JUDGMENT: The unsuccessful plaintiff in O.S. No.344 of 1987 is the appellant in this second appeal.

2. The appellant/ plaintiff laid a money suit in O.S. No.344 of 1987 on the file of the learned District Munsif, Musiri, for a decree to recover the money based on a promissory note dated 9.2.1985. But the suit was resisted by the respondent/ defendant, denying the very execution of the promissory note.

3. Appreciating the evidences on record, the learned District Munsif, Musiri, by judgment and decree dated 24.6.1988 made in O.S. No.344 of 1987, dismissed the suit, finding that the signature in the promissory note is not that of the respondent/ defendant, as he did not know to sign his name in English, except to put his initial in English; that the thumb impression of the respondent/ defendant was also not bona fide; and that the depositions of P.Ws.1 to 4 do not corroborate with each other, and therefore, held that the promissory note dated 9.2.1985 is not valid, which was, on appeal in A.S. No.169 of 1988, confirmed by the learned Subordinate Judge, Tiruchirapalli, by order dated 19.1.1989. Hence, the plaintiff in O.S. No.344 of 1987 has filed the above second appeal, and the same was admitted by this Court on 18.11.1989, on the following substantial questions of law:

(i) Whether the lower appellate Court is correct in law in throwing the burden on the plaintiff?

(ii) Whether the lower appellate Court overlooked the presumption under Sec.118 of the Negotiable Instruments Act?

4. Of course, there is no representation on behalf of the appellant/ plaintiff.

5. The substantial questions of law, referred to above, relate to the burden of proving the execution of the promissory note dated 9.2.1985 and the consequential statutory presumptions under Sec.118 of the Negotiable Instruments Act, which reads as follows:

Sec.118: Presumptions as to negotiable instruments of consideration: Until the contrary is proved, the following presumptions shall be made:

(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.

(b) as to date - that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving the holder is a holder in due course lies upon him.

6. The presumptions under Sec.118 of the Negotiable Instruments Act would be a binding rule of evidence in favour of the respondent/ defendant, only if the revision petitioner/ plaintiff proves the execution of the promissory note, as held by the Apex Court in Kundal Lal v. Custodian, Evacuee Property, A.I.R. 1961 S.C. 1316, wherein, it is held as follows:

"5. This section lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a Court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the e

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