THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.14 of 2011 July 15, 2011 Between: Singireddy Rama Subrahmanyam, S/o.Radha Krishna ... Appellant And Pillala Narayanadas, S/o.Narendu ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.14 of 2011 JUDGMENT: This second appeal is by the unsuccessful defendant. The trial Court as well as the first appellate Court rejected the defendant’s contention and decreed the respondent’s suit for recovery of money based on promissory note dated 02.3.2003 for a sum of Rs.2,00,000/-. Against the confirming decree of the first appellate Court, the plaintiff is before this Court under Section 100 of the Code of Civil Procedure, 1908 (CPC). The plaintiff instituted the suit alleging that the defendant borrowed a sum of Rs.2,00,000/- on the foot of the promissory note dated 02.3.2003 executed by him agreeing to pay the same with interest at 24% per annum. The defendant opposed the suit. He alleged that he worked under Pyla Bangarrraju, who was running lorries, chit fund, and was conducting business in mosquito coils, prawns and hardware. He used to collect monthly interest from borrowers of Bangarrraju and also look after the maintenance of lorries and other business operations. The plaintiff and Bangarrraju are relatives. Plaintiff also borrowed amount from Bangarrraju. When the defendant approached the son of the plaintiff, by name, Bharataratna, for collecting interest, there was altercation. The defendant was manhandled. He, therefore, stopped working for Bangarraju and due to misunderstandings between Bangarraju and the defendant, the plaintiff and Bangarraju colluded and filed the suit based on a promissory note. He never borrowed the amount and that the plaintiff had no financial capacity to lend the money. During the trial, the plaintiff examined himself as P.W.1 and marked Ex.A1 promissory note. The attestor and scribe were examined as P.Ws.2 and 3. The defendant gave evidence as D.W.1, and D.Ws.2 and 3 were brought in to corroborate D.W.1. On considering the oral and documentary evidence, and relying on Section 118 of the Negotiable Instruments Act, 1881 (the N.I. Act), the trial Court decreed the suit. The judgment and decree of the trial Court having been confirmed by the first appellate Court, the plaintiff filed the instant second appeal. The Counsel for the defendant/appellant submits that the defendant took a substantial plea that the plaintiff has no financial capacity but the plaintiff has not taken any effort to prove his financial capacity to lend the money under Ex.A1 promissory note. Nextly it is urged that Ex.A1 promissory note is void as it is materially altered and based on the same, decree cannot be passed for recovery of money. Lastly it is urged that both the Courts below failed to appreciate the evidence properly. Section 118 of the N.I. Act, inter alia, provides that every negotiable instrument made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, it shall be presumed that such instrument was endorsed, negotiated, transferred or accepted for consideration. When the plaintiff proves the promissory note, the burden shifts to the defendant to rebut the presumption provided under Section 118 of the N.I. Act. A mere assertion that the plaintiff has no capacity to lend the money or that the plaintiff is a notorious litigant or that plaintiff is in the habit of fabricating promissory notes would not dislodge the presumption under Section 118 of the N.I. Act. In case the defendant, on probabilities, proves that the promissory note is not supported by consideration, the onus would be on the plaintiff. This only means that by mere marking the promissory note and deposing about its execution the plaintiff would not be absolved of onus of proof. He has to bring in convincing evidence (see G.Vasu v Syed Yaseen Sifuddin Quadri[1], Bharat Barrel and Drum Manufacturing Co. v Amin Chand Payrelal[2] and M.S. Narayana Menon v State of Kerala[3]). In the case on hand, P.W.1 deposed about the defendant executing Ex.A1 promissory note. Though an attempt was made, in the cross-examination, to prove his financial capacity, his evidence remained unshaken. The evidence of P.W.1 was corroborated by the attestor, P.W.2, as well as the scribe, P.W.3. Therefore the plaintiff has discharged his burden of proving Ex.A1 promissory note. No attempt was made by the defendant to rebut the presumption under Section 118 of the N.I. Act. Therefore the findings recorded by the trial Court as well as the appellate Court do not warrant any interference nor give rise to a substantial question of law. The second appeal is, therefore, dismissed. No costs. _______________ (V.V.S.RAO, J) July 15, 2011 YS [1] AIR 1987 AP 139 (FB) [2] AIR 1999 SC 1008 [3] (2006) 6 SCC 39 : AIR 2006 SC 3366