JUDGMENT : Assailing the judgment and decree, dated 23.01.2006 passed in O.S.No.233 of 2004 on the file of Principal Junior Civil Judge, Kurnool, the defendant filed the above appeal. 2. For the sake of convenience and brevity, the parties shall be referred to as they are arrayed in O.S.No.233 of 2004. 3. The suit O.S.No.233 of 2004 was filed by the plaintiff for recovery of an amount of Rs.5,12,049/-, the principal being Rs.3,00,000/-. 4. The averments in plaint, in brief, are that the defendant borrowed an amount of Rs.3,00,000/-from the plaintiff on different dates, as hand loan and issued post-dated cheques bearing Nos.113704, 113705 and 113706 dated 19.05.2001, 21.05.2001 and 21.05.2001 for Rs.1,00,000/-each; that in view of cordial and long standing relations between them, plaintiff did not insist for execution of promissory note for the amounts borrowed; that plaintiff presented cheques on due dates and to his surprise and dismay cheques were dishonoured; that the bank returned the cheques with remarks, ‘payment stopped by drawer’; that as per the plaintiff’s information, defendant’s account did not have sufficient funds to honour the cheques; that it is clear that defendant deliberately issued cheques without arranging for funds; that plaintiff initiated criminal action under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) against the defendant vide C.C.No.335 of 2001, however the same was dismissed for default; that plaintiff issued legal notice on 07.06.2001 demanding payment of amount with interest at 24% for which the defendant got issued reply notice, dated 28.06.2001 denying borrowing of Rs.3,00,000/-, issuance of cheques, presentation of the cheques etc., and hence filed the suit for recovery of amount basing on three cheques. 5. 5. The defendant filed written statement and contended inter alia that he did not borrow of Rs.3,00,000/- on different dates as hand loan and issued cheques in that connection; that complaint under Section 138 of N.I. Act, being C.C.335 of 2001 on the file of learned Judicial Magistrate of First Class, Kurnool was dismissed; that on number of occasions plaintiff borrowed money from the defendant and executed promissory notes; that defendant had no necessity to borrow the amount from the plaintiff as he is NRI Doctor; that the plaintiff has no capacity to lend the amount; that in the month of May, 2001, plaintiff approached the defendant, offered him to join as partner in cine business; that since the plaintiff has acquaintance with the defendant for more than seven years and as the plaintiff’s brother N.Sreepathi Rao was a friend of the defendant, he accepted the proposal of the plaintiff; that the defendant gave Rs.3,00,000/-by way of three cheques, dated 19.05.2001, 21.05.2001 and 21.05.2001 respectively, each for Rs.1,00,000/-towards his share; that on 22.05.2001 when the defendant asked the plaintiff to execute partnership deed, plaintiff postponed execution of partnership deed; that thereafter when the defendant demanded the plaintiff to return the cheques, plaintiff refused to handover the abovementioned cheques; that misunderstanding arose between the defendant and the plaintiff and immediately defendant informed bank authorities to stop payment of the above mentioned cheques; that the defendant intended to issue legal notice to the plaintiff regarding return of the above mentioned cheques; that defendant’s friends requested him not issue any legal notice and that they would settle the matter amicably and thus prayed the Court to dismiss the suit. 6. Basing on the pleadings on both sides, the trial Court framed the following issues: 1. Whether there is cause of action for the suit? 2. Whether hand loans alleged to have been obtained by the defendant on different dates as pleaded by the plaintiff is true and correct? 3. Whether the three post dated cheques 19.05.2001, 21.05.2001 and 21.05.2001 respectively were not issued by the defendant for repayment any amount borrowed from the plaintiff? 4. To what relief? 7. During the trial, plaintiff examined himself as PW1 and got examined PW2. Exs.A1 to A9 are marked on his behalf. On behalf of the defendant, he himself is examined as DW1 and got marked Exs.B1 and B2. 8. 4. To what relief? 7. During the trial, plaintiff examined himself as PW1 and got examined PW2. Exs.A1 to A9 are marked on his behalf. On behalf of the defendant, he himself is examined as DW1 and got marked Exs.B1 and B2. 8. The trial Court on consideration of oral and documentary evidence decreed the suit with costs. Aggrieved by the said judgment and decree, the above appeal is filed. 9. Heard Sri Prakash Reddy, learned counsel representing Sri T. Nagarjuna Reddy, learned counsel for the appellant/defendant and Sri K. Rathanga Pani Reddy, learned counsel for the respondent/plaintiff. 10. Learned counsel for the appellant/defendant would contend that after dismissal of the complaint under Section 138 of the N.I. Act, the suit was filed for recovery of amount and hence suit ought to have been dismissed. Cheques were issued as share capital and since no partnership deed was executed, the defendant issued instructions to the bank to stop payment. He would further contend that no consideration was passed under Exs.A1 to A3. He would also contend that the defendant being NRI Doctor had no necessity to borrow the amount. Further contended that the plaintiff did not state either in the plaint or in the notice as to the date of lending of the amounts. 11. Learned counsel for the respondent supported the judgment of the trial Court and prays the Court to dismiss the appeal. 12. In the light of the arguments and pleadings of both sides, the following issues arise for consideration in this appeal: 1. Whether three post-dated cheques dated 19.05.2001, 21.05.2001 and 21.05.2001 were issued by the defendant after borrowing of hand loan from the plaintiff? 2. Whether the plaintiff had capacity to pay the amount? 3. To what relief? Point Nos.1 and 2 Since these points are connected to each other, they are dealt with together. 13. It is pleaded case of the plaintiff that the defendant borrowed Rs.1,00,000/-each on different dates as hand loan and issued Exs.A1 to A3, post dated cheques. However, the defendant pleaded that in the month of May, 2001, plaintiff himself has approached him and offered him to join in his partnership business and in that connection, he gave three cheques each for Rs.1,00,000/-towards his share in the proposed business. 14. However, the defendant pleaded that in the month of May, 2001, plaintiff himself has approached him and offered him to join in his partnership business and in that connection, he gave three cheques each for Rs.1,00,000/-towards his share in the proposed business. 14. With regard to borrowing of amount of Rs.3,00,000/-by the defendant, neither the plaint nor the legal notice discloses the dates of borrowing except stating, on different dates. However, during cross-examination, it was elicited from P.W.1 (plaintiff) that the defendant borrowed Rs.1,00,000/-on 12.05.2001 and Rs.2,00,000/-on 14.05.2001 and issued one cheque on 12.05.2001 and two cheques on 14.05.2001 with post-dates as 19.05.2001, 21.05.2001 and 21.05.2001. 15. The evidence of PW2 supports the case of the plaintiff with regard to borrowing of the amount by the defendant. According to PW2, in the second week of May, 2001, plaintiff instructed him to pool up Rs.3,00,000/-and keep cash ready as one of his close friends needs to be helped in the shape of hand loan. He also deposed that the defendant collected Rs.3,00,000/-in three instalments at Rs.1,00,000/-each and issued three post dated cheques for Rs.1,00,000/-each. During his cross-examination it was elicited from him that he paid Rs.1,00,000/-each, three times to the defendant at Venkatesh Theatre, Kurnool and that plaintiff was also present on those three occasions. It was further elicited from PW2 that there is a gap of one day for first and second payments and there was no gap between second and third payments. Thus, the evidence of P.W.2 is corroborating the evidence of P.W.1. 16. The evidence of PWs1 and 2 is consistent on lending of amount to the defendant. Though it was not stated in the plaint or in the legal notice with regard to the dates, during the cross examination of P.W.1, defendant elicited dates of lending the amount and in fact, the said version was supported by PW2. 17. When the cheques were bounced, notice, dated 07.06.2001 was issued to the defendant calling upon him to pay the amount for which defendant issued Ex.A6, reply notice and denied issuance of post-dated cheques. However, in the written statement, the defendant sets up new plea about the plaintiff approaching him, offering him to join as partner in a business and issuance of cheques, dated 19.05.2001, 21.05.2001 and 21.05.2001, each for Rs.1,00,000/-towards his share in the business. However, in the written statement, the defendant sets up new plea about the plaintiff approaching him, offering him to join as partner in a business and issuance of cheques, dated 19.05.2001, 21.05.2001 and 21.05.2001, each for Rs.1,00,000/-towards his share in the business. In view of the statement made by the defendant in his written statement, about issuance of cheques, the presumption available under Section 118 of the N.I. Act comes into operation and such presumption is rebuttable. The evidence of the plaintiff is consistent with regard to lending of the amount and also with regard to his capacity to lend the amount. It was elicited during the cross-examination of PW1 that he is Managing Partner of Venkatesh Cine Complex. Plaintiff was also Managing Partner of Vijaya Surya Chemicals. Hence, the contention of the defendant that plaintiff had no capacity to lend Rs.3,00,000/-is not acceptable. 18. Though the defendant denied issuance of cheques in Ex.A6, reply notice, in the written statement he admitted issuance of cheques in favour of the plaintiff in connection with alleged partnership business, which was not entered into. He further stated in his written statement that three cheques, dated 19.05.2001, 21.05.2001 and 21.05.2001 respectively were issued towards his share. He also stated that on 22.05.2001 when the defendant asked the plaintiff to execute partnership deed, plaintiff postponed execution of partnership deed and when he asked the plaintiff to return his post-dated cheques, plaintiff refused to handover the same and that misunderstandings arose between them. It was further averred in the written statement that when he intended to issue legal notice to the plaintiff, their common friends requested the defendant not to issue legal notice and that they would settle the issue amicably. The defendant having pleaded that at the behest of their common friends, he did not issue notice, for the reasons best known, he failed to examine any of said friends as witness on his behalf. 19. In view of the averments in written statement by defendant qua issuance of cheques in favour of plaintiffs, the presumption under Sec 118 of N.I. Act comes into operation that Negotiable Instruments are supported by consideration. Of course, presumption under Section 118 of the N.I. Act is rebuttable one. 19. In view of the averments in written statement by defendant qua issuance of cheques in favour of plaintiffs, the presumption under Sec 118 of N.I. Act comes into operation that Negotiable Instruments are supported by consideration. Of course, presumption under Section 118 of the N.I. Act is rebuttable one. In Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal, AIR 1999 SC 1008 , the Hon’ble Apex Court held as under: “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 consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of 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 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. 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.” 20. The plaintiff discharged his initial burden by examining himself and also by examining PW2. When the onus of proof shifted to the defendant, he failed to discharge the same. The defendant can prove the non-existence of consideration by raising a probable defence. 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. Had the defendant discharged the onus either by leading evidence or by disproving the case of the plaintiff, the burden shifts to plaintiff and plaintiff had to prove passing of consideration etc., However, in this case, as seen from the evidence on record, the defendant miserably failed to discharge the legal burden lying on him. No prudent man keeps quiet for such a long time after issuance of cheques without issuing notice calling upon the holder of cheque to return the same. The other circumstance of the case is that according to defendant disputes arose between him and plaintiff and hence he issued instructions to his bank to stop payment. Having issued instructions to the bank, the appellant/defendant is expected to issue notice to the plaintiff to return the cheques. These circumstances coupled with the evidence let in by plaintiff the amply proved borrowing of amount by appellant/defendant and his issuance of post dated cheques in favour plaintiff. The judgement relied upon by the learned counsel for appellant in Yogendra Kumar Jaiswal v. State of Bihar, 2016 (3) SCC 183 is no way helpful to the appellant. Accused need not disclose his defence is not relevant to the present facts of the case. 21. The judgement relied upon by the learned counsel for appellant in Yogendra Kumar Jaiswal v. State of Bihar, 2016 (3) SCC 183 is no way helpful to the appellant. Accused need not disclose his defence is not relevant to the present facts of the case. 21. It was contended by learned counsel for the defendant that cheques are dated 19.05.2001, 21.05.2001 and 21.05.2001, but they were presented in the bank on 29.04.2001. In fact, this Court verified Exs.A1 to A4. Exs.A1 to A3 are cheques, dated 19.05.2001, 21.05.2001 and 21.05.2001 respectively each for Rs.1,00,000/-and they were presented in the plaintiff’s bank i.e. in Karur Vysya Bank, Kurnool on 28.05.2001 and they were returned on the ground that ‘payments stopped’ by the drawer. However, the seal of Vijaya Bank, Kurnool shows the date as 29.04.2001 on Ex.A4. Obviously it is only a mistake in affixing the stamp on Ex.A4. When cheques were forwarded from Karur Vysya Bank on 28.05.2001, the stamp affixed on Ex.A4 i.e. 29.04.2001 is only a mistake committed at the end of Vijaya Bank and it may not come to the aid of the defendant. Thus, the plaintiff established that three post dated cheques were issued pursuant to borrowing of amount. Plaintiff also proved his means and capacity to lend amount. Point No.3: 22. In view of the above discussion, the defendant failed to make out valid grounds and hence, this appeal is liable to be dismissed. 23. Accordingly the appeal is dismissed. However, no costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.