JUDGMENT:- The original plaintiff has filed this second appeal challenging reversing judgment delivered by the first appellate Court. The appellant/plaintiff filed Special Civil Suit No.2 of 1986 in the Court of Civil Judge Senior Division, Buldhana for recovery of amount Rs.27.170/- towards the price of jaggery which he sold. He also claimed interest @ 18% from 17/5/1987 till filing of the suit. He pointed out that he sold 87.35 qt. of jaggery and in part payment respondents/defendants gave one cheque for Rs. 11,835.94 to plaintiff which was postdated. When the cheque was presented in the Bank, it was dishonoured. Defendants then issued four postdated cheques. Upon assurance given by respondents/defendants, he again presented the cheques in October, 1984 and were again dishonoured. The defence of the present respondents was that they never purchased jaggery worth Rs.27.170/- from the plaintiff on 17/5/1983 nor they had issued any cheque towards price of said Jaggery. They contended that plaintiff was doing money lending business without valid license and they had borrowed money from the plaintiff on different dates and cheques were given as security for it. The trial Court framed 7 issues. Insofar as material issues are concerned, it found that plaintiff proved that he had supplied jaggery worth Rs.27.170/- to defendants and it further found that defendants had issued cheques which were dishonoured. The defence of defendants about money lending business or about loan transaction, etc. was negatived by it. Aggrieved by this judgment, the defendants filed Regular Civil Appeal No.83 of 1987 which came to be allowed by 2nd Joint Additional District Judge. Buldhana on 28/9/1990 by holding that the trial Court was not justified in using presumption under Section 118 of the Negotiable Instruments Act in favour of plaintiff in the Circumstances of the case. The plaintiff thereafter filed this second appeal which was admitted on point Nos.1 to 5 on 25/1/1991. The appeal was heard finally and was allowed on 26/8/2004. The judgment and decree of trial Court was therefore restored. The Hon'ble Apex Court in Civil Appeal No. 1187 of 2007 vide its order dated 07/3/2007 observed that the second appeal was allowed without formulating substantial question of law and, therefore, set aside the judgment and remanded the second appeal back for fresh hearing. 2. The judgment and decree of trial Court was therefore restored. The Hon'ble Apex Court in Civil Appeal No. 1187 of 2007 vide its order dated 07/3/2007 observed that the second appeal was allowed without formulating substantial question of law and, therefore, set aside the judgment and remanded the second appeal back for fresh hearing. 2. Accordingly, this Court has on 27/11/2007 formulated the following question as substantial question of law: "Whether the first appellate Court was justified in holding that the cheques issued by defendants were without consideration, in view of presumption contained in Section 118 of the Negotiable Instruments Act?" 3. In this background I have heard Advocate Shri. Khapre for the appellant/plaintiff and Advocates Shri. Padhye with Shri. Jaiswal for the respondents/defendants. 4. By narrating facts as mentioned above, Advocate Khapre has invited attention to Division Bench' s judgment repol1ed at A.I.R. (36) 1949 Bomhay 257 - Tarmahomed Haji Abdul Rehman Vs. Tayeb Ebrahim Bharmchari to contend that the presumption that negotiable instrument was with consideration continues to operate till it is rebutted by proving the contrary. He further states that mere fact that consideration mentioned in negotiable instrument turns out to be wrongly described does not rebut presumption under Section 118 and the burden still lies on defendant to satisfy the Court that there was no consideration for the instrument. He states that while considering such evidence. the Court has to bear in mind the statutory presumption and also the fact that the burden of proof lies upon defendant and that burden has got to be discharged by the defendant. He places reliance upon the observations of Division Bench which held that where plaintiff attempts to prove a particular consideration, the mere fact that he failed to prove that consideration does not, in any way, relieve the defendant of his obligation in law to establish the contrary of the presumption. He states that similar view has been taken by the Hon'ble Apex Coun in the case reported at AIR 1999 SC 1008 : [1999(2) ALL MR 269 (S,C.)] Bharat Barrel & Drum Manufacturing Company Vs. He states that similar view has been taken by the Hon'ble Apex Coun in the case reported at AIR 1999 SC 1008 : [1999(2) ALL MR 269 (S,C.)] Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal He states that when evidence as to money lending transaction led by present respondent was found to be unacceptable, the onus of proof in view of legal presumption in favour of present plaintiff did not shift and as such the lower appellate Coun was not justified in holding that said presumption was not applicable. 5. Advocate Khapre further argues that notice to produce accounts maintained by respondents/defendants was given and though the accounts were not produced, the lower appellate Coun has refused to draw adverse inference on the ground that said notice to produce the accounts was rejected by the trial Coun. He argues that the documents could have been produced before the trial Court and the appellate Court also could have taken cognizance of non-production of those documents before it in appeal. His second argument is about the defence taken by present respondents in their written statement. He argues that in view of defence that said amount did not represent the cost of jaggery but was a money lent to present respondents/defendants, the lower appellate Coun could have maintained the decree for said amount because in any case present appellant/plaintiff was entitled to recover it. He relies upon the judgment reported at AJ.R. (38) 1951 SC 177 - Firm Sriniwas Ram Kumar Vs. Mahavir Prasad & others in support of his contention and argues that it would be futile to direct the plaintiff to file separate suit in such circumstances. 6. The learned Counsel appearing for the respondents, on the other hand, has contended that the judgment of Division Bench of this Court (supra) has not been accepted to be correct by the Hon'ble Apex Court in judgment in the case of Bharat Barrel & Drum Manufacturing Co. Vs. Amin Chand Payrelal [1999(2) ALL MR 269 (S.C.)] (supra). It is contended that the Hon'ble Apex Court did not accept the view that though case of plaintiff and case of defendant is disbelieved, still the suit needs to be decreed on the basis of presumption under Section 118 of the Negotiable Instruments Act. Vs. Amin Chand Payrelal [1999(2) ALL MR 269 (S.C.)] (supra). It is contended that the Hon'ble Apex Court did not accept the view that though case of plaintiff and case of defendant is disbelieved, still the suit needs to be decreed on the basis of presumption under Section 118 of the Negotiable Instruments Act. Advocate Shri Padhye has invited attention to other pans of this judgment to contend that the presumption under Section 118 is of no assistance once both the panics have adduced evidence and the Coun has to consider such evidence on merits. He invites attention to findings of fact reached by lower appellate Court and contends that the defendants have successfully proved that they did not purchase any jaggery from the plaintiff and the cheque was not issued towards cost of jaggery. According to him when the very consideration of cheque pointed out by plaintiff is found to be false and incorrect, the suit could not have been decreed. He also points out that the argument in alternative being advanced for the first time before this Court to claim the amount of cheque as amount due on account of money lending transaction is a new plea raised in the second appeal. He points out that the present respondents have not accepted that the amount mentioned in the cheque represented the money received by them towards loan. According to him, therefore, the substantial question of law as formulated needs to be answered against the appellant and in favour of present respondents. 7. The perusal of judgment of the trial Court as also the judgment of lower appellate Court leaves no manner of doubt that both the parties got opportunity to lead evidence in support of their respective contentions. The argument of appellant is that though issuance of negotiable instrument is being admitted, the nature of consideration mentioned therein is being disputed. As its nature pleaded in defence i.e. loan transaction has been found to be correct by the trial Court, and as said aspect is not considered by the lower appellate Court, the presumption under Section 118 of Negotiable Instruments Act operates in favour of the appellant/plaintiff and the lower appellate Court could not have dismissed the suit. As its nature pleaded in defence i.e. loan transaction has been found to be correct by the trial Court, and as said aspect is not considered by the lower appellate Court, the presumption under Section 118 of Negotiable Instruments Act operates in favour of the appellant/plaintiff and the lower appellate Court could not have dismissed the suit. The other side through Advocate Shri. Padhye contended that though respondents/defendants failed to substantiate their defence that it was money lending transaction, still as plaintiff could not establish sale of jaggery itself to respondents/defendants, the document must be presumed to be without consideration. 8. The perusal of judgment of Hon'ble Apex Court in the case of Firm Srinivas Ram Vs, Mahavir Prasad (supra) clearly shows that; there the suit was for specific performance of contract and plaintiff had paid some amount to the defendant in part performance. The defendant denied contract and pleaded that it was money taken by him as a loan. The Hon'ble Apex Court has held that the Court in such circumstance can pass a decree for recovery of loan in favour of plaintiff on his failure to prove the contract even though the plaintiff had failed to plead and claim relief on this alternate case. The Hon 'ble Apex Court has found in such circumstance, it would not direct the plaintiff to file a separate suit. The trial Court there, had found that amount of Rs.30,000/- advanced by plaintiff to defendant was by way of loan and was not a payment towards sale consideration. The Hon 'ble High Court at Patna dismissed the appeal filed by plaintiff and allowed the cross objection preferred by defendant. The High Court concurred with findings of trial Court and found that as no case of loan was made by the plaintiff in the plaint and no relief was claimed on that basis, the decree for refund of that amount passed by trial Court was unsustainable. The controversy, therefore, needs to be understood in the light of facts before the Hon'ble Apex Court. 9. In facts before me in plaint, there is reference to a cheque for Rs.11,835.94 and it was a postdated cheque which came to be dishonoured. Thereafter four postdated cheques of different dates for total amount of Rs.27,170/ - were issued and when the cheques were presented in October, 1984, they were dishonoured. 9. In facts before me in plaint, there is reference to a cheque for Rs.11,835.94 and it was a postdated cheque which came to be dishonoured. Thereafter four postdated cheques of different dates for total amount of Rs.27,170/ - were issued and when the cheques were presented in October, 1984, they were dishonoured. The defence was that the respondents borrowed money from the plaintiff on different dates and as security they had given cheques for the borrowed amount from plaintiff with an agreement to pay interest. The defendants further pleaded that they had paid interest and also refunded the bowed amount. The trial Court has found that there was no loan transaction and it further found that defendants could not establish that they have repaid the amount of cheques or loan amount to the plaintiff. This aspect is not gone into by the learned lower appellate Court at all. However, once a finding is reached that there was no such loan transaction, the defendants were not liable to repay any loan amount to the present appellant/plaintiff, it is obvious that the plaintiff cannot claim decree for very same amount by making a prayer to treat the transaction as loan transaction. In case before the Hon 'ble Apex Court, the defendant pleaded that it was money lending transaction, the trial Court as also the appellate court found that it was money lending transaction and question was; whether in case of such findings a decree for refund of amount of Rs.30,000/- passed by the trial Court could have been sustained. Thus, decree was in accordance with the findings reached by Courts below. Here, the appellant/plaintiff is seeking a decree which will be rather contrary to the findings of the trial Court. In the circumstances, alternate argument advanced by Advocate Shri, Khapre cannot be accepted. 10. The perusal of judgment of Division Bench of this Court in the case of Tarmahomed Vs. Tyeb Ehrahim (supra) shows that mere fact that consideration mentioned in negotiable instrument turns out to be wrongly described does not rebut the presumption under Section 118 and the Division Bench has held that burden lies on defendant to satisfy the court that there was no consideration for the instrument. It appears that the plaintiff there had put forward as the consideration for Hundis, the amount for value received in cash on the date on which the Hundis were executed. It appears that the plaintiff there had put forward as the consideration for Hundis, the amount for value received in cash on the date on which the Hundis were executed. As it was noticed that consideration mentioned in the negotiable instrument was not real consideration, the learned Single Judge held that presumption under Section 118 stood rebutted and it was for plaintiff to prove what was the real consideration, The Division Bench held that looking at plain language of section, it was impossible to accept such contention because presumption raised in said section is not in respect of consideration mentioned in the negotiable instrument but the presumption is in favour of there being a consideration for the negotiable instrument i.e. any consideration which is valid consideration in law. 11. The respondents/defendants before this Court has pointed out that this judgment the part of which is not approved by the Hon'ble Apex Court as mentioned in paragraph 11 at page 10 14~ Bharat Barrel & Drum Manufacturing Co. Vs. Amin Chand Payrelal [1999(2) ALL MR 269 (S.C.)] (supra) and the Hon'ble Apex Court has stated that dissent of the Hon'ble Apex Court was only to the extent of principle laid down in that case that even when the case of plaintiff and that of defendant is disbelieved, still the suit is to be decreed on the basis of presumption under Section 118 of the Negotiable Instruments Act. In other words, Hon 'ble Apex Court has found that suit cannot be decreed merely because of presumption under Section I 18 of the Act. Perusal of this judgment reveals that the Hon'ble Apex Court has held that; once the defendant showed either by direct evidence or by circumstantial evidence or by use of the other presumption of law or fact that 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 promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Negotiable Instruments Act would disappear. The Hon 'ble Apex Court has also held that; merely because the plaintiff came forward with a case different from one mentioned in the promissory note, it would not be eon'eet to say that presumption under Section 118 did not apply at all. The Hon 'ble Apex Court has also held that; merely because the plaintiff came forward with a case different from one mentioned in the promissory note, it would not be eon'eet to say that presumption under Section 118 did not apply at all. However, it has been clarified that such a variance could be relied upon by the defendant for the purposes of rebutting the presumption and for shifting burden upon the plaintiff, The Hon 'ble Apex Court has in paragraph 11 also found that principles stated in Section 106 of the Evidence Act are also relevant in such circumstances. It has been observed that; when the fact especially within knowledge of any person, burden of proving it is upon him, The Hon 'ble Apex Court has found that where the party who does not have evidential burden, possesses positive and complete knowledge concerning the existence of a fact which the party having evidenl1al burden, is called upon to negate or has peculiar knowledge or control of evidence in relation thereto, the burden rests on him to produce such evidence. The negative averment is to be taken as true unless disapproved by the party having such knowledge or control. The Hon'ble Apex Court has stated that the difficulty of proving a negative only relieves the party having evidential burden from the necessity of creating 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, The third principle pointed out by the Hon'ble Apex Court in paragraph II of the judgment is that; when both the parties have led evidence, the onus of proof loses all importance and becomes purely academic. 12. Coming to the facts which the Hon'ble Apex Court has considered, the appeal was by plaintiff, the suit based upon promissory note was filed on original side before the learned Single Judge and the learned Single Judge observed that he was unable to accept that promissory note was executed by way of colateral security. It also found that case of plaintiff that sum of Rs.6,20,000/- or any other sum was advanced by plaintiff to defendant in consideration of promissory note was also unacceptable. It also found that case of plaintiff that sum of Rs.6,20,000/- or any other sum was advanced by plaintiff to defendant in consideration of promissory note was also unacceptable. In this background it was observed that as plaintiff's case was not accepted, presumption raised by Section 118 of the Negotiable Instruments Act was completely dislodged. The matter went in appeal before the Division Bench of Calcutta High Court and the Division Bench referred controversy to the larger Bench. The full Bench by majority accepted the reasoning of learned Single Judge while third Hon'ble Judge delivered a dissenting judgment. Thus, the suit filed by appellant before the Hon'ble Apex Court stood dismissed. It is in this background that the matter was considered and the observations in paragraph 14 have been made. In written statement the respondent-defendant had taken a particular stand and the Hon'ble Apex Court found that to disprove the contention of promissory note, respondent-defendant brought certain circumstances to the notice of the Court which he wanted to probabilise by leading evidence. His evidence in that regard was not accepted by any of the Judges and thus, in the absence of disproving the existence of consideration, the onus of proof of legal presumption in favour of plaintiff could not be shifted. The Hon'ble Apex Court found that approach adopted by majority of the Judges in dealing with the case was contrary to basic principles governing the law relating to negotiable instruments. Faith of business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles. The Hon'ble Apex Court noticed that though it was true that the plaintiff's evidence was not believed, still the same cannot be made basis for rejecting the claim because obligation upon the plaintiff to lead evidence for the purposes of "to prove his case", could not have been insisted upon because the defendant prima facie or initially did not discharge his onus of proof. 13. In present facts, the plaintiff contended that jaggery supplied by him to respondents/defendants was the consideration for cheques issued. The defendants (present respondents) contended that it was a money lending transaction. The lower appellate Court has found that case of the plaintiff that he sold jaggery to present respondents has not been established at all and as such consideration in support to negotiable instrument has not been proved. The defendants (present respondents) contended that it was a money lending transaction. The lower appellate Court has found that case of the plaintiff that he sold jaggery to present respondents has not been established at all and as such consideration in support to negotiable instrument has not been proved. The respondents/defendants are relying upon these findings before this Court to seek dismissal of appeal. The appellant/plaintiff contends that as the specific defence of money lending transaction has been concurrently found to be incorrect, in view of presumption under Section 118 of the Negotiable Instruments Act, suit must be decreed. The trial Court has framed total six issues and answered them as under: ISSUES FINDINGS 1. Does the plaintiff prove Yes. that he had supplied Gur worth Rs. 27,170/- to the defendants? 2. Does the plaintiff prove that Yes. defendants had issued cheques which are dishonoured against the price of the Gur ? 3. Do the defendants prove that No. plaintiff runs money lending business and advances loans to persons by depositing cheques as security with him? 4. Do the defendants prove No. that suit transaction as a loan transaction? 5. Do the defendants prove that No. they have repaid cheque or the loan amount whatever due against them? 6. Do they further prove that the No. suit of the plaintiff is false? 7. What order and costs? Suit of the plaintiff is decreed with costs. It is, therefore, obvious that issues have not been framed, in the light of legal presumption available to appellant-plaintiff, by the trial Court. The trial Court in paragraph 7 has found that story of defendants that signatures were obtained by coercion and misrepresentation by the plaintiff was hard to digest. It also found that defendant No.3 who had actually issued the cheques at Exhs.27 to 30 did not enter the witness box. It further found that no action was taken by defendants to procure said cheques from the custody of plaintiff and it therefore, found that defence was falsified. It further found that defendants must have maintained its accounts and those accounts must have contained entries in relation to the suit transaction. It found that defendants suppressed the books of accounts. The defendants had relied upon 'Tat-Datties' i.e. weighment bills and contended that no such weighment bills were produced by the appellant-plaintiff. It further found that defendants must have maintained its accounts and those accounts must have contained entries in relation to the suit transaction. It found that defendants suppressed the books of accounts. The defendants had relied upon 'Tat-Datties' i.e. weighment bills and contended that no such weighment bills were produced by the appellant-plaintiff. The trial Court found that there was admission given by witness No.1 for defendants that defendant No.1 had not issued weighment bills to customers when the delivery of agricultural goods of the customers were taken by visiting their fields. It found that burden to prove issue Nos.3 to 6 was upon the defendants and they could not examine any independent witness to show that plaintiff was indulging in illegal money lending business. It further found that it was the case of defendant No.2 that they had cleared entire loan amount by the end of March, 1983. But, that defence was also not proved. It further found that during the course of evidence, a new story of 'Usanwaar chitthi' was introduced by the defendants but it was without pleading and in cross-examination, defendant No.2 could not satisfactorily explain anything in relation to the alleged 'Usanwaar chitthi' In these circumstances, it found that there was no reason for the plaintiff to depose against the defendants and it chose to rely upon cheques Exhs.27 to 30 and observed that defendants would not have issued those cheques if the amount was not really given. It is, in view of these findings, it decreed the suit. 14. The appellate Court has framed the points for its determination in paragraph 4. The discussion which begins in paragraph 5 or the consideration in paragraph 10 by the lower appellate Court again shows that it has ignored the presumption available under Section 118 of the Negotiable Instruments Act. Perusal of entire evidence shows that lower appellate court has considered the burden cast upon respondent/plaintiff before it to be of prime importance and failure of the plaintiff to discharge it (as recorded by it) has been found to be fatal to the suit. It has in paragraph 6 considered entire evidence in order to find out whether present appellant has discharged the burden and said consideration clearly shows ignorance of provisions of Section 118 of the Negotiable Instruments Act. It has found that plaintiff did not produce any document of sale of Jaggery. It has in paragraph 6 considered entire evidence in order to find out whether present appellant has discharged the burden and said consideration clearly shows ignorance of provisions of Section 118 of the Negotiable Instruments Act. It has found that plaintiff did not produce any document of sale of Jaggery. It found that plaintiff had written documents of sale of jaggery in relation to earlier transaction and there was no such written document in relation to present transaction. It found the case of plaintiff was specific and as the price of jaggery was consideration for cheques, burden was upon plaintiff to prove sale/delivery of jaggery. In this background, it found that notice to produce accounts given by plaintiff vide Exh.77 was of no consequence because it was given after the matter was closed for judgment by the trial Court. It further found that no such notice was given during the pendency of regular civil appeal before it. It further found that evidence on record was also insufficient to show that 87 qts. or 86 qts. of jaggery which the plaintiff claimed to have sold to respondents/ defendants could have been produced in his field. It further found that there was variance about the time at which four cheques were issued in favour of plaintiff by the defendants and the story about it. It further found that though plaintiff was maintaining account about his agricultural income, he did not produce it. It further found that documents on record reveal that plaintiff was charging interest even on small amounts which he had to recover from other side and there was no such effort by him in relation to amount in this transaction. It is, therefore, apparent that the lower appellate Court has not applied its mind to the law and decided appeal as if the burden was upon plaintiff. 15. Thus, the fact and findings as to how and when initially the onus which was upon respondents/defendants shifted to present appellant/plaintiff has not been recorded at all by the lower appellate court. Though the trial Court has not recorded any such finding expressly, at the end, in view of cheques issued, it has drawn presumption in favour of the appellant/plaintiff. The judgment of the Hon'ble Apex Court mentioned above clearly shows how the Court of law has to apply its mind in such circumstances. Though the trial Court has not recorded any such finding expressly, at the end, in view of cheques issued, it has drawn presumption in favour of the appellant/plaintiff. The judgment of the Hon'ble Apex Court mentioned above clearly shows how the Court of law has to apply its mind in such circumstances. It is, therefore, obvious that initial burden was upon respondents/defendants to show that the consideration for cheques was either a loan or then there was no consideration at all. The Courts below have concurrently found that there was no Joan advanced by plaintiff to respondents/defendants. In these circumstances, the question was whether respondents/defendants have led evidence to show that they did not receive jaggery at all from the appellant/plaintiff. Had they tendered that evidence, the burden would have then shifted on the present appellant/plaintiff to show that he sold particular quantity of jaggery to respondents/defendants. There is no such evidence adduced by the respondents/defendants. The cross-examination of appellant/plaintiff is sought to be relied upon by the lower appellate court to reverse the judgment of trial Court. However, said evidence of appellant/plaintiff would have become relevant only when initial burden cast upon respondents/defendants was held to have been discharged, There is no such finding. In the circumstances, the entire exercise undertaken by the lower appellate Court cannot be sustained. The respondents/ defendants could have produced books of accounts to show that they did not receive any jaggery from the appellant/plaintiff. Burden was upon them and books of accounts are best possible evidence, which they could have produced to discharge their burden. The trial Court as also appellate Court have found that respondents/defendants were maintaining the accounts. If this is the position and as best possible evidence has been withheld, I find that the trial Court was justified in drawing adverse inference against the respondents/defendants. The service of notice to produce document Vide Exh.77 has got hardly any sigmficance III the present facts and the entire consideration of said notice Exh.77 by the lower appellate Court is, therefore. vitiated. Thus, I find that the lower appellate Court has not correctly appreciated the provisions of Section I 18 of the Negotiable Instruments Act and has reversed the judgment of trial Court. The question of law as formulated, therefore, needs to be answered in favour of the present appellant/plaintiff. vitiated. Thus, I find that the lower appellate Court has not correctly appreciated the provisions of Section I 18 of the Negotiable Instruments Act and has reversed the judgment of trial Court. The question of law as formulated, therefore, needs to be answered in favour of the present appellant/plaintiff. The lower appellate Court was, therefore, not justified in holding the cheques issued by defendants were without consideration by ignoring presumption contained in Section 118 of the Negotiable Instruments Act. 16. The second appeal is, therefore, allowed. The judgment and decree dated 28/9/1990 delivered by 2nd Additional District Judge, Buldhana in regular civil appeal No. 83 of 1987 is hereby quashed and set aside. The judgment and decree dated 19/9/1987 delivered by Civil Judge, Senior Division, Buldhana in Special Civil Suit No.2 of 1986 is hereby restored. However, in the circumstances of the case, there shall be no order as to costs. Second appeal allowed.