JUDGMENT : A.K. Rath, J - This appeal is by the plaintiff. 2. Plaintiff instituted the suit for realisation of Rs.73, 945.90 ps. along with P.I and F.I from the defendants along with certain other reliefs. The plaintiff is a Nationalized Bank constituted under the Banking Regulation Act, 1949 amended by the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The plaintiff is a schedule bank and exempted from all provisions of the Orissa Money-Lenders Act, 1939. Case of the plaintiff is that the proprietor of defendant no.1 approached the plaintiff-bank for sanction of cash credit limit of Rs.33, 000/- towards working capital. The bank sanctioned cash credit limit of Rs.33, 000/- on 12.6.1984 in favour of defendant no.1 on certain terms and conditions. Toward collateral security, defendant no.1 executed a demand promissory note on 12.6.1984 expressing an undertaking to repay the entire sum due to the bank on demand together with interest accrued thereon. As further collateral security, defendant no.1 had also executed a deed of hypothecation of goods to secure the cash credit on 12.6.1984 hypothecating the goods in favour of the bank. Defendants 2 and 3 had agreed to stand as guarantors against the said cash credit limit in their personal capacity. Defendant no.2 had executed a deed of guarantee on 12.6.1984 in favour of the bank. Defendant no.2 had created equitable mortgage of landed properties standing in his name. He sent a letter to the bank on 15.6.1984 stating therein that he had deposited the total dues with an intention to create equitable mortgage in favour of the bank. Defendants had executed the document in favour of the bank after fully understanding the contents thereof. After availing the cash credit facility, defendant no.1 operated the loan account, but subsequently became the defaulter. Defendant no.1 signed the revival letter on 10.7.1986, 11.3.1988 and 6.3.1991 respectively acknowledging the liability. All the persuasions made by the bank to clear the outstanding dues ended in a fiasco. Finally, the bank sent a lawyer's notice calling upon the defendants to clear up the outstanding dues. With this factual scenario, the bank instituted the suit. 3. Defendants filed a written statement denying the assertions made in the plaint. Case of the defendants was that though their signatures on various papers were obtained and the papers were handed over to the bank, no money was advanced. With this factual scenario, the bank instituted the suit. 3. Defendants filed a written statement denying the assertions made in the plaint. Case of the defendants was that though their signatures on various papers were obtained and the papers were handed over to the bank, no money was advanced. The bank authorities assured defendant no.1 that soon after the sanction of the loan, it would be paid to him. But ultimately no money was paid to defendant no.1. Thus the defendants are not liable to pay any amount to the plaintiff-bank. 4. Stemming on the pleadings of the parties, learned trial court has framed six issues. Parties led evidence, both oral and documentary, to substantiate their case. Learned trial court dismissed the suit holding, inter alia, that the suit was barred by limitation. Defendants 2 and 3 are not jointly and severally liable to pay the amount and the bank is not entitled to recover the amount claimed by it from the defendants. Unsuccessful plaintiff filed T.A. No.16/30 of 1997 before the learned Addl. District Judge, Jajpur, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 to 5 of the appeal memo. The same are - "1. For that the judgment of the First appellate Court and trial judge are illegal, erroneous, perverse, arbitrary and based on total misconception of law and the same are therefore liable to be set aside. 2. For that both the courts below have totally misconceived and misinterpreted the scope and applicability of the provisions of Sec.118(a) of the N.I Act and did not apply the provisions in its correct perspective to the facts of this case and thereby arrived at a wrong conclusion. Presumption u/s 118(a) requires the court to be satisfied by proof that no consideration whatsoever has passed to the respondents irrespective of the consideration alleged and then only the presumption would be rebutted and such proof may be circumstantial or direct and it may include an admission or based on a legal presumption. But the rebuttal must establish universal negative by establishing or rendering probable a case which is inconsistent with the presumption of any consideration at all. Bare denial of passing of consideration is no defence of rebuttal whatsoever. But the rebuttal must establish universal negative by establishing or rendering probable a case which is inconsistent with the presumption of any consideration at all. Bare denial of passing of consideration is no defence of rebuttal whatsoever. In the instant case, no probable evidence worth the name has been adduced except the bare denial of respondent no.1 as to the non passing of consideration. On the other hand D.W.1 has constructively admitted of the consideration. Further, on the face of unequivocal and clear admission of respondents of execution of promissory note coupled with related loan documents and followed by withdrawal of loan monies from time to time through the cash credit account by way of cheques submitted to appellant by the respondent no.1 squarely proves that consideration has been passed to the Respondents. In such situation, the trial court should be presumed u/s 118(A) of the N.I Act that the consideration has been passed and held that the case of the plaintiff is proved as the presumption u/s 118(a) of the N.I Act is one of law imposing bounden duty on court that the instrument under admission has been made for consideration. In this view, both the courts below have erred in their judgments and committed gross illegality which gives rise to a substantial question of law for the consideration of this Hon'ble Court. Added to this, the decision of the apex Court reported in AIR 1967 SC 1058 has been wrongly understood by the trial court as the said case had been based on the mere account book alone whereas in appellant's case, the suit was based on pronote, statement of account and many other corroborative documents and more so the documents have been categorically admitted by respondent No.1 to have been executed. Further, the learned courts below have based their judgments which are against the law laid down by the apex Court reported in 1999 AIR SC 1008, 1961 AIR SC 1316 and law laid down by this Hon'ble Court as well as other High Courts reported in 1971 1 CWR 949, 1966 32 CutLT 194, 1967 33 CutLT 621, 1996 AIR Orissa 38 and 1959 AIR Raj. 1. Therefore, it is submitted that both the courts below have arrived at a conclusion which is contrary to law based on misconception on the point of law. 1. Therefore, it is submitted that both the courts below have arrived at a conclusion which is contrary to law based on misconception on the point of law. Further while discarding the presumption u/s 118 (a), the trial court has given reasoning that the Ext.9 (statement of account) does not bear any entry of Rs.33, 000/- and therefore the loan was not paid to respondents. This reasoning of learned trial judge is not only vitiated with total misconception but also laid to miscarriage of justice and abuse of the process of law. It is respectfully submitted that there could not be any entry of Rs.33, 000/- in the statement of account either in the debit or credit column as the nature of loan account is cash credit account and the borrower has been given the facilitate of drawing upto the limit of Rs.33, 000/- at only time or in different times as per his business requirements and Exhibit-9 clearly and categorically shows in its credit column as to what amount on what date has been drawn and deposited in his loan account and non-reflection of a single entry of Rs.33, 000/- clearly shows that the respondent No.1 has not drawn Rs.33, 000/- on a single occasion. The learned first appellate court has also confirmed the trial court's judgment erroneously under total misconception. 3. For that both the courts below have failed to apply the provisions of estopped u/s 120 of the N.I Act and passed judgments which is contrary to law. This provision of law binds the respondent no.1 and he is estopped to deny that he never drew or made the instrument and his name had been forged or the instrument is not valid. It is respectfully submitted that the learned courts below have also committed illegality by over looking this provisions of law. 4. For that the judgment of the learned trial court is whimsical, arbitrary and perverse as it has given its finding on the allegation of respondents of fraud, fabrication of document and misappropriation of loan monies without framing an issue to this effect. Therefore the finding of both the courts below is not only vitiated with misconception of finding of facts but also the said learned courts have failed to determine the material issues of law. Therefore the finding of both the courts below is not only vitiated with misconception of finding of facts but also the said learned courts have failed to determine the material issues of law. Both the courts below have recorded by ignoring the vital and materials facts admitted by respondents and their judgments are based on no evidence in favour of respondents. Further the materials on record filed by this appellant have been totally ignored and the implications of the instruments have been misconceived by the courts below. Again the courts below have wrongly appreciated the evidence on record and their judgments are therefore patently erroneous consequencing in gross miscarriage of justice. The first appellate court has not applied its judicial mind to the provision of law dealt wrongly by the trial judge. Further, in dealing with the question of fact, the trial court has wrongly put the onus of proof of the question of passing of consideration on the appellant and this has became the result substantially of this wrong approach which is a defect in procedure. Further, the decisions of the courts below are based on conjectures and surmises. The position of law being that fraud in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding and ingredients of forgery under Sec.463 of the I.P.C. namely mensrea and making a false document in order that it may be used as genuine with intent to commit fraud or forgery must be proved beyond reasonable doubt in view of the decisions reported in 1972 38 CutLT 325, 1940 AIR PC 98 and 1941 AIR PC 93. In the instant case without any specific evidence or proof thereof, the learned trial judge has wrongly held that fraud and fabrication of loan documents have been committed by the appellant's staff which is not only illegal but also an abuse of the process of law. 5. For that the courts below have committed another illegality and arrived at a conclusion which is contrary to law as regards the signatures of the respondent no.1 and the learned trial judge ought not to have played the role of an expert in comparing the signatures of respondent no.1 and the observations of the trial judge is against the principles laid down by the apex Court reported in 1980 AIR SC 531, 1967 AIR SC 1326 and 1999 AIR SC 2544. In this regard, the courts below have not followed the provisions of Sec.73 read with Sec.45 and 47 of the Evidence Act further read with Order 10 of the Code of Civil Procedure. The courts below have not correctly appreciated the defence statement as regards admission of their signatures in the loan documents. The courts below ought to have drawn adverse inference against respondents no.2 and 3 who were sureties to the loan and are the most vital witness who deliberately kept themselves away from the witness box." 6. Heard Mr. S.N. Kar, learned counsel for the appellant. None appeared for the respondents. 7. Mr. Kar, learned counsel for the appellant submitted that defendant no.1 availed the cash credit facility from the plaintiff-bank. Defendants 2 and 3 stood as guarantors. Defendant no.2 had created equitable mortgage of landed properties standing in his name. Defendant no.1 executed D.P note, letter of continuity and deed of hypothecation, vide Exts.1 to 3. Defendants 2 and 3 had executed a letter of guarantee. Defendant no.2 had created the equitable mortgage. Defendants executed the documents after fully understanding the contents thereof. They do not deny the execution of the documents. The courts below failed to appreciate the distinction between the term loan and cash credit facility. He further submitted that at the initial stage, defendant no.1 operated the cash credit account. Some of the cheques issued by the defendants had been exhibited as Exts. 11 to 11(m). He further submitted that the statement of accounts vide Ext.9 is admissible in evidence under Sec.4 of the Bankers' Books Evidence Act, 1891. The courts below committed a manifest illegality in disbelieving the transactions on the ground that only fourteen numbers of withdrawal cheques had been exhibited out of seventy three and drawn adverse inference against the bank and held that no money was paid to the defendant no.1. Learned appellate court misread the decision of the apex Court in the case of Chandradhar Goswami and others v. Gauhati Bank Ltd., (1967) AIR SC 1058. 8. A cash credit is a short term cash loan. The facility is allowed by the bank to its customer on certain terms and conditions to borrow money upto a particular limit. A borrower can draw the amount from the said limit and deposit the same. The interest on this facility is charged on the balance, but not the borrowing limit. 9. The facility is allowed by the bank to its customer on certain terms and conditions to borrow money upto a particular limit. A borrower can draw the amount from the said limit and deposit the same. The interest on this facility is charged on the balance, but not the borrowing limit. 9. In the instant case, the plaintiff-bank allowed the cash credit facility to defendant no.1. The cash credit limit was Rs.33, 000/-. Defendant no.1 executed D.P note, letter of continuity and deed of hypothecation vide Exts.1 to 3. Defendants 2 and 3 stood as guarantors. They had executed a letter of guarantee. Defendant no.2 had created equitable mortgage of landed properties. He sent a letter to the bank on 15.6.1984 stating therein that he had deposited the total dues with an intention to create equitable mortgage in favour of the bank. All the defendants had executed the documents. They do not deny or dispute the same. 10. The period of limitation is twelve years to enforce payment of money secured when the money sued for becomes due under Article 62 of the Limitation Act, 1963. The instant case is governed under Article 62 of the Limitation Act. The period of limitation is twelve years. The statement of account, vide Ext.9, reveals that the last transaction was made on 6.3.1991. The suit was filed on 22.12.1993. So calculated, it is held that the suit is filed within the prescribed period of time. 11. Under Sec.128 of the Indian Contract Act, 1872, the liability of the surety is co-extensive with that of the principal debtor. Thus defendants 2 and 3 are jointly and severally liable. 12. Sec.4 of the Bankers' Books Evidence Act, 1891 provides that subject to the provisions of the Act, a certified copy of any entry in a bankers' books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise. 13. In Chandhar Goswami, the apex Court held that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. 13. In Chandhar Goswami, the apex Court held that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, however, the appellants did not accept the correctness of the books of account. There is no quarrel over the proposition of law. The plaintiff-bank had exhibited all the documents executed by the defendants apart from adducing oral evidence. The decision is distinguishable on facts. The substantial questions of law are answered accordingly. 14. In the wake of aforesaid, the impugned judgments are set aside. The appeal is allowed. The suit is decreed. No costs. Final Result : Allowed