9911796707
TMI Blog2022 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... no need or necessity for the plaintiff to give explanation for not obtaining the thump impression in the suit promissory note. There is no such law to get the thump impression in the suit promissory note. There is no such law to get the thump impression also in the promissory note, particularly, when the execution and issuance of Ex.A1 to Ex.A3 were not in dispute. When there was no dispute as to the execution of Ex.A1 to Ex.A3, the first Appellate Court ought not to have compared the suit documents by naked eye, as if, the defendant has denied execution and therefore, based upon the above evidence both in oral and documentary pleaded and evidence of the plaintiff side, it is found that in terms of Section 4 of the Indian Evidence Act, whenever it is provided by the Act that the Court shall presume a fact, it shall record such fact as proved unless and until it is disproved. Applying the said definitions of proved or disproved under Section 5 of the Indian Evidence Act to the principle behind Section 118 (a) of the Negotiable Instruments Act, the Court shall presume that Ex.A1 to Ex.A3 were supported by consideration. Presumption under Section 118 of the Negotiable Instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff filed the suit for recovery of the suit claim of Rs.4,59,000/- along with subsequent interest. 4. Resisting the suit, the defendant filed written statement inter alia admitting the execution of the suit promissory notes. However, the defendant raised plea that the above mentioned promissory notes had been executed towards security for the loan borrowed, and that the loan due was settled by way of execution of a sale deed, dated 12.11.1999 in the name of the plaintiff's wife. It is further alleged that the suit promissory notes were not supported by consideration and the blank promissory notes were filled up for the purpose of filing the suit in the year 2004. On the above pleadings, the trial Court framed six issues. 5. On the plaintiff's side, the plaintiff has examined three witnesses besides marking Ex.A1 to Ex.A8. On the side of the defendant, DW1 to DW3 were examined besides marking Ex.B1 and Ex.B2. More so, Ex.C1 to C5 and Ex.X1 to X5 were marked at the instance of the respective parties to prove their case. 6. Upon consideration of oral and documentary evidence and also taking note of the admission as to the execution, the trial Court considered the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the pro-note and issuance of the pro-note are not in dispute. The trial court has rightly invoked the presumption under the Negotiable Instruments Act and called upon the defendant to repay the presumption and is filing decreed the suit. However, I find that the lower Appellate Court/learned Principal District Judge, Namakkal, has not even considered the presumption under the Negotiable Instruments Act and not followed even burden of proof or onus of proof as stated in the Indian Evidence Act. 12(a). On perusal of the evidence of PW1 and PW2 and the written statement filed by the defendant and the oral evidence of PW1, I find that the execution and issuance of the pro-notes, viz., Ex.A1 to Ex.A3 are not in dispute. In fact, the defendant has categorically admitted the same in the written statement as well as in his evidence. However, the first Appellate Court has committed an error in giving findings as to the execution. Once the signature found in the suit documents have been admitted, there is no need or necessity for the plaintiff to give explanation for not obtaining the thump impression in the suit promissory note. There is no such law to get the thump impression in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospective and has wrongly thrown the burden of proof on the plaintiff with gross ignorance of legal presumption. The defendant had admitted the execution of Ex.A1 to Ex.A3. 15. The discussion carried on by the lower Appellate Court, particularly, at the end of the part of the judgment clearly shows that the learned Appellate Judge has nor even understood the facts of the case and has applied wrong preposition of burden of the proof forgetting the presumption under the Negotiable Instruments Act and it is the onus of the proof by the defendant to discharge the burden. 16(a). It remains to be stated that certain contradictions said to have been noted by the lower Appellate Court basing upon the evidence of PW1 and DW3-wife of PW1. It appears from the lower Court records that on Court summons, the wife of PW1 was examined as DW3, it could have been Court witness not the defendant witness. Secondly, she had deposed regarding certain transaction taken between herself and defendant for the construction of the house and the selling of the lands. Those transactions cannot be mixed up with the alleged pro-note. The defendant having admitted the signature in Ex.A1 to Ex.A3. Having admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
