JUDGMENT : MARY JOSEPH, J. 1. O.S No. 138/1998 seeking realisation of money by the plaintiff from defendant was dismissed by the Additional Sub Court, Kollam by judgment dated 24.06.2004. Aggrieved thereby the plaintiff is now before this Court in the appeal on hand challenging the judgment and decree. The 1st defendant died during the pendency of the suit and his legal heirs were brought on record as additional defendants 2 to 6. For the sake of convenience, the parties to the appeal are referred to hereinafter as the plaintiff and defendants. 2. The conspectus of the facts of the case are as follows: A sum of Rs. 2,00,000/- was borrowed by the original defendant from the plaintiff on 02.05.1995. Cheques bearing Nos. 968071 and 968072 each for Rs. 1,00,000/- drawn on State Bank of Travancore, Ooruttampalam Branch were issued to the plaintiff towards repayment of the amount borrowed at the residence of plaintiff's brother at Mundakkal Village in Kollam District. Cheques were presented by the plaintiff before State Bank of India, Main Branch, Kollam for encashment through the son of his brother, who was also his authorised Power of Attorney, but returned bounced on 14/7/1995 for the reason “Account closed by the party with cheque leaves reported lost by him.” Despite demands made repeatedly, the defendant did not care to repay the amount. Demand made by registered lawyer notice dated 17.7.1995 was also not met with by payment and therefore, the suit was filed seeking realisation of money. 3. In the written statement filed the 1st defendant has outrightly denied the transaction of borrowal of money and issuance of cheques. It was contended that the account maintained by him with Ooruttampalam Branch was closed as early as on 11/1/94 following missing of two cheques from his custody, that there was no consideration for the cheques and that therefore those were not legally enforceable. Criminal prosecution launched by the plaintiff under Section 142 of Negotiable Instruments Act, 1881 (for short, the Act) through Power of Attorney Holder was dismissed by the Criminal Court. Accordingly, the liability to pay Rs. 2,00,000/- with interest was denied. 4. Additional defendants 2 to 6 brought on record as legal heirs following the death of the original defendant adopted the latter's contention, in the joint written statement filed by them. 5. Accordingly, the liability to pay Rs. 2,00,000/- with interest was denied. 4. Additional defendants 2 to 6 brought on record as legal heirs following the death of the original defendant adopted the latter's contention, in the joint written statement filed by them. 5. Smt. A. Jani, the learned counsel for the plaintiff has contended that since the issuance of the cheques were admitted by the original defendant during his life time, as well as the additional defendants after his death, the trial court ought to have convinced that the cheques have been executed by the original defendant. According to her, it is not incumbent upon the plaintiff to adduce further evidence to establish the execution of the cheques in view of the presumption available to him under Section 118 of the Act. In such circumstances, the onus will be that of the defendant to rebut the presumption and it must be the duty of the court to find from the evidence adduced by the defendant, whether it has been satisfactorily discharged by the defendant. According to her, the trial court went wrong in dismissing the suit on a finding that the plaintiff has failed to discharge the burden to establish the execution of the cheques. The learned counsel has also relied on M/s. Kumar Exports vs. M/s. Sharma Carpets, 2009 (2) SCC 513 to rest her contention. According to the learned counsel, in the context of the case cited as above, the contention of the defendants that presumption under Section 118 of the Act is not applicable in the case on hand is devoid of merits. It is urged that the versions of PW-1 and PW-2 ought to have been believed by the trial court to reach a finding on the liability of defendants to repay Rs. 2,00,000/- to the plaintiff and to pass a judgment and decree in favour of the plaintiff. 6. According to her, the defendant had sent a reply to the registered lawyer notice caused to be served on him by the plaintiff. But, neither in the reply notice nor in the written statement filed by the original defendant, a contention regarding the missing of signed blanks cheques from his custody was taken by the defendants. 6. According to her, the defendant had sent a reply to the registered lawyer notice caused to be served on him by the plaintiff. But, neither in the reply notice nor in the written statement filed by the original defendant, a contention regarding the missing of signed blanks cheques from his custody was taken by the defendants. The trial court ought to have found that a reasonable explanation was not offered by the original defendant for keeping signed blank cheques in custody contrary to the common practice of prudent men. According to her, additional defendants 2 to 6 being legal heirs of the original defendant ought not to have taken a contention regarding affixture of signatures in the cheques, in the written statements filed by them, contrary to that had not been taken in his written statement by the original defendant having direct involvement in the transaction. According to her, the version of the defendant that two signed blank cheques were lost from his custody and those were misused by the plaintiff for the purpose of launching of the prosecution is highly improbable and the trial court is unjustified in placing reliance on it, to non suit the plaintiff. 7. According to the learned counsel, the signatures in the cheques were never denied specifically by the original defendant in his written statement or in other words, he failed to raise a categoric contention that the two cheques lost from his custody were unsigned ones. The additional defendants who were brought on record following the death of original defendant have filed written statement adopting the contentions raised by the original defendant in his written statement. Therefore, the 1st additional defendant cannot deny the affixture of signature in the cheqeus contrary to the contention of the original defendant and adopted by her in the written statement filed later on. Even then, the wife of the original defendant as DW-1 during examination in chief has taken a stand that the two cheques lost from the custody of the original defendant were unsigned ones. In that context, the argument advanced by the learned counsel was that the additional defendants who succeed the right to sue on the death of the original defendant cannot take a stand deviating from the one of non-denial of affixture of signature taken, in the written statement filed by them. In that context, the argument advanced by the learned counsel was that the additional defendants who succeed the right to sue on the death of the original defendant cannot take a stand deviating from the one of non-denial of affixture of signature taken, in the written statement filed by them. According to her, DW-2 has categorically denied the signature in the cheques and that can only be taken as an afterthought of her, after noticing the dissimilarity in signatures affixed by the original defendant himself in the vakalath and the written statement filed lateron. According to her, the said stand of DW-2 can only be considered as an attempt to establish that the signatures in Exts.A1 and A1(a) cheques were not authored by the original defendant but have been forged by someone. 8. It is contended by the learned counsel that the original defendant had only denied the authorship of hanDW-riting in which the entries in the disputed cheques (Ext.A1 series) were filled and in that context, the stand of DW-2, denying affixture of signature in the disputed cheques cannot be given much relevance and credence and must be discarded as a proposition advanced on an afterthought. 9. PW-2 had categorically deposed that the plaintiff and the defendants had come to the house of Praveen Kumar, who is none other than the son of plaintiff's brother and the said factum being uncontroverted by the defendants, it ought to have been relied on by the trial court. Plaintiff has marked in evidence the judgment in C.C. No. 57 of 1996, a criminal prosecution relating to the issue on hand, launched under Section 142 of the Act as Ext.B1. Closing of the account before issuance of disputed cheques formed the basis for acquittal of the defendant as accused in Ext.B1 judgment in the criminal prosecution and that cannot form the basis to disprove the case of the plaintiff and cannot be relied on to non-suit the plaintiff. According to her, the trial court ought to have compared the admitted signatures of the defendant with the denied ones and the signatures found in the vakalath and written statement to discern that the defendant had a fraudulent intention to cheat the plaintiff and therefore, signatures have been affixed in the vakalath and written statement in a dissimilar manner. Raising contentions as above, the judgment and decree are sought to be set aside. 10. Raising contentions as above, the judgment and decree are sought to be set aside. 10. The learned counsel for the plaintiff has also raised a contention that Ext.B1 judgment rendered by a criminal court under Section 142 of the Act, ought not to have been relied on by the trial court to dismiss the suit on hand. According to her, the findings of facts recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. According to her the judgment of the criminal court ought not to have been received by the trial court and relied on to take a view that the transaction alleged by the plaintiff is totally an unbelievable one. The learned counsel has relied on Kishan Singh (D) through LRs. vs. Gurpal Singh and Others, 2010 (6) SCC 516 to base the above argument. Raising arguments on contentions as above, the learned counsel has canvassed for reversal of the judgment under challenge. 11. A perusal of the judgment under challenge revealed that the trial court had framed the following issues for consideration: “1. Whether the 1st defendant had borrowed any amount from the plaintiff? 2. Whether the 1st defendant had issued any cheque in favour of the plaintiff to discharge any liability? 3. Whether the plaintiff is entitled to realise any amount from the 1st defendant? If so what is the quantum? 4. Reliefs and Costs?” 12. All the above issues were answered by the trial court against the plaintiff. In the context where, challenge on the findings of the trial court has been raised, it is incumbent upon this Court to have the entire evidence scrutinized thoroughly to see whether those have been arrived at, erroneously. 13. The evidence in the case on hand consists of the oral evidence of PW-1 and PW-2, DW-1 and DW-2 and Exts.A1 to A4 and A4(a) and Ext.B1 respectively on the side of plaintiff and defendants. 14. This is a case where the claim of the plaintiff for realisation of a sum of Rs. 2,00,000/- borrowed by the original defendant from him on 02.05.1995 from his brother's house, on the strength of two cheques each for Rs. 1,00,000/- has been totally denied by the defendants. 14. This is a case where the claim of the plaintiff for realisation of a sum of Rs. 2,00,000/- borrowed by the original defendant from him on 02.05.1995 from his brother's house, on the strength of two cheques each for Rs. 1,00,000/- has been totally denied by the defendants. It was stated that the disputed cheques were those, lost in the year 1993 from his house at Gayathi in Abudhabi where he was residing then. Since the issuance and execution of the cheques were denied, it is incumbent on the plaintiff to establish that cheques were supported by valid consideration. To say in other-words, the plaintiff has to establish that the cheques were issued by the defendant to him towards the discharge of Rs. 2,00,000/- borrowed by him on 2.5.1995. Only on establishing that Rs. 2,00,000/- was borrowed by the original defendant from the plaintiff and that two cheques have been issued to discharge that debt, the presumption under Section 118 N.I. Act will come to his rescue to substantiate that the cheques were issued for valid consideration. 15. Therefore, the initial burden lies on the plaintiff to establish primarily that the cheques [Ext.A1 and A1(a)] were issued by the defendant to him on 2.5.1995. The suit was filed by plaintiffs brother's son as Power of Attorney Holder of plaintiff. But the Power of Attorney executed by the plaintiff in his favour, authorising him to file the suit is not produced to form part of the evidence on record. Therefore the locus standi of the alleged Power of Attorney holder itself is doubtful. It is found on a perusal of the evidence on record that despite the filing of the suit on hand through the alleged Power of Attorney Holder, the plaintiff took the burden to adduce evidence as PW-1. An independent witness was also examined as PW-2. As PW-1, the plaintiff has deposed at the most, strictly in tune with his pleadings in the plaint. According to him, himself and the original defendant were employed abroad and were known to each other, since long. According to him they were working in different establishments but, were residing as neighbours. His specific case was that the defendant never visited his quarters and himself, that of the defendant in view of the strict security arrangements existed there. According to him, himself and the original defendant were employed abroad and were known to each other, since long. According to him they were working in different establishments but, were residing as neighbours. His specific case was that the defendant never visited his quarters and himself, that of the defendant in view of the strict security arrangements existed there. According to him, the original defendant was a man having several liabilities, which occasioned extension of several helps from him to the defendant. Ext.A4(a) to A4(c) letters issued by defendant to him are testimonials even of the factum that the former for his debts owed to others was confined in jail for sometime. 16. According to PW-1 he had worked at Gulf till 1998 and the original defendant did come on leave to native place on 1.1.1994. At that time admittedly he was at Gulf and he came to his native place only in the month of April, 1995. Passport was not produced in support of the version. According to him, the date of his visit to the native place is noted in his passport and he has also undertaken to produce that. 17. The transaction which caused the issuance of cheque as per the pleadings of the plaintiff in the plaint and the facts sworn to in the proof affidavit as well as the version during cross examination by the plaintiff as PW-1, was borrowal of a sum of Rs. 2,00,000/- by the original defendant on 2.5.1995. Cheques were also given to him on the day itself towards repayment of the above sum borrowed by him. The above factum is outrightly denied by the defendants. Since the original defendant and plaintiff were admittedly employed at Gulf and when the above factum allegedly happened at the house of plaintiff's brother at Mundakkal, Kollam District, is denied categorically by the original defendant, it is the burden of the plaintiff to establish the same by adducing cogent and reliable evidence. 18. The learned counsel for the plaintiff has contended that since the possession of two cheques with the plaintiff is established, the factum of issuance of the same by the defendant is inferred unless the contrary is proved by him. 18. The learned counsel for the plaintiff has contended that since the possession of two cheques with the plaintiff is established, the factum of issuance of the same by the defendant is inferred unless the contrary is proved by him. She has also gone to the extent of canvassing that on issuance of the signed cheques being established by the plaintiff the plaintiff need not labour much to adduce further evidence to prove execution of the cheques. According to her, issuance of the cheques tantamounts to execution of cheque and the plaintiff could be non-suited only when the evidence is adduced by the defendant to disprove the claim of the plaintiff. The dictum in M/s. Kumar Exports supra will not support the argument advanced by the plaintiff as above. 19. Section 118 NI Act being relevant in the context:- “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, endorsed, negotiated or transferred, was accepted, endorsed, 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 of 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 endorsements-that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon. (f) as to stamps-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.” 20. It is clear from the above extract that a Negotiable Instrument if was made or drawn and issued by one party to another, when accepted by the other, shall be presumed as drawn for consideration, as to date, time of acceptance, time of transfer, order of endorsements, stamp and as to holder in due course. Therefore it is discerned that only when the transaction of borrowal and issuance of cheque are established by the plaintiff with cogent evidence, then alone he can be said to have discharged his burden to establish execution of cheque. Only on successfully establishing the burden of execution of cheque, the presumption under Section 118 of the Act would aid him in the matter of proving that lending of Rs. 2,00,000/- formed consideration for execution of the cheque. The words particularly in usage in Section 118 of the Act being, “presumption shall be made”, it is akin to “shall presume” envisaged under Section 4 of the Evidence Act. Therefore, when execution of cheques in dispute is established by the plaintiff, the court seized of the prosecution shall presume that cheques were supported by the consideration shown therein. In the case on hand Rs. 2,00,000/- being the total amount shown in two cheques, it is presumed as consideration for issuance of those and the presumption will favour the plaintiff, until the defendant succeeds in establishing that consideration is not Rs. 2,00,000/- but something else. In M/s. Kumar Exports supra the Apex Court has elaborately dealt with the ambit of presumptions liable to be drawn under Sections 118 and 139 of the Act, which is extracted hereunder:- “7. Feeling aggrieved, the respondent preferred Criminal Appeal No. 946 SBA of 2004 in the High Court of Punjab and Haryana at Chandigarh. The learned Single Judge, who heard the appeal, was of the opinion that in terms of Section 139 of the Act there was a presumption that the cheques received by the respondent were for the discharge of a debt or liability incurred by the appellant that execution of cheques was admitted by the appellant and that the appellant did not place material to rebut such presumption as a result of which, he was liable to be convicted under Section 138 of the Act. The learned single Judge concluded that if the defence put forth by the appellant was true, he would have issued instructions to 'stop payment of the cheques' instead of allowing the cheques to be presented and dishonored. He was also of the view that the affidavit of complainant (appellant herein) that there was no transaction during 1994-95, was not a relevant circumstance. Accordingly, the learned Single Judge convicted the appellant under Section 138 of the Act and remitted the matter to the trial court for passing appropriate order of sentence, after hearing the appellant and the respondent. Feeling aggrieved, the appellant has approached this Court by way of filing the instant appeal. 8. We heard the learned counsel for the parties at length and considered the record of the case. 9. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) “may presume” (rebuttable), (2) “shall presume” (rebuttable) and (3) “conclusive presumptions” (irrebuttable). The term 'presumption' is used to designate an inference, affirmative or dis affirmative of the existence a fact, conveniently called the “presumed fact” drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means “taking as true without examination or proof”. Section 4 of the Evidence Act inter-alia defined the words 'may presume' and 'shall presume as follows:- “(a) "may presume" - whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved. Or may call for proof of it.” (b) "shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.” In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. 10. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. 10. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 11. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.” 21. It is clear from the foregoing discussions and extracts from the judgment above that the argument of the learned counsel for the plaintiff is devoid of merits. When the execution of the cheque is satisfactorily established by the plaintiff, then alone presumption on consideration will come to aid the plaintiff and the presumption would be available till evidence is adduced by the defendant to establish on the contrary. 22. PW-1 during cross examination has stated about his arrival at the native place on April 1995 and departure to Gulf on 13.5.1995. He has undertaken to produce his passport containing entries establishing his arrival at the native place to be present at Mundakkal, Kollam, on the crucial date of 2.5.1995, on which money was pleaded as advanced to original defendant and cheques were handed over by the latter to him to secure repayment. He failed to produce the passport. On his failure to produce the same after having been undertaken to produce it, adverse inference either that he does not hold a passport or that the relevant entries to establish his availability locally on 2.5.1995 are not there, is liable to be drawn. 23. Independent witness examined as PW-2 has tendered evidence to establish only that the plaintiff and the original defendant had met at the house of plaintiff's brother at Mundakkal, Kollam in the month of May, 1995, but he failed to speak about the crucial date of arrival and the purpose. 24. 23. Independent witness examined as PW-2 has tendered evidence to establish only that the plaintiff and the original defendant had met at the house of plaintiff's brother at Mundakkal, Kollam in the month of May, 1995, but he failed to speak about the crucial date of arrival and the purpose. 24. When confronted by defendants on his source of income to advance Rs. 2,00,000/- PW-1 has stated that Rs. 1,25,000/- was drawn from his own pocket and Rs. 75,000/- was borrowed from one Mr. Sasi, a friend of him. It is pertinent to note that the above spoken facts do not have the support of pleadings in the plaint. Therefore those can only be treated as embellished version of the plaintiff after mounting the witness box to depose as PW-1. The version tendered by him during cross examination that Rs.75,000/- was borrowed from Mr.Sasi and given to defendant is improbable when viewed in the light of pleadings incorporated in the plaint regarding the transaction that, Rs. 2,00,000/- was advanced by the plaintiff at the residence of his brother at Mundakkal, Kollam on 02.05.1995 and on the day itself Exts.A1 and A1(a) were handed over to him. The plaintiff did not attempt to examine Mr. Sasi, who caused to lent Rs. 75,000/- to him. Lending money after borrowing from someone is quite unheard of imprudence also. 25. The factum that the account was caused to be closed by the defendant is well established from the reason for dishonour of cheques stated in Ext.A3, the copy of the memo of dishonour issued from the bank and received by the plaintiff alongwith bounced cheques, “Account closed by the party with cheque leaves reported lost by him”. But, the above endorsement does not say when the account was caused to be closed by the defendant. Evidence other than the facts sworn to by PW-1 in proof affidavit are not available to establish that the account was closed on 11.1.1994. It is pertinent to note from the evidence of DW-1 that he was not confronted with reference to 11.1.1994, the date of closure of the account sworn to by him in the affidavit filed in lieu of chief examination. It is pertinent to note from the evidence of DW-1 that he was not confronted with reference to 11.1.1994, the date of closure of the account sworn to by him in the affidavit filed in lieu of chief examination. In the said circumstances, there is every reason to accept 11.1.1994 as the date of closure of the account by the defendant and to discard the claim of the plaintiff that cheques were issued to him by the defendant on 2.5.1995 to discharge the debt. Therefore, the defendant has succeeded in causing to view the case put forth by the plaintiff with suspicion or in other words, as something improbable to happen. 26. A contention was also taken by the learned counsel for the plaintiff that Ext.B1 judgment of the criminal court ought not to have been relied on by the court while adjudicating the issues involved in the case on hand. The contention holds merit. It is true that findings of fact recorded by the civil court do not have a bearing so far as criminal case is concerned and vice versa. It is held by the Apex Court in Kishan Sing's case supra, the dictum of which is extracted hereunder: “Thus, in view of the above, the law on the issue stands crystalized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration.” 27. It is pertinent to note on a perusal of the judgment under challenge that the trial court has not placed reliance on Ext.B1 while arriving at a finding against the plaintiff. It is pertinent to note on a perusal of the judgment under challenge that the trial court has not placed reliance on Ext.B1 while arriving at a finding against the plaintiff. In that context, the argument of the learned counsel for the appellant on the above line is untenable and therefore discarded. This Court finds upon a scrutiny of the evidence tendered by the plaintiff in its entirety that credence is unlikely to be fastened on it for reasons stated below: 1. Though the plaintiff and defendant does not have residence of their own at Mundakkal, Kollam, the transaction was allegedly occured there. 2. Though according to the plaintiff, the date of advancement of amount was on 02.05.1995, while being cross examined, it was stated by him that the defendant reached his residence at his native place lastly only on 01.01.1994. 3. Though claimed to have visited his local station at the relevant period, which would also takes in 02.05.1995, the very crucial date on which the amount was advanced to the defendant and the failure of the plaintiff to produce the passport despite his undertaking to produce it. 4. The alleged issuance of two cheques towards discharge of a sum of Rs. 2,00,000/- borrowed on the same day. 5. The lack of authority of Power of Attorney Holder to file the suit for realisation of money on behalf of the plaintiff. 6. Non-examination of any of the members of the family of his brother who were allegedly available at the house at Mundakkal where the transaction of borrowal had taken place. 7. The failure of PW-2 to say anything about the transaction of borrowal of money, despite raising a claim that he was available and had seen the presence of the defendant at the house of plaintiff's brother on 02.05.1995. 8. The failure of the plaintiff to establish his source of income especially when his specific case during cross examination was that Rs. 1,25,000/- was with him in cash and Rs. 75,000/- was borrowed from a friend namely Mr.Sasi and in re-examination that Rs. 12,25,000/- was in credit in his NRI account in Bank of Baroda, Varkkala. 9. Non-examination of Mr.Sasi to establish the factum of borrowal of Rs. 75,000/- from him and non-production of his passbook or non-summoning of statement of account from Bank of Baroda, Varkkala to establish the availability of Rs. 12,25,000/- therein. 28. 12,25,000/- was in credit in his NRI account in Bank of Baroda, Varkkala. 9. Non-examination of Mr.Sasi to establish the factum of borrowal of Rs. 75,000/- from him and non-production of his passbook or non-summoning of statement of account from Bank of Baroda, Varkkala to establish the availability of Rs. 12,25,000/- therein. 28. A contrary plea of misuse of two cheques lost from the original defendant's custody in the year 1993 while he was at Abudhabi was taken by defendants in defence. The wife of deceased original defendant was examined as DW-1. DW-1 has gone to the extent of denying the signatures of the original defendant in Ext.A1 and A1(a) cheques, which denial was not raised by the original defendant in the written statement filed by him. In the written statement filed by the original defendant, there was no plea that the cheques lost from his custody were signed ones. According to DW-1 the information about the lost cheques was given to the bank as early as on 11.01.1994 and consequently the account got closed. He has not taken a specific contention in the written statement that the lost cheques bore signatures at the time when they were lost. 29. In the circumstances, this Court finds the trial court justified in holding that the plaintiff has thoroughly failed to establish that Exts.A1 and A1(a) were issued by the defendants to the plaintiff for discharging the debt of Rs. 2,00,000/- as pleaded by him. In the context, the presumption under Section 118 of the Act is unlikely to be attracted. Therefore, the plaintiff is not entitled to get a decree for realisation of money. The trial court has correctly found against the plaintiff and dismissed the suit. The appeal deserves no merits. 30. In the result, appeal is dismissed.