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Showing contexts for: evidential burden in Anil Khosla vs M/S Texcel Infotech Pvt. Ltd on 18 April, 2024Matching Fragments
Burden of Proof and Presumptions: Conceptual Underpinnings
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition Crl. Appeal No:107/2023 Ravinder Burju vs Anil Khosla Cr Rev 189/2023 Anil Khosla Vs. M/s. Texcel Infortech Pvt. Ltd. 39/52 para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
38. As soon as the complainant discharges the burden to Crl. Appeal No:107/2023 Ravinder Burju vs Anil Khosla Cr Rev 189/2023 Anil Khosla Vs. M/s. Texcel Infortech Pvt. Ltd. 42/52 prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
9. Admittedly, the cheques in question were dishonoured upon being presented for encashment by the complainant. Legal notice was then sent by the complainant to the accused persons demanding the amount due under the cheques in question. Service of the said legal notice is admitted by the accused persons. Admittedly, the accused persons did not make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. The record reveals that the accused persons have Crl. Appeal No:107/2023 Ravinder Burju vs Anil Khosla Cr Rev 189/2023 Anil Khosla Vs. M/s. Texcel Infortech Pvt. Ltd. 46/52 admitted at the time of framing of notice u/s 251 Cr.PC that the cheques in question were handed over to the complainant, albeit for a different purpose than what is claimed by the complainant. It is not denied that the cheques in question bear the signatures of accused No.2. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood transferred upon the accused persons to prove that the cheques in question were not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused persons, the presumptions available against the accused persons u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused persons either by leading defence evidence to conclusively establish that the cheques were not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused persons produce such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.