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TMI Blog2023 (12) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in, BHARAT BARREL DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [ 1999 (2) TMI 627 - SUPREME COURT] has observed ' Once the defendant showed either by direct evidence or circumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff and the legal burden reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Act would disappear.' The plaintiff has admitted that he has not produced any document to show the lending; he has not produced any document to show that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l defendant in O.S. No. 213 of 2015 on the file of the II Additional District and Sessions Court, Erode (for brevity the Trial Court ), is the appellant herein. Challenge is to the decree for money granted in the said suit which was predicated on a dishonoured cheque. 2. For the sake of convenience, the parties will be adverted to as per their rank before the Trial Court. 3. According to the plaintiff, the defendant borrowed a sum of Rs. 23 lakhs from him on 04.11.2012 and issued a post-dated cheque dated 05.12.2012. The cheque that was presented for payment by the plaintiff was dishonoured on 27.12.2012. The plaintiff issued a notice on 04.01.2013 seeking repayment, and the defendant, having received the notice, did not send any reply. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as examined as P.W.1 and one Jaffar Ali was examined as P.W.2 and Exs.A.1 to A.12 were marked. The defendant examined himself as D.W.1 and there was no documentary evidence on his side. Exs.A.1 to A.3 are the certified copies of the cheque, return memo and office copy of the legal notice, respectively. Ex. A.4 is the acknowledgment card; Ex.A.5 is the dishonour note issued by the bank. Ex.A.6 to A.11 are the documents which were alleged to have been handed over by the defendant to the plaintiff at the time of borrowal. Ex.A.12 is the certified copy of the sale deed, the consideration received on execution of which was used to advance the loan to the defendant by the plaintiff. 7. The Trial Court invoked the presumption under Section 118 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118, ibid., would disappear. 11. If we were to examine the evidence of P.W.1 in the light of what has been laid down by the Hon'ble Supreme Court in the aforesaid judgment, we find that the evidence of P.W.1, by itself, would demolish the presumption created by operation of law, viz., Section 118, ibid. 12. P.W.1, in his cross-examination, has deposed that he has not produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court in Bharat Barrel Drum Manufacturing Company, supra, the presumption that is raised under Section 118, ibid., stood dissolved by the evidence of the plaintiff himself. 14. Contending contra, Mr. Kingsly Solomon, learned counsel for the plaintiff, would submit that the conduct of the defendant needs to be looked into. He would contend that though the defendant alleges that the documents were snatched from him, he had not chosen to lodge a police complaint. The conduct of the defendant in not sending a reply to the legal notice issued by the plaintiff, is also sought to be taken advantage of by the learned counsel for the plaintiff, to buttress his submission that the presumption that is raised under Section 118, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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........ 17. If we were to look at the evidence on hand in the light of the principles laid down by the Supreme Court in the judgment alluded to above, we find that Mr. Ramanlaal is justified in his contention that the evidence of P.W.1 itself would completely demolish the presumption created under Section 118, ibid. As already pointed out, the plaintiff has admitted that he has not produced any document to show the lending; he has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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