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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, Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 17/32 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)]

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] ]

31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 18/32 and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."

38. 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.

Existence of Statutory Presumptions

10. Trial court record reflects that at the time of framing of notice u/s 251 Cr.P.C, the accused admitted that the cheque in question belongs to him and also bears his signatures. The accused also admits the handing over of the cheque in question to the complainant albeit for a different purpose then what is claimed by the complainant. Admittedly, the cheque in question was dishonored upon being presented for encashment by the complainant. A legal notice was then sent by the complainant to the accused demanding the amount due under the cheque in question. Service of the said legal notice was denied by the accused at the time of framing of notice u/s 251 CrPC. However, perusal of the record reflects that the said legal notice was sent by registered post at the admitted address of the accused. As such, a legal presumption arises in favour of the complainant and against the accused regarding the service of the said legal notice. Admittedly, the accused did not make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. 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 Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 25/32 transferred upon the accused to prove that the cheque in question was not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused 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 either by leading defence evidence to conclusively establish that the cheque was 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 produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.