THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.71 OF 2011 19.07.2011 Between: Smt J.Veeramma … Appellant AND Smt Yenneti Veera Vijayalaxmi …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.71 OF 2011 JUDGMENT: The respondent (hereafter plaintiff) instituted the suit for recovery of a sum of Rs.85,699/- based on a promissory note, dated 06.08.2000. The same was decreed. The appellant/defendant’s appeal being A.S.No.2 of 2006 was dismissed. Hence, the present second appeal. The plaintiff alleged that the defendant borrowed a sum of Rs.50,000/- and executed promissory note Ex.A.1, dated 06.08.2000. The same was attested by P.W.2. In spite of the demand, the defendant did not pay the amount necessitating the suit. The defendant opposed the suit. Her contention was that the suit promissory note was fabricated and that she never borrowed the money. She further alleged that her husband had borrowed Rs.5,000/- from P.Venkat Rao, who is brother of the plaintiff, that at that time Venkat Rao obtained signature of the defendant’s husband on empty promissory note, that though her husband discharged the promissory note amount, the suit Ex.A.1 was fabricated. During the trial, the plaintiff examined herself as P.W.1 and attestor as P.W.2. The defendant examined D.W.1 and D.W.2 and marked six documents. The main issue before the trial Court was whether the suit promissory note is true, valid and supported by consideration. After recording a favourable finding, the trial Court decreed the suit holding that Ex.A.1 is true and valid and is supported by consideration. The decree of the trial Court was confirmed by the appellate Court. The counsel for appellant/defendant submits that the presumption that Ex.A.1 is supported by consideration has been effectively rebutted by the defendant by marking Exs.B1 to B.6 and the Courts below have failed to appreciate the evidence properly. He nextly would contend that when the defendant has rebutted the presumption under Section 118, the onus shifts to plaintiff to prove that the consideration was in fact passed on under negotiable instrument and the plaintiff did not bring in evidence. 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[1], Bharat Barrel and Drum Manufacturing Co. v Amin Chand Payrelal[2], M.S. Narayana Menon v State of Kerala[3] and Mallavarapu Kasivisweswara Rao v Thadikonda Ramulu Firm[4]). In this case, as observed by the trial Court as well as the appellate Court, Exs.B.1 to B.6 is a correspondence between Venkat Rao and others with the defendant. The plaintiff is not at all a party to these documents. Even if her plea is correct that her husband borrowed money from Venkat Rao under a promissory note, the same would not amount to defendant rebutting the presumption. The plaintiff has proved execution of promissory note by examining himself and the attestor, and therefore, it is presumed that it is supported by consideration. This aspect of the matter is a question of fact and the second appeal is misconceived. The second appeal is accordingly dismissed. _______________ (V.V.S.RAO, J) 19.07.2011 Pln [1] AIR 1987 AP 139 (FB) [2] (1999) 3 SCC 35 : AIR 1999 SC 1008 [3] (2006) 6 SCC 39 : AIR 2006 SC 3366 [4] (2008) 7 SCC 655 : AIR 2008 SC 2898