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1 - 10 of 17 (2.43 seconds)The Indian Evidence Act, 1872
G. Vasu vs Syed Yaseen Sifuddin Quadri on 8 December, 1986
33. The Evidence Act provides for presumptions, which fit
within one of three forms: 'may presume' (rebuttable
presumptions of fact), 'shall presume' (rebuttable
presumption of law) and conclusive presumptions
(irrebuttable presumption of law). The distinction between
'may presume' and 'shall presume' clauses is that, as
regards the former, the Court has an option to raise the
presumption or not, but in the latter case, the Court must
necessarily raise the presumption. If in a case the Court
has an option to raise the presumption and raises the
presumption, the distinction between the two categories of
presumptions ceases and the fact is presumed, unless and
until it is disproved, [G.Vasu V. Syed Yaseen (Supra)]
Section 139 NI Act-Effect of Presumption and Shifting of
Onus of Proof
Section 118 in The Indian Evidence Act, 1872 [Entire Act]
Section 114 in The Indian Evidence Act, 1872 [Entire Act]
Section 139 in The Negotiable Instruments Act, 1881 [Entire Act]
Bharat Barrel And Drum Manufacturing ... vs Amin Chand Payrelal on 18 February, 1999
36. The Court will necessarily presume that the cheque
had been issued towards discharge of a legally enforceable
debt/liability in two circumstances. Firstly, when the
drawer of the cheque admits issuance/execution of the
cheque and secondly, in the event where the complainant
proves that cheque was issued/executed in his favour by
the drawer. The circumstances set out above form the
fact(s) which bring about the activation of the presumptive
clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
Rangappa vs Sri Mohan on 7 May, 2010
45. Therefore, in fine, it can be said that once the
accused adduces evidence to the satisfaction of the
Court that on a preponderance of probabilities there
exists no debt/liability in the manner pleaded in the
complaint or the demand notice or the affidavit-
evidence, the burden shifts to the complainant and the
presumption 'disappears' and does not haunt the
accused any longer. The onus having now shifted to the
complainant, he will be obliged to prove the existence
of a debt/liability as a matter of fact and his failure to
prove would result in dismissal of his complaint case.
Thereafter, the presumption under Section 139 does not
again come to the complainant's rescue. Once both parties
have adduced evidence, the Court has to consider the same
and the burden of proof loses all its importance.
[Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See
also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]
(underline by me, for emphases)
Basalingappa vs Mudibasappa on 9 April, 2019
45. Therefore, in fine, it can be said that once the
accused adduces evidence to the satisfaction of the
Court that on a preponderance of probabilities there
exists no debt/liability in the manner pleaded in the
complaint or the demand notice or the affidavit-
evidence, the burden shifts to the complainant and the
presumption 'disappears' and does not haunt the
accused any longer. The onus having now shifted to the
complainant, he will be obliged to prove the existence
of a debt/liability as a matter of fact and his failure to
prove would result in dismissal of his complaint case.
Thereafter, the presumption under Section 139 does not
again come to the complainant's rescue. Once both parties
have adduced evidence, the Court has to consider the same
and the burden of proof loses all its importance.
[Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See
also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]
(underline by me, for emphases)
M/S Kumar Exports vs M/S Sharma Carpets on 16 December, 2008
41. In order to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable
defence wherein the existence of a legally enforceable debt
or liability can be contested. The words 'until the contrary
is proved' occurring in Section 139 do not mean that
accused must necessarily prove the negative that the
instrument is not issued in discharge of any debt/liability
but the accused has the option to ask the Court to consider
the non-existence of debt/liability so probable that a
prudent man ought, under the circumstances of the case,
to act upon the supposition that debt/liability did not exist.
[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See
also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC
513]25