JUDGMENT :

(Prayer: This Criminal Revision Case has been filed under Section 100 of C.P.C., against the judgment and decree passed in A.S.No.73 of 2010, by the Sub Court, Gobichettipalayam, dated 21.10.2011, reversal the judgment and decree, passed in O.S.No.314 of 2006, by the District Munsif Court, Gobichettipalayam, dated 08.10.2010.)

1. The defeated defendant is the appellant herein.

2. Challenging the finding rendered in A.S.No. 73 of 2010, by the learned Sub-Court, Gobichettipalayam, dated 21.10.2011, the defendant has preferred the above Second Appeal.

3. The respondent herein/plaintiff had filed a suit in O.S.No.314 of 2006, for pronote for recovery of money of Rs.50,000/- along with 12% interest. The execution of Ex.A1/Pronote was disputed by the appellant/defendant.

4. Before the Trial Court, on behalf of the plaintiff PW1 to PW3 were examined and marked Exs.A1 to A6; on behalf of the defendant, defendant was examined as DW1 and marked Exs.D1 to D4.

5. The learned District Munsif, Gobichettipalayam, by relying upon answer elicited in the cross examination of PW2, who is the attestor of the pro-note & PW3/scribe of the pro-note, has held that passing of consideration is not proved. Since the execution of Ex.A1/suit pro-note was disputed, the Trial Court has held that the plaintiff is not entitle for statutory presumption under Section 118 of the Negotiable Instruments Act and has dismissed the same. Aggrieved against the said dismissal of the suit, the plaintiff had filed an appeal suit in A.S.No.73 of 2010, before the Sub-Court, Gobichettipalayam and by an order dated 21.10.2011, the learned Judge has allowed the same. Hence, the Second Appeal preferred by the defendant.

6. Heard both the learned counsels and perused the materials placed on record.

7. On a perusal of the records it is seen that the above Second Appeal was admitted on 06.08.2012 and at the time of admission, following substantial questions of law were framed:

1. Whether the First Appellate Court has committed an error in decreeing the suit on the promissory note Negotiable Instruments Act when the defendant has not only denied execution of the promissory note, the signature and thumb impression found therein, but also pleaded forgery?

2. Whether the First Appellate Court has committed an error in wrongly casting the burden of proof on the defendant to disprove the document, based on which the suit claim was made, without considering whether the suit pronote has been proved by the plaintiff, who has sued on it.?”

8. Mr.N.Manokaran, learned counsel for the appellant would contend that it is a specific case of the defendant in the written statement he denied the execution of Ex.A1/suit pronote and in favour of the answer elicited in the cross examination of PW2 and PW3, attestor and scribe respectively goes to show that at the time of their signature, they are signing the pronote, DW1/defendant was not present they have not witnessed the passing of consideration and hence, prayed for setting aside the judgment of the Lower Appellate Court and for restoration of the judgment of the Trial Court. Further, the learned counsel for the appellant would draw my attention to the answer elicited in the cross examination of PW2 and PW3, which reads as follows:

“TAMIL”

9. The appellant/defendant has taken additional plea that originally one of his friends viz., Abimannan was drawn amount from the chit company and he stood as a surety. In such capacity, he had executed one pronote in favour of the chit and the consent decree passed before the Registrar of Chit Company was marked as Ex.B1 to B4 and hence, the suggestive case of the defence has also been probablised.

10. Since there was a plea of forgery, denial of execution and according to the learned counsel for the appellant/defendant, burden of proof is upon the plaintiff, the learned counsel for the appellant relied upon the decision of the Hon’ble Supreme Court, reported in 2008 (4) SCC 530 -Thiruvengadam Pillai Vs. Navaneet