded the receipts of the summons. The plaintiff has purposely suppressed the accounts, because the production of the said accounts will disprove his case that he advanced a Rs.5,000 on 12.4.1973.... Under such circumstances, I prefer to draw an adverse inference against the plaintiff and hold that the production of account would show that no money advanced by the plaintiff to the defendant on 12.4.1973 and therefore I hold that the hundi is not supported by consideration." On the other hand, the lower appellate Court has observed as follows:

"In the circumstances, from the mere fact that the plaintiff had not produced the books account maintained by him cannot be taken as a circumstance to totally reject the plaintiff claim in the light of the other evidence on record. The plaintiff appears to have also lawyer’s notice prior to the filing of the suit. Ex.A-2 is the postal acknowledgment signed the defendant for receipt of the notice and it is dated 28.9.1974.The plaintiff has stated he has misplaced the office copy of the notice issued. The defendant when confronted Ex.A-2 has admitted the acknowledgment ’ though he would state that he did not receive notice and does not ’ remember what the contents of this communication were. Evidently, the defendant is trying to suppress t