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2024 DIGILAW 758 (AP)

A. Narendra v. P. Venkata Suryanarayana

2024-07-10

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : (V. Gopala Krishna Rao, J.) 1. The appeal is filed against the judgment and decree dated 29-4-2005 passed by the learned Senior Civil Judge, Kavali, in O.S. No.29 of 2001. The appellant is the defendant and the respondent is the plaintiff in the said suit. During the pendency of the appeal, the sole appellant died and the 2nd appellant herein, who is his wife, is brought on record as his legal representative by order dated 20-3-2024 in I.A. No.3 of 2024. 2. For the sake of convenience, the parties herein will be referred to as arrayed before the trial Court. 3. The case of the plaintiff as narrated in the plaint, in brief, is as follows: (a) The suit is filed for recovery of Rs. 7,74,000/- together with subsequent interest and costs. (b) It is pleaded that the defendant borrowed a sum of Rs. 4,50,000/- from one Kaliki Papi Reddy on 15-4-1998 and executed a promissory note on the same day in his favour undertaking to repay the same with interest at 24% per annum either to him or his order on demand. The defendant did not pay any amount due in spite of several demands. Therefore, the said Papi Reddy got issued a legal notice dated 24-02-1999 to the defendant calling upon him to repay the amount due. Though the defendant received the said notice, he failed to pay any amount nor did he send any reply thereof. The said Papi Reddy transferred the above promissory note in favour of the plaintiff for collection on 01-4-2001 at Kavali under transfer endorsement effected on the back of the said promissory note. The plaintiff informed the defendant of the transfer and demanded him to pay the amount due. The plaintiff also got issued a legal notice dated 11-4-2001. The defendant is not an agriculturist and therefore, rate of interest is claimed at 24% per annum. The defendant is not entitled to the benefits of Act No. 2/1990. Hence, the suit. 4. Brief averments in the written statement filed by the defendant are as follows: (a) It is denied that the defendant borrowed a sum of Rs. 4,50,000/- from one Kaliki Papi Reddy on 15-4-1998 and executed a promissory note on the same day in his favour agreeing to repay the same with interest at 24% per annum either to Papi Reddy or his order on demand. 4,50,000/- from one Kaliki Papi Reddy on 15-4-1998 and executed a promissory note on the same day in his favour agreeing to repay the same with interest at 24% per annum either to Papi Reddy or his order on demand. It is also denied that the defendant did not pay any amount due in spite of several demands. It is admitted that Papi Reddy got issued a legal notice on 24-02-1999 to the defendant calling upon him to pay the amount due and the allegation in the said notice is denied. The defendant got issued a reply notice on 15-3-1999. (b) It is contended that the defendant has no acquaintance with Papi Reddy, who is a close friend of Dr. Bysani Rama Rao and his brother Bysani China Malakondaiah. There was no need or necessity to borrow such huge amount of Rs. 4,50,000/- from Papi Reddy on 15-4-1998. Papi Reddy is just binamidar and name-lender and actual instigator and beneficiary of Dr. Bysani Rama Rao, who is running a pediatric clinic by name Sarala Clinic in Nellore. The defendant along with the said Bysani Rama Rao, Peteti Subba Rao and Shyam Krishna carried on a business viz., Sri Ranganadha Beverages Company Private Limited, Nellore, as distributors of Pepsi cool drinks for Nellore and Chittoor districts and sustained heavy losses. Since September, 1992, disputes arose among them and the said Bysani Rama Rao and Peteti Subba Rao started pressing the defendant to make good the loss sustained by them on the allegation that he is responsible for the loss. (c) It is further contended that Peteti Subba Rao created an agreement of sale as though executed by the defendant in favour of himself, his brother and mother in respect of family property of the defendant and filed a suit in O.S. No.297 of 1997 on the file of Senior Civil Judge's Court, Nellore, for specific performance of agreement of sale. Dr. Bysani Rama Rao also filed a criminal complaint on 07-11-1993 against the defendant, Peteti Subba Rao and five others under Sections 406 and 420 of IPC in C.C. No.538 of 1999 on the file of II Additional First Class Magistrate's Court, Nellore, with all false allegations, to harass and cause inconvenience by way of threat. Dr. Bysani Rama Rao also filed a criminal complaint on 07-11-1993 against the defendant, Peteti Subba Rao and five others under Sections 406 and 420 of IPC in C.C. No.538 of 1999 on the file of II Additional First Class Magistrate's Court, Nellore, with all false allegations, to harass and cause inconvenience by way of threat. Bysani Rama Rao and Papi Reddy got the defendant kidnapped through hired goondas on 24-3-1995 and took him to a distant place wrongfully confined him, tortured him, placed him under a threat of death and obtained signatures of the defendant on 26-3-1995 on blank promissory notes, blank stamped papers and on some white papers. The defendant was kept in wrongful confinement from 24-3-1995 to 30-3-1995. The defendant's wife lodged a complaint on 26-3-1995 in II Town Police Station, Nellore. The defendant got issued a legal notice on 11-4-1995 to the said Dr. B. Rama Rao and the same was received by him on 17-4-1995, but there was no response from him. The said B. Rama Rao made use of one of the said blank promissory notes and filled up the same in the name of Kaliki Papi Reddy and nominally transferred by endorsing the same on the alleged suit promissory note in favour of the plaintiff with various false allegations and got filed this suit, with ulterior motives of wrongful gain and to harass the defendant. The scribe and attestors of the alleged suit promissory note are all close associates of the said Dr. Bysani Rama Rao and his brother China Malakondaiah. Thus, the defendant is not liable for any portion of the suit claim. The alleged suit promissory note dated 15-4-1998 is not supported by consideration and it was never executed by the defendant. The suit promissory note is of no value and it cannot be enforced, it is subsequently filled up, it amounts to fabrication and on those grounds, the suit promissory note is not valid and basing on that, the suit is not maintainable. There is no cause of action for the suit and that the suit may be dismissed with costs. 5. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the suit pronote is true, valid and binding on defendant ? There is no cause of action for the suit and that the suit may be dismissed with costs. 5. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the suit pronote is true, valid and binding on defendant ? (2) Whether Bysani Rama Rao forcibly under threat of death, obtained signatures of defendant in certain papers on 26-3-1995 due to disputes as alleged in written statement ? (3) Whether transfer endorsement in favour of plaintiff is true, valid and binding on defendant ? and (4) To what relief ? 6. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 7 are examined and Exs.A-1 to A-6 are marked. On behalf of the defendant, D.Ws.1 to 3 are examined and Exs.B-1 to B-7 are marked. 7. After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit with costs for a sum of Rs. 7,74,000/- together with subsequent interest on Rs. 4,50,000/- at the rate of 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum till realization. 8. Heard Sri M.R.S. Srinivas, learned counsel for the appellants and Ms. Sree Deepthi, learned counsel representing on behalf of Sri P. Ganga Rami Reddy, learned counsel for the respondent. 9. The learned counsel for appellant would contend that the trial Court failed to observe that the suit promissory note dated 15-4-1998 was fabricated on blank promissory notes which were forcibly obtained from the defendant by Bysani Rama Rao and other directors of Ranganatha Beverages Company Private Limited and the suit promissory note was not at all supported by consideration. He would further contend that the alleged creditor P.W.7 is a mere name-lender and there were no dealings between him and the defendant at any point of time. He would further contend that the trial Court failed to observe that the plaintiff has no capacity to lend money to the defendant and he further submits that the judgment and decree passed by the trial Court is contrary to law and the same may be set aside and the appeal may be allowed. 10. He would further contend that the trial Court failed to observe that the plaintiff has no capacity to lend money to the defendant and he further submits that the judgment and decree passed by the trial Court is contrary to law and the same may be set aside and the appeal may be allowed. 10. Per contra, the learned counsel for respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge and the appeal may be dismissed. 11. Now, the points for determination are: (1) Whether the trial Court is justified in holding that Ex.A-1 promissory note is true, valid and supported by consideration and whether the plaintiff is entitled to the suit claim ? (2) Whether the judgment and decree passed by the trial Court needs any interference ? and (3) To what extent ? 12. Points 1 and 2:- Whether the trial Court is justified in holding that Ex.A-1 promissory note is true, valid and supported by consideration and whether the plaintiff is entitled to the suit claim ? and Whether the judgment and decree passed by the trial Court needs any interference ? The case of the plaintiff is that the defendant borrowed a sum of Rs. 4,50,000/- from one Kaliki Papi Reddy on 15-4-1998 and executed a promissory note on the same day and agreed to repay the same with interest either to Papi Reddy or his order on demand, but the defendant failed to pay the amount with interest and thereupon, the said Kaliki Papi Reddy got issued a legal notice to the defendant calling upon him to repay the amount and he received the said notice. The plaintiff further pleaded that subsequently the said promissory note was transferred in favour of the plaintiff by Papi Reddy for collection on 01-4-2001 at Kavali under a transfer endorsement effected on the back of the promissory note. Though the plaintiff got issued a legal notice subsequent to the transfer of promissory note, the defendant failed to discharge the same. 13. Though the plaintiff got issued a legal notice subsequent to the transfer of promissory note, the defendant failed to discharge the same. 13. The case of the defendant from the beginning at the stage of reply notice itself prior to institution of the suit, which is also pleaded by the defendant in the written statement itself, is that the plaintiff has to prove that he is having capacity to lend a huge sum on 15-4-1998 to the defendant and the plaintiff is a stooge in the hands of one Dr. Bysani Rama Rao, who is running a clinic by name Sarala Clinic at Nellore and the said Bysani Rama Rao, the defendant and another were carried on business in the name of Sri Ranganadha Beverages Company Private Limited. The defendant further pleaded that subsequently differences arose between partners and the said Rama Rao not only duped the defendant but also kidnapped him on 24-3-1995 at about 9.20 p.m., and forcibly took him in a car bearing No.AP26- 9394 and subsequently, the defendant learnt that P.W.7 herein is also one of the culprits in the said kidnapping. It is also another plea of the defendant that after receipt of legal notice dated 03-3-1999, he made enquiries and came to know that Kaliki Papi Reddy was also one among those persons who kidnapped the defendant for the sake of Dr. Bysani Rama Rao. It is also the specific case of the defendant that a case was registered in II Town Police Station, Nellore, under Sections 363, 348 and 506 of IPC on 26-3-1995 and the same was registered as a case in Crime No. 23/1995. An overall reading of the written statement and the evidence of D.W.1 shows that the defendant admitted his signature in Ex.A-1 but he has taken a specific plea that the suit promissory note is brought into existence by the said Dr. Bysani Rama Rao through the plaintiff. 14. To prove the defence, the defendant relied on the evidence of D.Ws.1 to 3. D.W.1 is the defendant in the suit. He reiterated the plea taken by him in the written statement in his chief affidavit as D.W.1. Bysani Rama Rao through the plaintiff. 14. To prove the defence, the defendant relied on the evidence of D.Ws.1 to 3. D.W.1 is the defendant in the suit. He reiterated the plea taken by him in the written statement in his chief affidavit as D.W.1. In cross- examination, he admits that he had not filed any criminal case against P.W.7 that he kidnapped him and he filed a criminal case against Bysani Rama Rao and others but the said case was referred as false and he had no disputes with the attestors and scribe and the signature in Ex.A-1 as executant belongs to him. In the reply notice in Ex.B-2 itself, the defendant pleaded that P.W.1 has to prove that he is having capacity to lend money, P.W.7 stated that he sold Ac.50-00 of land at Annavaram village and lend money to the defendant herein. 15. To prove that the plaintiff had not sufficient capacity to lend money, the defendant summoned the Sub Registrar, Kavali and after receipt of summons, a Junior Assistant in the Sub Registrar's office, Kavali, appeared before the trial Court and was examined as D.W.2. As per his evidence, K. Papi Reddy did not sell any property situated at Annavaram village during the year 1998 and he also produced relevant registers in the Sub Registrar's office before the trial Court. The own admission of P.W.7 in cross- examination is that he sold away Ac.50-00 of land at Annavaram village and he secured that amount and also sold another land to one Satyanarayana of Kaikaluru under a registered sale deed at Rs. 15,000/- per acre and he lent the same amount is not proved by the plaintiff. Therefore, the statement of P.W.7 that he sold away Ac.50-00 of land at Annavaram village is utterly false. 16. The defendant also relied on the evidence of D.W.3. D.W.3 deposed in his evidence that at about 10 years ago while he was present at sunflower garden at 05.00 or 05.30 p.m. on one day, at that time one car came to that place and four people came in the car along with the defendant and they dropped the defendant from out of the car and four people forcibly took away the defendant towards hill area by caught hold the collar of D.W.1 and five days thereafter, D.W.1 came to their village. He was cross-examined by the learned counsel for plaintiff. He was cross-examined by the learned counsel for plaintiff. In cross-examination, he cannot say on which date the alleged kidnap has taken place. The case of the defendant is that the alleged kidnap is said to have taken place at about 10 years back. Therefore, it is impossible for a human being to remember the date which is happened at about 10 years. 17. To substantiate the case of the plaintiff, the plaintiff himself examined as P.W.1. He deposed in his evidence about the transfer of Ex.A-1 suit promissory note by P.W.7 in favour of him and he also stated in his evidence that subsequent to transfer endorsement made by P.W.7 in favour of him, he got issued a legal notice but the defendant failed to discharge the said debt. There is no whisper in the chief-affidavit of P.W.1 that the entire suit transaction was happened in his presence. In his evidence in cross- examination, P.W.1 admits that he is working as a private accountant in Bysani and other firms and he got acquainted with the alleged creditor under Ex.A-1 suit promissory note i.e. P.W.7 and he used to sell paddy of P.W.7 on his behalf. He further deposed that he does not know whether he is doing business or not. Whereas P.W.7 lender under Ex.A-1 admits in cross- examination that the plaintiff is working as accountant in his mill since 1997 i.e. prior to the alleged Ex.A-1 suit transaction. As per the admissions of P.W.1, he has no personal knowledge about the execution of Ex.A-1 promissory note and passing of consideration of Rs. 4,50,000/- from P.W.7 to the defendant under Ex.A-1. But, P.W.7 admits in cross-examination that one Vinjamur Venkaiah, Srinivasulu and the plaintiff attested the suit promissory note. I have perused Ex.A-1 suit promissory note. P.W.7 is also acted as 3rd attestor in Ex.A-1 alleged promissory note. Therefore, the evidence of P.Ws.1 and 7 is conflicting with each other on vital aspects with regard to the alleged execution of Ex.A-1 promissory note. 18. P.W.2 is the scribe of alleged Ex.A-1 promissory note. In his evidence in chief-examination, he stated that he scribed Ex.A-1 promissory note and the defendant received consideration and signed on the promissory note Ex.A-1. In cross-examination, he admits that one Venkaiah and Seenaiah signed as attestors in Ex.A-1. He did not state that P.W.1 is also the 3rd attestor in Ex.A-1. In his evidence in chief-examination, he stated that he scribed Ex.A-1 promissory note and the defendant received consideration and signed on the promissory note Ex.A-1. In cross-examination, he admits that one Venkaiah and Seenaiah signed as attestors in Ex.A-1. He did not state that P.W.1 is also the 3rd attestor in Ex.A-1. He also did not state in his evidence that the entire Ex.A-1 transaction was taken place in the presence of P.W.1 and P.W.1 also signed as the 3rd attestor. P.W.3 stated in his evidence in chief-examination affidavit that he is the 1st attestor in Ex.A-1 and at the time of Ex.A-1 transaction, P.W.2 scribe and another attestor Srinivasulu were present. The alleged presence of P.W.1 at the time of Ex.A-1 is not at all spoken by P.W.3 in his evidence affidavit itself. 19. P.W.2, the scribe of alleged Ex.A-1, stated in his evidence in cross- examination that P.W.3 i.e. the 1st attestor, took him to the house of P.W.7, whereas P.W.3 admits in his evidence in cross-examination that he does not know who scribed Ex.A-1. By the time he went there, he was asked by P.W.7 to sign in Ex.A-1 as attestor. By that time, P.W.7 alone was present. By the time he signed on Ex.A-1, no others signed on Ex.A-1 and he does not know the contents of Ex.A-1 suit promissory note. Furthermore, he admits that himself and his son are very close to Papi Reddy P.W.7 always. As per his own admissions, he is very close to the person who lent the money under Ex.A-1 promissory note but he is not at all supporting the case of the plaintiff. 20. P.W.4 is alleged 2nd attestor to Ex.A-1 promissory note. In his chief- affidavit, he stated that he is the 2nd attestor in Ex.A-1 promissory note and in his presence, the defendant received consideration and signed on the promissory note. In cross-examination, he admits that by the time of Ex.A-1 transaction, he was present in the house of P.W.7 and after 20 minutes he went there, his father came. His father is none other than P.W.3. But, as per the evidence of P.W.3, nobody signed on Ex.A-1 promissory note by the time he signed on Ex.A-1 promissory note. In cross-examination, he admits that by the time of Ex.A-1 transaction, he was present in the house of P.W.7 and after 20 minutes he went there, his father came. His father is none other than P.W.3. But, as per the evidence of P.W.3, nobody signed on Ex.A-1 promissory note by the time he signed on Ex.A-1 promissory note. P.W.3 clearly admits in cross- examination that P.W.7 simply asked him to sign on the promissory note, he simply signed on the promissory note and nobody were present except P.W.7 at that time he signed on the promissory note. Another important admission made by the father of P.W.4 is that himself and his son i.e. P.W.4 are very close to P.W.7. P.W.3 stated in his evidence in cross-examination that his father was not present at that time P.W.7 obtained his signature on the promissory note. 21. P.Ws.5 and 6 are no way connected with the alleged Ex.A-1 transaction. P.W.5 is scribe and P.W.6 is attestor of transfer endorsement on Ex.A-1. Passing of consideration under Ex.A-1 is disputed by the defendant. The first contention taken by the defendant in the reply notice which is said to have been given prior to the institution of the suit itself that the plaintiff had no capacity to lend huge money of Rs. 4,50,000/- in those days in the year 1998. Therefore, the burden is on the plaintiff to prove that P.W.7 is having sufficient capacity to lend Rs. 4,50,000/- to the defendant in those days in the year 1998. The specific case of P.W.7 is that he sold away Ac.50-00 of land at Annavaram village and with the same money, he lent to the defendant on 15-4-1998. Whereas, as per the evidence of D.W.2, Junior Assistant in Sub Registrar's office, P.W.7 did not sell any property at Annavaram village during the year 1998. 22. The evidence of P.W.1 is that he is not having personal knowledge about Ex.A-1 transaction and subsequent to issuance of Ex.A-3 reply notice, the promissory note was transferred in his name for collection, whereas Ex.A-1 and the evidence of P.W.7, the person who lent the money under the alleged Ex.A-1 promissory note shows that P.W.1 is the 3rd attestor to Ex.A-1 promissory note. To prove the alleged Ex.A-1 suit promissory note, the plaintiff has examined the scribe and attestors of Ex.A-1. To prove the alleged Ex.A-1 suit promissory note, the plaintiff has examined the scribe and attestors of Ex.A-1. As per Ex.A-1, P.Ws.1, 3 and 4 are the attestors in Ex.A-1 promissory note, but as stated supra, there is inconsistency in between the evidence of P.Ws.1, 3 and 4 and the entire evidence of P.Ws.1, 3 and 4 is contradicting with each other. P.W.4 stated in his evidence affidavit that P.W.2 i.e. the scribe and P.W.3 were present, except them nobody were present. The presence of 3rd attestor at the time of alleged Ex.A-1 transaction is not at all spoken by P.Ws.2, 3 and 4 in their chief affidavits themselves. The presence of P.Ws.1, 2 and 4 is not at all spoken by P.W.3 in his evidence. As per the evidence of P.W.3, none were present except P.W.7 by the time he signed on the suit promissory note. 23. As stated supra, there are several major discrepancies in the evidence of P.Ws.1 to 4 with regard to the alleged execution of Ex.A-1, the same cannot be simply thrown out. Therefore, passing of consideration under Ex.A-1 is highly doubtful. 24. The defendant has proved by examining D.W.2 and established that the plaintiff had no capacity to lend huge money of Rs. 4,50,000/- in those days in the year 1998 and he also relied on the evidence of D.Ws.1 to 3 and Exs.B-1 to B-7. Therefore, the defendant has proved his initial burden of proof showing that the existence of consideration was improbable and doubtful, the onus then would shift to the plaintiff to prove passing of consideration as a matter of fact and failure to prove would disentitle him to grant of relief on the basis of alleged Ex.A-1 promissory note. 25. In the case of Roop Kumar v. Mohan Thedani, 2003 INSC 206, (2003) 6 SCC 595 , the Apex Court held as follows: "13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the "best-evidence rule". This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the "best-evidence rule". It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406). It has been best described by Wigmore stating that the rule is in no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process - the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely that dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to "prove" it or "give evidence" of it; otherwise, any rule of law whatever might be reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects - sale, contract etc. there are specific requirements varying according to the subject. On the contrary there are also certain fundamental elements common to all and capable of being generalised. Every jural act may have the following four elements: (a) the enaction or creation of the act; (b) its integration or embodiment in a single memorial when desired; (c) its solemnization or fulfilment of the prescribed forms, if any; and (d) the interpretation or application of the act to the external objects affected by it. 14. Every jural act may have the following four elements: (a) the enaction or creation of the act; (b) its integration or embodiment in a single memorial when desired; (c) its solemnization or fulfilment of the prescribed forms, if any; and (d) the interpretation or application of the act to the external objects affected by it. 14. The first and fourth are necessarily involved in every jural act, and second and third may or may not become practically important, but are always possible elements." 26. In the case of Kundan Lal Rallaram v. The Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316 , the Apex Court held as follows: "4. ... ... ... it would be necessary to notice at the outset the scope of the presumption under Section 118 of the Negotiable Instruments Act and also the different methods available to a person against whom such a presumption is drawn to rebut the same. The relevant part of Section 118 of the Negotiable Instruments Act reads: "Until the contrary is proved, the following presumptions shall be made: (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration." 5. This section lays down a special rule of evidence applicable to negotiable instruments. 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. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase "burden of proof" has two meanings - one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under Section 101 of the Evidence Act, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in Section 118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, Section 118 of the Negotiable Instruments Act imposes a duty on the court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. Under Section 114 of the Evidence Act, "The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case". Illustration (g) to that section shows that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Illustration (g) to that section shows that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances, if such a relevant evidence is withheld by the plaintiff, Section 114 enables the court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court, can under certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law." 27. In the case on hand, as stated supra, Ex.A-1 promissory note shows that P.W.1 is the 3rd attestor but as per the own admission of P.W.1, he has no personal knowledge about the suit transaction and he was not present at the time of suit transaction. As per the evidence of P.W.2 scribe, P.W.3 took him to the house of P.W.7 to scribe Ex.A-1 suit promissory note. Whereas, as per the own admission of P.W.3, he does not know who scribed Ex.A-1, by the time he signed on Ex.A-1 promissory note, P.W.7 alone was present and P.W.7 simply asked him to sign in Ex.A-1 promissory note and that he signed, by the time he signed on Ex.A-1 pronote no others signed in Ex.A-1 promissory note. Furthermore, the presence of P.W.1 at the time of alleged transaction is not at all spoken by P.Ws.2, 3 and 4, who are the scribe and other attestors in the alleged Ex.A-1 transaction. Furthermore, the presence of P.W.1 at the time of alleged transaction is not at all spoken by P.Ws.2, 3 and 4, who are the scribe and other attestors in the alleged Ex.A-1 transaction. Furthermore, P.W.3, who is the 1st attestor in Ex.A-1 alleged promissory note, clearly admitted in his evidence in cross-examination that he does not know who scribed Ex.A-1 promissory note and P.W.7 simply asked him to sign on Ex.A-1 as attestor, he signed on it, by that time nobody signed on Ex.A-1 except P.W.7, none were present. Another important admission made by him in his evidence is that himself and his son are very close to P.W.7 Papi Reddy always. His son is none other than P.W.4, who is also the 2nd attestor to the alleged Ex.A-1 promissory note. As per his evidence in cross-examination, by the time he went to the house of P.W.7, P.W.2 is scribing Ex.A-1 promissory note. Therefore, the evidence of attestors and scribe and the creditor under the alleged Ex.A-1 promissory note who lent money to the defendant is conflicting with each other on crucial aspects. 28. In the case of Pottem Subbarayudu v. Kothapalli Gangulu Naidu, 2000 SCC OnLine AP 296, the composite High Court of Andhra Pradesh at Hyderabad held as follows: "18. There can be no straightjacket formula for the appreciation of oral evidence of the witnesses. The credibility of the witness is the paramount consideration for the Court. After passing the three legal tests viz., relevancy, admissibility, and competence of the witness, while considering the credibility of the witness, the Court has to consider various parameters so as to appreciate the oral evidence on the point by testing the same on the touch stone of two important yardsticks viz., the probabilities and surrounding circumstances among various other parameters. Even when no rebuttal is adduced by the adversary the ocular testimony of the witnesses examined on the side of the party on whom the burden lies, cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances. The judgments of the Apex Court in Govinda(sic, Ramchandra Rambux) v. Champa Bai, 1964 INSC 37 : AIR 1965 SC 354 and Chaturbhuj Pande v. Collector, Raigarh, 1968 INSC 159 : AIR 1969 SC 255 , would lend support to my above view. The judgments of the Apex Court in Govinda(sic, Ramchandra Rambux) v. Champa Bai, 1964 INSC 37 : AIR 1965 SC 354 and Chaturbhuj Pande v. Collector, Raigarh, 1968 INSC 159 : AIR 1969 SC 255 , would lend support to my above view. Let us therefore see the voluminous oral evidence: on the side of the defendants and that of P.Ws. 1 and 2 on the side of the plaintiffs: how far and to what extent stands the judicial scrutiny." 29. In the case on hand, there are several major discrepancies in the evidence of P.Ws.1 to 4, as stated supra, with regard to the execution of the alleged Ex.A-1 suit promissory note and passing of consideration under Ex.A-1. 30. The learned counsel for respondent/plaintiff placed reliance on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, 1999 INSC 69 : (1999) 3 SCC 35 . In that decision, it was held by the Apex Court as follows: "12. 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 a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a 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. 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 the 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. 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. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and the Andhra Pradesh High Court in this regard." 31. In the case on hand, as stated supra, the presence of attestors at the time of Ex.A-1 alleged transaction is highly doubtful. The evidence of attestors P.Ws.1, 3 and 4 and scribe is conflicting with each other in many aspects including passing of consideration and alleged execution of Ex.A-1 promissory note. 32. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal (4 supra), the Apex Court held thus: "... ... ... 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 ... ... ..." 33. The standard of proof evidentially is the principles of preponderance of probability, inference of preponderance of probability can be drawn from the material on record and by reference to the circumstances upon which the reliance is placed. 34. ... ..." 33. The standard of proof evidentially is the principles of preponderance of probability, inference of preponderance of probability can be drawn from the material on record and by reference to the circumstances upon which the reliance is placed. 34. The defendant has discharged the initial evidential burden by providing the plausible evidence that raises doubt about the genuineness of the promissory note and passing of consideration. As a result, the presumption under Section 118 of the Negotiable Instruments Act disappears and becomes functus officio and the evidential burden shifts to the plaintiff, who also has the legal burden arising out of the pleadings to prove the consideration. No doubt, the defendant failed to prove the alleged kidnap but the plaintiff failed to prove that he is having sufficient capacity to lend a huge sum of Rs. 4,50,000/- in those days way back in the year 1998. Furthermore, the evidence of the attestors and the scribe is conflicting with each other on many aspects including the execution of Ex.A-1 promissory note. The burden heavily lies on the plaintiff to prove that he is entitled to the suit claim but he failed to prove the same. After considering the entire evidence on record, the plaintiff has not discharged the legal burden, as such he cannot again rely on the presumption under Section 118 of the Negotiable Instruments Act. The evidence produced by the plaintiff regarding the payment of consideration at the time of execution of Ex.A-1 promissory note is highly unbelievable and it cannot be accepted. 35. As stated supra, the evidence of P.Ws.1 to 4 and 7, who are the crucial witnesses to prove that the promissory note is supported by consideration, is conflicting in many aspects especially with regard to the presence of the alleged attestors, alleged execution of Ex.A-1 and also passing of consideration, in the absence of any cogent evidence on record to show that the suit promissory note is a genuine supported by consideration, the suit cannot be decreed. For the aforesaid reasons, the suit promissory note is not true and not supported by consideration and therefore, the plaintiff is not entitled to the suit claim. Point No. 3:- To what extent ? 36. For the aforesaid reasons, the suit promissory note is not true and not supported by consideration and therefore, the plaintiff is not entitled to the suit claim. Point No. 3:- To what extent ? 36. In view of my findings on points 1 and 2, the appeal is allowed and the judgment and decree passed by the trial Court is not sustainable under law and it is liable to be set aside and that the suit in O.S. No.29 of 2001 on the file of Senior Civil Judge's Court, Kavali, is dismissed. Pending applications, if any, shall stand closed. Considering the circumstances of the case, I order each party to bear their own costs in the suit and appeal.