JUDGMENT : Das, J. - This is a Plaintiff's appeal against the reversing judgment of the Subordinate Judge, Bolangir, in a suit arising out of a pro note. 2. It is the case of the Plaintiff that the Defendant took a loan of Rs. 887.00 from him on 3-6-1956 and executed the promote, Ext. 1. Though the pronote did not stipulate payment of interest, the Plaintiff has claimed interest at the rate of 6% per annum. According to the Plaintiff as he was not carrying on business in money-lending, he was not required to register under the Money-lenders Act. The suit-loan was only a friendly loan which the Defendant promised to repay on demand. But in spite of repeated demands, he did not pay. Hence, the suit. 3. The Defendant admits to have executed the pronote, but his case is that no consideration did pass under the suit pronote. According to him he was working as the Agent of Yuvraj Sri B.P. Singh Deo (d.w.1) and was in charge of the management of the Khamar lands of Sonepur State at Kartang and was looking after his Khamar lands and the litigations connected therewith. In order to keep him under his control, d.w.1 got the suit pronote executed in favour of the Plaintiff under influence and pressure without passing of any consideration. 4. The trial Court decreed the Plaintiff's suit in full. The appellate Court reversed the finding of the trial Court and held that the suit-pronote was unsupported by consideration and was executed by the Defendant under undue pressure and influence of d.w.1 who got the document executed benami in favour of the Plaintiff. He thus dismissed the Plaintiff's suit. Hence the appeal. 5. At the appellate stage, a sale-deed (Ext. E) executed by d.w.1 in favour of the Defendant on 19-3-1956 was marked by way of additional evidence under Order 41 Rule 27, CPC Code. The Defendant admits the execution of the document, Ext. 1 but denies passing' of consideration. Section 118 of the Negotiable Instruments Act lays down the legal presumptions to be made in cases of negotiable instruments and Sub-section (d)' of that section laid down that until the contrary is proved the presumption shall be that every negotiable instrument was made or drawn for consideration. Thus, it must be presumed that Ext. Section 118 of the Negotiable Instruments Act lays down the legal presumptions to be made in cases of negotiable instruments and Sub-section (d)' of that section laid down that until the contrary is proved the presumption shall be that every negotiable instrument was made or drawn for consideration. Thus, it must be presumed that Ext. 1 was for consideration and the burden is on the Defendant to prove the contrary. To discharge this burden, the Defendant has examined three witnesses including d.w.1. He relied upon some letters, Exts. A to D/10 and also on Ext. E, the aforesaid sale-deed admitted as additional evidence at the appellate stage. The purpose of examining d.w.1 was to rather cross-examine him for eliciting from him that the Plaintiff was his benamidar and that the suit-handnote was without any consideration. The witness repudiated both the suggestions of the Defendant. He admitted that the Defendant was working under him as a Khamarai to lookafter his Khamar affairs at Kartang and at his instance the letters Ext. A to D/10 were issued to the Defendant. Though Ext. E was in the possession of the Defendant, it was not confronted to d.w.1 to establish If the document had any relation with the suit-pronote, with reference to this sale, the witness expressed his inability to say anything about it without looking at the sale-deed. With regard to the production of the account- books in the Court, he said that the books of account were lying at different places and he is unable to say with whom the account-books relating to village Kartang were at that moment. 6. That the Defendant was working in the Khamar of d.w.1 cannot be doubted in view of the oral evidence in this case as also the letters. Exts. A to D/10. Neither these letters, nor the sale-deed, Ext. E do disprove the passing of consideration under the suit-pronate. Thus, we are left with the oral evidence of the Defendant and d.w.2. The learned trial Court found that the Defendant has failed to discharge his onus. He believed the Plaintiff's case and decreed the suit. 7. The learned appellate Court, without examining the merits of the defence evidence on the question of passing of consideration under Ext. 1, made large comments on the evidence of d.w.1 and thought that the case of the Plaintiff is sufficiently disproved by the evidence adduced by d.w.1. 8. He believed the Plaintiff's case and decreed the suit. 7. The learned appellate Court, without examining the merits of the defence evidence on the question of passing of consideration under Ext. 1, made large comments on the evidence of d.w.1 and thought that the case of the Plaintiff is sufficiently disproved by the evidence adduced by d.w.1. 8. Mr. Patnaik, learned Counsel appearing for the Appellant, contended that the findings of the appellate Court are based upon gross error of record and incorrect appreciation of the legal position. 9. There appears to be great force in the above contention. The appellate Court's acceptance of the defence version and the rejection of the Plaintiff's case are based mainly on the assumption that Ext. 1 is a Benami document fraudulently obtained from the Defendant. He observed that: When d.w.1 admits the practice and convention of taking handnotes from his servants without any passing of consideration to keep them under his thumb, there can be no doubt that the present suit hand note must be one of such a series Learned Counsel for the parties placed the evidence at great length. On a perusal of the evidence, I find that no such admission was made by d.w.1 and in any case there were no materials before the appellate Court to justify a conclusion that there was a practice of taking such handnotes without payment of consideration and that the suit-hand note was one of such a series of handnotes. This finding must accordingly be rejected. 10. One of the other reasons that weighed with the appellate Court to reject the suit-pronote as not representing a genuine loan-transaction if that the Defendant was to execute the suit-handnote in favour of the Plaintiff in connection with the sale-deed, Ext. E. He observed that: This document clearly establishes that d.w.1 transferred to the Defendant on condition that the Defendant would execute the suit-handnote in favour of the Plaintiff This again is wholly beside the record. There is nothing in the document to draw such a large conclusion. This is a sale-deed by the Maharaja of Sonepur in favour of the Defendant and is signed by d.w.1. There is nothing in the sale-deed to show that the Defendant would execute the suit-pronote in favour of the Plaintiff. The Defendant in his written statement has made no reference to this sale-deed as in any way connected with suit-handnote. This is a sale-deed by the Maharaja of Sonepur in favour of the Defendant and is signed by d.w.1. There is nothing in the sale-deed to show that the Defendant would execute the suit-pronote in favour of the Plaintiff. The Defendant in his written statement has made no reference to this sale-deed as in any way connected with suit-handnote. These findings of the learned appellate Court are based on error of record and must accordingly be rejected. 11. The other circumstance which weighed with the learned appellate Court is that the Plaintiff is not a man of substance and with his poor income he had not the financial resources to advance such a heavy amount. According to him, he gets a poor salary of Rs. 25/ - and has a number of dependents to maintain. There is, however, the evidence of the Plaintiff and d.w.1 to show that the Plaintiff gets a salary of Rs 40/. and apart from his salary he had some additional income also. Thus, on the ground the Plaintiff's case cannot be rejected. 12. The accounts of d.w.1 was called for by the Defendant, obviously one of the grounds being to show that d.w.1 meets the litigation expenses for the Plaintiff in this case. Of course the amount of loan as said to have been given in the handnote could not find place in the books of d.w.1 as according to the defence case no such payment was at all made. It is not however the case of the Defendant that the money was advanced by d.w.1 and not the Plaintiff. His case is no loan was at all advanced to him and it was merely to exercise a control on him, the document was taken. In spite of the notice it is said the account-books of d.w.1 could not be produced. As stated before d.w.1 said that his account-books were lying at different places and it was not possible to produce them. From this, the learned appellate Court drew an adverse inference against the Plaintiff. He was of the view that the account-books had been purposely withheld as their production would have gone against the case of the Plaintiff. This again is an erroneous appreciation of the legal position. From this, the learned appellate Court drew an adverse inference against the Plaintiff. He was of the view that the account-books had been purposely withheld as their production would have gone against the case of the Plaintiff. This again is an erroneous appreciation of the legal position. Section 114, Illustration (g) of the Evidence Act shows that it is open to the Court to presume that evidence which could be and is not produced would if produced be unfavorable to the person who withholds it. D.w.1 undisputedly is a stranger to the transaction on the very face of Ext. 1 itself, and any unfavorable presumption will not affect him. There is nothing to show that the Plaintiff had withheld any such account books. Their Lordships of the Supreme Court in a case reported in Devidas and Others Vs. Shrishailappa and Others, held that where in the course of a trial, the Court is satisfied that a document having an important bearing on the dispute which is pending trial is withhold by a party, an inference adverse to the party withholding the document, that if produced, the document would not support that party's case may properly arise. But where there is no evidence on the record to show that the document was with the Plaintiffs or within their power and that it was withheld from the Court, the Court would refuse to raise an adverse inference against the Plaintiff. In the present case, there is nothing in the evidence on record to show that the document caned for from d.w.1 was in the possession or control of the Plaintiff. Therefore no presumption u/s 114(g) of the Evidence Act is available against the Plaintiff. 13. The special rule of evidence applicable to Negotiable Instruments as laid down u/s 118(80) clearly says that the burden of proving that no consideration had passed on the document is on the maker of the document, that is, the Defendant. This presumption is one of law and the Court shall presume that the pronote was for consideration. This presumption can, however, be rebutted by any evidence to the contrary. The evidence required to shift the burden need not necessarily, be direct evidence. It may comprise circumstantial evidence also. All that the Defendant has succeeded in proving is that he was working as a Khamarei of d.w.1 in his Khamar at Kartang. This presumption can, however, be rebutted by any evidence to the contrary. The evidence required to shift the burden need not necessarily, be direct evidence. It may comprise circumstantial evidence also. All that the Defendant has succeeded in proving is that he was working as a Khamarei of d.w.1 in his Khamar at Kartang. He has failed to discharge the onus so far as the passing of consideration is concerned. 14. The plea of fraud put forward by the Defendant has also not been substantiated. The onus is undoubtedly on the person who advances such a plea to prove that by cogent evidences: AIR 1940 98 (Privy Council) . The Defendant has failed to wove any such fraud committed on him in connection with the transaction in question. 15. The Plaintiff in his evidence has stated that he advanced a sum of Rs. 887.00 to the Defendant. Mr. Misra, however, pointed out from the cross-examination of the Plaintiff where he said that he paid "BARA KODI SATA TANKA" that is (Twelve Twenties and Seven Rupees) the total of which comes to Rs. 247.00. No re-examination has been made of the Plaintiff to clarify the position as to which of the two statements is true and if in fact Rs. 887/ or Rs. 247/ - was advanced by him to the Defendant. The Defendant would therefore be entitled to the benefit of this statement of the Plaintiff in the absence of any clarification on the point. The Plaintiff shall therefore be entitled to a decree on the principal sum of Rs. 247.00 with interest at 6% from the date of advance till the date of recovery. The judgment of the appellate Court is set aside, the appeal is allowed to the extent stated above. The Plaintiff would be entitled to proportionate costs in both the Courts. Final Result : Allowed