The presumption of law and consequent
burden of proof has significant bearing on the length of any litigation and
also on the outcome of the litigation. Just to indicate the crucialness of
aforesaid legal expressions, whereas a presumption of law has the effect of
shifting the burden of proof, a misplaced burden of proof may frustrate the
whole trial and may result in miscarriage of justice.
In this write up the aforesaid legal
expressions is dealt with special reference to presumption of law in respect of
negotiable instruments like Bills of exchange, promissory Notes, Cheque etc.
First I will try to import the concept
of presumption of law; then burden of proof; and then will apply both these
expressions to negotiable instruments.
It
is necessary to analyze what are the rule about the rebuttable and irrebuttable presumption
of law really means.
Presumption
of law
Presumption of law implies the
presumption of existence or the absence of a fact which is alleged to exist or
not exist. Presumption of law implies that the Courts / judges whilst dealing
with a factual backdrop of situation[*], considers certain facts, which are the
subject matter of controversy at hand, as proved unless disproved, or regards
them as not proved unless proved, [*] having regard to the social settings in
which we live, the general behaviour of humans in given situations, the fallible
and fragile propensity of humans, the natural course of events, the constitution of the human mind, the springs of human
action and the usage and habits of the Society. [Sections 4 & 114 Evidence
Act]
Presumption is an inference of certain facts,
which are drawn from proved facts. Whilst inferring the existence of a fact,
the courts are only applying a process of intelligent reasoning, which the
minds of a prudent man would do under similar circumstances.
The probative force of such presumption depends
on the number, weight, independence and consistency of elementary circumstances
on which presumption has been founded.
Black's Law Dictionary 5th Edition, 1979, defines 'Presumption' as under:
"A
presumption is a rule of law, statutory or judicial, by which finding of a
basic fact gives rise to existence of presumed fact, until presumption is
rebutted."
The same dictionary defines 'Rebut' as
under:
"In
pleading and evidence, to defeat, refute, or take away the effect of something.
When a plaintiff in an action produces evidence which raises a presumption of
the defendant's liability, and the defendant adduces evidence which shows that
the presumption is ill-founded, he is said to "rebut it."
FOR EXAMPLE
A fact “X” which has relevance in the proof of fact “Y” and inherently has some degree of probative or persuasive value in that behalf, may be weighed by a judicial mind.
A fact “X” which has relevance in the proof of fact “Y” and inherently has some degree of probative or persuasive value in that behalf, may be weighed by a judicial mind.
When the law makes a rule providing for
a rebuttable presumption that, on proof of fact “X”, fact “Y” shall be deemed
to be proved unless the contrary is established, what the rule purports to do
is to regulate the judicial process and to provide that the Courts will draw
the inference from the proof of fact “X” that fact Y” has also been proved,
unless the contrary is established.
In other words, the rule takes away
judicial discretion, as whether to attach or not the due probative value to
fact “X”; and requires prima facie the due probative value to be attached in
the matter of the inference as to the existence of fact “Y”, subject, of
course, to the said presumption being rebutted by proof to the contrary.
Thus, the rule of rebuttable presumption
adds statutory force to the natural and inherent probative value of fact “X” in
relation to the proof of the existence of fact “Y”.
In regard to the category of facts in
respect of which an irrebuttable presumption is prescribed by law, the position
is that the inherent probative value of fact “X” in that behalf is very great and
it is very likely that when it is proved in a judicial proceeding, the judicial
mind would normally attach great importance to it in relation to the proof of
fact “Y”.
In both the cases, rebuttable
presumption or irrebuttable presumption, the law purports to assist the
judicial mind in appreciating the existence of facts. In one case the probative
value is statutorily strengthened but yet left open to rebuttal, in the other
case, it is statutorily strengthened and placed beyond the pale of rebuttal.
A rebuttal presumption of law only makes
a prima facie case for party in whose favour it exists. It indicates the person
on whom the duty lies of going forward with evidence on the fact presumed, and
when that party has produced evidence fairly and reasonably tending to show
that the real fact is not as presumed, the purpose of presumption is over.
Burden
of Proof
Section 101 of Evidence Act incorporate
the first principle of any litigation that the burden of proving facts alleged
/ asserted, would always lie upon the person who comes to the Court, claiming
certain rights or attributing certain liabilities upon the opposite party; and
until such burden is discharged, the opposite party is not obliged to lead
evidence to prove his defense.
However, the law recognizes some
exceptions to this first principle. They are –
a)
When,
in respect of a fact, a rebuttal presumption of law exists in favour of the party,
the burden to prove the said fact lies upon the opposite party to prove /
disprove / rebut the presumption of law, and cause the burden to be shifted again
upon the original party.
b)
Having
regard to the natural course of events, ordinary and prudent human conduct and
behaviour, indicated u/s 114 of Evidence Act, the burden of proof may shift
upon the opposite party;
c)
Where
a “Fact” to be proved is especially or substantially within the knowledge of
the opposite party, and in the backdrop of the circumstances, the opposite
party would be the only person who would be in the position to throw light on
the said factual situation, the burden of proof of that fact may shift upon
that person; (Section 106 Evidence Act)
d)
Where
any of the party makes an affirmative existence of a “Fact”, the burden to
prove the said fact lies upon that party, irrespective if he is the Plaintiff
or defendant. Like for example, where any of the party alleges fraud,
misrepresentation, mistake, coercion, admission, confession etc, the burden
lies upon him to prove such fraud etc. (Section 103 Evidence Act).
e)
Where
the accused takes plea that his case false within the exceptions, like of plea
of alibi, plea of self defense, plea of intoxication, plea of minor, the burden
falls upon him to prove such plea, and the law will presume the absence of such
alibi, self defense etc. (Section 105 Evidence Act).
f)
The
burden to prove certain facts may fall upon the other party where in a case the
other party admits the case of the first party. In these type of case, if the
opposite party fails to lead any evidence thereby explaining the circumstances
under which the purported admission was made, the first party would be entitled
for the judgment. (Section 102 Evidence Act)
The one other test which may be resorted
to, to shoulder the burden of proof of a particular fact – which party is in
the best position to enlighten the “fact in dispute”. This test has some
resemblance to mandate of sections 103 and 106 stated hereinabove.
The other test to determine on whom the
burden of proof lie, the test is – which party would be successful if no
evidence at all, or no more evidence, as the case may be, were given. The
application of principles of presumption of law will be significant in this
respect.
Before a burden of proof of a particular
fact is shouldered upon any party, the conceptual presumption of law in
relation to the fact under dispute is very critical. Section 114 of Evidence
Act would play a significant role in adjudging the abstract but genuine
presumption of law. The usual course of human nature, conduct and behaviour;
the natural course of events, would always regulate the burden of proof.
In this aforesaid discussion it is
equally important to know as how the law defines a prudent and reasonable man,
for, it would have a huge bearing on raising a presumption and placing a burden
of proof.
Who is a Prudent Man: A prudent man is a wise
man, may not be a genius. A prudent man is not in a hurry. He is not influence
by his emotions and act after weighing the occasion. He deliberates. He pauses.
He rethinks and willing to learn. He agonizes. He is willing to see the point
of view, which was never in his mind. He may not be learned but has robust
common sense and has basic instinct that move man and woman. are those who think and reason intelligently;
is a person having the power of self control to be expected of an ordinary
person of the age; a person exercising those qualities of attention, knowledge
and intelligence and judgment, which requires of its members for the protection
of their own interests and the interests of others.
Coming
to Negotiable Instruments, Sections 118 and 139 of Negotiable Instruments Act
raises a presumption of law that these negotiable instruments were executed for
valuable consideration / in discharge of whole or in part, of any debt or other
liability, and the burden to prove otherwise would lie upon the drawer of the
instrument.
However, in the backdrop of mandate of section
67 of Evidence Act, which say that if a document is alleged to be signed or to
have been written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that person's
handwriting must be proved to be in his handwriting, by judicial decisions, and
rightly so, it has been held that notwithstanding the presumption of valuable
consideration, there is no presumption of law as to the execution of the
concerned negotiable instrument; and the burden lies upon the shoulder of the
Plaintiff / complainant to prove the due execution of the negotiable
instrument.
This presumption of law appears quite
reasonable in so far as civil proceedings are concerned, for, in civil
proceedings, the drawer of the negotiable instruments is obliged by law to dispute / traverse
the allegation of execution of the negotiable instrument.
In criminal proceedings whereas the
accused live under the umbrella of constitutional protection, and whereas now
by legislative fiction, the dishonour of cheque is made a criminal offence, notwithstanding
the presumption of law of the existence of valuable consideration etc, the absence
of presumption of law as to “execution of the concerned negotiable instrument”,
frustrates the whole idea of inventing this law of 138.
Let me try to justify why we may differ
from “absence of presumption of law” which is applied in civil proceedings, and
we may safely raise a presumption of law in every civil and criminal
proceedings involving “cheques”, as to due execution / signing of cheque.
The
marked distinction between traditional Bills of Exchange / promissory Notes on
one hand and Cheques on the other hand, may be noted.
a)
Whereas
Bills of Exchange / promissory Notes have the vulnerability of being easily
forged, it is nearly impossible to forge a cheque.
b)
It
can safely be said that cheques are being always stored in safe custody of the
drawer.
Further, if there is a presumption of
law as to cheque being received by the drawer in discharge of debt or other
liability (S.139), there has to be a presumption of law as to legitimacy of
every act which precedes receipt of cheque, including the signing of cheque.
Therefore, an exception may be carved
out in respect of cheques in so far as raising a rebuttable presumption that it
was duly signed by the drawer.
And having raised such a presumption
does not in any way prejudice the accused, for, he will have all the
opportunity to rebut this presumption during cross examination or by way of
leading his own evidence;
but in the pretence of rebutting the
presumption, he cannot merely ask for opinion of handwriting expert, so as to
ascertain the authenticity of the signature appearing in the cheque. In case he
claims he has not signed the cheque, he has to first lead evidence to show that
the concerned cheque was stolen from his custody, the date when he came to know
of such theft, the steps he took to avoid possible misuse of stolen cheque,
for, any man of ordinary prudence would take requisite steps in case he comes
to know that his valuable security is stolen and may be misused.
There is yet another serious fallacy in
merely allowing the Applications of Accused, to send
cheque to handwriting expert, inter alia, to determine the signature on the
cheque.
Assumingly, the hand writing expert
gives the opinion that signature on the cheque does not match with the
signature occurring in Bank records. Then the accused would claim acquittal on
the basis of this finding, although he might have played mischief by deliberately
signing incorrectly.
I remember I have read a ruling of Apex
Court wherein the cheque was returned due to mismatch of signature. The accused
was still held guilty. It was observed that whereas the complainant / payee are
not aware of the signature of the drawer / accused, the drawer of the cheque
may play mischief by giving such cheque to the payee bearing their false or
deliberately made little distorted signature, causing the return of the cheque
by the drawee Bank, and then would take the defense of having not signed the
cheque.
It may be appreciated that the fact
which the accused agitating is “my said cheque was stolen” and the evidence
which is to be led by accused in these situations is to demonstrate the “factum
of actual theft” of concerned cheque and not the mere matching or mismatching
of signature, for, the mismatching of signature does not establish the theft of
cheque, and only inference which can be drawn from the proved mismatch of
signature is that “cheque issued by drawer bears different signature when
compared to bank records.
Therefore, in 138 proceedings, the
accused should be barred from merely contending that he has not signed the
cheque, and before he makes an Application, asking for opinion of handwriting
expert, it is imperative that he must say in his evidence – (a) that the concerned cheque was stolen from
his custody; (b) the date when he came to know of such theft, and if it is
claimed that he came to know of such theft on receipt of statutory Notice,
then, (c) he must also establish that despite due diligence and attending
circumstances of his day to day affairs, he could not have known such theft; (d)
the steps he took to avoid possible misuse of stolen cheque; for, any man of
ordinary prudence would take requisite steps in case he comes to know that his
valuable security is stolen and may be misused. If the trial court is
reasonably satisfied that the cheque under consideration might have stolen from
the custody of accused, he may then send the cheque for opinion of handwriting
expert.
The law would fail to serve the purposes
and suppress the mischief for which they were invented if the presumption of
law is not correctly applied; and moreover, the whole body of law is thrown
into the ocean by an unscrupulous accused so easily; and the victim complainant
would be left further wounded and bleeding.
Some
important judgments I have found in above respect are –
1.
(1999)
3 SCC 376
2.
(2002)
7 SCC 150
3.
2001
CrLJ 972 (SC)
4.
(1998)
8 SCC 221
5.
(2002)
7 SCC 541
6.
II
(1997) BC 239 (P& H) [Lily Hire Purchase case]
7.
(1996)
6 SCC 369
8.
(1996)
CrLJ 1962 (SC)
9.
(1997)
CrLJ 1545
10. (1999) 4 SCC 253
Thank
you.
Sandeep Jalan
Advocate
Mumbai.
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