JUDGMENT : Sathish Ninan, J. The suit for money under Ext.A1 agreement was decreed by the trial court. The defendant is in appeal. 2. According to the plaintiff, he and the defendant were known to each other and were friends. The defendant borrowed a total amount of Rs. 30 lakhs from him on various occasions as hereunder :- 1 01/10/07 Rs. 7 lakhs 2 03/10/07 Rs. 7 lakhs 3 10/10/07 Rs. 5 lakhs 4 15/10/07 Rs. 11 lakhs Thereafter, Ext.A1 agreement dated 23.10.2007, was executed by the defendant in his favour, agreeing to repay the amount. The defendant had also handed over two post dated cheques for Rs. 15 lakhs each. The cheques when presented were dishonoured as “payment stopped by the drawer”. Independent proceedings have been initiated on the dishonoured cheques. The suit is filed on Ext.A1 agreement, for realisation of Rs. 30 lakhs with interest. 3. The defendant denied of having had any acquaintance or transactions with the plaintiff. The averment that the plaintiff and the defendant were known to each other was also denied. The alleged borrowal, execution and issuance of Ext.A1 agreement and the cheques were also denied. It was contended that, under a ploy by the plaintiff, one Assoo Mayan and one Unneethu, the defendant was caused to issue blank signed stamp papers and blank signed cheques under threat and at gun point. Ext.A1 has been fabricated on such stamp paper.He prayed for dismissal of the suit. 4. The trial court held that the execution of Ext.A1 agreement has been proved and that the defendant has failed to substantiate his case. Accordingly the suit was decreed. 5. We have heard learned counsel on either side. 6. The points that arise for determination are:- (i) Has the plaintiff proved the due execution of Ext.A1 agreement and that it is supported by consideration? (ii) Did the trial court err in holding that, the execution of Ext.A1 agreement having been proved, unless the defendant proves his case, the plaintiff is entitled for a decree? (iii) Does the decree and judgment of the trial court warrant any interference? 7. Before we proceed to discuss on the facts and evidence in the case, we deem it relevant to remind ourselves that, the suit is laid upon Ext.A1 agreement and not on a negotiable instrument. (iii) Does the decree and judgment of the trial court warrant any interference? 7. Before we proceed to discuss on the facts and evidence in the case, we deem it relevant to remind ourselves that, the suit is laid upon Ext.A1 agreement and not on a negotiable instrument. In a claim on a negotiable instrument, on proof of its execution, Section 118 of the Negotiable Instruments Act comes into play and there arises a presumption that the instrument is supported by consideration. Then it is for the defendant to rebut the presumption. However, when the suit is not upon a negotiable instrument but upon an agreement, the mere proof of its execution does not entail in any presumption regarding consideration or truth of the contents. Mere proof of execution of a document does not amount to proof of the contents and the truth of the recitals therein. This cardinal distinction is not to be overlooked. 8. In Ramji Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80] , the Apex Court held :- “..... Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. .....” In Achuthan Pillai v. Marikar (Motors) Ltd., Trivandrum and others [AIR 1983 Ker 81] a Division Bench of this court after referring to the judgment of the Apex Court in Ramji (supra) held, “The truth of the facts stated in the document if denied is to be proved by admissible evidence Under Section 61 of the Evidence Act , the contents of documents are to be proved either by primary or by secondary evidence and under Section 62 “primary evidence means the document itself produced for the inspection of the Court”. Even on such proof the Court is not bound to accept the contents, unless it is satisfied about the truth of the matter stated.”. Even on such proof the Court is not bound to accept the contents, unless it is satisfied about the truth of the matter stated.”. The aforesaid two judgments were further relied on by another Division Bench of this Court in Thampy T. V. v. Varkey Emmanuel (2005) 3 KLJ 144 9. Therefore, the mere proof of the execution of Ext.A1 agreement is not proof of the truth of its contents. When the contents of a document are denied, it is for the plaintiff to prove the same. Once the plaintiff has adduced evidence in support thereof, it would be for the defendant to disprove it. Of course it would be open for the defendant to rely even on the plaintiff’s case and establish that the plaint claim is unsustainable. Even in the case of negotiable instruments where presumption of consideration applies, presumption can be rebutted by the defendant by even relying on the evidence adduced by the plaintiff. (See: Bharat Barrel and Drum Mfg.Co. v. Amin Chand Payrelal [ 1999 (3) SCC 35 ] , Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm [2008 (6) SCC 39], Joseph v. Gladis Sasi [ 2010 (3) KLT 379 ] . It would all depend on the facts of each case. Bearing the above in mind, we proceed to analyse the facts and evidence in the case. 10. It is the plaintiff's case that, he and the defendant were known to each other for the last ten years, and that the defendant is a businessman. The said averment is denied by the defendant. He contended that the plaintiff is a stranger to him. He also denied the allegation that he is a businessman. No evidence was adduced by the plaintiff to support his claim. As PW1, while cross-examined, he deposed that his acquaintance with the defendant is in the course of real-estate/land dealings. However, he admitted that there had been no land transactions by them. He would claim that the defendant borrowed the amount for the purpose of real- estate business. However, he is not aware whether the defendant purchased any land utilising the said fund. The relevant portion reads thus :- In the course of his evidence, the plaintiff would claim that the defendant is doing business in spare parts. However, he is unable to depose about its details. However, he is not aware whether the defendant purchased any land utilising the said fund. The relevant portion reads thus :- In the course of his evidence, the plaintiff would claim that the defendant is doing business in spare parts. However, he is unable to depose about its details. In further cross-examination he would say that he is unaware of the business conducted by the defendant but that the amount was given to improve the business. The relevant deposition reads thus:- Suffice to notice that, the plaintiff's claim that he and the defendant were known to each other for long and that the defendant had some real-estate or other business etc. are disproved by his own evidence. 11. The defendant denied of having had any transaction with the plaintiff. The amount of Rs. 30 lakhs is claimed to have been paid to the defendant in cash. The plaintiff as PW1 would depose that the source for the said amount was from two sources, (i) by borrowing from one of his friends named Rafeeq and (ii) by sale of his shares in a Private Limited Company viz. Waynad Properties Pvt. Ltd. To prove the same he relied on Exts.A7 and A5 documents. Ext.A7 is the statement of bank account of one Mr.Rafeeqali K.K. with the Kondotty branch of State Bank of Travancore. It would show the withdrawal of an amount of Rs. 6 lakhs on 01.10.2007 by cash. The withdrawal is by the account holder himself. There is nothing to show that the said amount was withdrawn for payment to the plaintiff and that such amount was in fact paid to the plaintiff. 12. Incidentally it is also relevant to note that, PW1 in his cross-examination has admitted that he did not have money with him, to advance to the defendant, which caused him to borrow the amount from Rafeeq. He deposed 13. It is also relevant to note that though the plaintiff claims that he had advanced amount to the defendant after borrowing a portion from one of his friends, there is no agreement between the plaintiff and the defendant to pay any interest for the allegedly advanced amount. He deposed 13. It is also relevant to note that though the plaintiff claims that he had advanced amount to the defendant after borrowing a portion from one of his friends, there is no agreement between the plaintiff and the defendant to pay any interest for the allegedly advanced amount. As noticed earlier, there is no evidence to find that the plaintiff and the defendant were so well acquainted with each other and were close friends which prompted the plaintiff to advance amounts to the defendant after borrowing from another person and that too, without interest. 14. Now coming to Ext.A5, it is only a copy of the Memorandum and Articles of Association of “Waynad Properties Pvt. Ltd.”. Going by Ext.A5 there are two shareholders in the company, one which is the plaintiff. However, there is no material to show the sale of his shares to anyone and the receipt of money thereunder. There is no evidence with regard to the amount for which the shares were allegedly sold. As PW1 the plaintiff would claim that the amount was received by him in cash. He deposed that there are documents available to prove the sale of the shares for Rs. 25 lakhs. He deposed, "25 Share Transfer Register Register ” However, no such document is produced. 15. It is further relevant to note that the plaintiff that he is an income tax payee, that the receipt of Rs.25 lakhs by sale of the shares in the company and the grant of loan of Rs. 25 lakhs are reflected in his income tax return. He would also state that there is no difficulty in producing such return.Still it is not produced. Though it is claimed that documents were available with him to prove the alleged sale of the shares, he has not attempted to produce any such documents. Withholding of the best evidence tells upon the plaintiff's case and an adverse inference is liable to be drawn against him.[See Addagada Raghavamma And Another v. Addagada Chenchamma And Another ( AIR 1964 SC 136 ), Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others ( AIR 1968 SC 1413 ) ]. 16. Going by the plaintiff's case, the amount of Rs. 30 lakhs was advanced to the defendant on various dates as noticed first above. Admittedly, the payments on those dates viz. 16. Going by the plaintiff's case, the amount of Rs. 30 lakhs was advanced to the defendant on various dates as noticed first above. Admittedly, the payments on those dates viz. 01.10.2007, 03.10.2007, 10.10.2007 and 15.10.2007 were without obtaining any security documents and even without any document evidencing the grant of such loan. It is very difficult to believe that amounts of Rs. 7 lakhs, Rs. 7 lakhs, Rs. 5 lakhs and Rs. 11 lakhs etc. would be lend to a stranger on various occasions without even obtaining any document to secure or even to evidence the same. 17. Even going by the plaintiff's case, it was only on 15.10.2007, when an amount of Rs. 11 lakhs was paid, thus making the total amount as Rs. 30 lakhs, that he demanded for some document to secure the debt. According to the plaintiff, then the defendant said that he shall give some document later, for which the plaintiff did not seem to have had any issue. The relevant deposition reads thus:- It is surprising that, even though the plaintiff demanded for security document, the defendant refused to give it then and there but agreed to give it after a week, and the plaintiff readily agreed for the same and parted with a total amount of Rs. 30 lakhs. 18. Yet another important aspect is that, apart from the fact that there is no evidence to show the source of the money, there is no witness for the passing of money from the plaintiff to the defendant. PW2 is only a witness to Ext.A1 agreement. There is no witness for the payment of money. We do not find the evidence of PW2 to be reliable. He is a friend of the plaintiff and claims to have been present at the plaintiff’s house when the defendant reached there. He claimed that he had went to meet the plaintiff in connection with a land deal. But admittedly such deal did not happen. 19. It is also relevant to note that PW1 would depose that the amount was to be repaid within one month. His deposition reads thus :- However, on 01.10.2007 only an amount of Rs. 7 lakhs was advanced and not Rs. 30 lakhs. Further he had no such case in the plaint or in his chief examination. 20. 19. It is also relevant to note that PW1 would depose that the amount was to be repaid within one month. His deposition reads thus :- However, on 01.10.2007 only an amount of Rs. 7 lakhs was advanced and not Rs. 30 lakhs. Further he had no such case in the plaint or in his chief examination. 20. The plaintiff does not have a case that he had demanded from the defendant an agreement and also cheques as security. According to him, the defendant brought Ext.A1 agreement and also two cheques. The handing over of the cheques is also mentioned in Ext.A1 agreement. It is difficult to believe that the defendant would voluntarily have brought both the agreement and cheques and even incorporated about the cheques in the agreement. 21. All the circumstances mentioned above tells upon the plaintiff's case. The passing of consideration as claimed by the plaintiff, is found to be highly improbable in the circumstances mentioned above. The trial court has failed to take note of the same. 22. Now coming to the defence, according to the defendant, he is a well-known Islamic Scholar. Many people used to approach him for advices and prayers. One Assoo Mayan and Unneethu were two among them. They informed the defendant that with the help of one Anand Raj they are going to do business in import of copper/gold from Tanzania. Subsequently in October, 2007 Unneethu rang up the defendant and said that the business plans did not work out and that there had been some betrayal. The gold powder which they had brought was detected to be not gold. He was also informed that he was facing threats form one Kamal Shereef (the plaintiff herein) and his gang. With the permission of the defendant, Unneethu took asylum at the residence of the defendant on 20.10.2007. On 22.10.2007, the plaintiff and three others dashed into the house of the defendant on the pretext that they were searching for Unneethu. However, it was understood that it was a ploy by all of them together. The defendant was threatened with a pistol and dagger and his signatures were obtained on stamp papers and cheque leaves. Documents relating to his property were also taken away. The stamp paper and cheque leaves have been fabricated and the suit has been filed, is the contention. 23. The defendant was threatened with a pistol and dagger and his signatures were obtained on stamp papers and cheque leaves. Documents relating to his property were also taken away. The stamp paper and cheque leaves have been fabricated and the suit has been filed, is the contention. 23. The trial court noticed that, though the alleged incident was on 22.10.2007, the first complaint lodged by him before the police was on 25.10.2007 and therein the complaint was, “loss of documents”. The trial court also noticed that, there after the defendant had approached this Court in Crl.M.C. 3582/2007 seeking a direction to the police to enquire into his complaint. Complaint alleging the story now put forward was first lodged by the defendant in the said regard before the Judicial First Class Magistrate's Court, Kasaragod only on 16.05.2008. The trial court thus concluded that, initially the case of the defendant was only that his documents were lost and it was only on 22.10.2007 that he developed the present case. 24. With regard to the complaint lodged by the defendant on 25.10.2007 complaining loss of documents, it is the case of the defendant that, it was not a complaint lodged voluntarily by him but that it was caused to be lodged by Uppala Kaicha who was one among the gang in the incident. Ext.B3 is the complaint dated 24.01.2008, filed by the defendant before the Superintendent of Police, Kasaragod, therein he has narrated the entire incidents including the complaint he was made to lodge on 25.10.2007. Ext.A6 is the copy of the order of this Court in Crl.M.C. 3582 of 2007. Therein this Court directed the defendant(who was the petitioner therein) to approach the Magistrate's Court under Section 156(3) or Section 190 read with Section 200 Cr.P.C. The said direction was on 29.01.2008. It is thereafter on 16.05.2008, that the defendant approached the Judicial First Class Magistrate's Court. 25. We called for the original file in Crl.M.C.3582/2007. We notice that in the said Crl.M.C. Annexure- 1 is a complaint dated 25.10.2007 allegedly lodged by the defendant on being prevailed upon by Uppala Kaicha complaining loss of documents. Annexure-3 therein is a complaint dated 01.11.2007, filed by the defendant before the Superintendent of Police complaining of all the above incidents. We called for the original file in Crl.M.C.3582/2007. We notice that in the said Crl.M.C. Annexure- 1 is a complaint dated 25.10.2007 allegedly lodged by the defendant on being prevailed upon by Uppala Kaicha complaining loss of documents. Annexure-3 therein is a complaint dated 01.11.2007, filed by the defendant before the Superintendent of Police complaining of all the above incidents. Before this court in the Crl.MC the definite allegation of the defendant-petitioner was that Annexure-1 complaint dated 25.10.2007, was caused to be preferred by Uppala Kaicha and it is raising such allegations he had filed Annexure-3 complaint before the Superintendent of Police. It is thereupon that directions was sought to the police to take action on the offences committed. We refer to this to notice that, it may not be fully correct to say that after the incident on 22.10.2007 he did not rush to the police station and file a complaint but filed a complaint regarding missing of documents and with such allegation he approached this Court. It is also to be considered that it is only possible that if there was such an incident as alleged by him, he must have been flabbergasted and must have been under shock and under fear for his life. Ext.X4(a) is the copy of the register maintained by one M.M.Tourist Home at Kumbla, which is the area where the defendant resides. It shows that one Shareeef from Mongam had stayed there from 1.30 am on 21.10.2007 till 4.00pm on 22.10.2007. Though the plaintiff disputes the identity of the person, it is to be noted that the name of the plaintiff is “Kamal Sherif”, that he hails from “Mongam”, and according to the defendant the incident took place at “3.00pm on 22.10.2007”. All these seems to have some relevance. Suffice to notice that the reasoning given by the trial court to discard the defendant's case in its entirety, does not appear to be correct. We make it clear that we are not to be understood to have held the defence version as proved. We only notice that the version could not be brushed aside. 26. As we had noticed earlier, the defendant can disprove the case of the plaintiff not only on his defence but also by proving the improbability of the plaintiff's case. He can even rely upon the evidence of the plaintiff and disprove his case. We only notice that the version could not be brushed aside. 26. As we had noticed earlier, the defendant can disprove the case of the plaintiff not only on his defence but also by proving the improbability of the plaintiff's case. He can even rely upon the evidence of the plaintiff and disprove his case. The plaintiff herein has miserably failed to prove the transaction upon which the suit is filed. The plaintiff is not entitled for a decree on Ext.A1 agreement. The finding of the trial court to the contrary is liable to be interfered with. In the result, this appeal is allowed. The decree and judgment of the trial court are set aside and the suit will stand dismissed.