JUDGMENT : Aggrieved over the dismissal of the suit filed for recovery of a sum of Rs.10,82,250/- with subsequent interest at 12% per annum on a pronote dated 1.7.2009, the present appeal came to be filed by the plaintiff. For the sake of convenience, the parties are arrayed as per their own ranking before the trial Court. 2. Brief facts of the plaintiff's case is as follows:- The defendant has borrowed a sum of Rs.9,75,000/- on 1.7.2009 from the plaintiff, to meet her business and family requirements, and executed a promissory note in favour of the plaintiff, agreeing to repay the same on demand with interest at 12% per annum. Thereafter, the defendant had been avoiding the plaintiff and she had never paid any interest so far and when the plaintiff approached the defendant during the second week of May 2010 and demanded the principal sum back together with accrued interest up to date, she was quoting lame excuses. Hence, the plaintiff has issued a legal notice on 17.5.2010. However, the defendant has not chosen to repay the amount but she had sent a false reply. Hence the suit. 3. The defendant in the written statement denying the borrowal of Rs.9,75,000/- and execution of pronote. It is the contention of the defendant that there was no privity of contract between the plaintiff and defendant. She does not even know the plaintiff. She never borrowed any money from the plaintiff nor executed any pronote in favour of the plaintiff. The pronote is a fabricated one. While there was cordial relationship between defendant and her husband, her husband obtained her signature and thumb impression in blank stamp papers, plain papers and cheques for the purpose of business transaction. Her husband and one Vetrivel were close friends. As soon as the defendant came to know about the fact that her husband had handed over some blank documents to Vetrivel, she had issued legal notice to the said Vetrivel on 4.3.2010 and 4.5.2010 and also issued a publication on 5.5.2010, in this regard. Besides this the defendant has also filed a suit against the said Vetrivel in respect of Minor's property in O.S.No.36 of 2010. The said Vetrivel, taking advantage of the signature and thumb impression of the defendant available in the blank paper, had created a forged document and filed this suit. Hence, she prays for dismissal of the suit. 4. Besides this the defendant has also filed a suit against the said Vetrivel in respect of Minor's property in O.S.No.36 of 2010. The said Vetrivel, taking advantage of the signature and thumb impression of the defendant available in the blank paper, had created a forged document and filed this suit. Hence, she prays for dismissal of the suit. 4. On the basis of the above pleadings, the following issues were framed by the learned trial Court:- 1. Whether the plaintiff is entitled to recover sum of Rs.9,75,000/- with subsequent interest at the rate of 12% p.a. till date of realization? 2. Whether the suit pronote dated 1.7.2009 is forged as stated in the statement? 3. To what relief if any the plaintiff is entitled to? 5. On the side of the plaintiff P.W.1 to P.W.3 were examined and marked documents Ex.A1 to A4. On the side of the defendant D.W.1 was examined and marked documents Ex.B1 to B3. 6. The learned trial Court on the basis of the evidence and materials, came to the conclusion that the plaintiff failed to prove the execution of documents and also the passing of consideration of Rs.9,75,000/- and accordingly, dismissed the suit. Aggrieved over the same, the present appeal came to be filed by the plaintiff. 7. The main contention of the learned counsel for the appellant is that the learned trial Court has wrongly placed burden on the plaintiff to prove the execution of pronote by the defendant. P.W.1 to P.W.3 have categorically spoken about the execution of the pronote. Once the execution is proved, the burden shifts on the defendant to rebut the same. But absolutely there is no evidence whatsoever available on record to show that the defendant has brought on evidence to dislodge the legal presumption attached to the pronote. Hence, it is the contention of the learned counsel for the appellant that P.W.1 to P.W.3 have not only spoken about the execution of the pronote but also spoken about the passing of consideration. Therefore, the learned trial Court has wrongly placed burden on the plaintiff. Hence, prayed for allowing the appeal. In support of his contention, the learned counsel for the appellant has relied upon the judgment reported in Murugesan v. Subramania Gounder [ 1997 (III) CTC 478 ]. 8. Therefore, the learned trial Court has wrongly placed burden on the plaintiff. Hence, prayed for allowing the appeal. In support of his contention, the learned counsel for the appellant has relied upon the judgment reported in Murugesan v. Subramania Gounder [ 1997 (III) CTC 478 ]. 8. It is the contention of the learned counsel for the Respondent that the defendant is a house wife borrowing such huge amount of Rs.9,75,000/- is highly improbable. The plaintiff is a Real Estate Broker advancing such huge amount is highly improbable. P.Ws. 1 to 3 are interested witnesses and they are close friends to the plaintiff. Therefore, their evidence alone is not sufficient to prove execution of pronote. P.W1's evidence also clearly show that passing of consideration is highly improbable and it is also admitted that one Vetrivel is conducting the case. The same is probablize the case of the defendant. Hence, submitted that the learned trial Court has assessed the entire evidence on record and came to the right conclusion and hence prayed for dismissal of the suit. 9. In the light of the above submissions, now the points that arise for consideration are:- 1. Whether the pronote dated 1.7.2009 is duly executed by the defendant? 2. Whether the pronote is not supported by any consideration? 3. Whether the plaintiff is entitled for recovery of suit amount? 4. To what relief ? 10. Points 1 to 4:- It is the definite case of the plaintiff that the defendant has borrowed a sum of Rs.9,75,000/- from the plaintiff on 1.7.2009 and she has executed a pronote in favour of the plaintiff agreeing to repay the same on demand with interest at 12% per annum. It is well settled that initial burden is always on the plaintiff to prove the execution of the pronote. Once execution of the pronote is proved by the plaintiff then the statutory presumption available under Section 118 of the Negotiable Instruments Act comes into operation in favour of the plaintiff as to passing of consideration as to date etc. But the defendant may also dislodge the statutory presumption. To dislodge the legal presumption the defendant need not always produce direct evidence. Even the circumstance or preponderance of probabilities itself is sufficient to dislodge the legal presumption attached to the defendant. But the defendant may also dislodge the statutory presumption. To dislodge the legal presumption the defendant need not always produce direct evidence. Even the circumstance or preponderance of probabilities itself is sufficient to dislodge the legal presumption attached to the defendant. Once the defendant is able to show that preponderance of probabilities to dislodge the legal presumption the burden again shifts on the plaintiff to establish the passing of consideration. 11. In the light of the above settled principles of law, now the pleadings when carefully perused, it is the case of the plaintiff that the defendant has executed a pronote Ex.A1 on 1.7.2009. In entire evidence P.W.1 has spoken about the execution of the pronote by the defendant. Apart from that P.W.2 one Smt. Santhi said to be the attesting witness in the pronote and P.W.3 the scribe of the pronote Mr.Mohankumar were also examined on the side of the plaintiff. P.W.2 has asserted that pronote was executed by the defendant on 1.7.2009 in the house of the plaintiff besides signing the document, she put her thumb impression. P.W.3 has also asserted that he obtained the signature as well as thumb impression of the defendant on the pronote. The evidence of P.W.2 and P.W.3 though indicate that they are close friends of P.W.1, they seen the defendant for the first time only on the date of execution of the Ex.A1 pronote. They have clearly spoken about the witnessing the defendant signing the document in their presence. The purpose of examination of the attesting witnesses is to prove the identity of the person who put the signature on the document. The evidence of P.W.2 and P.W.3 clearly show that the defendant has signed the document Ex.A1 at the relevant time. On a careful perusal of the pronote Ex.A1 coupled with the evidence of P.Ws. 2 and 3 this Court could safely conclude that Ex.A1 has been duly executed by the defendant and the initial burden on the part of the plaintiff has been discharged in proving the execution of the pronote. 12. In view of the same, now the onus shifts on the defendant to show that there is no passing of consideration. The statutory presumption available under Section 118 can be rebutted, for such rebuttal there need not be any direct evidence. Any circumstance or preponderance of probabilities itself is sufficient to dislodge the legal presumption. 12. In view of the same, now the onus shifts on the defendant to show that there is no passing of consideration. The statutory presumption available under Section 118 can be rebutted, for such rebuttal there need not be any direct evidence. Any circumstance or preponderance of probabilities itself is sufficient to dislodge the legal presumption. In the above background the evidence of P.W.1 when carefully seen though P.W.1 has stated in the chief examination that the defendant had borrowed Rs.9,75,000/- for her business and family requirements, on 1.7.2009 and executed pronote, his chief examination is contradictory with the cross-examination. The cross-examination of P.W.1 when carefully perused P.W.1 has admitted that the defendant is a house-wife and she was not doing any business and her husband was doing business. Whereas P.W.1 in his chief-examination and pleadings has pleaded as if the defendant has borrowed money for her business and family requirements. Cross-examination of P.W.1 itself clearly show that she is only house-wife, she is not doing any business. Similarly, cross-examination of P.W.1 also clearly show that only her husband alone doing business and demanded the amount for the repair of the vehicle and also for education expenses of his son and therefore, he has advanced money. The cross-examination of P.W.1 when carefully seen the same would clearly indicate that the defendant has never demanded any amount from the plaintiff at that point of time. The contradictory evidence of P.W.1 itself clearly show that the alleged passing of consideration on the pronote executed by the defendant is highly doubtful. This fact is further fortified by the fact that in Ex.A1 pronote the address of the defendant was shown as if she was residing at Door No.53, Vijayaraghavan Nagar, Jakir Amma Palayam. This pronote is said to have been executed on 1.7.2009. The cross-examination of P.W.1 clearly show that the defendant in fact was not residing in the address mentioned in the pronote and she was residing at Omalur Road, Salem, behind the Petrol Bunk for the past four years. The evidence of P.W.1 in the cross-examination was recorded on 16.3.2011 i.e., two years from the date of pronote. If really the defendant was residing at Salem for the past four years, at the relevant time there was no need for the plaintiff to mention a different address of the defendant in the pronote. The evidence of P.W.1 in the cross-examination was recorded on 16.3.2011 i.e., two years from the date of pronote. If really the defendant was residing at Salem for the past four years, at the relevant time there was no need for the plaintiff to mention a different address of the defendant in the pronote. This aspect is clearly create doubt as to passing of consideration. 13. It is further to be noted that P.W.1 was doing Real Estate Broker business and his evidence also shows that he does not have any record to show that he was doing the said business. He never involved in the money transaction and he knows the defendant's husband since he has arranged to purchase one vehicle to the husband of the defendant. Further his evidence also shows that only the defendant's husband has requested to advance money at the relevant time. The defendant was not doing any business. When all these facts taken together, advancing huge amount of Rs.9,75,000/- to the defendant who is the house-wife, without any business on her own, is highly doubtful. It is also the admission of P.W.1 that after this case one Sampath has also filed a case against the defendant on the basis of a cheque and also admitted that one Vetrivel is financing for conducting this suit. 14. P.W.2 in her evidence though spoken about the signing of the document by the defendant, the cross-examination of P.W.2 clearly shows that her evidence also doubtful about the entire transaction. She is not even able to remember her own door number. Further, from evidence of P.W.2 and P.W.3 it is very clear that they have seen the defendant only for the first time at the time of execution of pronote. Be that as it may, the evidence of P.W.1 itself shows that passing of consideration is highly improbable in this case. The evidence of P.W.1 itself show that he has advanced money only as requested by the husband of the defendant and not by the defendant. All these facts clearly show that passing of consideration has not been proved in a manner known to law. The improbabilities found in the evidence on the side of the plaintiff itself clearly dislodge the legal presumption attached to Ex.A1. All these facts clearly show that passing of consideration has not been proved in a manner known to law. The improbabilities found in the evidence on the side of the plaintiff itself clearly dislodge the legal presumption attached to Ex.A1. Though the execution of pronote has been proved by examining P.W.2 and P.W.3, the factum of passing of consideration has not been established by the plaintiff. Therefore, once the pronote is found to be without consideration does not create an obligation of payment between the parties to the transaction as per Section 43 of the Negotiable Instruments Act. In Kundan Lal v. Custodian, Evacuee property [ AIR 1961 SC 1316 ], the Hon'ble Apex Court has held as follows:- "Section 118 lays down a special rule of evidence applicable to negotiable instrument. The presumption is one of law and thereunder a court shall presume inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect, it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be.” 15. The question how the burden can be discharged is stated in Chapter XII of the Evidence Act. It has two meanings: one, the burden of proof as a matter of law and pleading and the other the burden of establishing a case. From the above judgment to dislodge the burden even admission in the oral evidence of the opposite party itself is sufficient. 16. The learned counsel for the appellant has placed reliance upon the judgment of this Court reported in R.Kamaiam v. K.K.Kumarasamy [ 2008 (2) CTC 177 ]. A perusal of the above judgment makes it clear that the defendants did not make any evidence to establish their plea. Since the oral evidence was not sufficient this Court has decreed the suit on pronote. Whereas in this case the circumstances and admission of P.W.1 itself clearly dislodge the legal presumption attached to Ex.A1. Hence the above judgment is not applicable to the facts of the present case. 17. The circumstances brought out in the cross-examination of P.W.1 clearly show that the defendant has dislodged the legal presumption. Therefore, the burden again shifts on the plaintiff to prove the passing of consideration. Hence the above judgment is not applicable to the facts of the present case. 17. The circumstances brought out in the cross-examination of P.W.1 clearly show that the defendant has dislodged the legal presumption. Therefore, the burden again shifts on the plaintiff to prove the passing of consideration. Absolutely there is no materials and evidence available on record to show that the plaintiff had capacity to pay the huge amount of Rs.9,75,000/- at the relevant time. No bank account or passbook has been filed to show that in fact he had capacity to mobilize such huge funds. Ex.B1 is the publication issued by one Vetrivel against the defendant in respect of some agreement. This publication was issued on 30.4.2010. Ex.B2 is also a publication issued by the defendant as against Ex.B1. Ex.B3 has been filed to show that one Sampath said to be close friend of Vetrival also filed another case against the defendant. Though these documents were not germane for consideration the admission of P.W.1 that Vetrivel is also interested in the case clearly probabilize the defence theory that the plaintiff is only name lender and he has failed to prove the passing of consideration. Therefore, Ex.A1 cannot be enforceable in the Court of law. The points are answered accordingly. 18. In the result, the appeal is dismissed with costs. The judgment and decree of the trial Court is confirmed. Consequently, C.M.P.No.1 of 2011 is closed.