THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.548 OF 2011 19.07.2011 Between: Kakarla Veerraju … Appellant AND Valluri Rama Rao …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.548 OF 2011 JUDGMENT: The unsuccessful plaintiff is the appellant. His suit being O.S.No.259 of 2006 for recovery of a sum of Rs.83,000/- based on a promissory note was dismissed by the Court of the I Additional Junior Civil Judge, Rajahmundry on 25.02.2009. The same was confirmed in A.S.No.99 of 2009, dated 12.11.2010 by the Court of the V Additional District Judge (Fast Track Court), Rajahmundry. The case of the plaintiff is that the defendant borrowed an amount of Rs.54,000/- on 13.03.2003 and executed promissory note Ex.A.1. In spite of the demand by notice, dated Ex.A.2, he failed to pay the amount. The defendant denied execution of Ex.A.1, promissory note, and further alleged that it is not supported by consideration. Appropriate issues were framed and plaintiff gave evidence as P.W.1 and examined P.W.2, and marked Exs.A.1 to A.3. The defendant gave evidence as D.W.1 and marked Exs.B.1 to B.3. On appreciation of evidence, the trial Court came to the conclusion that Ex.A.1 is not supported by consideration and that it is executed by way of renewal of earlier promissory note. For coming to this conclusion, the trial Court relied on the evidence of P.W.1 and P.W.2. The appellate Court confirmed the Judgment of the trial Court. The counsel for appellant/plaintiff relies on Mallavarapu Kasivisweswara Rao v Thadikonda Ramulu Firm[1], and submits that unless the defendant discharges initial burden to prove non-existence of consideration, the presumption under Section 118(a) of the Negotiable Instruments Act, 1881, cannot be ignored. He submits that both the Courts below gave undue importance to the evidence of P.W.2, who is a witness won over by the defendant. Section 118(a) of the N.I. Act 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[2], Bharat Barrel and Drum Manufacturing Co. v Amin Chand Payrelal[3], M.S. Narayana Menon v State of Kerala[4] and Mallavarapu Kasivisweswara Rao). The defendant in this case clearly alleged that the suit promissory note Ex.A.1 is not supported by consideration and that plaintiff has no capacity to pay the amount, that consideration did not pass on under Ex.A.1, promissory note was admitted in cross- examination by none other than the attestor of Ex.A.1, P.W.2. Secondly, P.W.2 also admitted that the plaintiff was engaged in kirana business and agricultural work, and that he has capacity to lend Rs.2,000/- or Rs.3,000/- at once. On probabilities, the defendant proved his case that the suit promissory note is not supported by consideration and the same being question of fact does not warrant any further consideration. A substantial question of law does not arise in such a case. The second appeal is accordingly dismissed. _______________ (V.V.S.RAO, J) 19.07.2011 Pln [1] (2008) 7 SCC 655 : AIR 2008 SC 2898 [2] AIR 1987 AP 139 (FB) [3] (1999) 3 SCC 35 : AIR 1999 SC 1008 [4] (2006) 6 SCC 39 : AIR 2006 SC 3366