JUDGMENT

Ba U, J - I have no doubt in my mind that the suit as framed is based on a promissory note. The promissory note in suit bears a one-anna stamp. The amount involed is however over Rs. 250; therefore it should have borne two one-anna stamps. For that reason, the defendant-appellant pleaded that the promissory note in suit was insufficiently stamped, and that therefore it was not admissible in evidence. He further pleaded that no consideration passed in respect thereof. On both these pleas the trial Court found in his favour and dismissed the suit with costs. On appeal the learned Judge of the District Court said:

The lower Court has gone fully into the evidence produced by plaintiff and up to a point, we think, the learned Judge was right when he held that the evidence of the witnesses produced by the plaintiff to prove that there were two stamps on it originally was not entitled to much weight, On the other hand although plaintiff's explanation as to how the stamp oame to be lost may perhaps be fanciful yet the note itself does show that at some time or other there was another stamp on the left of the existing stamp.

2. In view of these remarks one would have thought that the learned Judge of the lower appellate Court would have dismissed the appeal. But the learned Judge added:

The defendant himself practically admits that there was such a stamp because in his written statement (para. 8) he tries to explain the impression on the paper by saying that plaintiff had purposely caused this impression by fixing a stamp on this paper and then taking it out again. But is this suggestion of the defendant at all probable? If plaintiff was prepared to affix a stamp by the side of the existing stamp and then take it out again merely to leave an impression on the paper to support a false story of the original stamp having got lost, it would have been very much simpler for the plaintiff to have affixed this stamp and let it be there and thus save himself the trouble of having to give a different explanation as to how the original stamp came to be missing.

3. That, in my opinion, with all due respect to the learned Judge, is putting the cart before the horse. From this, it appears to my mind that the learned Judge placed the burden of proof on the defendant-appellant, instead of on the plaintiff-respondent. If the evidence produced by the plaintiff-respondent to show that there were two stamps at the time of the execution of the promissory note was insufficient, then, as I have said above, the appeal of the plaintiff-respondent should have been dismissed. From the evidence of the plaintiff-respondent himself, it is clear to my mind that there could not have been two stamps as alleged. He states:

In 1931 I went to U Kyaw to demand the money on it. I met him but he could not pay at that time. On my way back, it rained. It got wet. It was then in my shirt pocket. When I got home, I blotted it, folded it and kept it in the safe. There were two stamps when I put into the safe. There were lots of other papers. After six months or so I found out that one stamp was missing from the pro-note in suit. I searched for the lost stamp but I could not find it.

4. Now, if there had been two stamps on the promissory note when he put it into the safe, and if, when he took it out again after six months and found that there was only one stamp, he looked for the missing stamp. I am definitely of the opinion that he would have found it in the safe. It is however urged by his learned advocate that as there were so many papers in the safe and that, when the papers were taken out, the other stamp must have got mixed up with those papers and accidentally dropped on the floor, and that thereafter it might have been swept away. I admit that it is a very ingenious explanation. But that is not the explanation given by his client. On the evidence as it stands, I cannot help holding that the story told by the plaintiff-respondent that there were two stamps is incredible.