Document Fragment View

Matching Fragments

37. As soon as the complainant discharges the burden to 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.

30. In Rajesh Jain (supra), the Supreme Court reiterated that there are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872, i.e. 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 'legal burden' and it never shifts and latter is called 'evidential burden', which shifts from one side to the other. So noting, the Supreme Court held that the accused has two options. The first option is to prove that the debt/liability does not exist and this can be done by leading defence evidence and establishing conclusively and with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability on a principle of preponderance of probabilities by referring to particular circumstances of the case which includes: complainant's version in the original complaint; case in the legal/demand notice; complainant's case at the trial; plea of the accused in the reply notice; and/or accused's Statement under Section 313 Cr.P.C. or at the trial as to circumstances under which promissory note/cheque was issued. All of these can raise preponderance of probabilities justifying a finding that there was no debt/liability. The evidence could be circumstantial or on presumption of law or fact and need not necessarily be direct. Relevant passages are as under:-

"Burden of proof and presumptions : Conceptual underpinnings
28. There are two senses in which the phrase "burden of proof" is ` used in the Evidence Act, 1872 ("the 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 Kundan Lal Rallaram v. Custodian (Evacuee Property) [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316] .]
29. 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 Edn. 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 Sifuddin Quadri [G. Vasu v. Syed Yaseen Sifuddin Quadri, 1986 SCC OnLine AP 147 : AIR 1987 AP 139] affirmed in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg.