Judgment :- The second appeal by the defendant firm is against the judgment and decree the District Judge, Coimbatore, dated 7.2.1980 in A.S.No.81 of 1979, reversing judgment and decree of the Sub-Judge, Coimbatore in O.S.No.374 of 1976dated 13.9.1978. The suit is recovery of Rs.8,442.15, the amount due under the hundi Ex.A-1, dated 12.4.1973 for sum of Rs.5,000 with interest thereon. The suit was dismissed by the trial Court on ground that the suit hundi was not supported by consideration. But, the lower appellate court has decreed the suit on the ground that the suit hundi is supported by consideration. No doubt, there was some dispute even with reference to execution of the suit hundi. As the written statement, the defendant only admitted his signature in the suit hundi, and case is that at the time of the execution of a prior hundi, the plaintiff had obtained signature of the defendant in two blank hundies which ought to have been probably by the plaintiff in fabricating the document Ex.A-1. The prior hundi was executed 20.3.1969 was admittedly executed on 20.3.1969. The written statement does not give specific date as to when according to the defendant he put the signature in blank hundies. Only in the witness box, the defendant stated that at the time of execution of the prior the signature was obtained in a blank hundi. But, this cannot be true, as pointed out Courts below, since the seal of Ex.A-1 for purchase of the stamp paper on which executed is dated 10.2.1971. That is why the execution of the hundi by the defendant found by the Court below. In the second appeal there can be no serious challenge to the finding regarding execution and I uphold the said finding. 2. Then, coming to the other defence in the suit that the defendant did not receive above said sum of Rs.5,000 and that hence the hundi was not supported consideration, the onus lies on the defendant that the Ex.A-1 is not supported consideration, in view of the mandatory presumption arising under Sec.118 of the Negotiable Instruments Act. On this question, the trial Court has observed as follows: The plaintiff is admittedly a professional Money lender. Under law he is expected to maintain the regular books of account. The defendant has called upon the plaintiff to produce accounts to prove the payment of cash on the date of 12.3.1973. On this question, the trial Court has observed as follows: The plaintiff is admittedly a professional Money lender. Under law he is expected to maintain the regular books of account. The defendant has called upon the plaintiff to produce accounts to prove the payment of cash on the date of 12.3.1973. P.W.1 stated in the that he can produce the account within four hours and prove his payment. But when he was called upon to produce the account he was adopting delaying tactics and he produced the accounts inspite of adjournments as well as notice..... In fact the defendant took summons even to the auditor of the plaintiff, but without success because the evaded the receipts of the summons. The plaintiff has purposely suppressed the accounts, because the production of the said accounts will disprove his case that he advanced a Rs.5,000 on 12.4.1973.... Under such circumstances, I prefer to draw an adverse inference against the plaintiff and hold that the production of account would show that no money advanced by the plaintiff to the defendant on 12.4.1973 and therefore I hold that the hundi is not supported by consideration." On the other hand, the lower appellate Court has observed as follows: "In the circumstances, from the mere fact that the plaintiff had not produced the books account maintained by him cannot be taken as a circumstance to totally reject the plaintiff claim in the light of the other evidence on record. The plaintiff appears to have also lawyer’s notice prior to the filing of the suit. Ex.A-2 is the postal acknowledgment signed the defendant for receipt of the notice and it is dated 28.9.1974.The plaintiff has stated he has misplaced the office copy of the notice issued. The defendant when confronted Ex.A-2 has admitted the acknowledgment ’ though he would state that he did not receive notice and does not ’ remember what the contents of this communication were. Evidently, the defendant is trying to suppress this fact by taking advantage of the misplacement office copy of the notice by the plaintiff. The point is answered against the defendant favour of the appellant." 3. Evidently, the defendant is trying to suppress this fact by taking advantage of the misplacement office copy of the notice by the plaintiff. The point is answered against the defendant favour of the appellant." 3. Therefore, the only question which was seriously argued in the present second appeal how far the presumption arising under Sec.118 of the Negotiable Instrument Act has rebutted by the defendant The contention of the learned counsel for the appellant the said presumption under Sec.118 has been rebutted in view of the deliberate production of the account books of the plaintiff by him and the other presumption consequently arises under Sec.114 of the Evidence Act. Sec.114 of the Evidence Act follows: "Court may presume existence of certain facts. The court may presume the existence of fact which it thinks likely to have happened, regard being had to the common course natural events, human conduct and public and private business, in their relation to the of the particular case." and Illustration-G therein also points out that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person withholds it, The learned counsel for the appellant cited the following decisions in support contention: 1. Kundanlal v. Custodian, Evacuee Property, A.I.R. 1961 S.C. 1316; M/s.Sahney Motor Corporation v. Sova Mukarjee, A.I.R. 1988 Cal. 59 (D.B.); 3. Official Receiver v. Abdul Shakoor, A.I.R. 1965 S. C. 920: (1965)2 M.L.J. (S.C.) 152: (1965)2 W.R (S.C.) 152: (1965)2 S.C.J. 691; 4. Thirumalai Iyengar v. Subba Raja, (1969)1 M.L.J. 193 ; 5. Himjit Constructions v. Tarun Sarkar, A.I.R. 1985 Cal. 200. 4. In Kundanlal v. Custodian, Evacuee Property, A.I.R. 1961 S.C. 1316, it was held, referring to earlier Privy Council and Supreme Court decisions, as follows: "These three decisions lay down that it is the duty of a party to a suit in possession important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption which it is entitled to do under Sec.114 of the Evidence Act. A Division Bench of the Madras High Court in Narayana Rao v. Venkatapayya, I.L.R. (1937) Mad. 299: A.I.R.1937 Mad. 182, considered the interaction of the provisions Sec.118 of the Negotiable Instruments Act and Sec.114 of the Evidence Act in the matter rebuttal of the presumption under the former section. A Division Bench of the Madras High Court in Narayana Rao v. Venkatapayya, I.L.R. (1937) Mad. 299: A.I.R.1937 Mad. 182, considered the interaction of the provisions Sec.118 of the Negotiable Instruments Act and Sec.114 of the Evidence Act in the matter rebuttal of the presumption under the former section. After considering the earlier decisions, including those of the Privy Council, Varadachariar J., summarized the lawat P.311 Mad): (at P.187 of A.I.R.) thus: "It has to be borne in mind that, when evidence has been adduced on both sides, question of onus is a material or deciding factor only in exceptional circumstances; Ramappa Naick v. Tippanna, 56 M.L.J. 287: A.I.R. 1929 Mad. 8, and that even the under Sec.118 of the Negotiable Instruments Act need not always be discharged by direct evidence adduced by the defendant; Mohammed Shafi Khan v. Muhammad Moaszam Khan, 79 I.C. 464: A.I.R. 1923 All. 214; Singar Kunwar v. Basdeo Prasad, 124 I.C. A.I.R. 1930 All 568 and Bishambar Das v. Ismail, A.I.R. 1938 Lah. 1029. Not merely can court base its conclusion of the effect of the evidence taken as a whole but it may also adverse inference against a party who being in a position to adduce better evidence deliberately abstains from doing so; Murugesan Pillai v. Gnanasam-bandha Sannadhi, A.I.R. 1917 P.C. 6, Guruswami Nadan v. Gopalaswami Odayar, I.L.R. 42 629: A.I.R. 1919 Mad. 444 and Raghavendra Rao v. Venkataswami Naicken, 30 L.W. 971: A.I.R. 1930 Mad. 251 at 254. We respectfully accept the correctness of the observations." 5. In M/s.Sahney Motor Corporation v. Sova Mukhar-jee, A.I.R.1988 Cal. 59, also pointed out that the mandatory presumption under Sec.118 of the Negotiable Instruments Act would stand rebutted under certain circumstances even by a contrary, though permissive presumption under Sec.114 and Illustration (g) thereof of the Evidence Act arising out deliberate withholding of material evidence. 6. In the decision reported in Balakrishna Pillai v. Kannappa Pillai, 100 L.W. 925, also held that to rebut the presumption under Sec.118 of Negotiable Instruments Act, defendant may also rely upon the presumption of facts for instance those mentioned Sec.114 and other sections of the Evidence Act. In other words, the presumption of presumption of fact may be rebutted by not only direct or circumstantial evidence but presumption of law or fact. In other words, the presumption of presumption of fact may be rebutted by not only direct or circumstantial evidence but presumption of law or fact. It has also been observed in that decision that the difference between Sec.114, Evidence Act and Sec.118, Negotiable Instruments Act consists this, that under the first the court has a discretion to make the presumption or not, whereas under the second, the court is bound to start with the presumption but once the presumption is made, there is no difference between the two cases, in the matter of displacing presumption or disproving the "presumed" fact. 7. In the present case,it is clear the plaintiff has deliberately withheld the production account books, since the production would disprove his case, that he advanced a Rs.5,000 on 12.4.1973. His own evidence is P.W.1 given on 14.7.1978 is that he is maintaining account books and that on 12.4.1973 and abovesaid sum of Rs.5,000 has been entered accounts and that he could produce the said account books within four hours. But he produce so. So, the defendant sent Ex.C-1 notice on 17.7.1978 to the plaintiff calling upon the plaintiff to produce the said account books. But, even then, he produce the said account books. On 28.7.1978, the defendant was recalled and examined again. Then, he deposed that the said account books were with the auditor and when made efforts to get the said account books from the auditor, the auditor said that he look up and give them to the plaintiff. Even after the said deposition, after recall, the did not produce the account books at any time later. Atleast he could have produced account books at the first appellate stage. Even that he did not do. The second appeal pending for the past 8 years. Atleast in the second appeal he could have produced account books and sought the permission of this court to receive them as additional evidence. Even that, he did not do, Further, while the matter was pending in the trial the defendant had to take out summons to the above said auditor for production of the account book, but, the lower court found, the auditor had evaded the receipt summons. Even that, he did not do, Further, while the matter was pending in the trial the defendant had to take out summons to the above said auditor for production of the account book, but, the lower court found, the auditor had evaded the receipt summons. Therefore, it is abundantly cleat that the defendant deliberately suppressed abovesaid account books and in such circumstances, the court is entitled to draw inference that if the account books are produced, it would disprove the plaintiff ’ s case, he advanced a sum of Rs.5,000 on 12.4.1973 pursuant to Ex.A-1. 8. No doubt, the learned counsel for the respondent plaintiff brought to my notice decision reported in Kandasamy v. Theagaraja,A.I.R. 1968 Mad. 203, where it was held when the defendant in his cross examination does not put the plaintiff a specific question the effect that the account books if produced would not find the suit transactions, neither nor the court at his suggestion is entitled to draw any inference, as to the contention account books. But from the evidence recorded in the present case, it cannot be said such specific question was put by the defendant during the cross examination of the At any rate in the present case, as already stated by me, Ex.C-1 notice was specifically and despite the said notice, the plaintiff did not produce the account book. Such a notice not given in the case reported in A.I.R. 1968 Mad. 203. Therefore, Kandaswami Theagaraja, A.I.R. 1968 Mad. 203, is not applicable to the present case. 9. The learned counsel no doubt also refers to the decision reported in Ramasamy Chettiar Sri Devi Talkies, (1976)1 M.L.J. 22 , wherein it was held that to rebut the presumption Sec.118, the defendant must adduce acceptable evidence. But, as already stated, there several authorities including that of the Supreme Court holding that the said rebuttal not always be by direct evidence adduced by the defendant may be by presumption of fact. 10. No doubt, the lower appellate court points out about Ex.A-2 which is said to be acknowledgement for having sent the suit notice. No doubt, the defendant has admitted Ex.A-2. But he has stated that he did not received the said notice. Therefore, Ex.A itself, cannot be taken as “other evidence on record ” which would go to prove the passing consideration. 11. No doubt, the defendant has admitted Ex.A-2. But he has stated that he did not received the said notice. Therefore, Ex.A itself, cannot be taken as “other evidence on record ” which would go to prove the passing consideration. 11. Finally, the learned counsel for the respondent also argues that the question whether statutory presumption under Sec.118 is rebutted by the rest of the evidence is a question fact and cannot be raised in the second appeal. No doubt, it has been held in A.I.R. S.C. 920, which been referred to in M.Krishnaswamy Naicker v. Radhakrishna Naicker, L.W. 800, cited by the learned counsel for the respondent. To the same effect he cited the decision reported in Perumal Chettiar v. Santhanam, (1979)2 M.L.J. 13T. 12. But it should be noted that the lower appellate court has stated in its judgment the mere fact that the plaintiff has not produced the books of accounts maintained cannot be taken as a circumstance to totally reject the plaintiffs claim in the light evidence on record. This observation shows that the said court has not taken consideration the other material features and evidences which I have pointed out para 7 whereby one could easily come to the conclusion that the plaintiff has deliberately withheld the production of the account books and that it is not a case of a mere production of account books. It is settled law, as already pointed out by me, that when deliberate withholding of the material evidence is there, adverse inference can certainly be drawn by the court. The non-consideration by the lower appellate court of the above referred to material evidences and other features in this case (which clearly proved the deliberate withholding of the account books on the part of the plaintiff) and the failure of the lower appellate court correctly understand and apply the correct legal position on this aspect, certainly give rise substantial questions of law and could be raised in the second appeal (Vide: Damadilal Paratharam, A.I.R. 1976 S.C. 2229), Further, “the other evidence on record” pointed out the lower appellate court is only Ex. A-2 the postal acknowledgment. That by itself cannot prove that suit notice has been issued, particularly when the defendant, though admitted ExA-2, has stated that he did not receive the said notice. A-2 the postal acknowledgment. That by itself cannot prove that suit notice has been issued, particularly when the defendant, though admitted ExA-2, has stated that he did not receive the said notice. So the lower appellate court taking into consideration Ex.A-2, alone as the other evidence, is also a serious error giving raise a substantial question of law. Therefore, the above referred to decisions are not applicable the present case. 13. The learned counsel also points out that the trial court has found fault with the account books of the defendant produced by him, namely Ex.B-1 to B-14. But those account books are not material for deciding the suit transaction based on hundi Ex. A-1 executed 12.4.1973, since those account books relate to a period prior to Ex.A-1. Further, the learned counsel also points out that though the defendant alleged that he had made payments towards the sum due under the earlier hundies he did not produce receipts for the. same. This contention has no merit since the plaintiff himself has admitted that all the earlier borrowing by the defendant have been discharged-even prior to 12.4.1973 as also pointed out by the trial court. 14. In the result, the judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is restored. The suit is therefore dismissed and this appeal is allowed. However, in the circumstances of the case, no costs.