IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/06/2002
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
S.A.No.1800 of 1989
K.Sethurathinam .. Appellant
versus
Subramanian .. Respondent
Second Appeal against the judgment and decree dated 19.1.1989 made in
A.S.No.169 of 1988 on the file of the learned Subordinate Judge,
Tiruchirapalli, confirming the judgment and decree dated 24.6.1988 made in
O.S.No.344 of 1987 on the file of the learned District Munsif, Musiri.
!For appellant : No appearance
^For respondent : Mr.K.V.Sundarrajan
for Mr.M.Rajasekaran
:JUDGMENT
The unsuccessful plaintiff in O.S.No.344 of 1987 is the appellant in
this second appeal.
2. The appellant/plaintiff laid a money suit in O.S.No.344 of 1987 on
the file of the learned District Munsif, Musiri, for a decree to recover the
money based on a promissory note dated 9.2.1985. But the suit was resisted by
the respondent/defendant, denying the very execution of the promissory note.
3. Appreciating the evidences on record, the learned District Munsif,
Musiri, by judgment and decree dated 24.6.1988 made in O.S. No.344 of 1987,
dismissed the suit, finding that the signature in the promissory note is not
that of the respondent/defendant, as he did not know to sign his name in
English, except to put his initial in English; that the thumb impression of
the respondent/defendant was also not bona fide; and that the depositions of
P.Ws.1 to 4 do not corroborate with each other, and therefore, held that the
promissory note dated 9 .2.1985 is not valid, which was, on appeal in
A.S.No.169 of 1988, confirmed by the learned Subordinate Judge,
Tiruchirapalli, by order dated 19.1.1989. Hence, the plaintiff in O.S.No.344
of 1987 has filed the above second appeal, and the same was admitted by this
Court on 1 8.1 1.1989, on the following substantial questions of law:
i. Whether the lower appellate Court is correct in law in throwing the burden
on the plaintiff?
ii. Whether the lower appellate Court overlooked the presumption under
Section 118 of the Negotiable Instruments Act?
4. Of course, there is no representation on behalf of the
appellant/plaintiff.
5. The Substantial questions of law, referred to above, relate to the
burden of proving the execution of the promissory note dated 9.2.19 85 and the
consequential statutory presumptions under Section 118 of the Negotiable
Instruments Act, which reads as follows:
“ Section 118: Presumptions as to negotiable instruments of consideration.–
Until the contrary is proved, the following presumptions shall be made:–
(a) of consideration –- that every negotiable instrument was made or drawn for
consideration, and that every such instrument, when it has been accepted,
endorsed, negotiated or transferred, was accepted, endorsed, negotiated or
transferred for consideration.
(b) as to date –- that every negotiable instrument bearing a date was made or
drawn on such date;
(c) as to time of acceptance –- that every accepted bill of exchange was
accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer -– that every transfer of a negotiable instrument
was made before its maturity;
(e) as to order of endorsements –- that the endorsements appearing upon a
negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps –- that a lost promissory note, bill of exchange or cheque
was duly stamped;
(g) that holder is a holder in due course – that the holder of a negotiable
instrument is a holder in due course; provided that, where the instrument has
been contained from its lawful owner, or form any person in lawful custody
thereof, by means of an offence or fraud, or has been obtained from the maker
or acceptor thereof by means of an offence or fraud, or for unlawful
consideration, the burden of proving the holder is a holder in due course lies
upon him. ”
6. The presumptions under Section 118 of the Negotiable Instruments
Act would be a binding rule of evidence in favour of the respondent/
defendant, only if the revision petitioner/plaintiff proves the execution of
the promissory note, as held by the Apex Court in KUNDAN LAL V. CUSTODIAN,
EVACUEE PROPERTY reported in AIR 1961 SC 1316, wherein, it is held as follows:
“5. This section lays down a special rule of evidence applicable to
negotiable instruments. The presumption is one of law and thereunder a court
shall presume, inter alia, that the negotiable instrument or the endorsement
was made or endorsed for consideration. In effect it throws the burden of
proof of failure of consideration on the maker of the note or the endorser, as
the case may be. The question is, how the burden can be discharged? The
rules of evidence pertaining to burden of proof are embodied in Chapter VII of
the Evidence Act. The phrase “burden of proof” has two meanings-—one the
burden of proof as a matter of law and pleading and the other the burden of
establishing a case; the former is fixed as a question of law on the basis of
the pleadings and is unchanged during the entire trial, whereas the latter is
not constant but shifts as soon as a party adduces sufficient evidence to
raise a presumption in his favour. The evidence required to shift the burden
need not necessarily be direct evidence, i.e., oral or documentary evidence or
admissions made by opposite party; it may comprise circumstantial evidence or
presumptions of law or fact. To illustrate how this doctrine works in
practice, we may take a suit on a promissory note. Under S.101 of the
Evidence Act, “ Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must
prove that those facts exist”. Therefore, the burden initially rests on the
plaintiff who has to prove that the promissory note was executed by the
defendant. As soon as the execution of the promissory note is proved, the
rule of presumption laid down in S.118 of the Negotiable Instruments Act helps
him to shift the burden to the other side. The burden of proof as a question
of law rests, therefore, on the plaintiff; but as soon as the execution is
proved, S.118 of the Negotiable Instruments Act imposes a duty on the Court to
raise a presumption in his favour that the said instrument was made for
consideration. This presumption shifts the burden of proof in the second
sense, that is, the burden of establishing a case shifts to the defendant.
The defendant may adduce direct evidence to prove that the promissory note was
not supported by consideration, and, if he adduced acceptable evidence, the
burden again shifts to the plaintiff, and so on. The defendant may also rely
upon circumstantial evidence and, if the circumstances so relied upon are
compelling, the burden may likewise shift again to the plaintiff. ”
7. Therefore, it is well settled that the burden initially rests on
the plaintiff to prove that the promissory note was executed by the defendant.
Then only the plaintiff is entitled for presumption as against the defendant,
as provided under Section 118(a) of the Negotiable Instruments Act.
8. In the instant case, since both the Courts below have
categorically rejected the very execution of the promissory note, holding that
the depositions of P.Ws.1 to 4 do not corroborate with each other, which is
purely a question of fact, in my considered opinion, I do not find any ground
to interfere with the judgment and decree of the Courts below. Hence, this
second appeal is dismissed. No costs.
Index: Yes Internet: Yes 10.06.2002 ksv To:
1. The Subordinate Judge, Tiruchirapalli. (with records)
2. The District Munsif, Musiri. (with records)
Copy to:
The Section Officer, V.R. Section, High Court, Madras.
Sd/- Assistant Registrar
/True Copy/
Sub Assistant Registrar
Ksv
P.D.DINAKARAN,J.
S.A.No.1800 of 1989