' On 23-5-2000 a suit to, recover a sum of Rs.2 lac was instituted by the respondent under Order XXXVII of Code of Civil Procedure, 1908 on the basis of a pro note and receipt in which leave to defend was granted to the defendant, who contested the same. The suit was tried allowing the parties to produce evidence in support of their respective pleas. It was eventually decreed on 30- 6-2001 to the extent of Rs.1,25,000 as claim to the extent of Rs.75,000 was relinquished by the respondent/plaintiff.. This is appeal thereagainst by the defendant.
2. The same contentions have been reiterated as were pleaded before the trial Court denying the execution of promissory note and non-liability for the said amount. It is contended that the respondent/plaintiff had failed to prove the execution of -the promissory note. The learned counsel for the respondent on the other hand has supported the judgment and decree passed by the trial Court and contends that, cogent and convincing evidence was produced by the respondent/plaintiff to prove the execution of the promissory note and the receipt and even the thumb-impressions of the appellant/defendant were wompared through the expert. It is contended that correct appreciation of the evidence has been made by the trial Court while passing the decree.
3. The respective contentions of the learned counsel for the parties have been considered and the material on the record had been perused.
4. Promissory note, dated 21-5-1999 and receipt, Exh.P-I and Exh.P-2 respectively were made basis for the suit amount by the respondent/plaintiff. Execution of these documents was denied and contested by the appellant. Out of the issues framed by the trial Court, Issue Nos.3 and 4 were of relevance and importance which read as follows:-- "(3) Whether pro note and receipt are fictitious? OPD
(4) Whether the plaintiff is entitled to recover a sum of Rs.2,00,000 from the defendant on the basis of pro note and receipt, dated 21-5-2000? OPP ' Onus to prove Issue No.3 was on the appellant/defendant whereas onus to prove Issue No.4 was on the respondent/plaintiff. In order to prove the due execution of promissory note and the receipt, the plaintiff/respondent himself appeared as P.W.1 and produced marginal A witnesses as P.W.2 and P.W.3 including the scribe as P.W.4. They were all consistent in their deposition. Above all is the testimony of P.W.5, an Expert from Finger Print Bureau who compared the thumb-impressions of the appellant/ defendant. The dispositions of these witnesses. Have been believed by the trial Court. Insofar as the appellant is concerned, he lonely appeared as D.W.1. The stance taken by him in the pleadings and examination-in-chief was shaken in cross examination who- even chose to deny his signature on the petition for leave to defend, the affidavit sworn by him and the Wakalat N-ama given to his lawyers. In such state of the evidence he failed to discharge onus of issue No.3.
Insqfar as the legal position goes by virtue of section 118 of the Negotiable Instruments Act, 1881, there arises a presumption qua such a ,document unless the same is rebutted by producing clear, cogent and convincing evidence. Whereas, in this case the respondent/ plaintiff produced ample evidence in support of his assertion to prove Issue No.4, the appellant failed to produce any such evidence of credibility. There is thus no illegality committed by the trial Court in granting decree, dated 30-6-2001 which is consistent with the evidence on the record. I, therefore, find no justification to interfere with the impugned judgment and decree.
' As a result, the appea'l is dismissed with no order as to costs.