Courts to Apply Different ‘STANDADARDS’ in Appreciation of Evidence

Old Document: Recent Challenge – Direct Evidence Need Not Be as Strong as might be Naturally Expected in a Recent Transaction.

Taken from: Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Saji Koduvath, Advocate, Kottayam.

Different ‘STANDADARDS of Proof’

In the process to take a fact ‘proved’, ‘disproved’, or ‘not proved’ the courts have to weigh probabilities. In Bater v Bater,  (1950) 2 All ER 458, Lord Denning pointed out –  ‘there is no absolute standard’, and higher degree of proof is required for more serious matters like criminal cases. Therefore, the courts apply different ‘STANDADARDS of Proof’ in different cases and the courts use distinctive scales in the judicial process of pondering on probabilities.

From the above, it can be concluded –

  1. ‘Proof of Documents’ envisaged in the Evidence Act is proof of ‘facts’ as to the ‘existence’ or ‘contents’ of a document.
  2. TRUTH of contents of documents being remain in the judicial discretion, it could not have been expressly or directly dealt with in Evidence Act with precision.
  3. According to Sec. 3 of the Evidence Act ‘a fact is said to be proved when, after considering the matters before it, the Court either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists …’.
  4. According to Sec. 114 of the Evidence Act ‘the Court may presume the existence of any fact which it THINKS likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business …’
  5. That is, TRUTH (or otherwise) of a disputed point is left to the SUBJECTIVE SATISFATION of the court inasmuch as the question whether a fact is proved (or not) is left to the evaluation of the court. Further, the court is specifically required to appraise – how a prudent man in the given circumstances “acts upon“. The court is also authorised to presume the existence of any fact which it thinks likely to have happened “regard being had to the common course of natural events, human conduct” etc.
  6. It is equally important – TRUTH of a disputed item is to be appreciated on the legal (subjective) reasoning after OBJECTIVE “consideration of the matters before it” (Sec. 3 Evid. Act).

Our Apex Court in Mahasay Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431, while dealing with 30-year-old Book of Accounts, though it came from the possession of its keeper, held as under:

  • “3. … … … Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers. They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receiver’s possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established. … …”.

In Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305, the Apex Court observed as under:

  •  “8. Strong reliance was placed by the respondents on Exhibits F-1 and F-1(1), which are khatians relating to the suit lands published on 7-12-1909, recording them as in the possession of the defendants of the second party as ‘kaimi’ and on the presumption under S. 103-B that entry is correct.

Court to invoke Presumptions Judiciously

In Rathish Babu Unnikrishnan v. State (Govt.  of NCT of Delhi), 2023 CrLJ 311; 2022-4 JT 477; 2022-6 Scale 794; 2022-4 SCR 989, it is held as under:

  • “In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”

In Nepurjan Bibi Choudhury v. Musabbir Ali Choudhury, AIR 2018 Gau 151, it is emphasised as under:

  •  “Court needs to exercise the discretion judiciously while taking presumption under Section 90 of the Evidence Act, keeping in mind the underlying object of the provision, being the necessity and convenience and also the precondition required for taking a presumption. Section 90 of the Evidence Act provides that before taking a presumption, two basic ingredients should be there, namely the document sought to be proved must be of 30 years old and it must be produced from proper custody.”

‘Loose and Unfettered Discretion is a Dangerous Weapon‘

In Naresh Chandra Mital v. Bishamber Nath Chopra, 1966-2 DLT 352, it is observed as under:

  • “The Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keep in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37. The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed judiciously by the Court. In otherwords, the Court has to exercise judicial discretion, keeping in view the basic dictates of justice when determining the question whether or not to permit the defendant to contest the suit and if so, whether unconditionally or on terms and what terms. The idea of discretion, which is always to be exercised in a disciplined and responsible manner, really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is a dangerous weapon to entrust to any one including Courts.”

Old Document: Recent Challenge – Vigor of Direct Evidence Need Not Be as Strong as might be Naturally Expected in a Recent Transaction.

In Jagna Sanyasiah v.  Mycherla Peda Atchanna Naidu, AIR 1921 Mad 624, it is held as under:

  • “5. The respondents’ contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought should be taken as proved even if the direct evidence is not as strong as might be naturally expected in respect of recent transactions.”

In Muthialpet Benefit Fund Ltd.  v. V.  Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:

  • “7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation of necessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
  • (**from other sources)

Proof is given to find truth of the evidence, for adjudicate the issues

Evidence is given to to establish the truth of the questions in controversy. It is necessary for the adjudication of the issues.

Following general propositions will show the nexus between Proof and Truth.

  • Evidence Act does not expressly say as to “TRUTH“: Indian Evidence Act and other procedural laws do not expressly say anything as to “TRUTH of contents” of documents.
  • Truth is left to the discretion of the court. In proper cases court can presume truth.
  • Presumption as to truth: Presumption as to truth of the contents of a (proved) document can be invoked in proper cases. Official record is taken as correct on the presumption that the entries thereof are made only after satisfying its truth.
  • Courts to save the TRUTH: Function of the Court is to save the TRUTH from falsehood, and the Courts are created for the very object of finding the TRUTH.
  • Formal proof & Truth: Proof of documents includes – 
    • formal proof, and
    • truth of its contents.
  • Proof by one who can vouchsafe: Generally, proof must be given through persons who can vouchsafe for the truth.

Subjective Satisfaction and Objective Consideration by the Court

It is evident from Sec. 3 of the Indian Evidence Act that TRUTH (or otherwise) of a disputed matter is left to the Subjective Satisfaction of the court. The definition of ‘proved’ in Sec. 3 of the Evidence Act says that ‘a fact is said to be proved when (after considering the matter before it) the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’.  Further, S.114 of the Evidence Act allows the court to presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, etc.

The Evidence Act itself lays down the objective methods, including adequate restrictions, to arrive at the subjective satisfaction to determine the truth. The definition of ‘proved’ itself provides for ‘consideration of the matters before it’. The provision in Sec. 27 which bars the use of statement, given to police while an accused is in custody, is an important restriction in that line.  

In Karunakaran v. State, (1960) 2 Ker LR 247, it is observed as under:

  • “The practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the Legislature has enacted Ss. 24 fo 26 of the Evidence Act. It has no legal sanction behind it. There is no harm in recording the accused’s statement in the first person at any great length in the case diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made.
  • The whole thing appears to be an “intentional whittling down” of the wholesome provisions of Ss. 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional “statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure.” (Quoted in: Mohammed v. State of Kerala, 1963 Cri LJ 175; Thadiyanevida Nazeer @ Ummer Haji v. State of Kerala (2022) and K Babu v. State of Kerala, 2023(6) KLT 96)

Courts are Created for the Very Object of Finding TRUTH

Following decisions of our Apex Court bespeak, as to the significance of TRUTH in judicial determinations, as under:

It is the function of the Court to save the truth from falsehood–

  • Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 1974

There is a legal duty for the courts to find the truth and administer justice–

  • Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271.

The Courts are created for the very object of finding the truth–

  • Mohan Singh v. State of MP, (1999) 2 SCC 428.

Right from the inception of the judicial system establishment of truth is the main purposes underlying existence of Courts of justice–

  • Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.

The trial should be a search for the truth–

  • Himanshu Singh Sabharwal v. State of Madhya Pradesh, (2008) 3 SCC 602,

The people would have faith in Courts when they would find that truth alone triumphs in Courts–

  • Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421.  

The truth should be the guiding starin the entire legal process and it is the duty of the Judge to discover truth to do complete justice–

  • Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370,.

It is the bounden duty of the Court to uphold the truth and do justice–

  • Shanmugam v. Ariya Kshatriya, (2012) 6 SCC 430.

Now a question comes – Which provision of the Indian Evidence Act deals with ‘deducing or deriving’ TRUTH ?

In such an inquisition, we legitimately arrive at in-

  • (i) the definition of “Proved” in Sec. 3, and
  • (ii) “Presumption” in Sec. 114, Evidence Act.

The definition of “Proved” in Sec. 3 gives vast discretion to the court. It reads as under:

  • ” ‘Proved‘ — A fact is said to be proved when, after considering the matters before it, the Court; either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

To fulfill the prime and onerous duty on the court, that is deducing or deriving TRUTH from the disputed matters, the Evidence Act further enables and authorises the court to invoke PRESUMPTION under Sec. 114 Evidence Act, wherever it is required.

Sec. 114 reads as under:

  • “114. Court may presume existence of certain facts —The Court may PRESUME the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

Presumption of Truth is taken ‘on something Proved‘, or taken for granted

In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted ‘. It reads as under:

  • “The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”

The Apex Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:

  • “Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.

In State of West Bengal v. Mir Mohammad Omar, 2000-8 SCC 382, it is observed as under:

  • “33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Sec. 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

TRUTH is left to Discretion or Presumption of Court

Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—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.”

Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Ev

In this premise, it is legitimate to deduce the following inferences –

  • Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
  • It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
  • In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’.
  • It is more so, when a document is admitted (by the other side) without objection.
  • But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.

Adjudication to Find Out Truth & Doctrines of Substantive Rights, Prejudice to Other Side, Procedure – a Handmaid Matter

In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held, while dealing with amendment of pleadings, as under:

  • “5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186)

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex  Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-

  • “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice.
  • Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
  • .(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
  • (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
  • (iii) where the non-compliance or violation is proved to be deliberate or mischievous;
  • (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
  • (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186.)

Adjudication is to Render Justice; it is Unmindful of Consequences

It was held by the Kerala High Court in Gopalakrishnan v. Joint Registrar of Co operative Societies (General), 08 Dec 2015, (Dama Seshadri Naidu, J) as under:

  • “23. I am very conscious that this Court, as a constitutional adjudicatory machinery, is called upon to interpret the statute straight and simple and render justice. Justice is not an inventive judicial instrument; it is rather a necessary corollary to the judicious application of the law to the facts following certain accepted cannons of construction of the statutes and the Constitution, too. The whole process is compendiously called judicial adjudication. Trite is the truth that adjudication is unmindful of consequences; it is, on the other hand, in the legislative wisdom to consider all the eventualities and bring about legislation or legislative changes to see that the varied needs of the organisations and institutions, including the administrative agencies, are best served—adverse fallout on the application of law is avoided.

30 Years Old Documents- No ‘Absolute’ Presumption of Truth of Contents, under Sec. 90 Evidence Act

90. Presumption as to documents thirty years old –– Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.–– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81.
  • Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn. Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
    • Indian Evidence Act and other procedural laws do not expressly say anything as to “TRUTH of contents” of documents. In proper cases court can presume truth.
    • No doubt, under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
    • That is, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -Iqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
  • Sec. 90 CPC, basically, speaks about two things – as regards 30-year-documents:
    • 1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
    • 2. A document purports to be executed or attested is presumed to be duly executed and attested.
  • The presumption, under Section 90, Evidence Act, as to regularity for documents having more than 30 years of age does not apply to Wills (Unless Sec. 71 Evid. Act can be Invoked).

Sec. 90, Evid. Aact – Not Truth of Contents; But, Genuineness Drawn

Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn (Union of India v. Ibrahim Uddin: (2012) 8 SCC 148). Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.

  • No doubt, under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
  • That is, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available -KalitaIqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.

Our Courts Act Upon ‘LEGAL TRUTH’; and not ‘ULTIMATE TRUTH’

As shown above, the very duty of a court is to find TRUTH. Our courts are said to be functioning in ‘adversarial system’ where advocates present the case of their parties before an impartial judge for determining the truth and for getting a judgment accordingly. In such a system, the courts are concerned with ‘PROCEDURAL TRUTH’ or ‘LEGAL TRUTH’ as emerged from the pleadings and evidence; and not ULTIMATE TRUTH.

In State of Rajasthan v. Asharam @ Ashumal, AIR  2023 SC 2228, it is observed as under:

  • “In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth.” (Also see: Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023-6 JT 138.)

Viscount Simon LC, explained it in Hickman v.  Peacey, [1945] AC 304, as under:

  • “A court of law … is not engaged in ascertaining ultimate verities: it is engaged in determining what is the proper result to be arrived at, having regard to the evidence before it.”

Conjectures and Suspicion Should Not take the place of Legal Truth.

In Ritesh Chakarvarti v. State of Madhya Pradesh, 2007-1 SCC(Cr) 744, our Apex Court warned as under:

  • “There is another aspect of the matter, which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth.” (See also: Aloke Nath Dutta v. State of West Bengal, 2007-12 SCC 230.)

“Preponderance of Probabilities”

Difference in appreciation of evidence in Criminal and Civil matters.

Civil courts proceeds on the principle – “preponderance of probability”. Criminal courts proceeds on the principle – guilt of the accused must be ‘proved beyond all reasonable doubts’.

Preponderance of Probabilities

‘Preponderance’ is used for it carries or conveys the idea that the conscience of the judge is important in appreciation of evidence and law in civil matters. It is also used in contrast to ‘certainty beyond doubt’ (pertains to criminal law).  In the process of appreciation of evidence, the ‘slight’ evidence may ‘tilt the balance’ in Civil cases on applying the principle of ‘preponderance’. Therefore, it is said that the evidence is to be weighed. That is, ‘count’ is not the material thing, for a ‘genuine’ judge.  It is laid down in Section 134 of the Evidence Act which reads as under:

  • “No particular number of witnesses shall in any case be required for the proof of any fact.”

In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 SC 1534, our Apex Court observed as under:

  • “The normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.”

Our Apex Court referred the following two English decisions-  

(1) Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191. It observed as under:

  • “The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue”;

(2) Blyth v. Blyth, [1966] 1 A.E.R. 524 (Lord Denning). It is observed as under:

  • “The degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear”

Standard of proof required under Sect. 139 NI Act is ‘preponderance of probabilities’

In Rangappa v. Sri Mohan, (2010) 11 SCC 441, our Apex Court held that Sec. 139, Negotiable Instruments Act, 1881 (“It shall be presumed, unless the contrary is proved”) contains ‘reverse onus clause‘; and that under Sect. 139, the standard of proof required for rebutting that presumption is ‘preponderance of probabilities’.  (Followed in Anss Rajashekar v. Augustus Jeba Ananth, AIR 2019 SC 942).

In Basalingappa v. Mudibasappa, 2019-5 SCC 418, while considering the presumption in 138 NI Act, it is held that when financial capacity is questioned, it was incumbent on the complainant to have explained his financial capacity and that the Court cannot insist on a person to lead negative evidence.

In Basalingappa v. Mudibasappa, 2019-5 SCC 418, while considering the presumption in 138 NI Act, it is held that when financial capacity is questioned, it was incumbent on the complainant to have explained his financial capacity and that the Court cannot insist on a person to lead negative evidence.

In Oriental Bank of Commerce v. Prabodh Kumar Tewari (AS Bopanna, Dhananjaya Y Chandrachud), 2022-7 SCR 72, it is held as under:

  • “12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability.
  • The expression “unless the contrary is proved” indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a “reverse onus clause” the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities.”

Reasonable Possibility alone is needed to Rebut Presumption

In Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808, it was laid down by our Apex Court as under:

  • “23. ……One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.” (Quoted in: Basalingappa v. Mudibasappa: 2019-5 SCC 418.)

In M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (SB Sinha), it was held that a probable defence or reasonable possibility alone is needed to rebut the presumption, which must meet the standard of “preponderance of probability”.  In M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (SB Sinha) observed as under:

  • “In Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16], a 3- Judge Bench of this Court held that although by reason of Sections 138 and 139 of the Act (NI Act), the presumption of law as distinguished from presumption of fact is drawn, the court has no other option but to draw the same in every case where the factual basis of raising the presumption is established. Pal, J. speaking for a 3-Judge Bench, however, opined:
    • “Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
    • In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, ‘after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ‘prudent man’.”

Standard of Proof in Civil and Criminal Cases

Our Apex Court continued in Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 SC 1534, as under:

  • “In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so’ nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.”

See Post: Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence

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Published by sajikoduvath

1 Comment

  1. ranaji's avatar ranaji says:
    January 30, 2025 at 1:12 am

    Can the certified copy of a Decree of a District Court in Delhi mask the signatures of the judge while it is stamped with Sec.76 I.E Act stamp. Are there any such rules that provide that signatures on the certified copies should be masked?

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