This appeal arises out of a suit for the recovery of a sum of Rs. 1,200. The suit-was decreed in the trial Court. The learned Ad­ditional Subordinate Judge reversed the decree of the Court below and dismissed the suit. The plaintiff has come to this Court on second appeal. [2] In the trial Court, the plaintiff's case was that the husband of defendant 4 who was the father of defendants 1 to 3 borrowed Us. 1,200 in cash from him on 27-8-1943 and executed a hand-note for it. He agreed to pay interest at the rate of 1 per cent, per mensem on the amount borrow­ed. On 12-9-1943, plaintiff demanded the repay­ment of the loan and he got a cheque dated 12-9-1943 for the amount from his borrower, who being dead is now represented by the four defen­dants. The cheque was duly presented in Bank on 12-9-1943 but it was dishonoured. The plaintiff alleged that he informed Jogendra Dutta, deceased, about its dishonour, but he did not pay the money but was just putting him off. He died in 1945. The suit was, the before, instituted against his legal representatives. [3] The suit was resisted. It was pleaded that no money was borrowed by Jogendra Dutta, de­ceased, on 27-8-1943. The execution of the hand-note was also denied. As regards the cheque, the defence raised was that it had been fraudulently obtained by the plaintiff on 27-8-1943 'for wrong­ful gain.' The allegation about the notice of dis­honour was also denied. It was further pleaded that Jogendra Dutta, deceased, was insane from 1942 and the before the handnote and the cheque did not create any enforceable liability. The learned Munsiff found that the execution of the cheque had not been denied and that the evidence adduced by the defendants did not establish that he was insane or of unsound mind during the period commencing from 27-8-1943 and ending on 12-9-1943. He also found, relying on plaintiff's evidence, that the sum of BS 1,200 had been, .borrowed. [4] The learned Additional Subordinate Judge found that Jogendra Dutta, deceased, was proved to have been insane on the relevant dates. Ho also held that it had not been established that the cheque was drawn by the deceased. In his view the khata entry was not the basis of the plaintiff's suit. [4] The learned Additional Subordinate Judge found that Jogendra Dutta, deceased, was proved to have been insane on the relevant dates. Ho also held that it had not been established that the cheque was drawn by the deceased. In his view the khata entry was not the basis of the plaintiff's suit. On the question o£ the alleged notice of dishonour, he found against the plaintiff and held that in the absence of notice of dishonour the suit was not maintainable. [5] The learned counsel for plaintiff-appellant has conceded that the plaintiff could not recover the amount claimed on the basis of the handnote as it was not adequately stamped. He further conceded that in these circumstances the claim could not rest on khata entry either. He based his claim entirely on the cheque which was subse­quently dishonoured, Mr. Roy for the respondents admit that there was no clear denial in the written statement of the fact that the cheque had been drawn by Jogendra Dutta, deceased and also agrees that the plea raised about the cheque necessarily implies the admission that the cheque was drawn by him. The plea was that the cheque had been obtained by fraud in August 1943. There was in these circumstances, no issue on the point as to whether the cheque was drawn by the de­ceased or not. Evidence bearing on this question, the before, could not have been considered. There was really no controversy on this point. The statement made by the son of the deceased at the evidence, stage that the cheque did not bear the signature of his father was apparently an after-thought and should not have been considered at all. It did not relate to any issue. [6] Under s. 118, Negotiable Instruments Act, it is to be presumed that the cheque was for consideration. It would be for the defendants to rebut jthe statutory presumption arising under s. 118, 'Negotiable Instruments Act. Defendant 4 in her statement deposed that she was not aware whether any money had been borrowed by her husband. This statement shows that she was not even pre­pared to deny consideration. There is no proof of the absence of consideration. On the other hand, plaintiff deposed to the advance. His accountant, who was working with him, has also supported him. This testimony remained unrebutted. This statement shows that she was not even pre­pared to deny consideration. There is no proof of the absence of consideration. On the other hand, plaintiff deposed to the advance. His accountant, who was working with him, has also supported him. This testimony remained unrebutted. It follows that the plaintiff could recover the amount advanced on the basis of the dishonoured cheque unless it is found that by reason of his failure to give notice of dishonour the suit is not maintain­able or that no liability was created by reason of the deceased being insane on the date be gave this cheque. [7] On the question of notice of the cheque having been dishonoured, the learned Counsel for the appellant has relied on cl. (c) of s. 98, Negotia­ble Instruments Act, which provides that "No notice of dishonour is necessary when the party charged could not suffer damage for want of notice''. It is not disputed that on the date the cheque was presented, the deceased had no funds in the Bank. The reason for dishonour was that his account had been closed. In these circumstances it would appear that no question of any damage to the defendants would arise. Mr. Roy has not been able to suggest how, in the circumstances of the case, the deceased or his representatives could suffer any damage by reason of absence of notice assuming that no notice was given. In these circumstances the suit could not fail for want of notice. The omission cannot be fatal to the suit.1 [8] The only question that now remains to be determined is whether the deceased was insane on the relevant dittos as alleged by the defendants. Under s. 12, Contract Act, a person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judg­ment as to its effect upon his interests. Under s. 12, Contract Act, a person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judg­ment as to its effect upon his interests. The defen­dants, the before, had to establish that at the time the cheque was issued the deceased was incapable of understanding it and of forming a rational judgment as to its effect upon his interests.'(After discussing the evidence the judgment proceeded:) The question whether a person is of unsound] mind at the time of execution of a document is a question of fact; but this question does not depend merely upon the belief or disbelief of witnesses Before the Court. It would depend on inferences to be drawn from the evidence: (vide Tilok Chand Charan Das v. Mahandu, A. I. R. 1933 Lah. 458). (After discussing the evidence the judgment pro­ceeded:) For all practical purposes, there is no evidence on which it could be held that the deceased was incapable of understanding the effect of his acts on his interests as required by s. 12, Contract Act. [9] In Kanhaiyalal v. Harsingh Laxman, A.I.E. 1944 Nag. 232, Pollock J., observed that it is doubt­ful whether it could be held that any person was by reason of unsoundness of mind incapable of entering into a contract in the absence of any medical evidence. I share his doubts and feel that it would he extremely hazardous to do so. In this case, apparently, the best evidence has not been produced and the finding of the learned Addi­tional Subordinate Judge rests on a misapprehen­sion of the legal position arising in the case a.-; also of the evidence adduced. He has not taker into consideration the requirements of s. 12, Con­tract Act. He has misread the medical evidence. The inference drawn is also not justified. The finding, the before, cannot be sustained. [10] Mr. Roy has urged that the ease be re­manded for further inquiry. He thought there was possibility of the defendants being able to produce better evidence. This may be correct, but I would not be justified in ordering a remand when it is not disclosed why any evidence that may now be made available was not produced at the time of the trial. Defendants cannot be allowed now to fill up gaps. He thought there was possibility of the defendants being able to produce better evidence. This may be correct, but I would not be justified in ordering a remand when it is not disclosed why any evidence that may now be made available was not produced at the time of the trial. Defendants cannot be allowed now to fill up gaps. No case for remand has been made •out. [11] For reasons given above, the appeal is allowed. The order of the learned Additional Sub­ordinate Judge is reversed and plaintiff's claim for the sum of us. 1200 is decreed but parties shall bear their own costs throughout in the peculiar circumstances of the case. C/V.B.B. Appeal allowed.