JUDGMENT 1. The plaintiff in O.S.No.201 of 1998, on the file of the Principal Sub - Court, Kumbakonam is the appellant. 2. The suit was instituted on Ex.A.1 Promissory Note, whereunder on 15.06.1998 defendant /respondent is stated to have received Rs.1,00,000/- from the plaintiff promising to repay it with 24% interest p.a. It was attested to by one Sivasankaran and Anbalagan. Since the amount was not paid, on 09.10.1998 plaintiff issued Ex.A.2 (= Ex.B.1) notice to the defendant. It was acknowledged by him under Ex.A.3. However, neither he paid the amount nor replied him. Hence, the suit was filed. 3. The claim was resisted by the defendant filing a written statement, wherein he had stated that he did not know who the plaintiff is, he has no necessity to borrow Rs.1,00,000/- from him executing a promissory note. Defendant knows one Gurumurthy of Innambur Village in Kumbakonam Taluk, borrowed amounts on different dates from him, totalling Rs.1,90,000/-, paid him Rs.1,74,750/-through Anbalagan, Lab Technician and Sivasankaran, an employee of Thanjavur Co-op. Marketing Federation, only a small amount was due, after several years, Gurumurthy demanded the balance, defendant had sold his house and settled the loan amount. Defendant also guaranteed the loan of one Raja, but he had absconded. In the circumstances, defendant had executed 3 or 4 promissory notes and Gurumurthy promised him not to take any action on those promissory notes. However, using one of them plaintiff had filed this suit. After the receipt of his lawyer notice, when defendant contacted Gurumurthy, he promised him no further action. So, he is not liable to pay any amount to the plaintiff. 4. Trial Court framed necessary issues, tried the suit, plaintiff Sivaprakasam examined himself as P.W.1 and the attestator Anbalagan as P.W.2 and marked Exs.A.1 to A.3, while defendant Dhandapani examined himself as D.W.1 and marked Exs.B.1 to B.3. 5. Considering the above evidence and the rival submissions, the trial Court decreed the suit with 12% interest p.a. with pro-costs. 6. Aggrieved, defendant appealed to the Principal District Court, Thanjavur in A.S.No.28 of 2006. 5. Considering the above evidence and the rival submissions, the trial Court decreed the suit with 12% interest p.a. with pro-costs. 6. Aggrieved, defendant appealed to the Principal District Court, Thanjavur in A.S.No.28 of 2006. The First Appellate Court taking note of the fact that on the basis of Ex.A.1 and a pronote in favour of Gurumurthy, both have engaged same Advocate; inconsistent evidence of P.W.2 regarding the place of execution of Ex.A.1; as per the Income Tax Act, after 30.06.1984, more than Rs.20,000/-has to be paid only by cheque, but, plaintiff states that he had paid the entire amount in cash; on the date of trial, Gurumuruthy was also present in the trial Court; plaintiff is also not able to say the litigation expenses of the suit, thus, the appellate Court held that the presumption under Section 118 of the Negotiable Instruments Act will not arise and thus, dismissed the suit. In the circumstances, plaintiff had directed this second appeal. 7. According to the learned counsel for the appellant, defendant has admitted his execution of the suit promissory note. In such circumstances, the presumption under Section 118 of the Negotiable Instruments Act will arise. Cited – (i) MOHAMMED ALI Vs. ABDUL SINAB [ 2001 (1) CTC 281 ] and (ii) NATARAJAN Vs. MARAPPA GOUNDER [AIR 2005 MADRAS 90]). Defendant did not dislodge this presumption. The First Appellate Court has misread the evidence, not viewed the matter in proper perspective and wrongly set aside the well reasoned judgment of the trial Court. 8. On the other hand, the learned counsel for the respondent would submit that defendant can disprove the case of the plaintiff either by adducing independent evidence or based on the evidence of plaintiff. Plaintiff has to prove his payment of money and execution of promissory note by the defendant. (Cited BHARAT BARREL & DRUM MFG. CO. Vs. AMIN CHAND PAYRELAL [ 1999 (3) SCC 35 ] andJANAKIRAMAN CHETTIAR Vs. NARASIMHAN [ 2001 (2) CTC 268 ]) But, plaintiff did not do so. Thus, the First Appellate Court has correctly set aside the judgment of the trial Court and dismissed the suit. 9. (Cited BHARAT BARREL & DRUM MFG. CO. Vs. AMIN CHAND PAYRELAL [ 1999 (3) SCC 35 ] andJANAKIRAMAN CHETTIAR Vs. NARASIMHAN [ 2001 (2) CTC 268 ]) But, plaintiff did not do so. Thus, the First Appellate Court has correctly set aside the judgment of the trial Court and dismissed the suit. 9. While admittingthis Second Appeal, this Court formulated the following substantial questions of law for consideration: (1) Whether the first appellate Court is right in allowing the appeal even after the defendant has admitted the fact that he has signed the promissory note which gives the statutory presumption under Section 118 of the Negotiable Instruments Act in favour of the appellant who is the plaintiff before the lower Court? (2) Whether the first appellate Court is right in allowing the appeal without appreciating the evidence in proper perspective especially when the defendant has taken conflicting stand in the written statement and at the time of adducing evidence? (3) Whether the lower Appellate Court right in allowing the appeal on a bare denial of passing of consideration apparently does not appear to be a defence? 10. This is a suit based on Ex.A.1 promissory note dated 15.06.1998. As regards the presumption under Section 118 of Negotiable Instruments Act, onus of the plaintiff and of the defendant has been dealt with in BHARAT BARREL & DRUM MFG. CO. Vs. AMIN CHAND PAYRELAL [ 1999 (3) SCC 35 ]. In this case, the Hon'ble Apex Court held as under: "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 doubtful 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. 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 nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." 11. Both MOHAMMED ALI [ 2001 (1) CTC 281 ] and NATARAJAN [AIR 2005 MADRAS 90] are on the line ofBHARAT BARREL [ 1999 (3) SCC 35 ]. Once execution is established/admitted, the presumption under Section 118 of the Negotiable Instruments Act will arise, thereafter, it is for the defendant to dislodge it. When the defendant dislodges the presumption, the plaintiff has to disprove it. 12. In the case before us, Ex.A.1 suit promissory note has been stated to have been executed on 15.06.1998 by the defendant for his receipt of Rs.1,00,000/-from the plaintiff and it was witnessed to by Sivasankaran and Anbalagan. In his evidence, plaintiff/P.W.1 had stated that on 15.06.1998, the suit promissory note was executed by the defendant after receiving Rs.1,00,000/-. Ex.A.1 was attested to by P.W.2 Anbalagan and by one Sivasankaram. P.W.2 also stated about his attesting of Ex.A.1 promissory note. 13. In his evidence defendant/D.W.1 admits his signature in Ex.A.1. In his evidence, plaintiff/P.W.1 had stated that on 15.06.1998, the suit promissory note was executed by the defendant after receiving Rs.1,00,000/-. Ex.A.1 was attested to by P.W.2 Anbalagan and by one Sivasankaram. P.W.2 also stated about his attesting of Ex.A.1 promissory note. 13. In his evidence defendant/D.W.1 admits his signature in Ex.A.1. He has also admitted the receipt of Ex.A.2 lawyer notice from the plaintiff. Admittedly, he did not reply it. 14. In his written statement also he did not deny his execution of the promissory note. But, he would say that he has given 3 or 4 signed promissory notes to one Gurumurthy, later, one of them was made as suit promissory note. 15. So, execution has been proved. So, the presumption under Section 118 of the Negotiable Instruments Act arises. It follows passing of consideration. 16. As per law, the defendant has to dislodge the presumption either by independent evidence or even from the evidence let in by the plaintiff. 17. In this case, the First Appellate Court referred to certain circumstances to say that defendant's plea became acceptable. Let us see them one by one. 18. Gurumurthy is related to plaintiff. Ex.B.2 lawyer notice shows that defendant was indebted to Gurumurthy under certain promissory notes. Since the defendant has failed to pay the amount, he sent lawyer notice through Mr.Savarimuthu, Advocate. To collect the amount due under Ex.A.1 plaintiff issued Ex.A.2 lawyer notice. This was also issued by the very same Advocate. Since plaintiff and Gurumurthy are known to each other, in fact, they are relatives, there is no wrong in they engaging a same lawyer to issue lawyer notice to defendant with regard to the debts due to them. 19. Plaintiff admitted that on the date when the suit was tried Gurumurthy also came to the Court. Both are relatives and known persons. There is no strange in Gurumurthy having come to the Court when his relative plaintiff's suit was tried. 20. In his cross-examination, as regards the litigation expenses for filing this suit, plaintiff had stated that he had spent around Rs.4,000/-, Rs.5,000/-, when the Court fee itself was more than that. Non-mentioning of litigation expenses correctly is not a factor going against plaintiff's case. 21. In his written statement defendant had not pleaded that the plaintiff is a money lender. It was also not stated that plaintiff has no capacity to advance money. Non-mentioning of litigation expenses correctly is not a factor going against plaintiff's case. 21. In his written statement defendant had not pleaded that the plaintiff is a money lender. It was also not stated that plaintiff has no capacity to advance money. However, such a finding was given by the First Appellate Court. There is no provision or authority that after 30.06.1984, more than Rs.20,000/- has to be paid only by cheque. It was also not stated in the written statement. That apart, in this case, the stand of the plaintiff is that he had paid Rs.1,00,000/- in cash. In such circumstances, the view as to payment of the amount by cheque will not arise. 22. P.W.1 has stated that the suit promissory note was executed at his residence in Innambur Village. In his evidence P.W.2 Anbalagan had stated that he had put his signature in Ex.A.1 in the Lab situate in Ayekulam Road, Kumbakonam. Defendant admitted his execution of the promissory note. He did not deny his signature in the promissory note. Promissory note is not a document which needs compulsory attestation. P.W.2's said answer will not show that the defendant has not executed the promissory note. Further, Innambur and Ayekulam Road are within the jurisdiction of Sub Court, Kumbakonam. So, in either case, the jurisdiction of the Sub Court, Kumbakonam will not change. 23. In JANAKIRAMAN CHETTIAR Vs. NARASIMHAN [ 2001 (2) CTC 268 ] plaintiff's suit was based on a promissory note. In the written statement, defendant pleaded that there was sale transaction between the defendant and plaintiff's wife and the promissory note was executed in connection with the sale of the property by the defendant and the defendant also let in evidence to that effect. However, plaintiff did not examine his wife to rebut the evidence of the defendant. In such circumstances, the Court held that the presumption under Section 118 Negotiable Instruments Act will not be available to the plaintiff. That is not the case before us. On facts, JANAKIRAMAN CHETTIAR (supra) differs from our case. 24. The case before us is a civil case. This is a suit based on a promissory note. It is based on probabilities of the case established in evidence. However, the First Appellate Court had adopted the approach of a Criminal Court dealing with a criminal case. It has adopted a wrong approach. 24. The case before us is a civil case. This is a suit based on a promissory note. It is based on probabilities of the case established in evidence. However, the First Appellate Court had adopted the approach of a Criminal Court dealing with a criminal case. It has adopted a wrong approach. It has tried the case as though it is a criminal case. It has given weightage to the inconsistency in the evidence of P.W.2 forgetting the positive evidence of P.W.1 and the admissions of D.W.1 in his evidence. 25. When the plaintiff had proved execution of the promissory note by the defendant, the arising of presumption under Section 118 of the Negotiable Instruments Act as to the passing of consideration etc. is automatic. However, it is rebuttable. Defendant has to dislodge it. But, he did not do so. 26. Thus, we hold that the suit promissory note has been executed by the defendant for valid consideration. In the circumstances, the substantial questions of law are answered as against the respondent. 27. In the result, the Second Appeal is allowed with costs. The decree and judgment of the First Appellate Court/Principal District Court, Thanjavur made in A.S.28 of 2006 are set aside and the decree and judgment of the Trial Court/Principal Sub Court, Kumbakonam made in O.S.No.201 of 1998 are restored.