THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.12 OF 2011 15.07.2011 Between: Kondeti Janakiratnam … Appellant AND Namala Satyanarayana …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.12 OF 2011 JUDGMENT: The appellant/plaintiff instituted O.S.No.338 of 2003 on the file of the I Additional Senior Civil Judge, Rajahmundry. The suit is for recovery of money based on promissory note allegedly executed by the respondent/defendant. The suit was dismissed by the trial Court as well as the appellate Court. Hence, the second appeal. The appellant instituted the suit alleging that the defendant borrowed an amount of Rs.60,000/- from her on 10.10.2000 for meeting family expenses and that in spite of demand made by notice dated 28.01.2003, he did not pay the amount. The suit was opposed by the defendant denying execution of promissory note. He also alleged that in 2001, he had borrowed a sum of Rs.5,000/- from Kondeti Hanumantha Rao, who is none other than the father-in-law of the plaintiff, that he discharged the said amount and that the plaintiff after obtaining possession of promissory note executed by the defendant in favour of Hanumantha Rao, filed the suit. The trial Court framed only issue as to whether the plaintiff is entitled for suit claim. The plaintiff examined herself as P.W.1 and marked Exs.A.1 to A.3. She examined attestor as P.W.2. The evidence of P.W.3 was eschewed as he did not turn up for cross-examination. The defendant examined two witnesses and marked three documents. After considering oral and documentary evidence, the trial Court recorded a finding that the case of defendant is more probable than the case of plaintiff and accordingly dismissed the suit. The same is found favour with the appellate Court. The counsel for the appellant relies on Bharat Barrel and Drum Manufacturing Company v Amin Chand Payrelal[1], and would submit that when the signature of the promissor on the promissory note is admitted, the passing of consideration has to be presumed under Section 118 of the Negotiable Instruments Act, 1881 (the Act, for brevity), and that merely because the defendant denies the passing of consideration, the same would not dislodge the presumption under Section 118 of the Act. The defendant denied as D.W.1 the Ex.A.1, promissory note. He examined D.W.2 who is the wife of the brother of P.W.1.She did not support P.W.1 as to the execution of the promissory note on the day alleged. Secondly, P.W.1 deposed that she withdrew an amount of Rs.50,000/- from the Bank and secured balance Rs.10,000/- by pledging her gold and her husband and then advanced Rs.60,000/- to the defendant under Ex.A.1, promissory note. Her statement remained uncorroborated whereas the defendant examined D.W.2 who is closely related to P.W.1 and disproved her version. As held by Supreme Court in Bharat Barrel, when the execution of promissory note is admitted, the presumption under Section 118 of the Act would arise that it is supported by consideration. The same being rebuttable, the defendant can prove non-existence of consideration by raising probable defence, in which event the onus would shift to plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove, the plaintiff would be disentitled to the grant of relief. In this case, when on probabilities, the defendant proved his case that Ex.A.1 is not supported by consideration, the plaintiff made attempt to prove that she withdrew and borrowed, and paid as consideration under Ex.A.1. Except making a self-serving statement as P.W.1, she did not attempt to bring in corroborative evidence. Apart from the law of presumption that is attached to a negotiable instrument like promissory note whether the plaintiff discharged his onus when the defendant proved non-receipt of consideration is a question of fact. On probabilities, both the Courts below correctly appreciated and came to the conclusion that the plaintiff failed to discharge his onus. The second appeal is misconceived and is accordingly dismissed. _______________ (V.V.S.RAO, J) 15.07.2011 Pln [1] AIR 1999 SC 1008