Regular Second Appeal No.2583 of 2004 (O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Regular Second Appeal No.2583 of 2004 (O&M) Decided on : May 14, 2009 Jagroop Singh ... Appellant VERSUS Nachhatter Singh ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Dhirinder Chopra, Advocate for the appellant. Mr.Karan Malik, Advocate for Mr.Ajay Pal Singh, Advocate for the respondent. A.N.JINDAL, J.- This is appellant-defendant's (herein referred as `the appellant') second appeal against the judgment and decree dated 2.4.2004 passed by District Judge, Sangrur, dismissing his appeal against the judgment and decree dated 28.7.2003 passed by Civil Judge (Junior Division), Dhuri, decreeing the suit of the plaintiff – respondent (herein referred as `the respondent') for a sum of Rs.50,000/- along with interest from the date of advance till realisation along with proportionate costs. The suit is based on promissory note as well as a receipt, vide which the respondent advanced a sum of Rs.50,000/- on 25.2.1998 as loan on interest at the rate of 1.25% per month, to the appellant. However, Regular Second Appeal No.2583 of 2004 (O&M) [ 2 ] when the payment was refused by the appellant, the suit was preferred. The appellant controverted the plaint and denied having obtained any loan or having executed the pronote and receipt, and he has alleged it to be fabricated. The Trial Court after taking note of the pleadings of the parties, framed the following issues:- “1. Whether the defendant had borrowed a sum of Rs.50,000/- from the plaintiff on 25.2.1998 and executed a pronote and receipt? OPP 2. Whether the plaintiff is entitled to recover a sum of Rs.63,000/- on the basis of pronote and receipt dated 25.2.1998? OPP 3. If issue No.1 is proved, whether the alleged pronote and receipt are forged and fabricated documents and without consideration? OPD 4. Relief.” The respondent examined himself as well as Karamjit Singh, scribe of the promissory note and receipt, whereas, both the attesting witnesses were given up. To the contrary, the appellant examined himself as DW1 and did not examine any other witness. The Trial Court decreed the suit in the aforesaid terms and the appeal was also dismissed. The substantial question of law in the instant case is, “whether the courts below erroneously drew presumption of passing consideration as provided under Section 118 of the Negotiable Instruments Act?” Regular Second Appeal No.2583 of 2004 (O&M) [ 3 ] Mr. Dhirinder Chopra, counsel for the appellant has urged that notwithstanding the fact that the appellant has not led any evidence to rebut the presumption, yet the same has stood rebutted from the evidence led by the respondent himself. None of the attesting witnesses of the promissory note and receipt has been examined. One witness, who was summoned had been given up as `won over'. The scribe of the promissory note is the son of the respondent, therefore, no presumption of consideration could be drawn in his favour. Before adverting to the pleadings of the parties and promissory note, it would be appropriate to lay emphasis on the principles of Section 118 of the Negotiable Instruments Act, which on bare perusal of the provisions, can be summarised as under:- (i)There is a presumption under this Act that consideration has passed for execution of document; (ii)in order to rebut the presumption the defendant has to prove that no consideration has passed; (iii)if it is found that some form of consideration has passed that is sufficient and it is necessary for the plaintiff to prove that particular consideration mentioned in the document has passed; (iv)even if the plaintiff fails to prove that particular consideration mentioned in the promissory note has passed, still presumption continues under Section 118 of the Act and the plaintiff is entitled to succeed on the basis of this Regular Second Appeal No.2583 of 2004 (O&M) [ 4 ] presumption unless the defendant rebuts the presumption by establishing that no form of consideration has passed; and (v)The presumption can be rebutted by producing definite evidence that no consideration has passed or by relying on the facts and circumstances of the case as well as the flaws in the evidence of the plaintiff's side.” As soon as the plaintiff adduces sufficient evidence to raise presumption in its favour, then the onus to prove certainly shifts on the defendant. No doubt, the evidence required to shift the onus need not necessarily be direct evidence i.e, oral or documentary evidence or the admission made by the opposite party, it may comprise circumstantial evidence or presumption of law or fact. Now, adverting to the facts of the present case, besides, examining himself as PW3, the respondent has also examined Karamjit Singh as PW2. To the contrary, the appellant has said nothing except denying that he did not receive any loan or that he did not execute any promissory note or receipt. The sole blatant denial without further evidence to establish that the document was without consideration or that his signatures were imported on the receipt, the onus of proof to rebut the presumption cannot be said to have been discharged by the appellant. No such circumstances have been shown from where the inference could be drawn against the respondent. Both the courts below, while appreciating the evidence have arrived at the concurrent conclusion that the promissory note was duly executed and consideration did pass thereunder, and it bears Regular Second Appeal No.2583 of 2004 (O&M) [ 5 ] the signatures of the appellant. As regards the non-marking of the exhibits, it may be said that when the witness has stated specifically that the promissory note was scribed by him and it was signed by the appellant after receiving the consideration and the scribe has proved his own hand-writing as well as the signatures of the appellant on the receipt itself, then the mere fact that the documents were only marked and not exhibited, pales into insignificance and the documents would be treated to have been proved for the purpose of reception into evidence. Under these circumstances, it cannot be said that the appellant did not execute the promissory note and the receipt after receiving the consideration recorded therein. The learned first Appellate Court has categorically come to the conclusion that the plea set up by the appellant has not been proved at all. This Court is hesitant to interfere with the findings of the courts below, which are neither perverse nor violative of the basic principles of law. Consequently, the substantial questions of law, as formulated above, are answered against the appellant. Thus, the appeal being devoid of any merit, is dismissed. May 14, 2009 ( A.N.JINDAL ) `gian' JUDGE