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2012 DIGILAW 561 (MAD)

S. Nachimuthu (deceased) v. S. Rajaram

2012-02-03

G.RAJASURIA

body2012
Judgment :- 1. This appeal is focussed at the instance of the plaintiff as against the judgment and decree dated 06.01.2004 passed by the learned Additional District and Sessions Judge (Fast Track Court No.III), Coimbatore in O.S.No.112 of 2003, which was filed for recovery of money. 2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court. 3. The germane facts, which are absolutely necessary for the disposal of this appeal would run thus: a] The original plaintiff deceased Nachimuthu filed the suit seeking the following relief: - To direct the defendant to pay the suit amount of Rs.5,15,606/-and future interest at 24% per annum on Rs.3,00,000/- from the date of suit till payment and for costs. (extracted as such) b] The defendant filed the written statement resisting the suit. c] The trial court framed the issues. d] During trial, the plaintiff examined himself as P.W.1 along with PW2 and marked Exs.A1 to A12. The defendant examined himself as D.W.1 and marked Exs.B1 to B5. e] Ultimately, the trial court dismissed the suit. f] Being aggrieved by and dissatisfied with the same, the original plaintiff Nachimuthu has preferred this appeal on various grounds. 4. The learned counsel for the appellant/plaintiff placing reliance on the grounds of appeal would advance his arguments, which could tersely and briefly be set out thus: (i) The lower court failed to apply the correct proposition of law in deciding the case. (ii) The respondent/defendant failed to discharge his initial burden of proof and even then, the trial court simply dismissed the suit, ignoring the presumption as contemplated under Sections 20 and 118 of the Negotiable Instruments Act. (iii) Even though the defendant pleaded that there were unauthorised chits conducted by the plaintiffs brother-in-law Marudhachalam; that the defendants wife was subscribing two such unauthorised chits and in that process he signed blank promissory notes and handed over the same to the said Maruthachalam, there was no proof to that effect. (iv) The contention of the defendant was a far fetched one, because the defendant would plead as though even before bidding the unauthorised chits, at the request of the said Maruthachalam the defendants blank signed promissory notes and cheque were given to him and that so far his wife never claimed back the subscribed amounts paid by her towards subscription. (iv) The contention of the defendant was a far fetched one, because the defendant would plead as though even before bidding the unauthorised chits, at the request of the said Maruthachalam the defendants blank signed promissory notes and cheque were given to him and that so far his wife never claimed back the subscribed amounts paid by her towards subscription. As such, totally an unbelievable defence was put forth by the defendant before the trial court; However, it was believed by the trial court and the case of the plaintiff was simply disbelieved, warranting interference in this appeal. 5. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants, the learned counsel for the respondent/defendant would pilot his argument, inviting the attention of this court to the various portions of the evidence and a thumb nail sketch of the same would run thus: a] The initial burden of proof cast upon the defendant was adequately discharged by the defendant by highlighting that the plaintiff was not having the financial wherewithal to lend such huge amount of Rs.3 lakhs to the defendant and that too, allegedly on a bare promissory note without even insisting for any immovable property security or for any guarantee from a third party. b] The income tax returns of the plaintiff were filed before the lower court, which would display and demonstrate that he was not financially sound to lend such a sum of Rs.3 lakhs to the defendant. c] The trial court correctly took into account the fact that there was no privity of contract at all between the plaintiff and the defendant and also the fact that in the connected criminal proceedings, the plaintiff herein met with his waterloo relating to the same issue and that there is nothing to find fault with the discerning judgment of the trial court. d] The deposition of PW1 was proved to be false by the defendant, as he contended in one breathe, as though he owned extensive agricultural properties and derived agricultural income and in another breathe, there are no agricultural properties in his name. Even in the income tax returns there was no reference to his agricultural income. d] The deposition of PW1 was proved to be false by the defendant, as he contended in one breathe, as though he owned extensive agricultural properties and derived agricultural income and in another breathe, there are no agricultural properties in his name. Even in the income tax returns there was no reference to his agricultural income. e] The plaintiff even by filing his pass book Ex.A12, could not establish that he had the financial wherewithal to the tune of Rs.3 lakhs to lend the same in favour of the defendant. f] The admitted case of the plaintiff was that he lent amounts to various persons and he also filed suits to recover the same. In the facts and circumstances of this case, the plaintiff could not have lent money in favour of the defendant and others, as his income tax returns as well as the pass book filed by him would show that he could not have possessed several lakhs. g) As such, the defendants case that the plaintiff is none but a name lender of his brother-in-law, who is a money lender as well as unauthorised chit foreman, stood proved and in such circumstances, there is no necessity to interfere with the trial court’s judgment. (h) The trial court being the court of first instance is the best court to appreciate the evidence and accordingly, it appreciated and arrived at the conclusion and there is no perversity or illegality in it. 6. The points for consideration are as under: 1.) Whether the trial court properly appreciated the scope of Sections 20 and 118 of the Negotiable Instruments Act and applied it in the factual circumstances of this case? 2.) Whether the concept burden of proof was properly applied in dismissing the suit? 3.) Whether the finding of the trial court that the plaintiff did not prove that he had financial wherewithal to lend a sum of Rs.3 lakhs is based on sound reasons and whether the reliance placed by it on the judgment of the criminal court in the related cheque transaction was proper? 4.) Whether there is any perversity or illegality in the judgment and decree of the trial court? 7. 4.) Whether there is any perversity or illegality in the judgment and decree of the trial court? 7. The indubitable and indisputable or at least the undeniable facts would run thus The defendant borrowed, according to the plaintiff, a sum of Rs.3,00,000/- and executed the suit promissory note Ex.A1 on 20.10.1998; subsequently the defendant committed default in paying the same and hence, the suit. 8. The thumb nail sketch of the averments in the written statement would be to the effect that the plaintiff had no financial wherewithal to lend such a huge sum of Rs.3,00,000/- to the defendant; that there was no privity of contract between the plaintiff and the defendant; the plaintiffs brother-in-law-Marudhachalam was in the habit of conducting unauthorised chits and the defendants wife was subscribing two such chits and in that process only the defendant was constrained to sign blank pro-note formats and also blank cheques, which the said Marudhachalam misused by filing the suits with the help of the plaintiff as his name lender. Accordingly, the defendant prayed for the dismissal of the suit. 9. At this juncture, I would like to fumigate my mind with the following decisions cited on both sides: (a) The learned counsel for the plaintiff would cite the following decisions: (i) 1996(1) CTC 613 of Madras High Court [Meenakshisundaram vs. N.Rangasami] (ii) 1999(3) SCC 35 [Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Payrelal] (iii)(2005) 1MLJ 116 of Madras High Court [M.Nallusamy vs. K.Subramaniam] (b) The learned counsel for the defendant cited the following decisions. (i) (1999) 3 SCC 35 [Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Payrelal] (ii) 2007-1-L.W.797 of Madras High Court [Swaminathan @ Selvam vs. M.Kumar] (iii) 2009(1) MWN(Cr.)DCC 45 of Madras High Court [Kalavally vs. Parthasarathy] 10. It is glaringly clear that both sides placed reliance on the Honourable Apex Courts decision reported in 1999(3) SCC 35 , [Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Payrelal] and certain excerpts from it would run thus: "(12.) 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. 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. 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 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. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and the Andhra Pradesh High Court in this regard. (13.) In the instant case, the existence of the consideration mentioned in the promissory note was denied by the defendant with reference to the circumstance which, according to him, showed the non-existence of such consideration. (13.) In the instant case, the existence of the consideration mentioned in the promissory note was denied by the defendant with reference to the circumstance which, according to him, showed the non-existence of such consideration. It was submitted that the parties to the litigation had been having business dealings and transactions with respect to import of steel including drum sheets. In or about August 1961, the defendant claimed to have offered to arrange to import for the consideration of 10,160 metric tonnes of steel drum sheets from U.S.A. on the terms and conditions contained in the letter dated 10-8-1961. The plaintiff was alleged to have accepted the offer and stated that the shipment of the materials would have to be made within the validity period of import licence issued in the name of the plaintiff and that all requisite formalities at the level of the authorities concerned would have to be complied within the time. The defendant claimed to have confirmed that the order placed by the plaintiff had been booked and requested the plaintiff to open the necessary letter of credit on the terms and conditions contained in the letter of the defendant dated 15-9-1961. The total price of the goods to be imported under the said import licence and the aforesaid arrangement with the plaintiff was about Rs 55,30,000. The plaintiff through its Director, Shri L.P. Goenka was stated to have represented to the defendant in October 1961 that until and unless the assurance or guarantee that deliveries would be made in time could be given, the letter of credit would not be opened by the plaintiff. Shri Goenka insisted that the defendant should either give a guarantee or provide some security for the due performance by the defendant of its obligation under the said arrangement for supply of goods under the letter of credit. It was further suggested that the defendant should execute a promissory note for the sum of Rs 6,20,000 by way of collateral security for payment to the plaintiff of damages, in any event, which the plaintiff might actually suffer in consequence of non-supply of the goods due to default on the part of the supplier. Eventually, the defendant in order that its reputation in the foreign market and that the foreign suppliers might not be injured, was compelled to agree to execute a promissory note for Rs 6,20,000 by way of collateral security. Eventually, the defendant in order that its reputation in the foreign market and that the foreign suppliers might not be injured, was compelled to agree to execute a promissory note for Rs 6,20,000 by way of collateral security. It was specifically pleaded that “on or about 11-10-1961, at the request of the plaintiff and on the express agreement or understanding between the plaintiff and the defendant as aforesaid, the defendant executed the promissory note for Rs 6,20,000 (which promissory note is the subject-matter of the suit) in favour of the plaintiff by way of collateral security for payment to the plaintiff of damages not exceeding, in any event, the said amount which the plaintiff might actually suffer in consequence of non-supply of goods due to default on the part of the foreign supplier”. Denying the consideration the defendant submitted: “The defendant states that in the premises there was no consideration for execution of the said promissory note by the defendant. No amount or value whatsoever was received by the defendant for the execution of the said promissory note. The defendant further states that in any event, the consideration, if any, (which is denied) for the said promissory note has failed. The same is no longer enforceable or binding on the defendant. The defendant has no liability whatsoever to the plaintiff on the promissory note or otherwise. The plaintiff has suffered no damages. Further, the said promissory note having been given and accepted as collateral security, the plaintiff is not entitled to sue thereon without suing for damages, if any, actually suffered and then only to the extent of such damages up to a maximum of Rs 6,20,000.” (14.) A perusal of the written statement of the defendant would clearly and unambiguously show that to disprove the consideration of the promissory note, he had brought certain circumstances to the notice of the Court which he wanted to probabilise by leading evidence. The evidence led by the defendant in that regard was not accepted by any of the Judges dealing with the case as noticed herein earlier. In the absence of disproving the existence of the consideration, the onus of proof of the legal presumption in favour of the plaintiff could not be shifted. The evidence led by the defendant in that regard was not accepted by any of the Judges dealing with the case as noticed herein earlier. In the absence of disproving the existence of the consideration, the onus of proof of the legal presumption in favour of the plaintiff could not be shifted. It is true that the plaintiff had produced evidence in the case and that evidence was, in fact, the evidence in rebuttal of the evidence produced by the defendant in the case. After holding Issue 1 to have not been proved, the High Court was not justified in holding that the defendant had discharged the onus of proof of Issue 2. In fact, both the issues were required to be decided together which was not done with the result that miscarriage of justice crept into the proceedings depriving the plaintiff of its rights on account of the pendency of this litigation in the courts for a period of about four decades now. The technicalities of law and procedural wrangles deprived the plaintiff of its due entitlement. The justice claimed by the plaintiff was buried under heaps of divergent legal pronouncements on the subject conveyed and communicated in sweetly-coated articulate language and the oratory of the persons which is shown to have been resorted to present the rival claims. The approach adopted by the majority of the Judges in dealing with the case was contrary to the basic principles governing the law relating to negotiable instruments. Faith of the business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles as appears to have been done in the instant case. Even though it is true that the plaintiffs evidence was not believed yet we are of the opinion that the same could not be made the basis for rejecting its 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 has prima facie or initially not discharged his onus of proof by showing directly or probabilising the non-existence of consideration. (15.) We do not agree with the submission of the learned counsel for the defendant that Issues 1 to 3 were based upon different pleas raised in the defence. (15.) We do not agree with the submission of the learned counsel for the defendant that Issues 1 to 3 were based upon different pleas raised in the defence. In the contextual circumstances, we find that all the three issues were based upon the plea relating to non-existence of consideration, namely, the promissory note allegedly having been procured by the plaintiff as a collateral security and not for the purpose which was mentioned in it, namely, ‘for value received’. The finding that the plaintiff had failed to prove the case despite holding that the defendant had not discharged his initial burden of proving the non-existence of consideration amounted to negating the presumption arising under Section 118(a) of the Act." 11. I would also like to extract here under Section 20 as well as Section 118 of the Negotiable Instruments Act for ready reference. "Section 20: Inchoate stamped instruments - Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India] and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. Section 118- Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made:- (a) of consideration - that every 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; (b) as to date - that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance - that every accepted bill or exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements - that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp - that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course -that the holder of a negotiable instrument is a holder in due course Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him." 12. A cumulative reading of the cited precedent of the Honourable Apex Court and the aforesaid provisions of the Negotiable Instruments Act would unambiguously and unequivocally highlight and spotlight the fact that in the event of the plaintiff capable of ushering in Section 118 of the Negotiable Instrument Act, the initial burden is on the defendant to establish at least by preponderance of probabilities, that there was no passing of consideration under the promissory note, whereupon only the burden would get shifted to the plaintiff to prove that actually the negotiable instrument was supported by consideration. 13. I am fully aware of the fact that mere admission of signature of a party in a suit pro-note would not amount to execution of the promissory note. 14. The learned counsel for the appellants/plaintiff, by placing reliance on Section 20 of the Negotiable Instruments Act, would develop his argument that this is a case where the defendant signed a pro-note printed format and not a mere stamped blank paper, capable of being converted into a negotiable instrument. The defendant, as D.W.1, candidly and categorically admitted the fact that he signed the printed pro-note format and also filled the address portion after signing it. 15. No doubt, DW1 disputed the contents having been filled up by him. Once the defendant did choose to put his signature consciously and that too, in a stamped pro-note formate knowing that it was a pro-note format, then it would tantamount to giving carte blanche to the person to whom it was handed over, to fill up the blanks on par with the stamps thereon. Wherefore, I am of the considered view that the initial burden, as per law, was cast on the defendant to prove that the promissory note was not supported by consideration. 16. The other two decisions cited on the side of the defendant are in pari materia with the judgement rendered by the Honble Apex Court and I need not dilate on that. 17. The learned counsel for the defendant, inviting the attention of this Court to the deposition of P.W.1, would develop his arguement that P.W.1 himself had given a go-by to his theory that he owned agricultural lands. 18. No doubt, the plaintiff as P.W.1 in his deposition would admit that only his father was owning 9 acres of land and not himself. 19. 18. No doubt, the plaintiff as P.W.1 in his deposition would admit that only his father was owning 9 acres of land and not himself. 19. The core question arises as to whether from that evidence it could be inferred that the plaintiff could not have derived income from the agricultural lands. There is nothing to indicate that there was any estrangement between the plaintiff and his father. The plaintiff would claim that he had the probability opportunity of coming into possession of such agricultural income and that he did possess it. 20. The learned counsel for the defendant, by inviting the attention of this Court to Exs.A5 to A10-the Income Tax Returns would submit that those returns would clearly demonstrate and display that at no point of time the plaintiff had at his disposal a sum of Rs.3,00,000/-, as against which, the learned counsel for the plaintiff would place reliance on Ex.A12-the Bank pass-book of the plaintiff, which would evince and evidence that the plaintiff, on his voluntary retirement as Supervisor in Lakshmi Mills, received a sum of Rs.2,58,000/- and odd and that he withdrew from out of it, a sum of Rs.50,000/- on 5.10.1998 and Rs.2,00,000/-on 9.10.1998, so to say, within a short space of time, before the emergence of Ex.A1-the promissory note dated 20.10.1998. It is also the case of the plaintiff that he is a LIC agent, which fact is found well fortified. 21. The learned counsel for the defendant would submit that there is nothing to indicate that the plaintiff had Rs.3,00,000/- shortly before the alleged date of lending. 22. At this juncture, I would like to point out that preponderance of probabilities would govern the adjudication in civil cases. The plaintiff positively placed before this Court the evidence that within ten days before such lending of the amount by him to the defendant, he was in possession of the amount more than Rs.2,50,000/-. 23. It is also a fact that the plaintiff was working as LIC agent and his father was owning extensive agricultural properties and there was likelihood of himself deriving agricultural income and all those facts, even by phantasmagorical thoughts, cannot be poohpoohed or belittled, discarded or dispelled as purely imaginary or whimsical, mendacious or fallacious. 24. 23. It is also a fact that the plaintiff was working as LIC agent and his father was owning extensive agricultural properties and there was likelihood of himself deriving agricultural income and all those facts, even by phantasmagorical thoughts, cannot be poohpoohed or belittled, discarded or dispelled as purely imaginary or whimsical, mendacious or fallacious. 24. Whereupon, the learned counsel for the defendant would put forth an argument to the effect that P.W.1 in his deposition admitted that he filed certain other suits also for recovery of money lent by him. According to the learned counsel for the defendant there was no knowing as to how the plaintiff having only a sum of Rs.2.50 lakhs, during 1998, could have lent money to various persons running to multiple lakhs. 25. This Court is concerned with the evidence available on record. So far this case is concerned, there is nothing to indicate that the amount which is found specified in Ex.A12-the pass book and also the income stated to have derived from the agricultural lands, as pleaded by the plaintiff also were pleaded in other cases as the source for lending other amounts to other persons. 26. The learned counsel for the plaintiff would appropriately and appositely, and that too, legally submit that this Court is concerned only with this case and each case has to be decided on its own merits. 27. I would like to agree with such a submission made by the learned counsel for the plaintiff. So far this case is concerned, the evidence available on record on the side of the plaintiff would be sufficient for the Court to hold that the plaintiff had the financial ability to lend the sum of Rs.3,00,000/- as on 20.10.1998. 28. The learned counsel for the defendant, by placing reliance on Ex.B1-the copy of the judgment in the criminal proceedings, would contend that the related cheque alleged to have been issued by the defendant in favour of the plaintiff was disbelieved by the Criminal Court in the proceedings under Section 138 of the Negotiable Instruments Act and in such a case, the plaintiffs case is having no legs to stand before this Court and contend in support of the averments in the plaint. 29. Both sides in unison would submit before this Court certain other facts orally. 29. Both sides in unison would submit before this Court certain other facts orally. Consequent upon the decision rendered by the criminal Court, criminal appeal was filed before this Court and in that this Court convicted the defendant herein and imposed sentence, as against which, the defendant approached the Honourable Apex Court, which on certain conditions suspended the sentence. As such, de hors Ex.B1, which refers to the criminal proceedings, this Court has to independently decide this matter for which there is no embargo. 30. Trite the proposition of law is that witnesses might lie but the circumstances would not do so. It is the specific case of the defendant that his wife subscribed two unauthorised chits run by Marudhachalam-the brother-in-law of the plaintiff and even before bidding those chits by the defendants wife, the said Marudhachalam insisted upon the defendant to sign in blank promissory notes as well as in cheques by way of security and only in that context, the defendant was constrained to sign those papers. 31. It is also the case of the defendant that the defendants wife paid the full subscription relating to those chits, but so far the defendants wife has not made any steps to recover the amount even though Marudhachalam did not return it. The defendants wife was not examined as a witness in this case so as to probabilise his case even though the very defence plea is centered on her. The best available evidence should not be withheld, is the run of the mill proposition. In this factual matrix, I could observe that the defendant before putting forth his plea should have thought on his feet and his plea is economical with truth. The lower court could not see the wood for trees. 32. To the risk of repetition and pleonasm, but without being tautologous, I would like to observe that it is open for the defendant to take any plea, but it should be in conformity with probability. The very plea of the defendant, in my opinion, is too big a pill to swallow. No doubt, at times truth may be stranger than friction. But civil Courts should go by preponderance of probabilities in adjudicating the lis. 33. The very plea of the defendant, in my opinion, is too big a pill to swallow. No doubt, at times truth may be stranger than friction. But civil Courts should go by preponderance of probabilities in adjudicating the lis. 33. I am at a loss to understand as to why the defendant should sign allegedly the blank documents, even though the defendants wife did not bid the chits and obtain any amount. Normally, the Courts have come across instances where the unauthorised chit holders, did obtain from the successful bidders certain security for the purpose of making them to pay properly their remaining subscriptions due payable under the chit. But in this case, the very plea of the defendant itself appears to be very strange as strangeness could be. 34. Over and above that no person, who paid the entire subscriptions would keep quiet without claiming the amount back from the foreman. Admittedly, the defendants wife was not the bidder also. As such, these are all creating serious doubt about the genuineness of the plea of the defendant and hence, I would like to hold that the defendant failed to discharge his initial burden. 35. Even for argument sake it is taken that the primary burden was on the defendant or that the burden got shifted from the defendant to the plaintiff, yet the available evidence, as discussed supra, would speak in support of the plaintiffs case. 36. No doubt, the lower Court, being the Court which had the opportunity of observing the demeanor of the witnesses, held against the plaintiff, but it has to be seen as to how far the lower Court was justified in dismissing the suit. 37. The trial Court was very much carried away by certain answers given by P.W.1. One such answer was that P.W.1 was not in possession of any evidence to prove his agricultural income. Normally, agriculturists will not have any documentary evidence to prove their agricultural income, except by pointing out their cultivation of land. 38. Here the plaintiff as P.W.1 candidly and categorically, without mincing words admitted the fact that his father was owning nine acres of land and from that he could have got agricultural income. Agricultural income is not taxable, also. 39. 38. Here the plaintiff as P.W.1 candidly and categorically, without mincing words admitted the fact that his father was owning nine acres of land and from that he could have got agricultural income. Agricultural income is not taxable, also. 39. The learned counsel for the plaintiff would try to explain and expound that there is nothing that the plaintiff should not keep the agricultural income as savings, without disclosing it in the income tax returns. 40. Once an income is not taxable, I do not think that such income also should be disclosed in the tax returns. Section 10(1) of the Income Tax Act, 1961 would unambiguously and unequivocally mandate that agricultural income shall not be included in the total income. 41. At paragraph No.14 of the lower Courts judgment it could be seen that the trial Court placed reliance on the criminal proceedings. 42. It is a common or garden principle of law that in civil case, what happened and transpired, occurred and litigated before the criminal Court is not relevant and germane. Time and again the Honourable Apex Court pointed out that civil proceedings are different from criminal proceedings, as the adjudication in civil matter is based on preponderance of probabilities, whereas, adjudication in criminal cases is based on the principle that the accused is presumed to be innocent and the guilt of the accused should be proved to the hilt and the proof should be beyond all reasonable doubts. As such, the reliance placed by the trial Court on criminal proceedings relating to bounced cheque in deciding the civil case was not correct. 43. The trial Court also took into account the happenings in one other civil proceedings between the plaintiffs brother-in-law-Marudhachalam and the defendant herein. In my opinion those facts are not germane for deciding this case. As such, I am of the considered view that the trial Court was not justified in dismissing the suit in the facts of this case. Accordingly, the points are decided in favour of the appellants/plaintiffs and as against the respondent/defendant. 44. However, I am of the considered view that the plaintiffs claim for 24% interest per annum from the date of borrowal till realization is exorbitant. 45. No doubt, in the suit pro-note it is found recorded that the amount lent was for business purpose but there is no specification as to what business etc. 46. 44. However, I am of the considered view that the plaintiffs claim for 24% interest per annum from the date of borrowal till realization is exorbitant. 45. No doubt, in the suit pro-note it is found recorded that the amount lent was for business purpose but there is no specification as to what business etc. 46. The learned counsel for the plaintiff would submit that claiming 24% interest is not unconscionable or usurious. 47. I am of the opinion that a private party like the plaintiff was not justified in demanding interest at the rate of 24% per annum from the defendant and that too without any detail as to the nature of the business. Wherefore, it is just and proper to award only 18% per annum from the date of pr-note till the date of suit and pendente lite, the interest could be at 12% per annum and post decreetal interest could be at 6% per annum on the principal amount of Rs.3,00,000/-(Rupees three lakhs only) and accordingly, the suit shall stand decreed as under The defendant shall pay a sum of Rs.3,00,000/-(rupees three lakhs) with interest at the rate of 18% per annum from the date of promissory-note till the date of suit and at 12% interest per annum from the date of suit till the date of decree and at 6% from the date of decree date till realization with proportionate costs throughout. 48. Accordingly, the appeal is allowed and the judgment and decree of the trial Court is set aside. However, there is no order as to costs.