JUDGMENT : A.K. Padhi, J. - Plaintiff is the Appellant. The suit is for recovery of money with pendente lite and future interest based on a pronote. In the plaint it was alleged by Plaintiff that he was a registered money lender and had obtained a licence for money lending business on 20-1-1968. Defendants had borrowed a sum of Rs. 11,000/- from the Plaintiff on 21-1-1963 by executing the promissory note (Ext. 1) with interest at the rate of 12% per annum As on repeated notice the Defendants did not repay the loan the suit was filed for recovery of money basing on the pronote. 2. Defendants filed their joint written statement and contested the suit. Defendants pleaded that Gunanidhi had obtained a loan of Rs. 1,000/- from the grand father of Plaintiff four months before his death. Defendants are widow and sons of said Gunanidhi. The said loan was taken in the year 1966 by pledging gold ornaments weighing about 17 tolas. Defendants executed (sic) disputed promissory note without any consideration as the Plaintiff wanted collateral security and promised to return the gold ornament if such a security is executed by the Defendants. The Defendants further pleaded that neither they had received any consideration under the promissory note nor the gold ornaments which were pledged by their late father with the grand father of the Plaintiff have been returned to them, in short the Defendants placed no consideration passed under the promissory note. 3. Learned trial Court after assessing the evidence on record has given the findings that though presumption u/s 118(b) of the Negotiable Instruments Act (hereinafter referred to as "the Act") arises in favour of the Plaintiff, the same has been rebutted as the Plaintiff has not examined himself nor has examined the scribe. Plaintiff has failed to prove passing of consideration. This finding has been arrived at relying on Kundan Lal Rallaram v. Custodian, Evacuee Property Bombay AIR 1961 SC. 1316 . 4. Learned advocate for the Appellant submits that the learned trial Court has not understood the import of the presumption arising u/s 118 of the Act. The onus was on the Defendants to prove that no consideration was passed under the Act as the Defendants have admitted the execution of the promissory note, Non examination of the Plaintiff or the scribe is not fatal to the suit. 5. The onus was on the Defendants to prove that no consideration was passed under the Act as the Defendants have admitted the execution of the promissory note, Non examination of the Plaintiff or the scribe is not fatal to the suit. 5. The learned advocate for the Respondents on the other hand submits that the trial Court has correctly held that the presumption has been rebutted by non-examination of the Plaintiff and the scribe and the suit has been dismissed after taking all the factors into consideration. 6. A promissory note is an instrument in writing containing an unconditional undertaking signed by the maker to pay a certain sum of money. Section 118 of the Act reads as follows: Presumptions as to negotiable instuments-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, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration ; X X X X X Interpreting this section in AIR 1961 S.C. 1316 (supra) their Lordships have laid down the dictum: 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 endroser, as the case may be. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof arc 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 raiss 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. 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. u/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 promirsory note is proved, the rule of presumption laid down in Section 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, Section 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 educed acceptable evidence, the burden again shifts to the Plaintiff, and so on. The Defendant may also rely upon circumstancial evidence and, if the circumstances so relied upon are compelling, the burden lay likewise shift again to the Plaintiff. He may also rely upon presumptions of fact, for instance these mentioned in Section 114 and other sections of the Evidence Act. u/s 114 of the Evidence Act, "The Court may presume the existence of any fact which it thinks likely to have append, regard being had to the common course of natural events, human conduct and public and private business, in their, relation to the facts of the particular case. Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A Plaintiff, who says that he had sold certain goods to the Defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the Defendant certainly cannot be expected to produce his documents. In those circumstances, if such a relevant evidence is withheld by the Plaintiff, Section 114 enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the Plaintiff. This presumption if raised by a Court can under certain circumstances rebut the presumption of law raised u/s 118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact, may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrefutable presumptions of law. In the case before their Lordships the promissory note was for a sum of Rs. 37,000/- and the Plaintiff had stated in evidence that he had taken Rs. 96.10 and for the rest he sold all his goods in the shop with the executants of the promissory note i.e., the Plaintiff had made stock in trade in lieu of the consideration. The Plaintiff did not produce the list of articles or the book of accounts to prove as to what articles were traded in lieu of the balance consideration. In those circumstances their Lordships held that since Plaintiff has wilfully withheld the documentary evidence, adverse inference is to be drawn u/s 114 of the Evidence Act and the presumption arising under the Act was rebutted by the adverse inference to be drawn u/s 114 of the Evidence Act and dismissed the suit of the Plaintiff. In Durga Charan Ram v. Achuta Pati and Ors. In Durga Charan Ram v. Achuta Pati and Ors. 1966 ILR Cut 598, his Lordship has opined that it is open to the Defendant to plead and prove that a promissory note alleged to have been executed for payment in cash was given by way of colateral 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. In Kailash Chandra Swain v. Dhobi Barik 1974 (1) C.W.R. 58, his Lordship has observed that presumption available u/s 118 of the Act can be rebutted by circumstantial evidence and by presumption of the fact drawn u/s 114, Illustration (g) of the Evidence Act. In Manyam Janakalakshmi Vs. Manyam Madhava Rao and Others, Justice Chinnappa Reddy as his Lordship then was speaking for the Court has observed: ...The law does not also require the person suing on the instrument to allege to consideration for which it was made or drawn. Irrespective of any recital in the instrument or any allegation in the plaint regarding consideration, the law presumes that the instrument was made or drawn for consideration. The presumption is that there was consideration and not that there was any particular consideration, that which might be recited in the instrument or that which might be alleged in the plaint. The presumption arises as soon as the execution of the instrument is proved and the presumption continues until "the contrary is proved", that is, until it is proved that there was no consideration. It must be proved that there was no consideration at all for the instrument.... In Sahney Motor Corpn. and Another Vs. Sm. Sova Mukherjee the Plaintiff had not examined herself and it was argued before the Court that the adverse inference is to be drawn for non-examination of the Plaintiff and in that context their Lordships have observed: ...But as pointed out by the Supreme Court in Official Receiver, Kanpur and Another Vs. Abdul Shakur and Others, at p. 926, Section 118, Negotiable Instruments Act, enacts a special rule of evidence to operate between the parties to the instrument or persons claiming under them and mandates the Court to presume consideration until the contrary is proved. Abdul Shakur and Others, at p. 926, Section 118, Negotiable Instruments Act, enacts a special rule of evidence to operate between the parties to the instrument or persons claiming under them and mandates the Court to presume consideration until the contrary is proved. Therefore, if in spite of such obligatory presumption, the party concerned is required to adduce independent proof of passing of consideration, even though nothing has been proved to the contrary, the presumption u/s 118 would become useless and otiose. It is true that in Kundan Lal's case AIR 1961 S.C. 1316 at p. 1319)(supra) the Supreme Court has pointed that the presumption u/s 118, Negotiable Instruments Act, even though mandatory, may stand rebutted under certain circumstances even by a contrary, though permissive presumption u/s 114, Illustration (g) of the Evidence Act arising out of deliberate withholding of material evidence But there is nothing on record to show that the Plaintiff was in a position to adduce better evidence, but deliberately abstained from doing so.... In The Official Receiver, Official Receiver, Kanpur and Another Vs. Abdul Shakur and Others, Justice Shah speaking for the Court has laid the mandate: ...Undoubtedly Section 114 of the Evidence Act is a general provision which enables the Court to presume, though not obliged to do so, that a bill of exchange or a promissory note was founded on a good consideration. Section 118 of the Negotiable Instruments Act, however, enacts a special rule of evidence which operates between parties to the Instrument or persons claiming under them in a suit of proceeding relating to the bill of exchange and does not effect the rule contained in Section 114 of the Evidence Act, in cases not falling within Section 118 of the Negotiable Instruments Act. 6. From all these decisions and the reading of the sections the law is well settled that once the execution of the pronote is admitted the presumption u/s 118(a) arises. However, this presumption is a rebuttable one. This presumption is to the effect that until contrary is proved a presumption shall be drawn that the instrument was for consideration. The presumption u/s 118 of the Act can be rebutted by circumstantial evidence or by presumption of fact drawn u/s 114, Illustration (g) of the Evidence Act. 7. In the case at hand, the Plaintiff has adduced the evidence of two witnesses. The presumption u/s 118 of the Act can be rebutted by circumstantial evidence or by presumption of fact drawn u/s 114, Illustration (g) of the Evidence Act. 7. In the case at hand, the Plaintiff has adduced the evidence of two witnesses. P.W. 1 is the grand father of the Plaintiff and claims to be present at the time of execution of the document and passing of consideration. P.W. 1 has also proved Exts. 1 to 6 it has been suggested to him that Plaintiff has not examined himself as no consideration was passed under the document to which he has stated that the Plaintiff being a busy advocate has not come to the dock. P.W. 1 was also suggested that the promissory note was taken as a collateral security which he has denied. P.W. 2 appears to be a casual witness though he has stated that he had seen the consideration to have passed in my opinion his evidence cannot be accepted. The documents which have been produced on behalf of the Plaintiff-side are Ext. 1, the pronote, Exts. 2, 2/a and 3 are the money-lending licence and the entry thereon. Ext. 4 is the order of the S.D.O. containing the suit transaction. All these documents go to show that the Plaintiff was a registered money-lender. Ext. 4 is the copy of the order of the S.D.O. containing the the suit transaction and the same has been given after scrutinising the records and the declaration as required u/s 18-B(2) of the Orissa Money Lenders Act. Ext. 5 is the copy of the lawyer's notice. Though P.W. 1 has stated that he has served the notice, the Plaintiff has failed to prove that the same was served on the Defendants. Ext. 6 is the certified copy of the Suit Register in Money Suit No. 216 of 1967 in between one Satya Narayan Bajoria and the Defendants, but the Plaintiff cannot rely on this document as the plaint of that case has not been proved and the said suit was dismissed for default for non-payment of Court fee. From the Defendants side two witnesses have been examined. D. W. 1 is the Defendant No. 1. He has stated that the Plaintiff never paid the consideration money under Ext. 1. His father had taken Rs. 1,000/- as loan from P.W. 1 by pledging 17 Tolas of of gold. From the Defendants side two witnesses have been examined. D. W. 1 is the Defendant No. 1. He has stated that the Plaintiff never paid the consideration money under Ext. 1. His father had taken Rs. 1,000/- as loan from P.W. 1 by pledging 17 Tolas of of gold. His father died five month, after the pledging of the ornaments. P.W. 1 wanted a document as collateral security for return of the gold. No further consideration passed while Ext. 1 was executed. The Defendants executed the document with the hope of getting back the gold pledged by their late father. In spite of the execution of the document the gold was not returned. D.W. 2 has been examined to prove that gold ornaments were pledged by the late father of the Defendants weighing 17 Tolas. When suggested, he has admitted that there is a committee at Chatrabazar and the committee decides the diputes in the bazar. D.W. 1 admits that he has not complained regarding the Plaintiff taking Ext. 1, the pronote without payment of consideration though gold which was pledged has not been returned also. Such conduct of all the Defendants does not appear to be of a normal conduct. P.W. 1 on oath has stated that he had been passing of consideration and D.W. 1 the only witness has stated that there was no passing of consideration under the document. The trial Court has held that for non-examination of the Plaintiff and the scribe, adverse inference is to be drawn, u/s 114 of the Evidence Act and the presumption arising u/s 118(a) of the Negotiable Instrument Act is rebutted by the adverse inference to be drawn u/s 114 of the Evidence Act. In my opinion, this finding of the trial Court is not correct. The Plaintiff has examined P.W. 1 to prove the passing of consideration and out of all the Defendants, Defendant No. 1 has examined himself to prove non-passing of consideration. Since the execution of Ext. 1 is admitted, presumption u/s 118(a) of the Act arises that consideration passed. It is for the Defendants to prove that Ext. 1 was executed as a collateral security and no consideration passed under the document. The bare denial by D.W. 1 (Defendant No. 1) is not sufficient to rebut the presumption arising out of u/s 118 of the Act. 1 is admitted, presumption u/s 118(a) of the Act arises that consideration passed. It is for the Defendants to prove that Ext. 1 was executed as a collateral security and no consideration passed under the document. The bare denial by D.W. 1 (Defendant No. 1) is not sufficient to rebut the presumption arising out of u/s 118 of the Act. Moreover, it being the specific case of the Defendants that they had executed the document as a collateral security to take back the 17 Tolas of gold pledged by their father with P.W. 1 and it has been specifically stated by him that though the document was executed, the gold ornaments were not returned, the Defendants not taking any step to declare that Ext. 1 had been obtained from them without, payment of consideration not took any step to recover the gold ornaments, is also not the normal conduct of a person. After analysing the entire oral evidence on record and (sic) document, i.e., Exts. 1, 2, 3 and 4, I am of the opinion that the onus on being the Defendants to prove that no consideration passed, the Defendant has failed to discharge such onus and the presumption arising out of Section 118(a) of the Act has not been rebutted by the Defendants. 8. In the conclusion, the judgment and decree passed by the trial Court is reversed, the suit is decreed with interest at the rate of 12% per annum. But the principal and the interest shall not exceed Rs. 22,000/- as the principal advanced was Rs. 11,000/- only. In the result, the appeal is allowed and the suit is decreed, but in the circumstances of the case, there shall be no order as to costs. Final Result : Allowed