The burden of proof lies on the party alleging the execution of the pronote, and the presumption under Section 118 of the Negotiable Instruments Act arises only when the execution is admitted or proved.

1. The Appellant/Plaintiff has projected the present Second Appeal adverting upon the Judgment and Decree dated 18.09.1998 in A.S.No.32 of 1998 passed by the Learned Principal District Judge, Cuddalore.

2. The First Appellate court, viz. the Learned Principal District Judge, Cuddalore, while passing the Judgment in A.S.No.32 of 1998 on 18.09.1998 has opined that "there is inconsistency between the evidences of P.Ws.1 to 4 and that they have not discharged their initial burden of proving execution of Suit Pronote, etc. and in regard to the evidence of D.Ws.2 and 3, it is observed that they only speak of not indicating no means of Plaintiff, etc. and consequently dismissed the Appeal with costs.

3. Before the trial Court, in the main suit, 1 to 5 issues have been framed for determination. On behalf of the Appellant/Plaintiff, witnesses P.Ws.1 to 4 have been examined and Exs.A1 to A16 have been marked. On the side of the Respondent/Defendant, witnesses D.Ws.1 to 3 have been examined and Exs.B1 to B8 have been marked.

4. The trial Court, on appreciation and analysis of the oral and documentary evidence available on record, has come to a definite conclusion that the Appellant/Plaintiff is not entitled to recover the suit amount and also it opined that the plea of the Respondent/Defendant that the Suit Pronote is a fabricated one is a true one and resultantly dismissed the suit with costs.

5. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for determination:

(i) Whether in law the Courts below are not wrong in overlooking that under Section 118 of the Negotiable Instruments Act, when execution of a Pronote is admitted, there is a presumption as to the passing of consideration?

(ii) Whether in law the Lower Appellate Court is right in framing an erroneous point for consideration and not framing proper points as contemplated under Order 41 Rule 31 C.P.C. and as held in 1997 (1) Law Weekly 704 (DB)?

The Contentions, Discussions and Findings on Substantial Question of Law No.1:

6. The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court has committed an error to appreciate the fact that the Appellant/Plaintiff owned more than ten acres and that has been admitted by the Village Administrative Officer and further, the Appellant/Plaintiff has requested means to pay the amount and file documents to prove his means.

7. It is the contention of the Learned Counsel for the Appellant/Plaintiff that the trial Court as well as the First Appellate Court have overlooked the admission of execution of the Pronote and in fact the burden shifts on the Respondent/Defendant to disprove passing of consideration. The stand of the Appellant/Plaintiff is that the minor discrepancies in the oral evidence of the Appellant/Plaintiff has weighed with the consideration of the trial Court as well as the First Appellate Court.

8. The Learned Counsel for the Appellant/Plaintiff urges before this Court that the First Appellate Court has failed to appreciate the Appellant/Plaintiff's case in real perspective, which has resulted in a cursory disposal of the case.

9. Per contra, it is the contention of the Learned Counsel for the Respondent/Defendant that both the Courts below have concurrently not believed the version projected by the Appellant/Plaintiff and in fact, the oral and documentary evidence available on record have been looked into properly and upon scrutinizing the materials on record, both the Courts have come to a correct conclusion that the Appellant/Plaintiff has not established his case that the Respondent/Defendant has executed Ex.A1-Suit Pronote, dated 05.12.1993 in his favour and moreover, the First Appellate Court in paragraph 7 of its Judgment in Appeal has opined that there is inconsistency in regard to the evidence of P.Ws.1 to 4 and that the initial onus of proof of execution of the Pronote has not been discharged by the Appellant