JUDGMENT : Misra, J. - Plaintiff's suit is for recovery of money based on a handnote (Ex. 1) for Rs. 1000/ - paid in cash on 28-7-1958. The claim was laid for recovery of Rs. 1360/ - inclusive of interest. In the written statement, the Defendants initially denied the execution of the pronote, but ultimately stated that it was executed as a Kaida (security) towards the dues under the credit transaction. No details were given in the written statement as to the date of the transaction, the amount of credit and for what credit amount the security was given. The learned trial Court accepted the defence version that the suit handnote was a kaida and held that there was no passing of consideration. He, however, overruled the defence objection that the Plaintiff was a money lender in regular course of business. 2. The appeal was dismissed on both the findings being confirmed. 3. The findings that the Plaintiff is not a money-lender in regular course of business is a pure finding of fact and has not been assailed before me. The Plaintiff is therefore, not to comply with the provisions of Rule 11 of the Orissa Money Lenders Rules. 4. The concurrent findings of facts that the suit pronote was given by way Kaida and no consideration passed thereunder, were arrived at by the lower appellate Court on the following analysis: (i) He drew adverse inference against Plaintiff for non-production of the account books. (ii) Both the Courts did not take into consideration the admission made by the Defendants in Ex. 1 that Rs. 1000/ - was borrowed in cash." Though the word 'cash' has not been used in the document read as a whole it conveys an idea that consideration was paid in cash. (iii) The lower appellate Court recorded a finding that the Plaintiff never demanded repayment of the suit loan and the conduct of inaction of the Plaintiff rebuts the presumption u/s 118 of the Negotiable Instruments Act that the every handnote is to be presumed to have been executed for consideration. After non-consideration of item (ii) and consideration of items (i) and (iii), the learned lower appellate Court disbelieved the Plaintiff's case of passing of consideration. 5. The learned lower appellate Court, completely over- looked to notice that the story advanced by the Defendants at the evidence stage was wholly different from the written statement. After non-consideration of item (ii) and consideration of items (i) and (iii), the learned lower appellate Court disbelieved the Plaintiff's case of passing of consideration. 5. The learned lower appellate Court, completely over- looked to notice that the story advanced by the Defendants at the evidence stage was wholly different from the written statement. Their story in the evidence stage was that on the very date the handnote was executed, Defendants took articles worth Rs. 1000/ - from the Plaintiff, paid Rs. 500/ - in cash and for the payment of balance is 500/ - the handnote was executed by way of kaida. The story advanced at the evidence stage was not unfurled in the written statement though it was within their knowledge. Such a story should not have been permitted at the evidence stage. Even if such a story is permissible to be advanced, it is not consistent with the story presented in the written statement. 6. The law is well settled that it is open to the Defendants to plead and prove that a promissory note alleged to have born executed for payment in cash was given by way of collateral security. The onus of proving such a case is, however, on the Defendants and they must have to satisfactorily discharge that onus when a presumption is to be drawn in favour of the Plaintiff that the negotiable instrument was for consideration u/s 118 of the Negotiable Instruments Act. The learned lower appellate Court failed to notice the omission of the story given at the evidence stage in the written statement and also failed to scrutinise the evidence of d. ws. 1 to 3 who advanced variant accounts of the transaction. Non-consideration of these features introduced a substantial defect in the procedure provided under CPC and this has produced an error in the decision of the case on merits. The finding is not binding in second appeal u/s 100(1)(0), CPC Code. 7. It is fairly conceded by Mr. Ram that there was no materials on record that the Plaintiff maintains accounts. Besides the Plaintiff not being a registered money-lender is not bound to maintain accounts. If there are no accounts, no adverse inference can be drawn against him for non-production of accounts. The suit is based on the handnote. 7. It is fairly conceded by Mr. Ram that there was no materials on record that the Plaintiff maintains accounts. Besides the Plaintiff not being a registered money-lender is not bound to maintain accounts. If there are no accounts, no adverse inference can be drawn against him for non-production of accounts. The suit is based on the handnote. If it is the defence case that the Plaintiff had an account in respect of this loan, the Defendants would have called for the same. On proof of the fact that the Plaintiff has an account and on being called for to produce the accounts if be does not produce the same, then only adverse inference can be drawn and not otherwise. The learned lower appellate Court committed an error of law in drawing an adverse inference against the Plaintiff for non-production of accounts. In the pro-note (Ext. 1) Defendants clearly mentioned that they took a loan of Rs. 1000/ -. Though such an admission is not conclusive it has high degree of evidentiary value unless otherwise disproved. The onus is on the Defendants to prove that the admission was wrong. Under Section 118(a) of the Negotiable Instruments Act, until the contrary is proved, the presumption that every negotiable instrument was made for consideration shall be made. The presumption is undoubtedly a rebuttable one. There is no other rebutting evidence excepting the sole circumstance relied upon by the learned lower appellate Court that the Plaintiff never demanded payment of the dues under the pronote. This conduct cannot be taken into consideration to rebut the presumption that consideration passed under the Negotiable Instruments Act. The inaction may -be' the outcome of various reasons, and if the only irresistible conclusion from inaction is non-payment of consideration alone that will be sufficient to rebut the presumption of passing of consideration and not otherwise. The learned lower appellate Court committed the aforesaid errors of law and such errors have affected his decision on merits. The finding that no consideration passed under E. 1 h therefore not binding in the second appeal. 8. To sum up, the Plaintiff has successfully proved that Ex. 1 was for consideration and Defendants have failed to establish- that it was given by way of collateral security. 9. In the result, the Plaintiff's suit must be decreed. The finding that no consideration passed under E. 1 h therefore not binding in the second appeal. 8. To sum up, the Plaintiff has successfully proved that Ex. 1 was for consideration and Defendants have failed to establish- that it was given by way of collateral security. 9. In the result, the Plaintiff's suit must be decreed. The judgments of the Courts below are set aside and the second appeal is allowed with costs throughput. Final Result : Allowed