A. GOPAL REDDY, J. ( 1 ) APPELLANT, who is the defendant, filed this appeal against the judgment and decreed passed by the learned Principal Senior Civil judge, Rajahmundry, in decreeing the suit of the plaintiffs in which is filed o. S. No. 127 of 1988 dated 14. 3. 2000,/for recovery of a sum of rs. 44,773. 40 ps, being the amount due on a promissory note executed by the appellant-defendant herein. For the sake of convenience and proper understanding, the parties are referred to as arrayed before the court below. ( 2 ) THE facts in brief are that the defendant was working in the plaintiffs Transport Company as a Clerk, a branch of which was situated at Rajahmundry, from the year 1973 onwards till 19. 8. 1985. According to the plaintiffs, the defendant worked as an in Accountant-cum-Cashier from the year 1983 in their branch at rajahmundry, and used to maintain the books of account and handle cash, which fact had been denied by the defendant. On 8. 7. 1985, PW-1-Territory Manager, called the defendant with the records for verification of the statement and questioned about the delay in sending the monthly statement to the head office. In this regard, PW-1 found that there was a shortage of cash balance of rs. 33. 060. 24 ps, and the defendant admitted to have been executed a promissory note for the said sum on the said date under Ex. A-7. After his acceptance and execution of the promissory note, the said amount was debited in Ex. A-5 account book in his. own handwriting, which was endorsed and checked by pw-1. Further, the defendant, in his own handwriting, gave a letter even date, admitting his liability for the above said misappropriated amount, which is marked under Ex. A-6 and executed the promissory note after such undertaking and also agreed to repay the same with interest at 12% per annum. Thereafter, the defendant attended to his duties and verified the records and subsequently resigned from the plaintiffs organization. When the defendant failed to repay the said amount, a notice was issued on 27. 5. 1988, to which the defendant gave reply under Ex. A-8 dated 11. 6. Thereafter, the defendant attended to his duties and verified the records and subsequently resigned from the plaintiffs organization. When the defendant failed to repay the said amount, a notice was issued on 27. 5. 1988, to which the defendant gave reply under Ex. A-8 dated 11. 6. 1988, denying that he never maintained the books of account of the company, at any point of time, and stated that the accounts and cash were handled by the branch Manager and the Assistant Manager only, but not by any of the clerks in the branch. It is his further allegation that the officers of the plaintiffs branch at Rajahmundry, had misappropriated the organization s funds to a tune of rs. 33,060. 24 ps, and threw the blame on the defendant and accordingly he was falsely implicated in a criminal case. The defendant was forced to sign on the typed promissory note and other claim papers on 18. 8. 1985, for the said amount, by playing fraud, coercion, and influencing the defendant, and got obtained the promissory note. It is further contended that the said promissory note is void and unenforceable, as he never received any consideration in execution of the said promissory note. ( 3 ) AS the defendant could not repay the said misappropriated amount, the plaintiffs filed the above suit for recovery of the amount from him, covered under the promissory note. The defendant filed a written statement denying most of the allegations made against him. It is his case that he never worked as an Accountant and Cashier in the plaintiffs branch at rajahmundry. But in paragraph (3) of the written statement, it is stated that the execution of the promissory note on 8. 7. 1985 for rs. 33,060. 24 ps, by him, in favour of the 2nd plaintiff was not at all voluntary, but it was obtained without his free consent and that the promissory note was not supported by any consideration. In paragraph (4), it was specifically admitted that there was some misappropriation of amount in the 2nd plaintiff-company in the year 1985, and that the officers of the branch misappropriated the funds to the said extent and falsely implicated the defendant by lodging a criminal case against him before the court of the magistrate, Rajahmundry, in C. C. No. 180 of 1985, on filing of the charge-sheet in Cr. No. 180 of 1985, for the misappropriation of the said amount, though he is innocent of the said charge. ( 4 ) IT is further alleged that on 18. 8. 1985, the Divisional manager B. Satyanarayana (PW-3), and the Branch Manager r. Kameswara Rao (PW-1) took the defendant to the room of the divisional Manager at the branch office and threatened him to sign on the promissory note for a sum of Rs. 33,060. 24 ps, by playing fraud, coercion and undue influence and they had obtained signatures of the defendant on some blank papers, which were signed by him without his consent, which was suitably replied by the defendant, vide reply notice dated 11. 6. 1988, alleging that he is not liable to pay any amount. On the above said pleadings, the court below framed the following issues for trial. 1. Whether the suit pro-note is not supported by consideration? 2. Whether the suit pro-note was executed under coercion and under influence, as alleged by the defendant and whether the suit pro-note is not valid and not binding on the defendant? in order to prove the claim on behalf of the plaintiffs, mr. R. Kameswara Rao, Territory Manager, was examined as PW-1, mr. D. Kumar Dalapatiram, Assistant Manager, was examined as pw-2, Mr. B. Satyanarayana, Zonal Inspector, was examined as pw-3, and Mr. S. N. Gupta, Document Expert, who had given his opinion on Ex. A-6 letter, was examined as PW-4, apart from marking Exs. A-1 to A-8 and also Exs. C-1 to C9-S1 to S9 and exs. C-10 to C-12. ( 5 ) ON behalf of the defendant, the defendant himself got examined as DW-1, and his younger sister was examined as DW-2 and Mr. Uppuluri Veeraswamy, who visited the transport company and alleged to have heard some abusive voices in filthy language and to prove that DW-1 was being coerced to execute the document at the relevant time, was examined as DW-3, apart from marking Exs. B-1 to B-10. ( 6 ) ON appreciation of both oral and documentary evidence available on record, the court below, while dealing with Issue Nos. 1 and 2, observed that Ex. A-6 letter was sent to the handwriting expert, who was examined as PW-4 and he examined the said ex. A-6 and gave clear finding that Ex. B-1 to B-10. ( 6 ) ON appreciation of both oral and documentary evidence available on record, the court below, while dealing with Issue Nos. 1 and 2, observed that Ex. A-6 letter was sent to the handwriting expert, who was examined as PW-4 and he examined the said ex. A-6 and gave clear finding that Ex. A-6 is in the handwriting of the defendant, which is similar to S1 to S9 and is the standard writing of the defendant, which was taken in the open court, wherein the defendant clearly admitted that he was working as clerk and writing the accounts and maintaining the cash in the plaintiffs concern and also further admitted that he is responsible for the shortfall of the cash and requested the plaintiffs to deduct the said amount from his P. F and retirement benefits. The court below further negatived the contention of the defendant that he was not working as an Accountant and Cashier at any point of time since the writings under Exs. A-4 and A-5 were that of the defendant and that he was entrusted with the maintenance of accounts and cash and that he was responsible for the said shortfall of cash, and Ex. A-6 establishes that it is the writing of the defendant. The court below held that in the absence of rebutting the legal presumption by the defendant in a satisfactory manner, which can bo drawn under Section 118 of the Negotiable instruments Act, 1881 (for short the Act ), the plaintiffs are entitled for recovery of the said amount from the defendant. Accordingly, the court below decreed the suit against the defendant for Rs. 44,773. 40 ps with costs and interest at 12% per annum on rs. 33,060. 24 ps, from the date of suit till the date of decree and 6% thereon till the date of realization. It is further ordered that the plaintiffs are at liberty to deduct the same from the amounts of p. F. , bonus and other retirement benefits of the defendant. Aggrieved thereby, the present Appeal Suit is filed by the defendant. ( 7 ) LEARNED counsel for the appellant-defendant contends that the admission of the defendant about his signature on the pro-note under Ex. A-7 will not amount to passage of consideration and any monetary transaction, for making the defendant liable to discharge the amount covered by the promissory note. Aggrieved thereby, the present Appeal Suit is filed by the defendant. ( 7 ) LEARNED counsel for the appellant-defendant contends that the admission of the defendant about his signature on the pro-note under Ex. A-7 will not amount to passage of consideration and any monetary transaction, for making the defendant liable to discharge the amount covered by the promissory note. It is further contended that even though the defendant failed to discharge the liability under the pro-note, which was obtained by fraud and coercion, still the presumption can be rebuttable under Section 118 of the Act, and when the defendant was prosecuted for the offence of misappropriation in C. C. No. 251 of 1986 and he was acquitted of the said charges under Ex. B-4 judgment dated 31. 10. 1989, by the criminal court, holding that the prosecution had failed to establish any misappropriation and that in the absence of any finding with regard to misappropriation by the criminal court, the defendant cannot be made liable to pay the said amount. It is further contended that the finding of the court below, basing on Exs. A-5, A-6 and A-7, is erroneous. Once it is admitted that the accounts are maintained by the head office, and unless the accounts are produced and the factum of misappropriation is proved, the criminal court acquitted the defendant and that there is no consideration for executing the promissory note and the defendant rebutted the legal presumption and, therefore, the court below was not justified in decreeing the suit. In support of the said submission, he placed reliance on a judgment reported in G. VASU V. SYED YASEEN, AIR 1987 A. P. 139 (FB ). ( 8 ) LEARNED counsel for the respondent-plaintiffs contends that once the signatures on Exs. A-6 and A-7 are admitted, the defendant cannot take a plea that the signatures on the blank papers were used for fabricating the promissory note and are only invented for the purpose of the suit. When the defendant clearly admitted that the signatures were obtained on a typed promissory note, it is not open for him to contend that there is no consideration for execution of the said promissory note. When the defendant clearly admitted that the signatures were obtained on a typed promissory note, it is not open for him to contend that there is no consideration for execution of the said promissory note. Both in the written statement and in the examination-in-chief, the defendant admitted about the misappropriation of the amount and there need not be any monetary consideration and the same can be consideration for execution of the promissory note to make good the loss of the misappropriated amount, and submitting so, he placed reliance on a judgment reported in TAYARAMMA V. RAMANJANEYA MERCHANTILE CO. , AIR 1977 A. P. 205. He further contended that when once the defendant admitted the signatures on the promissory note and the letter under Ex. A-6, which is the basis for execution of the promissory note, the burden lies upon the defendant to establish the alleged fraud, coercion etc. But, in the absence of any specific pleading of fraud, it is not open for him to contend that the promissory note was obtained by fraud and coercion. He also brought to the notice of this court the admission made by the defendant in the Chief-examination that there was misappropriation of amounts in the plaintiffs company to an extent of the amount covered under the promissory note in the year 1985 and that, having admitted in the reply notice that he had signed on the typed promissory note, it is not open for him to contend that the signatures on the blank white papers and signatures on the blank revenue stamp papers were used for the purpose of creating the suit pro-note. It is further their case that when once the defendant admitted in the cross-examination that he wrote the cashbook at the instance of PW-1, branch manager, it is clearly found that he was entrusted with the said work and was dealing with cash. The writings at pages 141 to 145 in Ex. A-4 and Exs. C-1 to C9-S1 to S9, which were in his own handwriting, disclose that there was misappropriation and to make good the loss, he executed the said promissory note. He contends that when once the defendant failed to discharge the burden, the court below rightly decreed the suit of the plaintiffs. He also placed further reliance on the judgment reported in BHARAT barrel AND DRUM MANUFACTURING CO. V. AMIN CHAND payrelal, AIR 1999 SC 1008 . He contends that when once the defendant failed to discharge the burden, the court below rightly decreed the suit of the plaintiffs. He also placed further reliance on the judgment reported in BHARAT barrel AND DRUM MANUFACTURING CO. V. AMIN CHAND payrelal, AIR 1999 SC 1008 . ( 9 ) IN view of the submissions made by the learned counsel on either side, the following points arise for consideration: 1. Whether the suit pro-note was executed in passing of any consideration out of the transaction? 2. Whether the defendant rebutted the burden passed on him under Section 118 of the N. I. Act? it is not in dispute that Section 118 of the Act deals with the presumption as to negotiable instrument. One of such presumption is "that very 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. " the Full Bench of this court referred 1 supra, on which reliance was placed by the appellant-defendant, while dealing with the words "until the contrary is proved", held that it was permissible for the Court to look into the preponderance of the probabilities and the entire circumstances of the particular case. After referring to Sections 3, 4 and 101 to 104 of the Evidence Act, it held that while dealing with the absence of consideration, the court shall have to consider not only whether it believed that consideration did not exist but also whether it considered the non-existence of the consideration so probable that a reasonable man would, under the circumstances of a particular case, could act upon the supposition that the consideration did not exist. Once the defendant showed either by direct evidence or circumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff and the legal burden reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Act would disappear. Merely because the plaintiff came forward with a case different from the one mentioned in the promissory note it would not be correct to say that the presumption under Section 118 did not apply at all. Such a presumption applies once the execution of the promissory note is accepted by the defendant. The circumstances that the plaintiff s case was at a variance with the one contained in the promissory note could be relied by the defendant for the purpose of rebutting the presumption of shifting the evidential burden to the plaintiff. After referring to the various authorities on the point, this court further held at paragraphs 31 and 32 as under:"31. Having referred to the method and mariner in which the presumption under S. 118 is to be rebutted and as to how, it thereafter disappears we shall also make reference to three principles which are relevant in the context. The first one is connected with the practical difficulties that beset the defendant for proving a negative, namely that no other conceivable consideration exists. We had occasion to refer to this aspect earlier. Negative evidence is always in some sort circumstantial or indirect, and the difficulty of proving a negative lies in discovering a fact or series of facts inconsistent with the fact which we seek to disprove (Gulson, Philosophy of proof, 2nd Edition, p. 153 quoted in Cross on Evidence, 3rd Edn. , page 78 Fn ). In such situations, a lesser amount of proof than is usually required may avail. In fact, such evidence as renders the existence of the negative probable may shift the burden on to the other party (Jones, quoted in A sarkar on Evidence, 12th Edition, p. 870 ). The second principle which is relevant in the context is the one stated in S. 106 of the Evidence Act. That Section states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The second principle which is relevant in the context is the one stated in S. 106 of the Evidence Act. That Section states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is very generally stated that, where the party who does not have the evidential burden, such as the plaintiff in this case, possesses positive and complete knowledge concerning the existence of fact which the party having the evidential burden, such as the defendant in this case, is called upon the negative or has peculiar knowledge or control of evidence as to such matters, the burden rests on him to produce the evidence, the negative averment being taken as true unless disproved by the party having such knowledge or control. The difficulty of proving a negative only relieves the party having the evidential burden from the necessity of creating a positive conviction entirely by his own evidence so that, when he produces such evidence as it is in his power to produce, its probative effect is enhanced by the silence of the opponent (Corpus Juris, Vol. 31, para 113 ). The third principle that has to be borne in mind is the one that when both parties have led evidence, the onus of proof loses all importance and becomes purely academic. Referring to this principle, the Supreme Court stated in narayan v. Gopal, AIR 1960 SC 100 as follows:"the burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail, where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. "we have referred to these three principles as they are important and have to be borne in mind by the Court while deciding whether the initial evidential burden under S. 118 of the Negotiable Instruments Act has been discharged by the defendant and the presumption disappeared and whether the burden has shifted and later whether the plaintiff has discharged the legal burden after the same was restored. For the aforesaid reasons, we are of the view that where, in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S. 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words until the contrary is proved in S. 118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S. 118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption disappears . For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S. 118 does not again come to the plaintiffs rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. " ( 10 ) IN this context, it is relevant and appropriate to consider the facts in the case BHARATH BARREL AND DRUM manufacturing COMPANY (3 supra) on which much reliance was placed by the learned counsel for the respondent-plaintiff. " ( 10 ) IN this context, it is relevant and appropriate to consider the facts in the case BHARATH BARREL AND DRUM manufacturing COMPANY (3 supra) on which much reliance was placed by the learned counsel for the respondent-plaintiff. The defendant executed a promissory note for a sum of rs. 6,20,000/- agreeing to pay the aforesaid amount to the plaintiff on demand. On his failure to repay the amount borrowed, the plaintiff served a legal notice calling upon the defendant for making the payment of the amount borrowed. As defendant was not responsive to the said notice, he filed the suit under Order 37 in the original side of High Court of Calcutta. The defendant in his written statement pleaded that he offered to import 10160 metric tons of steel drum sheets from the plaintiff, which was accepted with the condition that the goods should be shipped on or before a particular date before the expiry of plaintiffs import license and the promissory note which has not been executed "for the value received" has been executed as a collateral security. Due to freezing of lakes the contract of import of steel drums could not be performed, the same was cancelled with the plaintiff which absolved the defendant from any liability arriving out of and in relation to the promissory note executed by him. On dismissal of the suit by the trial Judge of the High Court, the plaintiff filed intra court appeal before the Division Bench, which was referred to a larger Bench. By reason of majority the appeal filed by the plaintiff was dismissed. Not satisfied with the judgment of the Full Bench, the plaintiff carried the matter in further appeal to the Supreme court. The Supreme Court after considering the various judgments of the High Courts including the Full Bench Judgment of this court in G. VASU (1 supra) held as under:"the burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. " ( 11 ) UPON considering the facts in the above case, as the evidence led by the defendant with regard to the circumstances under which the promissory note was executed was not accepted by any of the judges dealing with the case by Calcutta High Court, and in the absence of disproving the existence of consideration, onus of proof of the legal presumption in favour of the plaintiff could not be shifted, the evidence produced by the plaintiff was in fact the evidence in rebuttal of the evidence produced by the defendant in the said case and on considering various judgments, including the judgment of the Full Bench of this court cited 1 supra, the Apex court allowed the appeal of the plaintiff by setting aside the judgment of the Full Bench of the Calcutta High Court. ( 12 ) THIS Court in Tayaramma s Case cited 2 supra repelled the contention urged by the defendant therein that the consideration for the promissory note had failed to the extent of Rs. 750/- which was the difference between the chit amount of Rs. 2,500/- and the sum of Rs. ( 12 ) THIS Court in Tayaramma s Case cited 2 supra repelled the contention urged by the defendant therein that the consideration for the promissory note had failed to the extent of Rs. 750/- which was the difference between the chit amount of Rs. 2,500/- and the sum of Rs. 1,750/- which the defendants have received pursuant to the auction held and that under Section 4 of the Negotiable instruments Act, it must be in the nature of an unconditional undertaking to pay money only, but there can be no doubt that the consideration for that undertaking need not also be monetary as is clear from the very fact that the Legislature has in the same Act , provides for non-monetary consideration in Section 45 thereof. ( 13 ) IN the light of the aforesaid law, the submission made by the learned counsel for the appellant-defendant that in the absence of any passage of consideration and transaction for executing the pro-note, the respondent-plaintiffs are not entitled to sue the defendant for the said amount, cannot be countenanced for the reason that the evidence adduced by the plaintiffs, as accepted by the defendant, would clearly establish that there was misappropriation of amount covered under the promissory note, which the defendant undertook to repay with interest, qua a consideration to discharge the liability. The plea taken by the defendant was that the execution of the promissory note was under coercion and not voluntary. Once the defendant accepted that there was misappropriation of amount to the tune of rs. 33,060. 24 ps, he cannot contend that the Divisional Manager was alone responsible for the said misappropriation. Having written a letter under Ex. A-6 and also having executed the pronote under Ex. A-7, it is not open for the defendant to contend that the said promissory note is not supported by any consideration and the same cannot be said to be enforceable. ( 14 ) IT was nextly urged by the learned counsel for the appellant-defendant that the defendant has discharged the initial burden cast upon him contending that he was not appointed as accountant and Cashier and he was no way connected with the dealing of the funds and unless the plaintiffs establish that the defendant was in custody of the said funds, he cannot be held responsible for the alleged misappropriation. The very plea of the defendant that the promissory note was obtained by playing a fraud namely; by making use of the signed blank papers which were obtained by coercion, would go to show that there was misappropriation of the amount and the defendant accepted his liability and it is for him to discharge the initial burden of obtaining the promissory note by playing fraud, coercion etc. In order to discharge the said burden, the defendant stated in his evidence that he has never worked as Accountant and Cashier at the plaintiffs branch at Rajahmundry, and the execution of the promissory note on 8. 7. 1985 in favour of the second plaintiff was not at all voluntary and it was obtained without his consent. It is further pleaded in the written statement that there was misappropriation of amounts in the second plaintiffs branch to the extent of amount covered under the promissory note and he was falsely implicated for the alleged charge of misappropriation and that he was also acquitted from the criminal proceedings. In the Chief Examination itself, it was admitted by the defendant that he also worked as Accountant-cum-Cashier from 1983 onwards till he stopped working in the 2nd plaintiffs branch. ( 15 ) THE custody of cash was with the defendant during those days and he used to write accounts also. Whereas, PW-1 deposed that he called the defendant to explain the delay caused for sending the monthly statement to the head office and responding to which, he produced the statement and the cashbooks under Ex. A-4, which was in the handwriting of the defendant. On verification of the same, PW-1 found that there was a huge balance of Rs. 52,881. 75 ps, cash on hand as per Ex. A-4 and as per Ex. A-5 entries. When questioned about the said huge balance and production of the cash, the defendant could get only Rs. 8,110/- and also showed the expenses of Rs. 11,711. 51 ps incurred. On making enquiry about the balance amount of Rs. 33,060. 24 ps, the defendant admitted that he utilized the said balance and the plaintiffs obtained a surety letter under Ex. A-6 and promissory note under Ex. A-7 from the defendant, which fact was also stated by PWs. 2 and 3. PW-4, the handwriting expert who examined Ex. 51 ps incurred. On making enquiry about the balance amount of Rs. 33,060. 24 ps, the defendant admitted that he utilized the said balance and the plaintiffs obtained a surety letter under Ex. A-6 and promissory note under Ex. A-7 from the defendant, which fact was also stated by PWs. 2 and 3. PW-4, the handwriting expert who examined Ex. A-6, stated that he examined the writings of the defendant under Q-1 to Q-9 in comparison with S-1 to S-9 etc. , and stated the same to be of the defendant. In rebuttal of the same, the defendant in his examination-in-chief admitted about the misappropriation of the amounts in plaintiffs company to the extent covered by the promissory note in the year 1985, at Rajahmundry branch office. ( 16 ) THE defendant also stated that he had nothing to do with the said misappropriation and he admitted the signatures on Exs. A-6 and a-7, but due to fear of life he signed the blank revenue stamp papers. Having admitted the pro-note, he denied the contents therein and stated that at the time of signatures, the typed matter on the pro-note was not in existence, which fact is contrary to the stand taken in the reply under Ex. A-8. Under Ex. A-8, it is categorically stated by him that when he was threatened to sign on a typed promissory note for the said amount, allegedly by playing fraud, coercion and under influence, he put his signatures on the said promissory note and on some blank papers. The defendant admitted Ex. A-1, certified copy of initial examination in c. C. No. 251/86, Ex. A-2, certified copy of examination under section 313 of Cr. P. C in the said C. C. No. 251/86 and also admitted the fact that he wrote rough cash book at the instance of mr. R. Kameswara Rao, Branch Manager, who checked the accounts on 8. 7. 1985 and under Ex. A-4, the amount covered under the promissory note is found short in the cash book, which was later debited to the account of the defendant. The evidence of dw-2, the younger sister of DW-1, who stated that at 8. 30 pm on the said date, the defendant came to her house and informed that. 7. 1985 and under Ex. A-4, the amount covered under the promissory note is found short in the cash book, which was later debited to the account of the defendant. The evidence of dw-2, the younger sister of DW-1, who stated that at 8. 30 pm on the said date, the defendant came to her house and informed that. his signatures were obtained on some blank papers and also on blank stamped papers by the Manager and Assistant Manager and other person fraudulently and he wept stating so to her, is not helpful to the case of the defendant because in the cross-examination, dw-2 stated that she could not say in whose house and in which street in Innespeta, Rajahmundry, DW-1 was residing during the relevant period. These variations in her statement would go to show that she stated so only in the capacity of an interested witness to help her brother to come scot-free from the alleged charge of misappropriation. The evidence of DW-3 is to the effect that on the said date at about 8. 30 p. m, he visited the said branch office and heard some galata inside the room and it was informed to him that there was dispute between the manager and the defendant and that he also heard some abusive voice in filthy language, which fact was not even stated by DW-1, and therefore, the evidence of DW-3 is not of any use to the defendant, who is nothing but a planted witness, who had nothing to do with the affairs of the defendant. ( 17 ) AS the defendant failed to establish the initial burden cast upon him to rebut the presumption under Section 118 of the Act, and the plaintiffs established the initial burden cast upon them, the court below had rightly decreed the suit by coming to the conclusion that the defendant utterly failed to rebut the legal presumption, having admitted the signatures on Exs. A-6 and A-7, which are in his own handwriting, and that the plaintiffs are entitled to enforce the said promissory note. Further, the submission made by the learned counsel for the appellant-defendant that the criminal court had acquitted the defendant for the alleged charges of misappropriation and mismanagement since the prosecution could not prove the guilt of the accused, cannot be countenanced and will not help the defendant to wriggle out from the legal presumption. Further, the submission made by the learned counsel for the appellant-defendant that the criminal court had acquitted the defendant for the alleged charges of misappropriation and mismanagement since the prosecution could not prove the guilt of the accused, cannot be countenanced and will not help the defendant to wriggle out from the legal presumption. Further, the criminal court acquitted the defendant not on the ground that there is no misappropriation, but on the ground of absence of mens rea, coupled with the fact that even after execution of the promissory note, the defendant attended the office of the plaintiffs for verification of the records, which fact discloses that there is no mens rea on the part of the defendant nor any dishonest intention to misappropriate the funds. The criminal court, while holding that every offence of criminal breach of trust though it involved a civil wrong in respect of which the complainant may seek his redress for damages in a civil court, yet, every breach of trust in the absence of mens rea or criminal intention cannot legally justify a criminal prosecution, acquitted the defendant. ( 18 ) IT is well settled proposition of law that the judgment of a criminal court is only relevant about conviction and acquittal. The finding recorded by the criminal court cannot be received as a piece of evidence in deciding the civil liability. Accordingly, I do not see any force in the submission of the learned counsel for the appellant-defendant that in view of the acquittal by the criminal court, the defendant cannot be held liable. Further, the Apex court in the judgment cited 3 supra, while considering the judgment of the Full Bench of this court cited 1 supra, held that in case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. ( 19 ) SOMETHING which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. ( 20 ) IN view of the law as aforesaid, I have carefully considered the rival submissions with reference to the respective pleadings and after re-appreciation of the entire evidence on record, both oral and documentary, I am of the considered opinion that the court below rightly decreed the suit in favour of the plaintiffs and against the appellant-defendant, which needs no interference by this court. The first appeal is devoid of any merits and the same is accordingly dismissed. No order as to costs.