JUDGMENT P. DEVADASS, J. 1. In the Trial Court defendant won and in the 1st Appellate Court plaintiff won. In this Court, who is going to win, which we will decide appreciating the arguments of both sides and perusing the records of the case as well as the Judgments of the Courts below and also the decision cited. 2. It is a suit for recovery of money, instituted by the respondent/plaintiff based on Ex.A1, promissory note, dated 12.12.2000, for the principal sum of Rs. 23,000/- together with interest at the rate of 12% per annum, totaling to Rs. 29,210/-. The suit has been instituted, after the issuance of Ex.A2, notice, which has been acknowledged by the defendant under Ex.A3. 3. In the written statement, the defendant denied his execution of Ex.A1 and also disputed passing of consideration. 4. The Trial Court appreciated the evidence of P.Ws.1, 2 and D.W.1. It had doubted the execution of Ex.A1 and thus dismissed the suit. 5. However, 1st Appellate Court viewed the entire evidence from different angle. It believed the execution of Ex.A1 based on the evidence adduced and it had disbelieved the case of the defendant, thus, allowed the appeal and decreed the suit. 6. In the circumstances, the defeated defendant is before us. 7. The learned counsel for the appellant would contend that Ex.A1, which is stated to be a promissory note, it is not so, does not answer the description of a promissory note. Further, different reasons have been stated in Ex.A1, in plaint, in the evidence of P.Ws.1 and 2 as to the purpose of the borrowel. P.W.2 is not sure when he has signed in Ex.A1 as attestor. Further, the year 2000 has been overwritten as 2006, thus, it is a material alteration. Further, full address has not been given in Ex.A1. Under the circumstances, the learned counsel for the appellant would submit that the plaintiff has not proved execution of Ex.A1. 8. On the other hand, the learned counsel for the respondent would submit that Ex.A1 has been endorsed on an adhesive stamp paper. It has all the essential ingredients of the promise to pay unconditionally which will fall under Section 4 of the Negotiable Instruments Act. In support of his contention, the learned counsel for the respondent would cite Essaki and another vs. S. Royappan, 1990 (2) MLJ 540 . 9. It has all the essential ingredients of the promise to pay unconditionally which will fall under Section 4 of the Negotiable Instruments Act. In support of his contention, the learned counsel for the respondent would cite Essaki and another vs. S. Royappan, 1990 (2) MLJ 540 . 9. The learned counsel for the respondent further submitted that the execution of Ex.A1 promissory note was in the year 2000, while the P.Ws. deposed in 2007, as human memory is not infallible as age goes, there is fading away of memory. However, the Trial Court blown out of proposition certain inconsequential matters as though they are very-very important matters, completely thrown away the plaintiff's case. P.W.2, scribe, is an illiterate. That is how the difficulty in writing Ex.A1. Top of it all, there is no reply from defendant to plaintiff's suit notice Ex.A2, which contains all the details of the plaintiff's case. 10. Ex.A1 is not in regular printed form of promissory note. It has been endorsed on a stamp paper. Execution in such stamp paper is valid (See – Essaki's 1990 (2) MLJ 540 ). 11. The essential ingredients for a promissory note under Section 4 of the Negotiable Instruments Act is that there must be promissor, promissee and unconditional promise to pay on demand. Ex.A1 contains all these characteristic features. Thus, it is a promissory note. 12. There were lot of confusion fairly for a long time as to the proving and disproving of a negotiable instrument, because of several conflicting decisions. In Bharat Barrel & Drum MFG. Go. vs. Amin Chand Payrelal, 1999 (3) SCC 35 , the Honourable Apex Court laid down guidance with regard to proving and disproving of a negotiable instrument and application of Section 118 of Negotiable Instruments Act. The dictum of the Apex Court is that it is the first and foremost duty of the plaintiff to prove due execution of the promissory note. Once, it is so proved, arising of Section 118 of N.I. Act is automatic, which will also imply as to the passing of consideration, date, name, time etc. It creates a presumption. Such presumption has been created by law, so it is a legal presumption. However, the word employed is may so it is rebuttable. Once, it is so proved, arising of Section 118 of N.I. Act is automatic, which will also imply as to the passing of consideration, date, name, time etc. It creates a presumption. Such presumption has been created by law, so it is a legal presumption. However, the word employed is may so it is rebuttable. The defendant by setting up a probable defence can refute the legal presumption, but to do so he need not let in any direct evidence, but he must show the non-existence of consideration to the Court by factual matrix or circumstances of the case, which can be culled out even from the mouth of the plaintiff and his witnesses. 13. The plaintiff's initial burden is to prove the execution and the defendant's initial burden is to disprove the legal presumption arising under Section 118. Once, execution of the promissory note is displaced by the defendant, again the position will revert back to the plaintiff to prove the execution. Once the defendant failed to disprove the presumption arose under Section 118 of Negotiable Instruments Act it will stand as it is. 14. P.W.1 elaborately spoken to about the execution of Ex.A1 by defendant in his favour. P.W.2 also stated about execution of Ex.A1. In material particulars, there is no difference in the evidence of P.Ws.1 and 2. Of course, there is inconsistency in their evidence as to the purpose of loan as stated in the plaint and in Ex.A1. Further, they gave certain contradictory answers as to the time and place. The promissory note was executed during 2000, but they have deposed in 2007. By the passage of time, human memory may fall. But, P.Ws.1 and 2 have deposed about the essential aspects of execution of Ex.A1. 15. Proof of fact and fact in issue in a civil case has to be decided by preponderance of probabilities. In a criminal case an offence is to be proved beyond all reasonable doubts. In this case, the Trial Court followed proving a criminal case. It has misdirected itself. Considering the evidence adduced by the plaintiff, due execution of Ex.A1 is proved. Thus, legal presumption under Section 118 of the Negotiable Instruments Act arises. 16. The plea of the defendant is total denial. He disowned his signature in Ex.A1. No significant dent has been made by the defendant in the evidence of P.Ws.1 and 2. It has misdirected itself. Considering the evidence adduced by the plaintiff, due execution of Ex.A1 is proved. Thus, legal presumption under Section 118 of the Negotiable Instruments Act arises. 16. The plea of the defendant is total denial. He disowned his signature in Ex.A1. No significant dent has been made by the defendant in the evidence of P.Ws.1 and 2. Purposes of borrowel have been given in Ex.A1. That is enough. 17. There is no plea in the written statement that the promissory note is caught by the vice of material alteration. When we examine Ex.A1 from top to bottom, except an overwriting 0' in the year 2000, everything is alright. Even, the month and year has been correctly mentioned. Even below his signature, date has been correctly mentioned by D.W.1. So, it is evident that P.W.2 is an illiterate and he made some overwriting over the number 2006. This will not be a material alteration. 18. Plaintiff issued Ex.A2 notice to the defendant, which has been acknowledged by him under Ex.A3. However, the defendant chose not to reply. He preferred to keep mum. He opened his mouth only for the first time, when he filed the written statement. His explanation for non-reply is ex-facie a cock and bull story. 19. Section 73 of the Evidence Act empowers the Court to compare the disputed signature with the admitted signature. But, there are decisions that the lawyers and Judges are not experts in science. In such circumstances, examination of the disputed signature by an expert vide Section 45 of the Evidence At has been stated, but, even then the evidence given by an expert is his opinion. Opinion will be preferred to the evidence of witnesses. 20. In the instant case, apart from the clear cut evidence of P.Ws.1 and 2 and unacceptability of the defence pleaded by the defendant in the written statement and his evidence, there is non-reply by the defendant to plaintiff's suit notice Ex.A2. A totality of all these would go to show that the defendant has not displaced the legal presumption under Section 118 N.I. Act. 21. Considering all these aspects, we accept the case of the respondent/plaintiff and reject the case of the appellant/defendant. This second appeal does not present any substantial question of law. 22. In the result, this appeal fails and it is dismissed. 21. Considering all these aspects, we accept the case of the respondent/plaintiff and reject the case of the appellant/defendant. This second appeal does not present any substantial question of law. 22. In the result, this appeal fails and it is dismissed. The Judgment and Decree of the 1st Appellate Court is upheld. However, in the facts and circumstances of the case, parties are left to bear their respective costs in the second appeal. Consequently, connected miscellaneous petition is closed.