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2006 DIGILAW 340 (MAD)

Swaminathan @ Selvam v. M. Kumar

2006-02-11

K.MOHAN RAM

body2006
Judgment :- 1. The plaintiff in O.S. No. 114 of 1990 on the file of the Principal Sub-Court, Pondicherry is the appellant in the above appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. 3. The brief facts of the case as set out in the plaint are as follows: The defendant borrowed a sum of Rs. 32,000/- for his business purposes from the plaintiff at Pondicherry on 12.05.1989 and executed a promissory note, agreeing to pay the same on demand, with interest thereon at 12% per annum from the said date. The defendant had not paid any sum either towards the principal debt or the agreed interest thereon, in spite of several personal demands and pleas by the plaintiff. Since, the defendant is now hurriedly attempting to dispose of his business assets in order to defeat the creditor the plaintiff is constrained to file the suit for recovery of the principal amount with agreed interest and costs and also seeking necessary interim reliefs to save the suit claim. 4. The defendant contested the suit by filing a written statement containing the following averments The very suit is filed by plaintiff only to harass this defendant. The suit pro note is a falsely created document and the plaintiff with an ulterior motive had filed a false suit on the basis of the said document on which the defendant did not sign. The defendant did not sign any such suit pro note and he did not borrow any monies from the defendant. The plaintiff had borrowed several times from the defendant from time to time. Hence the very suit claim is false and deceitful. The plaintiff is earning a salary of Rs. 600/- only per month. He has to support a large family and he is the only breadwinner of the family. He has no other source of income or any other property. The plaintiff is not in a position to lend such a large sum as stated in the suit claim. The suit is false and it had only been filed to disgrace and harass the defendant. 5. On the above said pleadings, the Trial Court framed the following issues: i) Whether it is true that the defendant executed the suit pro note and borrowed the sum? ii) To what relief the plaintiff is entitled to? The suit is false and it had only been filed to disgrace and harass the defendant. 5. On the above said pleadings, the Trial Court framed the following issues: i) Whether it is true that the defendant executed the suit pro note and borrowed the sum? ii) To what relief the plaintiff is entitled to? During trial, the plaintiff got himself examined as P.W.1 and examined one Kalian, one of the attesting witnesses as P.W.2 and marked Ex.A-1/suit promissory note. On the side of the defendant, the defendant got himself examined as D.W.1 and examined one N.M. Kuppuswamy, the other alleged attesting witness as D.W.2 and marked Exs.B-1 to B-4. 6. On a consideration of the oral and documentary evidence adduced in the case, the Trial Court recorded a finding that the defendant has executed the promissory note. Having recorded such a finding, the Trial Court did raise the legal presumption available under Section 118 of the Negotiable Instruments Act, though it has not been specifically stated so in the judgment. Paragraph No. 11 of the judgment reads as follows: “Having arrived at the execution of the impugned document by the defendant, now the burden has shifted on him to disprove the contents in it. In view of the fact that the evidence of P.W.2 and D.W.2 the so called attestors to Ex.A-1, is diametrically opposed to each in witnessing and attesting it, and the evidence of P.W.1 and D.W.1 is interested in nature the Court has to look forward to other available materials to believe or belie the defence in respect of non-passing of consideration under the impugned document.” The above said paragraph clearly shows that the Trial Court has raised the legal presumption available under Section 118 of the Negotiable Instruments Act, in favour of the plaintiff and proceeded to consider whether the defendant had shifted the burden by acceptable evidence. While considering the said question, the Trial Court has also considered the question whether the plaintiff has proved the passing of consideration under Ex.A-1/suit promissory note. By analysing the oral and documentary evidence available, the Trial Court came to the conclusion that the suit promissory note is not supported by consideration and dismissed the suit. 7. I heard, Mr. R. Subramanian learned counsel for the appellant and Ms. N. Mala, learned counsel for the respondent. 8. By analysing the oral and documentary evidence available, the Trial Court came to the conclusion that the suit promissory note is not supported by consideration and dismissed the suit. 7. I heard, Mr. R. Subramanian learned counsel for the appellant and Ms. N. Mala, learned counsel for the respondent. 8. Learned counsel for the appellant submitted that once the execution of Ex.A-1/suit promissory note is found to be true, the presumption available under Section 118 of the Negotiable Instruments Act can be raised in favour of the plaintiff. But the Trial Court has not raised such a legal presumption in favour of the plaintiff. He also submitted that the defendant has not discharged the burden that the suit promissory note is not supported by consideration. Regarding the means of the plaintiff, the learned counsel submitted that the fact that the plaintiff was accepted as a guarantor for the loan obtained by the defendant from the Bank itself will show his financial capacity. He further submitted that the observation of the Trial Court in Paragraph No. 14 of the judgment that “it is feasible to presume that such disowing on the part of the plaintiff may be to overcome the defence theory that the defendant had already obtained loan for his business in January 1989 and that there was no need for the plaintiff to part with the money in May 1989, or in the alternative it would be to safeguard his interest for securing the payment to the Bank in case the defendant failed to discharge the loan” is not based on any pleading in the written statement or in the oral evidence adduced by the defendant and the Trial Court has made a special pleading for the defendant. He further submitted that the defendant had not adduced any evidence to show that he had the balance amount to start an Ice cream parlour or he borrowed money from others. Learned counsel further submitted that the Trial Court has not considered the oral evidence of P.W.2 and D.W.2. According to the learned counsel, the evidence of P.W.2 is more convincing and the evidence of D.W.2 is not reliable. 9. Learned counsel further submitted that the Trial Court has not considered the oral evidence of P.W.2 and D.W.2. According to the learned counsel, the evidence of P.W.2 is more convincing and the evidence of D.W.2 is not reliable. 9. Countering the arguments advanced by the learned counsel for the appellant, learned counsel for the respondent submitted that once the execution of the promissory note is denied, no legal presumption available under Section 118 of the Negotiable Instruments Act can be raised. The comparison of signature of the plaintiff by the Trial Court is not safe in the absence of the report of an expert. She also submitted that the finding of the Trial Court that the suit promissory note was executed by the defendant, is not correct. Learned counsel further submitted that in his cross examination, P.W.1 has stated that he does not know his Bank Account Number. Learned counsel further submitted that the plaintiff has not proved his means to pay the alleged consideration for the suit promissory note and no evidence has also been adduced by the plaintiff to show that he had means to advance the consideration concerned in the suit promissory note. On these submissions, the learned counsel submitted that the judgment of the Trial Court is correct and no interference is warranted. 10. Section 118 of the Negotiable Instruments Act reads as follows: “Until the contrary is proved, the following presumptions shall be made: (a) of consideration that every negotiable instrument was made or drawn for consideration,.” In the decision reported in Narasamma v. Veerraju , A.I.R. 1935 Mad.769 = (1935) 42 L.W. 321 , a Division Bench of this court considered a similar question along with Section 114 of the Indian Evidence Act. At pages 772 and 773 of the said decision, their Lordships have held thus: “The appellants arguments seem to read a great deal into Sec. 118, Negotiable Instruments Act; that section must be understood in the light of the reason of the rule and the history of the law as to the presumption in favour of negotiable instruments. From the definitions and from illustrations in the Act, it will be seen that it is not required or even expected that the ‘consideration’ should be stated in the instrument itself. So, no presumption can ordinarily arise in such cases out of ‘recitals’ in the document. From the definitions and from illustrations in the Act, it will be seen that it is not required or even expected that the ‘consideration’ should be stated in the instrument itself. So, no presumption can ordinarily arise in such cases out of ‘recitals’ in the document. At one time, it was a matter of doubt in England whether a statement, in the bill of the transaction which gave rise to the bill might not detract from its character as an ‘unconditional’ order or promise to pay and clause (3), Sec. 3, Bills of Exchange Act, was put in, to remove this apprehension. Having regard to mercantile usage and the interests of business, it had been developed as a rule of practice and pleading in the English law, that in the case of bills and notes there need be no reference either in the document itself or in the plaintiffs pleading, to ‘value received’ or to payment of consideration: See 11A & E 702, 6 Ex.839. In later cases, this idea came to be embodied in the rule that a bill or note prima facie imports consideration or value: 138 E.R. 565 and (1877) 2 A.C. 616, and the same is reproduced in Sec. 30, Bills of Exchange Act, in the words: “Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value.” There is no reason to think that Sec. 118, of the Indian Act lays down anything more than this. Neither the earlier case law nor the language of the section instifies any presumption being made as to the quantum of consideration. The English Act merely states that any consideration sufficient to support a simple contract may constitute “valuable consideration” for a bill or note, (see Sec. 27). Though there is no corresponding provision in the Indian Act, the principle must be the same here: see 6 Mad.351 at 353. In Clause (a), Section 118, the same language covers bases both of “making or drawing” and of “negotiation” and in the latter case, the presumption can only be of a transfer for value and not in favour of any particular amount as “consideration” for the transfer. It may also be noticed in passing that in illustration (c) to Section 114, Evidence Act, the presumption is only stated to be that the bill was accepted or endorsed “for good consideration”. It may also be noticed in passing that in illustration (c) to Section 114, Evidence Act, the presumption is only stated to be that the bill was accepted or endorsed “for good consideration”. As a corollary to the above rule of pleading it was recognised in England that it is “not enough in the plea of want of consideration merely to say that the defendant never had any value or consideration - the plea must go on to aver the circumstances which show that there was no consideration: 138 E.R. 545”. In Byles on Bills (at p. 125), the rule is stated in the following terms: ‘Consideration is presumed until the contrary appears or at least appears probable (the italics are ours).’ The expression “until the contrary is proved” in Sec. 118, Indian Negotiable Instruments Act, must also be read in this expanded sense, having regard to the definitions of the word “disproved” and of the expression “shall presume” in Secs.3 and 4, Evidence Act. The difference between Sec. 114, Evidence Act and Sec. 118, Negotiable Instruments Act, consists only in 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 manner of displacing the presumption or disproving the “presumed” fact. Any presumption as to quantum of consideration, as distinguished from the mere existence of consideration, has to be drawn, not by virtue of Sec. 118, Negotiable Instruments Act or even under Sec. 114, Evidence Act, but only from the recitals, if any, that the instrument may contain. As to such recitals, it has long been established that being prima facie evidence against the parties to the instrument, they may operate to shift on to the party pleading the contrary, the burden of rebutting the inference raised by them; see 2 M.H.O.R. 174. But the weight due to recitals may vary according to circumstances and, in particular circumstances, the burden of rebutting them may become very light, especially when the Court is not satisfied that the transaction was honest and bona fide..” 11. But the weight due to recitals may vary according to circumstances and, in particular circumstances, the burden of rebutting them may become very light, especially when the Court is not satisfied that the transaction was honest and bona fide..” 11. In the decision reported in Ramaswami Chettiar v. Sri Devi Talkies (1976) 1 M.L.J. 22 , this question was again considered, and their Lordships held thus: “Until the contrary is proved, every negotiable instrument which is duly made or deemed to have been made should prima facie be held to be one supported by consideration. Presumption under Sec. 118 of the Negotiable Instruments Act, shifts the burden of proof in the second sense, that is, the burden of establishing the 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 evidence, the burden again shifts to the plaintiff, and so on. It is therefore clear that the burden is ambulatory; at one time it is on the plaintiff, and according to the proof and circumstances, it shifts on to the shoulders of the defendant.” 12. In the decision reported in H.M. Kari Gowder v. S.A.K. Chinnathambi Chettiar And Others ( (1976) 2 M.L.J 191 , a similar question came up for consideration and it was held thus: “No doubt, special rules of evidence are provided for under the Negotiable Instruments Act. Sec. 118 says that until the contrary is proved, inter alia the presumption that every negotiable instrument was made or drawn for consideration shall be drawn. But such a presumption may sometimes be displaced by certain acceptable materials placed by the maker of the note under circumstances shifting the burden of proof from the maker to the payee. The presumption that could be raised under Sec. 118 is only a prima facie presumption. If the maker of the note satisfies the conscience of the court that at no time consideration passed under the negotiable instrument and that he executed it under certain circumstances which are not far from truth, then the ordinary presumption that consideration is to be presumed will not arise. If the maker of the note satisfies the conscience of the court that at no time consideration passed under the negotiable instrument and that he executed it under certain circumstances which are not far from truth, then the ordinary presumption that consideration is to be presumed will not arise. As a matter of fact, the maker of the note or the defendant in an action on a promissory note may also rely upon circumstantial evidence and if those circumstances are compelling, the burden would likewise shift again to the payee or the plaintiff to establish the existence of consideration or atleast its probability.” 13. In Kundan Lal v. Custodian, Evacuee Property (A.I.R. 1961 S.C. 1316), their Lordships have held thus: “Sec. 118 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 marker of the note or the endorser, as the case may be” Their Lordships further held as to how to discharge the burden cast on the defendant when there is plea regarding failure of consideration. For the said purpose, their Lordships held thus: “The phrase, “burden of proof has two meanings - one of 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 admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. 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. If such a relevant evidence is with held by the plaintiff, Sec. 114, Evidence Act enables the Court to draw a presumption to the effect that, is 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 under Sec. 118 of the Negotiable Instruments Act.” 14. In a Full Bench decision rendered by the Andhra Pradesh High Court reported in G. Vasu v. Syed Yaseen Sifurdin Quadir, (187) 1 L.T. 1, their Lordships followed the decision reported in Narasamma v. Veeraraju , A.I.R. 1935 Mad. 769, and, after an elaborate enquiry, their Lordships held thus: “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 Sec. 118 by showing 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 Sec. 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 Sec. 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 purposes of rebutting the initial evidential burden the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. For the purposes 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 Sec. 118 does not come again 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. The presumption under Sec. 118 applies once the execution of the pronote is accepted by the defendant but the circumstance that the plaintiffs case is at variance with the one contained in the promissory note or the notice, can be relied upon by the defendant for the purpose of rebutting the presumption and shifting the evidential burden to the plaintiff who has also the legal burden.” 15. The Honourable Supreme Court of India in the judgment reported in 1999 (3) SCC 35 = 1999 3 L.W. 237 (Bharat Barrel & Drum Mfg. Co. , v. Amin Chand Payrelal), extensively considered the various judgments of the High Courts and Supreme Court on this aspect and following the judgments reported in A.I.R. 1973 Madras 769 (Mallavarapu Narasamma v. Boggavarapu Bulli Veerraju) and A.I.R. 1961 S.C. 1316 (Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay), held thus, “Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or d oubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. 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 defendant 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 the 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”. In the instant case, the defendant has denied the passing of consideration in the suit promissory note/Ex.A-1. To prove his case, the plaintiff has examined himself as P.W.1. In his cross examination, P.W.1 has admitted that the defendant is his intimate friend. He has stated that he gave a sum of Rs. 32,000/- in one lumpsum on 12.05.1989. To a question put to him, the plaintiff stated that he is having savings Bank Account in S.B.I. Auroville Branch. It is his specific case that, he drew a sum of Rs. 7,000/- from his bank account and he has arranged for the remaining amount from his friend by name Dominique Parized and gave Rs. 32,000/- in one lumpsum to the defendant. He has stated that he did not remember the date of borrowal from his friend. He has also stated that he did not execute any promissory note in his favour. 7,000/- from his bank account and he has arranged for the remaining amount from his friend by name Dominique Parized and gave Rs. 32,000/- in one lumpsum to the defendant. He has stated that he did not remember the date of borrowal from his friend. He has also stated that he did not execute any promissory note in his favour. He has also stated that he did not remember his bank account number. He has also admitted that he did not give any notice demanding payment. P.W.1 has also stated that he did not know, whether the defendant had obtained loan from the bank of Maharashtra for the ice factory and also mortgaged it. He has denied that he stood as surety for the purchase of machines in the ice factory. He has denied the suggestion that Ex.A-1 is a forged document and the defendant did not sign it. 16. The plaintiff examined one of the attesting witnesses by name Kalian as P.W.2. P.W.2 corroborated the evidence of P.W.1 regarding the execution and passing of consideration under Ex.A-1. P.W.2 denied the suggestion that Ex.A-1 is a forged document and since he is close to the plaintiff, he is deposing in his favour at his instance. He also denied the suggestion that no witness signed in Ex.A-1. 17. The defendant was examined as D.W.1 and he has stated in his evidence that he got a loan of Rs. 35,000/- from Bank of Maharashtra at Pondicherry to start an ice-cream business in the name and style of ‘Be Happy Cone Ice Cream’. He has also stated that the plaintiff stood as a guarantor for the said loan and for opening the trade, D.W.1 printed leaf lets, which also disclosed the plaintiff as the chief guest for inaugurating the trade. D.W.1 has also stated that the plaintiff knows pretty well that the bank had advanced loan for the trade and the remaining sum of Rs. 50,000/- for his business was adjusted by way of selling 15 soverigns of jewels of his wife and also by borrowing a sum of Rs. 10,000/- from his brother, who is working in the Postal Department. He has also stated that the plaintiff has no capacity to lend Rs. 32,000/-. Ex.B-2, the photostat copy of the letter addressed by the plaintiff to the Bank, confirms the balance as Rs. 36,000/- as on 31.03.1989. 10,000/- from his brother, who is working in the Postal Department. He has also stated that the plaintiff has no capacity to lend Rs. 32,000/-. Ex.B-2, the photostat copy of the letter addressed by the plaintiff to the Bank, confirms the balance as Rs. 36,000/- as on 31.03.1989. Ex.B-3 is the invitation card for opening the ice cream parlour. In the cross examination of D.W.1, the genuineness of Exs.B-2 and B-3 has not been questioned. It is pertinent to point out at this stage that D.W.1 has specifically stated in his chief examination that the remaining sum of Rs. 50,000/- for his business was adjusted by way of selling 15 soverigns of jewels belonging to his wife and also by borrowing a sum of Rs. 10,000/- from his brother, who is working in Postal Department. He has not been cross examined on this aspect. Not even a question has been put to him suggesting that he had not sold 15 soverigns of jewels belong to his wife and borrowed Rs. 10,000/- from his brother to meet the remaining required amount for starting his business. This evidence of D.W.1 remains unrebutted. 18. The defendant has examined N.M. Kuppuswamy, who according to the plaintiff, is the other attesting witnesses to Ex.A-1/suit promissory note. D.W.2 has stated that to his knowledge the defendant never borrowed any money from the plaintiff for the purpose of running the ice cream company. He had never signed in any document regarding borrowal of money by him from the plaintiff and he had admitted that P.W.2 Kalian is known to him. He has specifically deposed that the signature found in Ex.A-1 does not belong to him. He has stated that he has not attested as witness in Ex.A-1. He has denied the suggestion that he signed as the first witness in Ex.A-1. But he has stated that he cannot deny the suggestion that the plaintiff has given money to the defendant. Pointing out this portion of P.W.2s evidence, the learned counsel for the appellant argues that P.W.2 has not denied the passing of consideration under Ex.A-1. This argument of the learned counsel for the appellant cannot be accepted. But he has stated that he cannot deny the suggestion that the plaintiff has given money to the defendant. Pointing out this portion of P.W.2s evidence, the learned counsel for the appellant argues that P.W.2 has not denied the passing of consideration under Ex.A-1. This argument of the learned counsel for the appellant cannot be accepted. P.W.2 has consistently deposed that he has not attested Ex.A-1 and he has stated that to his knowledge the defendant never borrowed any money from the plaintiff for the purpose of running his ice cream company and he never signed in any document regarding borrowal of money. What he has stated is that, he cannot deny the suggestion that the plaintiff has given money to the defendant. That will not amount to showing that he had admitted passing of consideration in Ex.A-1. If P.W.2 wanted to support the defendant, he could have very well denied the said suggestion. But he has truthfully stated that he cannot deny the suggestion that the plaintiff has given money to the defendant. He seems to be a natural and trust worthy witness. There is nothing on record to prove that Ex.A-1 contains the signature of P.W.2 and no steps have been taken by the plaintiff to prove that the signature found in Ex.A-1 is that of P.W.2. 19. As pointed out above, it is the specific case of the plaintiff that he is having a savings bank account in S.B.I. Aurovollie branch and he drew a sum of Rs. 7,000/- from his account and arranged for the remaining amount from his friend by name Dominique Parized and gave Rs. 32,000/- in one lumpsum to the defendant. But he has not produced the bank pass book to show that he withdrew Rs. 7,000/- from his savings bank account. He has also not chosen to examine Dominique Parize to prove that he borrowed a sum of Rs. 25,000/- from him. Though a suggestion was put to him by the defendant that he did not withdraw Rs. 7,000/- from his bank account and he did not borrow Rs. 25,000/- from his friend the plaintiff has not produced his bank passbook and failed to examine his friend. This failure on the part of the plaintiff is fatal to the case and therefore the legal presumption available under Section 114 of the Indian Evidence Act can be raised against him. 20. 25,000/- from his friend the plaintiff has not produced his bank passbook and failed to examine his friend. This failure on the part of the plaintiff is fatal to the case and therefore the legal presumption available under Section 114 of the Indian Evidence Act can be raised against him. 20. The Honourable Supreme Court reported in A.I.R. 1961 S.C. 1316 (Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay) has held that, “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 presumptions of the fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. Under Section 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 withholds it”. Applying the said ratio to the instant case, this Court can presume that if the savings bank passbook of the plaintiff is produced, it would have been unfavourable to the plaintiff. It can also be presumed that if the plaintiffs friend Dominique Parized is examined, he may not support his case. Since the legal presumption under Section 114 of the Evidence Act is raised under the above said circumstances, I am of the view that the defendant had rebutted the presumption of law raised under Section 118 of the Negotiable Instruments Act. From the above said decision of the Supreme Court it is clear that presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence, but also presumption of law or fact. In the instant case, I hold that the legal presumption raised under Section 114 of the Evidence Act against the plaintiff will rebut the legal presumption that has arisen in favour of the plaintiff under Section 118 of the Negotiable Instruments Act. In the instant case, I hold that the legal presumption raised under Section 114 of the Evidence Act against the plaintiff will rebut the legal presumption that has arisen in favour of the plaintiff under Section 118 of the Negotiable Instruments Act. As I have held that the legal presumption under Section 118 of the Negotiable Instrument Act has been rebutted by the defendant, the burden has shifted to the plaintiff to prove the passing of consideration under Ex.A-1/the suit promissory note. Now, I have to see whether the plaintiff has proved the passing of consideration under Ex.A-1. 21. It is the specific case of D.W.1 that the plaintiff is getting from his employer towards pocket expenses Rs. 600/- per month and he has no capacity to lend Rs. 32,000/-. P.W.1 in his cross examination has stated as follows: “I am not working in Auroville. I am an Aurovillian. I am attached to the community Le Firm. For the past 14 years, I am an Aurovillian. My wifes name is Sarala. She is also an Aurovillian. The community of Auroville is paying for our monthly expenses, Rs. 1,500/- for myself and Rs. 400/- for my wife and my two children are getting Rs. 200/- per month each. The community maintains a register for the sums paid to the Auroillians monthly”. P.W.1 in his cross examination has also deposed as follows: “I am having savings bank account in the S.B.I. Aurovollie Branch. I drew Rs. 7,000/- from my bank and made out the rest of the amount from my friend by name Dominique Parized and gave Rs. 32,000/- in lumpsum to the defendant. I do not remember the date of borrowal from my friend. I did not execute any promissory note in his favour. I do not remember my bank account number.” The above extracted evidence of P.W.1 supports the defence taken by the defendant. The plaintiff is getting a meagre amount from the community of Aurovillie. The plaintiff has not stated that he has got any other income. So the case of the defendant that the plaintiff is not having means to advance loan under Ex.A-1 as claimed by the plaintiff, is supported by the plaintiffs own version itself. Further, it is the admitted case of the plaintiff that he withdrew Rs. 7,000/- from his bank account and borrowed Rs. So the case of the defendant that the plaintiff is not having means to advance loan under Ex.A-1 as claimed by the plaintiff, is supported by the plaintiffs own version itself. Further, it is the admitted case of the plaintiff that he withdrew Rs. 7,000/- from his bank account and borrowed Rs. 25,000/- from his friend one Dominique parized to pay the consideration recited in Ex.A-1/suit promissory note, which is highly unbelievable. Further, he has not produced the savings bank account passbook and he has not examined his friend Dominique Parized. It is highly doubtful that his friend would have advanced a huge sum of Rs. 25,000/- to the plaintiff when his monthly income is so meagre. When we consider the evidence of P.W.2, in the light of the evidence of P.W. 1 and in the light of the above said admissions made by P.W.1, it can be easily held that P.W.2, as a friend of the plaintiff, is deposing in his favour just to help him. 22. In the judgment reported in 1999 (3) SCC 35 (Bharat Barrel & Drum Mfg. Co. , v. Amin Chand Payrelal), it has been held that the defendant is entitled in law to rely upon the evidence let in that case, including that of the plaintiff. Hence the above extracted portions of the depositions of P.W.1 can be relied upon by the defendant for proving the non-existence of consideration. In my view, in the present case, the defendant has brought on record the preponderance of probabilities by referring to the fact that the suit promissory note is not supported by consideration and the plaintiff was not having sufficient means to pay the consideration. The plaintiff is duty bound to adduce the best evidence available with him to prove his case. But in this case, the plaintiff has not adduced the best evidence to prove his case, as pointed out above. 23. For the above said reasons, I am unable to accept the contentions of the learned counsel for the appellant. Hence the judgment and decree of the Trial Court is confirmed and the above appeal is dismissed. No costs.