JUDGMENT : S.C. Mohapatra, J. - Dishonour of a cheque issued by Defendant in favour of Plaintiff for Rs. 7,000/- bearing date 9-4-1971 is the cause of action for the suit for recovery of the amount with interest which being dismissed, Plaintiff is Appellant in this appeal. 2. Plaintiff is a manufacturer of bricks. He entered into agreement (Ext. A) with Defendant for supply of bricks required by Defendant to execute works contract. Case of Plaintiff is that in course of supply of bricks, Defendant issued the cheque dated 9-4-1971 (Ext.1) towards price of the bricks supplied. Plaintiff deposited the cheque for collection. However, the same was dishonoured. Therefore, the suit was filed for realisation of the amount with interest. 3. While submitting issue of cheque and the same being dishonoured, Defendant explained that Plaintiff was to receive the price of the bricks on periodical settlement of accounts. At times, he was being paid advances for being adjusted at the time of settlement of accounts. In course of such transaction, Plaintiff requested for advance of Rs. 7,000/- in March, 1971. Since Defendant had no fund available, he explained the position to Plaintiff and stated that he is likely to receive payments from Government departments towards end of March and hence, he would issue a post dated cheque in favour of Plaintiff which can be deposited for collection on getting clearance from the Plaintiff for which Defendant was to be inform Plaintiff before deposit of the cheque for realisation. Defendant could not deposit any amount for which the cheque could not be honoured by the Bank. However, after the date given in the cheque, there was settlement of accounts. Plaintiff supplied bricks worth Rs. 11,760. Adjusting amount of Rs. 5,000/- taken as advance by Plaintiff balance amount was paid to Plaintiff in respect of which he has acknowledged in Ext. B/1. 4. Plaintiff examined himself as P. W. 1 and proved the cheque and intimation from Bank marked as Exts. 1 and 2. Defendant examined himself as D.W. 1 and another as D.W. 2. He proved the agreement and the account in the. handwriting of the Plaintiff marked as Exts. A and B/1. On consideration of materials on record, trial Court accepted explanation of Defendant and dismissed the suit. 5. 1 and 2. Defendant examined himself as D.W. 1 and another as D.W. 2. He proved the agreement and the account in the. handwriting of the Plaintiff marked as Exts. A and B/1. On consideration of materials on record, trial Court accepted explanation of Defendant and dismissed the suit. 5. In case a cheque would have been issued by person in favour of another is dishonoured by the Bank for want of funds, the holder of the cheque is entitled to the amount as reflected in the cheque since cheque is a negotiable instrument governed under the Negotiable Instruments Act and presumption u/s 118 is attracted. Where, however background of the issue of the cheque has been given in support of validity of the cheque, if the background is not accepted, the presumption u/s 118 would stand rebutted. In the present case Plaintiff has given one background and Defendant has given another background. In case, explanation of Defendant is accepted, Plaintiff's claim would statted rejected. 6. Mr. B.L.N. Swamy, learned Counsel for the Appellant submitted that on the premises of the admitted facts that Plaintiff was supplying bricks to Defendant, when cheque was issued for Rs. 7,000/- it is to be presumed that the same was validly issued for consideration and the necessary presumption that followed is that Defendant accepted his liability to pay the amount reflected therein. This is a presumption of law as envisaged u/s 118 of the Act and on that basis suit is to be decreed. 7. Mr. P. Misra, learned Counsel for the Respondent while not disputing the legal position submitted that the presumption stands rebutted on account of Ext. B/1, the accounts settled after issue of the cheque where Plaintiff accepted that he was to receive only Rs. 6,030/- which he has acknowledged to have received. This conduct of the Plaintiff proves the explanation of the Defendant that consideration for the cheque was to be effective on the clearance from the Defendant and in fact Defendant requested for return of the cheque which Plaintiff agreed to return later. 8. Since consideration for the cheque was towards price of the bricks and Ext. B/1 supports the case of the Defendant that consideration was to be settled on accounting, Plaintiff was required to prove that after the period of accounting which was 26-2-1971 as per Ext. B/1, Plaintiff was to receive some more amount. 8. Since consideration for the cheque was towards price of the bricks and Ext. B/1 supports the case of the Defendant that consideration was to be settled on accounting, Plaintiff was required to prove that after the period of accounting which was 26-2-1971 as per Ext. B/1, Plaintiff was to receive some more amount. It is true that Plaintiff in his evidence stated that he supplied bricks after 26-2-1971. Plaintiff admits to have receipts in support of such supplies. No explanation has been given why those rreceipts in his custody were not produced which would have proved that the cheque was for consideration. Non- production of the receipts leads to a presumption u/s 114 of the Evidence Act that either Plaintiff has no such receipts or if produced, the same would not have supported the case of Plaintiff. 9. In view of the aforesaid analysis conflict between presumption of law u/s 118 of the Act and a presumption of fact u/s 114 of the Evidence Act arises to be resolved. In AIR 1961 S.C. 1316 Kundan Lal Rallaram v. Custodian, Evancuee Property, Bombay, such a conflict arose. It was observed: 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 endorser, as the case may be, The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are 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 raise 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 admission made by opposite party; it may comprise circumstantial evidence or presumption of law or fact. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admission made by opposite party; it may comprise circumstantial evidence or presumption 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 existnece 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 promissory 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 impose 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 adduced acceptable a evidence, the burden again shifts to the Plaintiff, and so on. The Defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the Plaintiff. He may also rely upon presumption of fact, for instance those 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 happened, 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 upholds 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 upholds 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 affected 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 presumtions 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 irrebuttable presumption of law. In view of the clear pronouncement, I am satisfied that in the present case both on facts and circumstances proved and by attracting presumption u/s 114 of the Evidence Act, Defendant has been able to discharge the burden of proof arising out of presumption under law u/s 118 of the Act that there was no consideration for the cheque issued by him. 10. In the result, appeal is dismissed. In the peculiar circumstances of this case parties shall bear their own costs throughout. Final Result : Dismissed