IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24.06.2025 CORAM:

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP Appeal Suit. No.542 of 2022 and C.M.P.No.20251 of 2022 Athiyappan ... Appellant Versus Sankar ... Respondent Prayer:- First Appeal filed under Section 96 of Civil Procedure Code to set aside the Judgment and Decree dated 23.02.2022 passed in O.S.No.26 of 2019 by the learned III Additional District and Sessions Judge, Kallakurichi.

For Appellant : Mr.Vignesh Venkat for Ms.Anu Ganesan For Respondent : Mr.N.Manoharan

J U D G M E N T

This First Appeal has been filed to set aside Judgment and Decree dated

23.02.2022 passed in O.S.No.26 of 2019 by the learned III Additional District and Sessions Judge, Kallakurichi.

2. The learned Counsel for the Appellant submitted that the Appellant is the Defendant in O.S.No.26 of 2019 on the file of the learned III Additional District and Sessions Judge, Villupuram at Kallakurichi. Before filing the Suit, the Plaintiff had issued pre-suit notice which was properly replied by the Defendant. It is the contention of the learned Counsel for the Appellant that the Defendant had executed a sale agreement in favour of the relative of the Plaintiff/wife. Subsequently, the sale agreement was cancelled and proper sale deed was executed. At that time, they had obtained signature from the Defendant. Based on which, the Suit promissory note had been put into use for filing this Suit. The Defendant had clearly denied having availed any loan on the alleged date. During trial, the learned Counsel for the Defendant had cross-examined the Plaintiff as P.W-1. In his evidence, P.W-1 had clearly admitted that he had not shown the amount lent to the Defendant as loan in his income tax returns. Further, it is the contention of the learned Counsel for the Appellant that in the course of the trial, P.W-2 and P.W-3 were examined who are attesting witnesses. They had stated that the promissory note was returned in the office of the document-writer nearby Taluk Office.

3. It is his further submission that the date mentioned in the Promissory Note is 30.10.2016 was a Sunday. Therefore, it is unbelievable to have executed a promissory note for a huge amount of Rs.10,00,000/- having been issued to the Defendant. In the course of the trial, the learned III Additional District and Sessions Judge, Villupuram at Kallakurichi rejected the defence of the Defendants stating that the reply to the pre-Suit notice he had stated a different defence. In the written statement he had stated different defence. In the evidence he had stated a very different defence. Therefore, the defence of the Defendants was rejected by the learned Judge and the Suit was decreed. The learned Counsel for the Appellant invited the attention of this Court to Section 43 of the Negotiable Instruments Act and placing reliance on the cross-examination of P.W-1 which itself creates doubt in the mind of the Court. For which he relied on the following decisions:-

(i) In the case of M.S.Narayana Menon Vs. State of Kerala and Ors.

reported in MANU/SC/2881/2006, it has been observed as follows:-

“17. Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act,the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.

18. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35]

albeit in a civil case laid down the law in the following terms:

"Upon consideration of