Venkataramiah, J.:— This appeal is filed against the judgment and decree dated 30-3-1967 passed in O.S No. 386 of 1964 on the file of the Third Addl. Civil Judge, Bangalore. The plaintiff who is the respondent in this appeal filed the above suit for recovery of a sum of Rs. 23,556-62 from out of the assets of one M.D Vittalsa in the hands of the defendant. The defendant is the widow of the said M.D Vittalsa. The case of the plaintiff was that on 7-10-1961 the said M.D Vittalsa who was carrying on business in cloth and ready-made dresses in shop No. 11, Sri Krishnarajendra Market, Bangalore City, borrowed a sum of Rs. 10,000 from him on a promissory-note agreeing to repay the same with interest at six per cent per annum. According to the plaintiff on the same day the said M.D Vittalsa borrowed another such of Rs. 10,000 on another promissory-note agreeing to repay the same with interest at six per cent per annum. The said M.D Vittalsa died in the year 1963 issueless leaving the defendant as the sole-heir and that his assets had passed into the hands of the defendant by way off Inheritance. The plaintiff, therefore, claimed that he was entitled to recover the total sum of Rs. 20,000 due under the two promissory notes referred to above with interest and costs from out of the assets of the deceased M.D Vittalsa in the hands of the defendant, and he, therefore, prayed for a decree against the defendent for a sum of Rs. 23,556-62 as stated earlier.
2. The defendant in her written statement denied the execution of the two promissory notes referred to above by her husband M.D Vittalsa. She also pleaded that the promissory notes were not supported by consideration. It was her further plea that the suit claim was false and fraudulent. She pleaded that the plaintiff who had his shoo, where he was selling some medical preparations, adjacent to the shop where M.D Vittalsa was running his shop, had entered into some transactions with M.D Vittalsa in respect of certain sites taking advantage of the confidence which M.D Vittalsa had reposed in the plaintiff. The plaintiff filed a reply to the written statement denying the allegations in the written statement. Thereafter the trial court framed issues. Of them, the two relevant issues were, (i) whether the deceased M.D Vittalsa executed the suit pronotes in plaintiff's favour? and (ii) were the suit pronotes supported by consideration. After trial, the trial court on a consideration of the evidence placed before it came to the conclusion that the two pronotes had been executed by the deceased M.D Vittalsa and that they were supported by consideration. Accordingly it decreed the suit as prayed for against the assets of M.D Vittalsa in the hands of the defendant. Aggrieved by the decree, the defendant has filed this appeal. The two main issues that arise for consideration in this appeal relate to the genuieness of the two promissory notes which are marked as Exts. P-4 and P-5 in the case and the passing of consideration thereunder. If the answer to either of these two issues is in the negative, the plaintiff has to fail. The evidence led before the trial court relating to both these issues is in a way overlapping. Before going into the evidence led in this case by the parties, we propose to set out the considerations that should weigh with a court in dealing with a case of this type.
3. This suit is one based on two negotiable instruments. The burden of proving the genuineness of the promissory notes is on the plaintiff. If the plaintiff establishes the genuineness of the promissory notes, then the burden of proving that the said documents are not supported by consideration would be on the defendant. This is so in view of the presumption of law which has to be raised under S. 118 of the Negotiable Instruments Act (hereinafter referred to as the Act) which provides that until the contrary is proved, it shall be presumed 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. The presumption under S. 118 of the Act is a rebuttable presumption. In a suit on a negotiable instrument, therefore, a person claiming under it as a promisee starts with an initial advantage and the burden of proving that the negotiable instrument is not supported by consideration is thrown on the person denying the same. It is open to a person on whom such burden is cast to show that the negotiable instrument is not supported by consideration either by adducing independent evidence or by relying upon the evidence led by the plaintiff himself on that question if it could be shown therefrom that the negotiable instrument was not really supported by consideration. The court however while dealing with a case in respect of a negotiable instrument is also entitled to take into consideration the presumptions of fact that may flow from the circumstances of the case as provided by S. 114 of the Indian Evidence Act. Dealing with S. 118 of the Act this is what the Supreme Court has said in Kundan Lal Rallaram v. Custodian, Evacuee Property(1):—
“The 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 VII 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 comprise circumstantial evidence or presumptions of law or fact. To illustrate how this doctrine worked in practice, we may take a suit on a promissory note. Under S. 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 S. 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 S. 114 and other sections of the Evidence Act. Under S. 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. 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, S. 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 S. 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.”
4. We, therefore, proceed to examine this case in the light of the observations of the Supreme Court extracted above.
5. We propose to deal with the question of passing of consideration first and the execution of the promissory notes by M.D Vittalsa later. While dealing with the first question, we assume for the moment that the promissory notes are genuine and examine the case regarding passing of the consideration. It is no doubt true in this case the defendant has not adduced specifically any oral evidence on her side to show that consideration did not pass under the promissory notes. But Sri Byra Reddy for the defendant-appellant contended that even assuming for purposes of argument that the promissory notes are genuine, on the plaintiff's own showing it is clear that no consideration passed under the two promissory notes and if on the consideration of the material before court, the court comes to the conclusion that the plaintiff had not paid any money under the promissory notes, then the suit should fail irrespective of the fact whether the suit promissory notes were genuine or not. That is why was propose to approach the case relating to the passing of the consideration first on the basis that the suit promissory notes are genuine and find out whether the presumption attached to them under S. 118 of the Act regarding the passing of the consideration is rebutted successfully by the defendant or not.
6. The plaintiff has examined in all six witnesses including himself and the defendant has examined two witnesses on her behalf. P.W 6 and D.W 1 are two hand-writing experts who have been called by the parties to speak regarding the identity or otherwise of signatures of M.D Vittalsa which are found on the admitted documents and the disputed documents in the case. We shall deal with their evidence a little later. P.W 5 Syed Abdul Hai is the plaintiff himself.
7. The plaintiff has examined P.W 1 Meer Abdul Haleem, P.W 2 M.M Oosman, P.W 3 Ahamedulla Mekhri and P.W 4 S. Nazir Ahmed in support of his case regarding passing of consideration and P.Ws 2 and 3 in support of his case that M.D Vittalsa executed the promissory notes.
8. P.W 2 M.M Oosman and P.W 3 Ahamedulla Mekhri claim to be the attestors of the two consideration receipts Exts. P-2 and P-3. It may be mentioned here that on Demand Pronotes Exts. P-4 and P-5 and the corresponding consideration receipts Exts. P-2 and P-3 are all on printed forms which are sold in the market. The blanks in the pronotes and the consideration receipts are typewritten. There is no evidence in this case as to when and where these documents were got typed.
9. Almost till the end of his examination-in-chief P.W 2 did not state that M.D Vittalsa signed the pronotes in his presence. When the counsel for the plaintiff noticed this important omission he appears to have put a question which has been recorded in the deposition sheet in the following form:
10. Ques: Whether Vittalsa signed the pronotes in your presence?
11. The answer of P.W 2 was, “Yes. Vittalsa signed on the stamps affixed on both the pronotes in my presence (Exts. P-4 and P-5) at Exts. P-4(a) and P-5(a)”. The form of the question put by the counsel for the plaintiff was hardly the form in which a question could be put in examination-in-chief. The question is undoubtedly a leading one and it related to one of the vital matters in issue in the case, namely, the execution of the promissory notes by M.D Vittalsa. The lower court should not have allowed the question to be put in that form. In the above circumstances very little importance can be attached to the answer given by this witness to the said question.
12. It may be mentioned that P.W 3 who is a corroborating witness was examined on 17-8-1966 whereas P.W 2 the other attestor had been examined on 7-7-1966. The proper thing for the plaintiff to have done was to have examined both these two witnesses on the same day and the long interval between the dates of examination of these two witnesses is a thing to be taken into account while weighing the evidence of these two witnesses. This witness no doubt says that he attested the two consideration receipts Exhts. P-2 and P-3. He does not say in chief-examination that P.W 2 was the other attestor. But in cross-examination this is what he says, “I know M.M Oosman; I saw him for the first time on the date of the pronotes; I and plaintiff were sitting in the shop. About 15 - 20 minutes after I reached there Vittalsa and Oosman came there together; If one sits in the shop of plaintiff, one can see persons entering shop of Vittalsa.” The above version of P.W 3 is inconsistent with the version of P.W 2, who stated that he knew P.W 3 eight days earlier. In cross-examination also this witness does not say that M.M Oosman P.W 2 attested Exts. P-2 and P-3 along with him. Apparently these two witnesses might not have been present at the time when Vittalsa is alleged have subscribed his signatures to the two pronotes Exts. P-4 and P-5.
13. In order to substantiate the claim, the plaintiff has relied upon Exts. P-16, 17 and 18. These three documents were produced by the plaintiff on 14-2-1966 into the trial court with some other documents along with an application I.A No. V filed under Order XIII Rules 1 and 2 of CPC. These three documents are mentioned at serial Nos. 6, 9 and 10 in the said application. It is necessary to mention here that the issues were framed in the suit on 1-2-1965 and the parties were asked to produce whatever documents on which they wanted to rely within two weeks therefrom. The case was posted for evidence on 8-3-1965. The case was adjourned from time to time for evidence to several dates, namely, 8-3-1965, 14-4-1965, 23-6-1965 and thereafter again the case was posted for evidence on 18-9-65, 13-10-1965, 8-11-1965, 6-12-1965, 17-1-1966, 28-1-1966 and 14-2-1966. As already stated it was on 14-2-1966 I.A No. V was filed by the plaintiff along with Exts. P-16, 17 and 18 and some other documents. The reason for the late production of these documents as stated in the affidavit of the plaintiff in support of I.A No. V was that there was some confusion and dislocation on account of change of residence of the plaintiff, and, therefore, these documents had been misplaced by him. The plaintiff has further stated that they had been mixed up with some old records and inspite of his best efforts, he was not able to lay hands on them. According to him, he discovered them when he made a thorough search only on the day previous to the date on which he made the said application. He has stated the documents which were being produced virtually established his case both with regard to the execution of the pronotes and the passing of the consideration, inasmuch as in those letters M.D Vittalsa admitted that he had borrowed the amount and executed the promissory notes.
14. The case of the plaintiff is that Exts. P-16 and P-17 are both postal inland letters which bear the date stamps of Hindupur and Bangalore post offices and that Ext. P-18, a copy of the letter written by him to M.D Vittalsa, is supported by a certificate of posting Ext. P-19 showing that the said letter had been posted by him, and, therefore, these letters should be treated as genuine documents. It is no doubt true that the presence of postal marks on letters prima facie raises a presumption that the said letters must have been posted on the dates which postal stamps bear and delivered on the dates which the postal seals of post office of delivery bear. The same presumption will have to be raised in favour of a certificate of posting issued by a post office, namely, that a letter was posted on the date found in the postal seal on the certificate of posting. The presumption however is a rebuttable one. It is necessary for a court particularly when such documents bearing postal seals are put forward in support of transactions, the genuineness of which is questioned, to carefully examine whether the letters represent a true state of affairs. Exts. P-16 and P-17 are in Kannada. The plaintiff does not know the person who has written these two letters. He only says that the two signatures marked Exts. P-16(a) and P-17(a) are of M.D Vittalsa. If Exts. P-16 and P-17 are genuine documents, then it follows that M.D Vittalsa had borrowed a sum of Rs. 20,000 from the plaintiff under two documents and those loans were outstanding even on the date on which these two letters were posted namely 1-5-1963 and 3-5-1963.
15. We do not feel that Exts. P-16, P-17 and P-18 have come into existence in the manner in which the plaintiff has spoken. No reliance can, therefore, be placed on them.
16. We may here mention a common feature found in some of the documents. In Exts. P-2, P-3, P-4 and P-5 for the digit ‘11’ in the typewritten portion of these documents, the letter Roman ‘1’ has been used. In the date 7th October 1861, we find the digit ‘1’ is typed as ‘I’. While furnishing the address of M.D Vittalsa No. 11, S.K.R Market, ‘11’ is typed as ‘II’. While giving the address of the plaintiff No. ‘12’ is typed as ‘12’ and the amount Rs. ‘10,000’ is typed as 10,000. In Ext. P-1, digit ‘1’ is typed as ‘I’ wherever it occurs. In Ext. P-11 which is a registered sale deed executed by M.D Vittalsa in favour of Saleema Begum, Exts. P-14 and P-15 which are said to be copies of letters written by the plaintiff to M.D Vittalsa, Exhts. P-18 and P-20 which are said to be copies of letters written by the plaintiff to M.D Vittalsa, we find the same common feature. This gives us an impression that all these documents must have been typed with the help of the same type-writer. This feature is found in Exts. P-12, 13 and 21 which are three certificates of posting produced by the plaintiff.
17. We proceed next to consider the evidence let in support of the genuineness of the signatures of M.D Vittalsa at Exts. P-2(c), P-3(c), P-4(a), P-5(a), P-16(a) and P-17(a). The only portion said to be in the hand-writing of M.D Vittalsa in the disputed documents Exts. P-2, P-3, P-4, P-5, P-16(a) and P-17(a), is his signature. The rest of it is either typewritten as in the case of Exts. P-2 to P-5 or in the hand-writing of somebody else as in the case of Exts. P-16 and P-17. The signatures of M.D Vittalsa in these documents are in Kannada. The letters in the said signatures are not jumbled up. Each letter in the signature is independent of the other. It is in evidence that the plaintiff was in possession of documents containing the signatures of M.D Vittalsa. Ext. P-10 is a registered sale deed dated 19-2-54 executed by the plaintiff as power of attorney holder of the vendor in favour of M.D Vittalsa in respect of a certain site in Civil Station, Bangalore. This document contains the signatures of M.D Vittalsa which he affixed while presenting the document before the Sub-Registrar for registration. Those signatures are marked Exts. P-10(a) and P-10(b). Since M.D Vittalsa later sold in his turn the said property of Saleema Begum, wife of the plaintiff, under Ext. P-11 dated 30-6-1961, Ext. P-10 which was the previous title deed with M.D Vittalsa was handed over to the plaintiff's wife, the purchaser under Ext. P-11. Ext. P-11 which is a registered sale deed executed by M.D Vittalsa contains his signatures marked as Exts. P-11(a), P-11(b), P-11(c), P-11(d), P-11(e) and P-11(f). Exts. P-10 and 11 were produced into court by the plaintiff along with Exts. P-16. P-17 and P-18 under I.A No. V. Before proceeding to compare the disputed signatures with the admitted signatures of M.D Vittalsa, we propose to deal with the evidence of P.W 6 and D.W 1 who claim to be hand-writing experts and the evidence of D.W 2, brother of M.D Vittalsa. The plaintiff made an application which is wrongly numbered as I.A No. V on 17-8-1966 for appointing Sri G.C Veerappa, examined as P.W 6 in this case, as a hand-writing expert for purpose of comparing the signatures on the promissory notes and the consideration receipts Exts. P-2 to P-5 with the admitted or proved signatures. This application was prepared on 23-6-1965 and the affidavit filed in support of the same was sworn to by the plaintiff before the Head Munshi of Second Munsiff's Court on 23-6-1965. But actually this application with the affidavit was filed into court nearly one year and two months thereafter i.e on 17-3-1966. It may be mentioned that before 17-8-1966 the examination of P.Ws 1 and 2 had been completed and the examination of P.Ws 3 and 5 was also completed on 17-8-1966 the date on which this application was made. The trial court after hearing objections, passed an order on 24-8-1966 rejecting the application. The Court however observed in the course of its order that Mr. Veerappa could be examined as witness on behalf of the plaintiff. Sri Veerappa was, therefore, examined by the plaintiff. His evidence is that the disputed signatures compare favourably with the admitted signatures found in Exts. P-10 and P-11 and that the disputed signatures and the admitted signatures must have been made by the same person. He produced Ext. P-41 as containing the reasons for his opinion. D.W 1 is Sri D.R Mahaian, who has been examined on behalf of the defendant. He has stated that the disputed signatures and the admitted signatures could not have been of the same person. He has also given reasons in support of his opinion. Here we may refer to the law governing the appreciation of evidence of such experts.
18. It is settled law that the evidence of hand-writing experts under S. 45 of the Indian Evidence Act is not conclusive and cannot be used as substantive evidence. The court must always look for corroboration from the other evidence adduced in a proceeding to assure itself about the correctness or otherwise of the opinion of the hand-writing expert. The court will have to take into account the various factors that surround the transaction which is in dispute and should judge the case on the basis of both external and internal evidence available in the case. This is what the Supreme Court has observed in Banu Ram v. Prasanni(2):—
“S. 67 of the Indian Evidence Act (1 of 1872) provides inter alia that if a document is alleged to be signed by any person the signature must be proved to be in his hand-writing. Ss. 45 and 47 of the said Act prescribe the method in which such signature can be proved. Under S. 45, the opinion of the hand-writing experts is relevant while under S. 47 the opinion of any person acquainted with the hand-writing of the person who is alleged to have signed the document is admissible. The explanation to the section explains when a person can be said to be acquainted with the hand-writing of another person. Thus, there can be no doubt as to the manner in which the alleged signature of the appellant could and should have been proved: but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the court is satisfied that the circumstantial, evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a conclusion. In our opinion, it is impossible to accede to Mr. Doabia's argument that the facts held proved in the High Court inevitably lead to its final conclusion that the appellant had in fact signed the form. It is clear that in reaching this conclusion the High Court did not properly appreciate the fact that there was no legal evidence on the point and that the other facts found by it cannot even reasonably support the case for respondent 1.”
19. It is, therefore, clear from the observation of the Supreme Court extracted above that the evidence of a hand-writing expert is no doubt relevant under the Indian Evidence Act, but it is only when the court is satisfied that the circumstantial evidence irresistibly leads to the inferene that a person must have signed a document, that the court can legitimately reach such a conclusion. It may also be borne in mind that a hand-writing expert who comes before court to give evidence would have a certain amount of bias in favour of the party who has called him as witness and the court should be careful in accepting the opinion of such an expert. What we have stated above receives support from an extract of a judgment in Templeton v. People (3 Hun. (N.Y) 357; affirmed of 60 N.Y 543) which is to be found at page 518 of Sarkar's Law of Evidence (Eleventh Edition);
“The evidence of witnesses who are brought upon the stand to support a theory by their opinions, is justly exposed to a reasonable degree of suspicion. They are produced, not to swear to facts observed by them, but to express their judgment as to the effect of those detailed by others, and they are selected on account of their ability to express a favourable opinion, which there is great reason to believe, is, in many instances, the result alone of employment, and the bias arising out of it. Such evidence should be cautiously accepted as the foundation of a verdict, and it forms a very proper subject for the expression of a reasonably guarded camion by the court. That is ofter necessary to prevent the jury from being led astray, by giving too much weight to evidence really requiring to be suspiciously watched, and which in many instances has induced unwarranted verdicts, discreditable to the administration of justice, as well as exceedingly detrimental to the public interest.”
20. We therefore, proceed to examine the opinion expressed by the two experts in the light of the impression which we gather from the signatures in question. As already stated above, the plaintiff was in possession of Exts. P-10 and 11 executed in the year 1954 and 1961 which contain the signatures of M.D Vittalsa. There is an interval of nearly seven years between these two documents. It is undisputed that Exts. P-10 and P-11 contain signatures of M.D Vittalsa When we compare the signature of M.D Vittalsa at Exts. P-10(a) and P-10(b) with his signatures at Exts.-P-11(a) and P-10(a) to (f) we find that there is one distinct variation between the two signatures. That is, the variation to be noticed in letter This circumstance makes us feel that the signatures on Exts. P-2 to P-5. P-16 and P-17 may not be of M.D Vittalsa at all. The two handwriting experts. P.W 6 and D.W 1, have given various reasons in support of their opinion Having regard to the other evidence in the case and the attendant circumstances which go to constitute the circumstantial evidence in the case, we are of the opinion that the signatures in Exts. P-2 to P-5, P-16 and P-17 are not that of M.D Vittalsa. The evidence relating to the availability of necessary funds with the plaintiffs to advance the loan of Rs. 20,000; the discrepency in the evidence of the two attestors P.W 2 and 3; the suspicious circumstances under which Exts. P-16 and P-17 have come into existence; and the absence of entries in respect of these transactions in the books of account of the plaintiff all give an impression that the loan transactions evidenced by Exts. P-4 and P-5 are not true and genuine ones.
21. At this stage we may advert to the evidence of P.W 2 M.D Narayansa, brother of M.D Vittalsa. He has no doubt stated as found in the record of the court, namely, “I see Exts. P-2(c), P-4(c), P-3(c) and P-5(a), P-16(a) and Ext. P-17(a) which are the signatures of Sri Vittalsa”. Along with the appeal memo, the defendant got produced into this court an affidavit of D.W 2 stating that the answer given by him in Court in the course of his deposition was not in the manner in which it has been recorded. He states that it should have been recorded in the negative. We do not propose to attach any importance to the affidavit filed in this Court by this witness. We take the record as it is. His evidence is the evidence of a witness who is familiar with the signature of a person whose signature has to be proved in a court of law falling under S. 47 of the Indian Evidence Act. It stands in the same position as the evidence of an expert admissible under S. 45 of the Indian Evidence Act. What applies to the opinion expressed by hand-writing experts in this case, applies to the statement of this witness also. The disputed signatures which appear in Exts. P-2 to P-5, P-16 and P-17 no doubt compare favourably with the admitted signature in Ext. P-10. As already stated by us. Ext. P-10 is a document which came into existence in 1954 nearly seven years before the date on which Exts. P-2 to P-5 are alleged to have come into existence and that there is striking difference between the signatures in Exts. P-2 to P-5 on the one hand and the signatures in Ext. P-11. We therefore, feel that even granting that D.W 2 has given evidence in the manner in which it is recorded, it does not take the case of the plaintiff any further. The above opinion of ours receives support from the evidence relating to the conduct of the plaintiff. According to the plaintiff, a large sum of Rs. 20,000 had been advanced to M.D Vittalsa and that he got that amount from P.Ws 1 and 4. The amount given by P.W 1 was in the nature of a trust money entrusted to him for buying a house. The amount was entrusted on 5-10-1961. No part of it was returned till the plaintiff wrote originals of Ext. P-15 dated 25-7-1962 and Ext. P-14 dated 11-10-1962. These two letters are said to have been sent by the plaintiff to M.D Vittalsa through post although the shop of M.D Vittalsa was adjacent to his shop, under certificate of posting Exts. P-12 and P-13. Vittalsa had not returned the money even in the year 1963, according to the plaintiff, when M.D Vittalsa is said to have written Exts. P-15 and P-17 from Hindupur. The contents of Exts. P-16 and P-17 if they are genuine, would have driven anybody in the position of the plaintiff, who had advanced somebody else's money as loan and that too without any profit, for the interest payable by the plaintiff to his creditors was six per cent per annum and the interest payable by M.D Vittalsa to the plaintiff under Exts. P-4 and P-5 was also six per cent per annum, to take immediate action to recover the money or at least to send a notice by registered post demanding the amount. The plaintiff did not do any such thins. Vittalsa died on 25-7-1963 as stated in the written statement. The plaintiff did not ask the defendant, the widow of Vittalsa to pay the money by issuing a notice to her. He did not take any legal action also until 24-9-1964, nearly one year and two months after the death of Vittalsa. The suit has been filed without issuing a registered notice to the defendant. This inaction of the plaintiff over such a long period also makes us feel that the plaintiff may not have lent the money to M.D Vittalsa as alleged by him. We have no hesitation in holding that P.W 1 Meer Abdul Haleem. P.W 2 M.M Oosman, P.W 3 Ahamedulla Mekhri, P.W 4 S. Nazir Ahamed and P.W 5 Syed Abdul Haleem (the plaintiff) are not reliable witnesses. We, therefore, hold that the finding of the court below that the promissory notes and consideration receipts Exts. P-2 to P-5 were executed by M.D Vittalsa, is not correct. We hold that they are not executed by M.D Vittalsa. We also hold that the said documents are not supported by any consideration. The finding on the question of passing of consideration will hold good even if it is assumed that the promissory notes are genuine ones, since we are of the opinion that the presumption that arises under S. 118 of the Negotiable Instruments Act has been successfully rebutted by the evidence on record.
22. In the result, the judgment and decree of the court below are set aside and the suit stands dismissed. The plaintiff shall pay to the defendant the costs of this Court as well as the costs in the court below. We feel that this is a fit case in which we should direct that the plaintiff should pay to the defendant a sum of Rs. 1,000 as exemplary costs under S. 35-A of CPC. in addition to the usual costs and we do so.
23. The appeal is allowed accordingly.