T.R. Radhakrishna Warrier v. Earnest

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938 AS.No. 487 of 1995 ( ) ----------------------- AGAINST THE JUDGMENT IN OS 67/1992 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 5.7.1994 ## APPELLANT/PLAINTIFF: ---------------------------------- T.R.RADHAKRISHNA WARRIER, THIRUMUPPATHU WARRIATHU, RESIDING AT SREDHANYA, SHENOY ROAD, ERNAKULAM TOWN, COCHIN CORPORATION. BY ADV. SRI.T.R.RAVI ## RESPONDENT/DEFENDANT: --------------------------------------- EARNEST, S/O VARGHESE, KALATHIL VEETTIL, RESIDINT AT HOUSE No.1/35, SEMINARIPADI, ALUVA VILLAGE, DO TALUK. BY ADV. SRI.T.K.VENUGOPALAN ADV. SRI K.N.NARAYANA PILLA THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 6.10.2016, THE COURT ON 21-12-2016, DELIVERED THE FOLLOWING: ## **V. CHITAMBARESH & ANIL K. NARENDRAN, JJ. -------------------------------------------------A.S.No.487 of 1995** **-------------------------------------------------DATED THIS THE 21[st ] DAY OF DECEMBER, 2016** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** The appellant is the plaintiff in O.S.No.67/1992 on the file of the Principal Subordinate Judge's Court, North Paravur, a suit filed by the respondent herein for recovery of a sum of ₹85,000/- on the strength of a promissory note together with interest at the rate of 18% per annum from the date of suit till realisation. The defendant filed written statement denying the plaint averments. 2. On the side of the plaintiff, Exts.A1 and A2 were marked. No oral evidence was adduced on the side of the plaintiff. Exts.B1 to B11 were marked and Dws.1 to 3 were examined on the side of the defendant. Exts.X1 and X2 were marked as court exhibits. 3. After considering the pleadings and evidence on record, the trial court dismissed the suit on a finding that Ext.A2 promissory note is not supported by consideration and that Ext.A1 is a materially altered cheque. 4. Challenging the judgment and decree of the trial court A.S.No.487/95 -2- dated 5.7.1994, the appellant/plaintiff is before this Court in this appeal. 5. Going by the plaint averments, on 2.2.1989 the defendant received a sum of ₹80,000/- from the plaintiff and executed Ext.A2 promissory note in his favour, agreeing to pay the said amount on demand together with 18% interest per annum. In spite of repeated demands, the defendant failed to pay the amount due to the plaintiff. On 21.1.1992, the defendant issued Ext.A1 cheque for a sum of ₹85,000/- in partial discharge of his liability due towards the plaintiff. The said cheque, when presented for collection through Nedungadi Bank, Ernakulam Branch, was dishonoured for the reason of insufficiency of funds in the account maintained by the defendant. Thereafter, the suit was filed for recovering ₹80,000/- covered by Ext.A2 promissory note together with interest at the rate of 18% per annum. 6. The defendant filed written statement contending that he has not received ₹80,000/- from the plaintiff on 2.2.1989. He had executed Ext.A2 promissory note in favour of the plaintiff, as instructed by Adv.K.K. Chandrasekharan. The said promissory A.S.No.487/95 -3- note is not supported by consideration. The defendant was doing lime shell business in the name and style M/s.Femina Enterprises from the year 1981 onwards. During the year 1985, it was converted as a partnership firm including one N.K. Aboobacker, who had another partnership business in the name and style M/s.Nadiya Lime Industries. In the year 1988, both the firms were dissolved and a dissolution deed was also prepared. Thereafter, the said Aboobacker was doing business in the name and style M/s.Nadiya Lime Industries and the defendant was doing business in the name and style M/s.Felbi Lime Cock Enterprises. In the year 1989, the defendant purchased M/s.Nadiya Lime Industries from the said Aboobacker and thereafter he was doing partnership business along with one V.K.Kumaran. In the year 1991, the said Kumaran retired from partnership and thereafter the business was being continued by the defendant alone and for that purpose he has obtained a power of attorney from the said Kumaran. The sales tax and income-tax matters in respect of the two firms were dealt with by the said Chandrasekharan till the year 1990. Thereafter, another A.S.No.487/95 -4- person was dealing with those matters. Due to some disputes, Chandrasekharan was not in good terms with the defendant. According to the defendant, on 13.3.1986 he availed a loan of ₹75,000/- from Chandrasekharan and on his instruction a promissory note for ₹85,000/- was issued in the name of the plaintiff. The said Chandrasekharan has also obtained an undated cheque from the defendant drawn on Lord Krishna Bank, who demanded 36% interest. The defendant was paying interest at that rate and a sum of ₹25,000/- was also paid towards principal. All these accounts were written in the defendant's account as 'payment to K.K.C.'. At that time, Chandrasekharan demanded a sum of ₹80,000/- including his fees. On 2.2.1989, he obtained Ext.A2 promissory note in favour of the plaintiff for a sum of ₹80,000/-. Along with the said promissory note Chandrasekharan has also obtained an undated cheque bearing No.0359577 drawn on the Lord Krishna Bank, Aluva Branch. During that time, the defendant and Chandrasekharan were in cordial terms and because of that, the promissory note and cheque issued by the defendant in the year 1986 were not returned. All the accounts of A.S.No.487/95 -5- the defendant relating to his business were with Chandrasekharan. He fraudulently put the date '21.1.1992' in the cheque obtained from the defendant in the year 1986 and presented the same in bank through the plaintiff, who is one of his close friends. On dishonour, the plaintiff filed the present suit. According to the defendant, in the year 1990, when the accounts were settled between the defendant and the said Chandrasekharan, a sum of ₹30,000/- was due to him including interest on accounting at the rate of 12% per annum. But he demanded a sum of ₹70,000/- claiming interest at the rate of 36% per annum. The plaintiff is only a benamidar of the said Chandrasekharan. There was no transaction between the plaintiff and the defendant and Ext.A2 promissory note is not supported by consideration, hence unenforceable in law. Further, there is material alteration in Ext.A1 cheque. The defendant has also contended that the suit is bad for non-joinder of necessary parties. 7. Regarding the plea of non-joinder of necessary parties, the trial court noted that the suit is one for recovery of money A.S.No.487/95 -6- based on Ext.A2 promissory note and the defendant had admitted issuance of the said promissory note in favour of the plaintiff, based on which the defendant alleged to have received a sum of ₹80,000/-. Therefore, the trial court held that Adv. Chandrasekharan is not a necessary party to the suit and as such the suit is not bad for non-joinder of necessary parties. 8. The issue that arises for consideration in this appeal is as to whether the trial court was justified in dismissing the suit holding that Ext.A2 promissory note is not supported by consideration and that Ext.A1 cheque is materially altered. 9. Section 118 of the Negotiable Instruments Act, 1881 which deals with presumptions as to negotiable instruments, is extracted hereunder; “ **118. Presumptions as to negotiable instruments.-** Until the contrary is proved, the following presumptions shall be made:- **(a) of consideration -** 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; **(b) as to date -** that every negotiable instrument A.S.No.487/95 -7- bearing a date was made or drawn on such date; **(c) as to time of acceptance -** that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; **(d) as to time of transfer -** that every transfer of a negotiable instrument was made before its maturity; **(e) as to order of indorsements -** that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; **(f) as to stamps** that a lost promissory note, bill of exchange or cheque was duly stamped; **(g) that holder is a holder in due course -** that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” 10. In **Kundan Lal v. Custodian, Evacuee Property** **(AIR 1961 SC 1316)** a Three-Judge Bench of the Apex Court held that, Section 118 of the Negotiable Instruments Act lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a A.S.No.487/95 -8- 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. On the question as to how this burden can be discharged, the Apex Court, with reference to the rules of evidence pertaining to burden of proof as embodied in Chapter VII of the Evidence Act, held that the phrase 'burden of proof' has two meaning - 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. 11. In **Bharat Barrel and Drum Manufacturing Company v. Amin Chand (1999 (3) SCC 35)** the Apex Court A.S.No.487/95 -9- held that, once execution of the promissory note is admitted, the presumption under clause (a) to Section 118 of the Negotiable Instruments Act would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of 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. 12. In **Bharat Barrel's case (supra)** the Apex Court held further that, the burden upon the defendant of proving the nonexistence of 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 defendant 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 A.S.No.487/95 -10- showing the non-existence of consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under clause (a) to Section 118 in his favour. 13. In **Bharat Barrel's case (supra)** the Apex Court held further that, the Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of passing of 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. 14. Section 4 of the Evidence Act 1872 provides that, whenever it is provided by the said Act that the Court may A.S.No.487/95 -11- presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. Section 3 of the Evidence Act, define the words 'proved' and 'disproved', which are extracted hereunder; “' **Proved** '.- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. ' **Disproved** '.- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.” 15. In **M.S. Narayana Menon @ Mani v. State of Kerala (2006 (6) SCC 39)** , applying the dentition of the words 'proved' and 'disproved' under Section 3 of the Evidence Act, in the context of the presumption of consideration under clause (a) to Section 118 of the Negotiable Instruments Act, the Apex Court held that, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist A.S.No.487/95 -12- or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. 16. In **Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm (2008 (7) SCC 655)** the Apex Court reiterated that, under clause (a) to Section 118 of the Negotiable Instruments Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. The initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of consideration either by A.S.No.487/95 -13- direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. 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 would 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. If the defendant fails to discharge the initial onus of proof by showing the nonexistence of consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under clause (a) to Section 118 in his favour. 17. The legal position that emerges from the decisions of the Apex Court referred to above is that, once the execution of the promissory note is admitted, the presumption under clause (a) to Section 118 of the Negotiable Instruments Act would arise that it is supported by consideration, which throws the burden of proof of failure of consideration on the maker of the promissory note or the endorser, as the case may be. However, the A.S.No.487/95 -14- presumption under clause (a) to Section 118 of the Act is a rebuttable presumption. The defendant can prove non-existence of consideration by raising a probable defence. The burden upon the defendant of proving non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. 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. A bare denial of the passing of 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. If the defendant fails to discharge the initial onus of proof by showing non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under clause (a) to Section 118 in -15- A.S.No.487/95 his favour. 18. In the instant case, the suit was one for recovery of money on the strength of Ext.A2 promissory note executed by the defendant in favour of the plaintiff. The consideration pleaded in the plaint was that, on 2.2.1989 the defendant received a sum of ₹80,000/- from the plaintiff and executed Ext.A2 promissory note in his favour, agreeing to pay the said amount on demand together with 18% interest per annum. In spite of repeated demands, the defendant failed to pay the amount due to the plaintiff. On 21.1.1992, the defendant issued Ext.A1 cheque for a sum of ₹85,000/- in partial discharge of his liability due towards the plaintiff. On presentation, the said cheque was dishonoured due to insufficiency of funds in the account of the defendant. Therefore, the appellant/plaintiff filed the suit for recovery of money on the strength of Ext.A2 promissory note. 19. Though the execution of Ext.A2 promissory note in favour of the plaintiff was admitted in the written statement, the defendant contended that, on 2.2.1989 he had executed the said promissory note in favour of the plaintiff, as instructed by A.S.No.487/95 -16- Adv.Chandrasekharan (who was examined as DW2). But the said promissory note was not supported by consideration, as the defendant has not received ₹80,000/- from the plaintiff on 2.2.1989. 20. The defendant contended that, on 13.3.1986 he availed a loan of ₹75,000/- from DW2, who was dealing with the sales tax and income-tax matters of the two firms run by the defendant, and on his instruction a promissory note for ₹85,000/was executed in favour of the plaintiff. DW2 has also obtained an undated cheque from the defendant drawn on Lord Krishna Bank. The defendant was paying interest at the rate of 36% and he has also paid DW2 a sum of ₹25,000/- towards principal. DW2 demanded a sum of ₹80,000/- including his fees. On 2.2.1989, DW2 obtained Ext.A2 promissory note from the defendant for a sum of ₹80,000/-, in favour of the plaintiff. Along with Ext.A2 promissory note DW2 has also obtained an undated cheque bearing No.0359577 from the defendant drawn on the Lord Krishna Bank, Aluva Branch. At that time, the defendant as DW2 were in cordial terms and because of that, the promissory note A.S.No.487/95 -17- and cheque originally issued by the defendant in the year 1986 were not returned. In the cheque obtained from the defendant in the year 1986, DW2 fraudulently put the date '21.1.1992' and presented the same in bank through the plaintiff, who is one of his close friends. The said cheque, i.e., Ext.A1 cheque was dishonoured due to insufficiency of funds in the account of the defendant and thereafter, the plaintiff filed the suit for recovery of money on the strength of Ext.A2 promissory note. 21. The plaintiff has not chosen to enter the box. Other than mere marking of Ext.A1 cheque and Ext.A2 promissory note, no witnesses were also examined on the side of the plaintiff. Therefore, other than the rebuttable presumption under Section 118 of the Negotiable Instruments Act, there is absolutely no evidence to prove the consideration of Ext.A2 promissory note, i.e., the alleged payment of ₹80,000/- by the plaintiff to the defendant on the execution of the said promissory note on 2.2.1989. On the other hand, the defendant who was examined as DW1 has explained the circumstances surrounding the execution of Ext.A2 promissory note in favour of the plaintiff and A.S.No.487/95 -18- that Ext.A1 cheque is one obtained by DW2 in the year 1986, which was made use of by putting the date '21.1.1992' fraudulently by DW2 and presented in the Bank through the plaintiff. 22. DW2 has admitted that he is still dealing with the income tax and sales tax matters relating to the business of the plaintiff. DW2 has also admitted that he had dealt with the income tax and sales tax matters relating to the business of the defendant during the period 1981-1990. DW2 has admitted further that he had advanced money to the defendant on several occasions, either by cash or by way of cheque, and he never obtained any records from the defendant in respect of such transactions. It has come out in evidence from the oral testimony of DW2 that, Ext.B4 cheque issued by his wife and Ext.B6 cheque issued by his brother in favour of the defendant were dishonoured. Similarly, Ext.B5 cheque issued by DW2 in favour of the defendant's brother was also dishonoured. 23. It has also come out in evidence from the oral testimony of DW2 that, the plaintiff has not paid any amount to A.S.No.487/95 -19- the defendant on the date of execution of Ext.A2 promissory note, i.e., on 2.2.1989. According to DW2, Ext.A2 promissory note has been executed in order to renew the promissory note originally executed by the defendant on 13.3.1986 in favour of the plaintiff. In the year 1986, the plaintiff told DW2 before making payment to the defendant and DW2 was also told about the renewal of the promissory note in the year 1989. DW2 has stated that, to his knowledge the defendant made no payment to the plaintiff after the execution of promissory note in the year 1986. The defendant made no payment even after 1989, since no such payment was reflected in the accounts of the plaintiff, when DW2 verified the said accounts. DW2 has also denied the suggestion that, it was he who had advanced money to the defendant and got the promissory note executed in favour of the plaintiff. 24. The oral testimony of DW2 cuts the very root of the plaintiff’s case as to the payment of a sum of ₹80,000/- to the defendant on 2.2.1989 on the execution of Ext.A2 promissory note. The recitals of Ext.A2 promissory note would also show A.S.No.487/95 -20- that, it was one executed to renew the promissory note originally executed in the year 1986. Though the defendant has admitted the execution of Ext.A2 promissory note in favour of the plaintiff, the defendant as DW1 has succeeded in discharging the initial onus in showing that the said promissory note was not supported by consideration, by establishing that the plaintiff's case as to passing of consideration on 2.2.1989 was highly improbable and doubtful. As such, the defendant has succeeded in rebutting the presumption under clause (a) to Section 118 of the Negotiable Instruments Act. Though the onus was accordingly shifted to the plaintiff, who was obliged to prove consideration as a matter of fact, he has not even chosen to enter the box. No witnesses were also examined on the side of the plaintiff. Therefore, the failure on the part of the plaintiff in proving consideration as a matter of fact would certainly disentitle him a relief on the basis of Ext.A2 promissory note. 25. As rightly held by the trial court in para.11 of the impugned judgment, there is no evidence to establish that there was any money transactions between the plaintiff and the A.S.No.487/95 -21- defendant and that, the evidence on record would establish that Ext.A2 promissory note is not supported by consideration as it was evidenced to be renewal of the promissory note of the year 1986 and there is no evidence to establish that the promissory note of the year 1986 was supported by consideration. A careful reading of paragraphs 8, 10 and 11 of the impugned judgment would show that the ultimate conclusion of the trial court is that Ext.A2 promissory note is not supported by consideration. 26. Regarding Ext.A1 cheque, the case put forward in the plaint was that, the defendant had issued Ext.A1 cheque for a sum of ₹85,000/- on 21.1.1992, in partial discharge of his liability due towards the plaintiff in respect of Ext.P2 promissory note. Per contra, the specific case of the defendant in his written statement was that, Ext.A1 cheque was one obtained by DW2 in the year 1986 in the name of the plaintiff. In the year 1992, DW2 fraudulently put the date '21.1.1992' in the said cheque and presented the same through the plaintiff, who is one of his close friends. 27. Section 87 of the Negotiable Instruments Act deals A.S.No.487/95 -22- with the effect of material alteration of a negotiable instrument. Section 87 provides that, any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. 28. The English rule that a material alteration of a date makes it altogether void has been summarised in paragraph 1378 of Volume 12 of Halsbury's Laws of England. The said paragraph is extracted hereunder; "If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration according to this authoritative work, is one which varies the right, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally A.S.No.487/95 -23- expressed, or reduces to certainty same provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed." 29. The above said rule is quoted with approval in the decision of the Apex Court in **Loonkaran Sethia v. Ivan E. John (1977 (1) SCC 379)** holding that, a material alteration is one which varies the right, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty same provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. 30. A Division Bench of this Court in **Bhaskaran** ## **Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881)** held that, alteration of the date in the cheque may be material A.S.No.487/95 -24- alteration. Alteration may have the effect of lengthening the period of limitation or shortening it. So also alteration of payee's name is material which affects the character of the instrument, and so also the relationship of the parties. So also the alteration of signature as well as the amount. All this would amount to material alteration. The general rule is that a material alteration renders the negotiable instrument void. However, if an alteration is made with the consent of the drawer of the cheque, it may not amount to material alteration, because the holder of the undated cheque has got the implied authority to put the date on the cheque. Once the date is shown on the cheque, the burden is on the drawer of the cheque to prove that the payee has no authority to do so. 31. The document marked as Ext.B1 is a cheque book issued in respect of the account maintained by the defendant in Lord Krishna Bank, Aluva Branch. Ext.B1 contains the counterfoil in respect of cheque No.359577 dated 2.2.1989 issued in favour of the plaintiff for a sum of ₹80,000/-. Ext.B2 is another cheque book issued in respect of the very same account, containing A.S.No.487/95 -25- cheque leaves starting from 1470991 to 1471000, issued by the defendant during the period from 19.7.1986 to 24.10.1986. Ext.B7 is the pass book relating to the said account for the period 1985-1988, as per which, cheques bearing Nos.1470991, 1470993-95 and 1470998-1471000 issued by the defendant were presented and encashed during the period AugustSeptember, 1986 and cheque bearing Nos.1469181-1469186 and 1469189 were encashed during November, 1985 to April, 1986. Therefore, Ext.B2 read with Ext.B7 would show that Ext.A1 cheque was one issued by the defendant in the year 1986. This prima facie indicate that, the plaintiff's case that Ext.A1 cheque was one issued by the defendant in favour of the plaintiff on 21.1.1992 towards part payment of amount due under Ext.A2 promissory note is devoid of merits. 32. The defendant filed I.A.No.2242/1994 in the suit, calling upon the plaintiff to produce the promissory note alleged to have been executed by the defendant in the year 1986 and certain cheques numbered in the said application. To the said application the plaintiff filed a counter affidavit stating that the A.S.No.487/95 -26- promissory note of the year 1986 was returned to the defendant on execution of Ext.A2 promissory note and that, he is not in possession of any cheques other than Ext.A1 cheque. The admission so made by the plaintiff in the said counter affidavit would show that Ext.A2 promissory note was one executed to renew the promissory note originally executed in the year 1986. Exts.X1 and X2 are the letters issued by the defendant to DW.2. By Ext.X2 the defendant had requested DW.2 for returning certain cheques numbered therein. It has been stated in Ext.X1 that, though on several occasions he has demanded for return of the cheques those cheques were not returned by DW.2. He has complained in Ext.X2 that by using the cheques issued in favour of the plaintiff and one Moorthy, DW.2 had initiated action against him under the Negotiable Instruments Act. 33. As we have already noticed, the oral testimony of DW2 cuts the very root of the plaintiff’s case as to payment of a sum of ₹80,000/- to the defendant on 2.2.1989 on the execution of Ext.A2 promissory note. Further, the admission made by the plaintiff in the counter affidavit filed in I.A.No.2242/1994 that, A.S.No.487/95 -27- the promissory note of the year 1986 was returned to the defendant on execution of Ext.A2 promissory note, would show that Ext.A2 promissory note was one executed to renew the promissory note originally issued in the year 1986. As rightly held by the trial court, there is no evidence to establish that there was any money transactions between the plaintiff and the defendant and that, the evidence on record would establish that Ext.A2 promissory note is not supported by consideration as it was evidenced to be renewal of the promissory note of the year 1986 and there is no evidence to establish that the promissory note of the year 1986 was supported by consideration. 34. As we have already noticed, regarding Ext.A1 cheque, the case put forward in the plaint was that, the defendant had issued Ext.A1 cheque for a sum of ₹85,000/- on 21.1.1992, in partial discharge of his liability due towards the plaintiff in respect of Ext.P2 promissory note. In the plaint, the plaintiff has no case that Ext.A1 cheque was an undated cheque and as such he had the implied authority to put the date on that cheque. Therefore, once it is found that, Ext.A1 cheque was one issued by A.S.No.487/95 -28- the defendant in the year 1986, i.e., much prior to the alleged payment of a sum of ₹80,000/- to the defendant on 2.2.1989, conclusion is irresistible that, the plaintiff had put the date '21.1.1992' in Ext.A1 cheque absolutely without any authority or consent of the defendant, which amounts to material alteration, rendering the said negotiable instrument void. 35. Further, once it is found that Ext.A2 promissory note is not supported by consideration, conclusion is irresistible that Ext.A1 cheque for ₹85,000/- alleged to have been issued by the defendant on 21.1.1992, in partial discharge of his liability due towards the plaintiff in respect of that promissory note, is one not supported by consideration. This is more so when the evidence on record would show that Ext.A1 cheque was one issued by the defendant in the year 1986 and going by the plaint averments, the consideration for Ext.A2 promissory note was the payment of ₹80,000/- alleged to have been made by the plaintiff to the defendant on 2.2.1989. Therefore, the defendant has also succeeded in rebutting the presumption as to consideration under clause (a) to Section 118 of the Negotiable Instruments Act in A.S.No.487/95 -29- respect of Ext.A1 cheque. In that view of the matter, we find absolutely no valid grounds to interfere with the judgment of the trail court in dismissing the suit. In the result, the appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **V.CHITAMBARESH, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn/skj True copy P.S. to Judge