1. This is a defendant's revision against the judgment and decree dated 5-11-1982 passed by the Civil Judge, Hospet, in Small Cause Suit No. 56 of 1981 decreeing the suit.
2. The plaintiff filed the suit alleging that he gave Rs. 2.000/- and Rs. 200/- in cash to the defendant on 5-7-1979 and that the defendant executed the suit pronotes on 5-7-1979 after receiving the cash. He did not pay the amount due under both the pronotes. Hence the suit.
3. The defendant resisted the suit by contending that the consideration under the suit pronotes had not passed to him at all and that he executed the suit pronotes as the plaintiff promised that he would pay the amount later on and that the plaintiff did not pay the money at all at any time. He also urged that the plaintiff was also a money lender within the meaning of the Karnataka Money Lenders Act, He also urged that he was a debtor within the meaning of the Karnataka Debt Relief Act and that he prayed for dismissal of the suit.
4. The Court below recorded the evidence of the plaintiff and the defendant and marked Exhibits P1 to P7 and decreed the suit, Hence the revision by the defendant.
5. As can bo seen from the evidence of the plaintiff P.W.I and the record of rights extracts Exhibits P5 to P7, it becomes crystal clear that the defendant is the owner of 3 survey numbers in all measuring 1 acre 65 cents. The cast of the defendant that these three lands have been gifted by his father to his daughter is absolutely far from being truthful. No gift deed has been produced. On the other hand, the record of rights extracts Exhibits P5 to P7 show that the defendant is the kabjedar of these three lands and that he has been personally cultivating them. The entries in the record of rights show that the sugarcane crop is being raised by the defendant in these lands by irrigating his lands with the water in Gowramma's tank. Therefore it becomes crystal clear that the defendant has been cultivating the said three lands personally and has been raising sugarcane crop in them. In order to attract the definition of a small farmer, under the Karnataka Debt Relief Act, 1980, the defendant must be owning not more than two units of land and his annual income therefrom should not exceed Rs. 4,800/-. 'Unit' as defined by Section 2(10) of the Karnataka Debt Relief Act. 1980, means :--
'(i) two hectares of unirrigated land ; or
(ii) one and one-fourth hectares of rainfed wet land ; or
(iii) half hectare of land having facilities for growing one irrigated crop or for growing plantation crops or grapes or coconut or arecanut or sugarcane or used for growing mulberry by irrigation ; or
(iv) quarter hectare of land having perennial irrigation facilities or facilities for growing more than one irrigated crop in a year.'
Only one crop is being grown in the land by the defendant. Therefore his case is covered by Clause (iii). Therefore two units together Would amount to one hectare of land. One hectare of land means 2.471 acres. Therefore the extent owned and cultivated by the defendant would be less than two units. But, however, as can be seen from the evidence of the plaintiff and the defendant, it becomes crystal clear that the defendant is getting an income of more than Rs. 4,800/-. That is also the conclusion arrived at by the Trial Court. Therefore he cannot be considered to be a small farmer under the Karnataka Debt Relief Act, 1980. This is the conclusion arrived at by the Trial Court also. Therefore I do not think that this conclusion arrived at by the Court below, needs to be disturbed.
6. So far as the plea raised by the defendant under the Money Lenders Act is concerned, except the oral testimony of the defendant that the plaintiff had advanced loans to Harijan Mallappa, Byadra Honnurappa and some other persons, there is no material placed before the Court to show that really loans were being advanced by the plaintiff to any one of those three persons. In order to make a person money lender within the meaning of the Money Lenders Act, the defendant must show that the plaintiff has beers advancing a series of loans in continuity. No such evidence has been adduced by the defendant in this case. Therefore the Trial Court rightly held that the plaintiff was not a money lender within the meaning of the Money Lenders Act. Therefore this conclusion arrived at by the Court below, needs no interference.
7. Now it is admitted by the defendant that he has executed the suit pronotes Exhibits P 1 and P 2. But, according to him, he has not received any consideration at all under both the pronotes. The plaintiff in his examination-in-chief has stated and he has also mentioned in the plaint that on 5-7-1979 he has paid Rs. 2,000/- and Rs. 200/- in cash to the defendant. He has also stated so in the plaint. But in the cross-examination he has stated that he had paid Rs. 2,000/-and Rs. 200/-in cash to the defendant some 5 or 6 days before the execution of the pronotes and that the defendant on 5-7-1979 stated that he was not in a position to pay back those amounts and so he executed the suit pronotes Exhibits P 1 and P 2. Though the consideration mentioned in the pronotes may not have actually flown to the defendant and if some other past consideration is the consideration for the pronotes, still the suit cannot be thrown out on that point, on the solemn principle that some consideration has passed to the defendant. But in this case the allegations in the plaint and the contents of the pronotes and the examination in chief by the plaintiff show that the cash was paid to the defendant by the plaintiff on 5-7-1979, But, however, the truth came out though limping at a later stage in the course of cross - examination of the plaintiff, when he tried to state that he had already lent Rs. 2,000/- and Rs. 200/- to the defendant some 5 or 6 days before the execution of the pronotes and when he called upon the defendant on 5-7-1979 to pay back the money, the defendant expressed his inability to pay the amount on that day and hence the suit pronotes were executed by him. Except the bare and the tainted testimony of the plaintiff, there is no material to show that Rs. 2,000/- and Rs. 200/- were given by the plaintiff to the defendant some 5 or 6 days before the execution of the suit pronotes. Though the pronotes have been attested, none of the witnesses has been examined by the plaintiff to show what was the consideration for the execution of the suit pronotes and to show as to whether any consideration, present or past, had passed to the defendant from the plaintiff. Therefore the passing of the consideration, present or past, has not been satisfactorily proved by the plaintiff.
8. It has been laid down in Abdul Shakur and ors. v. Kotwaleshwar Prasad and ors., : AIR1956All403 as :
'The presumption mentioned in Section 118(a), Negotiable Instruments Act can be invoked in insolvency proceedings, but the circumstances tending to make it doubtful that consideration passed under the negotiable instrument coupled with a denial on the part of the maker of the instrument, would suffice to deprive the creditor of the benefit of the presumption and require him to prove by evidence that consideration did actually pass.'
9. It has been also laid down in Thirumalai Iyengar v. Subba Raja, : AIR1962Mad219 as :
'The initial presumption of the subsistence of consideration in respect of a negotiable instrument which is not necessarily a presumption of the passing of consideration in respect of the amount or value mentioned in the instrument is only a starting advantage in favour of the plaintiff in an action on the instrument and a corresponding handicap against the defendant sued. The course of trial, however, may bring in various factors and circumstances, the cumulative effect of which may be sufficient to destroy the presumption and to place the plaintiff in a position where he cannot succeed without establishing affirmatively by cogent and positive evidence that the document sued upon is supported by consideration, and that he is entitled to recover the amount sued for.'
10. As already stated above by me, though the plaintiff was entitled to an initial presumption under Section 118(a) of the Negotiable Instruments Act, the course of trial has brought in various factors and circumstances, the cumulative effect of which has been sufficient to destroy the presumption and to place the plaintiff in a position where he cannot succeed only on the basis of presumption and where he is required to establish affirmatively by cogent and positive evidence that the document sued upon was supported by consideration. In this case as on the very admission of the plaintiff himself, no consideration has passed to the defendant on 5-7-1979. His evidence that he had paid Rs. 2000/- and Rs. 200/- some 5 or 6 days before the execution of the pronotes, is not satisfactorily established by any satisfactory material on record. His evidence is after all tainted and Interested. Though the pronotes in law are not required to be attested, still they are attested in this case. The evidence of the attesting witness would have been of paramount importance to show as to whether any consideration, past or present, had passed to the defendant. Therefore the non-examination of the attesting witnesses vitally affects the plaintiff's story about the passing of the consideration. Therefore, under these circumstances, the defendant has shown that no consideration passed to him under both the pronotes. Therefore the suit deserves to be dismissed.
11. Under these circumstances, the judgment and decree passed by the Trial Court are set aside. The revision is allowed. The suit is dismissed.