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Presumption under Section 118 and 139 of the Negotiable Instruments Act (N.I. Act) is a presumption of law, not a fact-based presumption. It is rebuttable, meaning the accused can produce evidence to disprove it and establish the contrary. The court is obliged to raise this presumption once the factual basis is established, but it can be rebutted by the accused ["Jagdish Singh VS Shiv Kumar - Punjab and Haryana"], ["Sachin Gupta VS Paras Ram Chandel - Himachal Pradesh"], ["Patel Malpeshkumar Kantilal VS State Of Gujarat - Gujarat"], ["Geeta Pandey VS Raghvendra Datt Ram Pandey - Allahabad"], ["Sanjay Sankhyan VS Krishan Kumar Katoch - Himachal Pradesh"], ["AMARJEET MANKOTIA vs BHAGWAN DASS AND ANOTHER - Himachal Pradesh"], ["Jayeshkumar Thakorbhai Patanwadia VS State Of Gujarat - Gujarat"], ["PRAMODKUMAR CHHOTALAL VYAS VS STATE OF GUJARAT - Gujarat"], ["Ashish Kumar Agrawal S/o Shri Laxmi Narayan VS Nitesh Kumar Goyal S/o Shri Nagarmal - Madhya Pradesh"].
The presumption of law under Section 139 of the N.I. Act specifically relates to the presumption of a debt or liability arising from the issuance of a cheque. It is rebuttable and the burden shifts to the accused to prove, on a preponderance of probabilities, that the cheque was not issued for a debt or that there was no liability ["VIKRAM SINGH AANJANA VS PRAKASHCHANDRA SOLANKI - Madhya Pradesh"], ["Sachin Gupta VS Paras Ram Chandel - Himachal Pradesh"], ["AMARJEET MANKOTIA vs BHAGWAN DASS AND ANOTHER - Himachal Pradesh"].
Courts have emphasized that the presumption is not conclusive. The accused can disprove the presumption by providing credible evidence, such as denial of consideration or other defenses. Failure to rebut the presumption may lead to conviction, but the presumption itself remains rebuttable ["Prakash Datta Dessai VS Silverina Gracias - Bombay"], ["Sachin Gupta VS Paras Ram Chandel - Himachal Pradesh"], ["VIKRAM SINGH AANJANA VS PRAKASHCHANDRA SOLANKI - Madhya Pradesh"].
In cases of judgments and appeals, courts have held that if the trial court overlooks or fails to appreciate the statutory presumption, the appellate court may set aside the judgment. Conversely, if the evidence rebuts the presumption, acquittal or dismissal is justified. The courts also note that the standard for rebuttal is preponderance of probabilities ["Patel Malpeshkumar Kantilal VS State Of Gujarat - Gujarat"], ["Sachin Gupta VS Paras Ram Chandel - Himachal Pradesh"], ["AMARJEET MANKOTIA vs BHAGWAN DASS AND ANOTHER - Himachal Pradesh"].
When courts refer to may presume versus shall presume, the latter indicates a mandatory obligation to raise the presumption once the factual conditions are met, whereas may presume leaves discretion to the court ["Pramodkumar Chhotalal Vyas VS State of Gujarat - Crimes"], ["Jayeshkumar Thakorbhai Patanwadia VS State Of Gujarat - Gujarat"].
Analysis and Conclusion:The judicial consensus is that presumptions under Sections 118 and 139 of the N.I. Act are presumptions of law, which the court must raise if the conditions are satisfied, but they are rebuttable. The accused has the right and opportunity to produce evidence to disprove the presumption, and the standard of proof required for rebuttal is preponderance of probabilities. Courts have consistently held that the presumption is not conclusive and can be displaced by credible evidence, ensuring fairness in criminal proceedings involving cheques and related documents ["Jagdish Singh VS Shiv Kumar - Punjab and Haryana"], ["VIKRAM SINGH AANJANA VS PRAKASHCHANDRA SOLANKI - Madhya Pradesh"].
In the realm of Indian law, particularly in cheque bounce cases under the Negotiable Instruments Act, 1881 (NI Act), the concept of presumption often plays a pivotal role. But what exactly is a judgment on presumption? It refers to how courts rely on legal presumptions—rules of evidence that allow judges to infer certain facts unless proven otherwise—to streamline proceedings and ensure justice. These presumptions, especially under Sections 118 and 139 of the NI Act, are typically rebuttable, meaning the opposing party can challenge them with credible evidence. This blog post delves into their nature, application, and rebuttal, drawing from key judicial insights to help you navigate this complex area.
Whether you're a business owner facing a bounced cheque or a legal practitioner, understanding these presumptions can make all the difference. Let's break it down step by step.
Presumptions in Indian law, including those under the NI Act, are primarily rules of evidence that facilitate judicial reasoning by allowing courts to infer certain facts unless rebutted. They can be of law or fact, and their character—rebuttable or irrebuttable—determines if they can be challenged. Rebuttable presumptions, such as those under Sections 118 and 139, shift the burden of proof to streamline proceedings but can be disproved by contrary evidence Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320.
As noted, Presumptions are devices of evidence that enable courts to pronounce on issues despite insufficient or no direct evidence Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49. This evidentiary role is crucial in high-volume cases like Section 138 NI Act offences.
Under the Indian Evidence Act, 1872, presumptions are classified as:- May presume (rebuttable presumptions of fact)- Shall presume (rebuttable presumptions of law)- Conclusive presumptions (irrebuttable) Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320.
'May presume' gives courts discretion, while 'shall presume' mandates the inference unless rebutted. Once raised, the burden shifts to the opposing party to produce disproving evidence.
In NI Act contexts, courts emphasize: The word 'Presumption' inherently imports an act of reasoning a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts Abhijit Choudhury VS Chinmoy Sen - 2015 Supreme(Tri) 30.
Section 118 presumes, until contrary proved, that a negotiable instrument was made or drawn for considerationRajesh Jain VS Ajay Singh - 2023 7 Supreme 49. Section 139 presumes the holder received the cheque for discharge of a debt or liabilityAPS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320. Both are rebuttable presumptions of law, requiring the accused to adduce evidence.
Courts hold these do not amount to conclusive proof: The courts have consistently held that these presumptions are of a rebuttable nature and do not amount to conclusive proof Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320. For instance, in cheque dishonour cases, the accused can rebut by showing no consideration or invalid debt Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320.
A related judgment clarifies: The main legal point established in the judgment is the significance of evidence and the burden of proof on both parties in rebutting the presumption under section 139 of N.I. Act Usha Hiralal Kanojia VS Jayshree Mangesh Chauhan - 2023 Supreme(Bom) 479. Here, the court found the accused rebutted the presumption, leading to acquittal, stressing that mere denial isn't enough—credible evidence is required Usha Hiralal Kanojia VS Jayshree Mangesh Chauhan - 2023 Supreme(Bom) 479.
Rebuttal occurs when evidence makes the non-existence of the presumed fact more probable. Examples:- Proof of no consideration passed.- Cheque issued as security, not debt.
The presumption under Section 118 or 139 can be rebutted by producing evidence that makes the non-existence of the presumed fact more probable than its existence Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320. Post-rebuttal, the burden shifts back to the prosecution to prove beyond reasonable doubt Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320.
In blank cheque cases, signing a blank cheque doesn't constitute 'due execution' for presumption: Signing of a blank cheque not amounts to due execution—Due execution means to give a cheque in its complete form P. Krishnasamy VS Delta Knit WearablesP. Krishnasamy VS Delta Knit Wearables. This limits presumption application unless fully executed.
Presumptions extend beyond NI Act. For service of notice under Section 138, notice sent by registered post to the accused's address and received by family is presumed served: The notice sent by registered post to the accused's address and received by his wife should be deemed as properly served, based on the provisions of Section 27 of the General Clauses Act and Section 114 of the Evidence Act Abhijit Choudhury VS Chinmoy Sen - 2015 Supreme(Tri) 30.
In Evidence Act Section 108 cases, no presumption of death arises without seven years' absence: Duration of seven years from the date of person was last heard necessary for raising presumption as to the death of the person Narayana Pillai VS Velayuthan Pillai (unsound mind) represented by Lakshmi - 1962 Supreme(Mad) 370.
Foreign judgments carry presumptions under CPC Section 14, rebuttable only by fraud proof: Section 14 of CPC provides presumption on the judgment and the said presumption on the jurisdiction was not rebutted by the plaintiff Oren Bydorcarbons Private Limited VS MSC Mediterranean Shipping Company SA, DU Commerce De Geneve, Chemin Relu, Tamil Nadu, India - 2019 Supreme(Mad) 3122.
These illustrate presumptions' evidentiary flexibility across laws.
Recommendations:- Practitioners: Prepare rebuttal evidence early.- Courts: Distinguish presumption types accurately.- Argue evidentiary nature, not conclusiveness Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320.
Presumptions under NI Act are powerful yet rebuttable tools aiding justice without being ironclad. They shift burdens efficiently but yield to credible contrary evidence, ensuring fairness. Key takeaways:- Sections 118/139 create prima facie cases, not guilt.- Rebut with probable evidence, not denials.- Understand classifications for strategic advocacy.
This post provides general insights based on judicial precedents and is not legal advice. Consult a qualified lawyer for case-specific guidance.
References:1. Rajesh Jain VS Ajay Singh - 2023 7 Supreme 49: General presumptions and types.2. APS FOREX SERVICES PVT. LTD. VS SHAKTI INTERNATIONAL FASHION LINKERS - 2020 2 Supreme 320: NI Act Sections 118/139 scope.3. Other cases as cited inline.
#NIPresumptions #RebuttableLaw #ChequeBounce
JUDGMENT Mr. N.S.Shekhawat, J. ... Thus, he prayed for upholding the impugned judgment. 6. The above said presumption of law under Section 118 /139 of the Act is not a statutory presumption of fact, rather it is a presumption of law and the accused can always adduce evidence to disprove the presumption and to prove to the contrary.
He not having done so it stands to reason that he cannot rely on any presumption in law to show that he must have died long prior to the judgment. ... JUDGMENT:- ... This Revision Petition, though devoid of merits, raises a question of law. ... ... It follows from the decisions set out above, that there can be no presumption that Velayudham died on the date when this Court delivered the judgment in the appeal. The preliminary decree passed by this Court is, therefore, valid. ... It will be noticed that....
These observations in the impugned Judgment are contrary to each other. If the Complainant failed to discharge the initial burden, there was no question of bringing the presumption under Sec. 139 of N.I. Act into effect. It is settled proposition of law that presumption under Sec. 139 of N.I. ... The Judgment and acquittal passed by learned Trial Court necessarily requires to be quashed and set aside. Evidence brought on record shows that presumption under Sec. 139 of N.I. Act is in favour of Complainan....
Learned counsel for applicant relying on the judgment of Krishan Janardhan Bhat vs. Dattatraya G. Hegde AIR 2008 SC 1325 contends that section 139 of Negotiable Instrument Act provides for presumption of debt or other liability in favour of holder of a cheque. ... Act’) and sentenced to undergo RI for 1 year and to deposit Rs. 20,50,730/- as compensation with default stipulation vide judgment dated 9-6-2022 passed by IX ASJ, Ujjain in Criminal Appeal No. 90/2021 affirming the judgment dated 29-9-2021 passed by JMFC, Ujja....
Only difference is in Appeal against judgment of acquittal, the Appellate Court should be slow in interfering the judgment. ... As against, this the trial Court in the judgment has concluded that mere denial on oath and defence taken by the accused is not sufficient, on facts of the case to rebut the presumption under section 139 of N.I. Act. ... It is true that when for the first time the Appellate Court is appreciating evidence, re-appraisal is permissible, whether it is an Appeal against judgment for....
Ultimately, what matters is that the learned Magistrate was certain in applying the presumption against the appellant. From the judgment, it is clear that the learned Magistrate did invoke the presumption, even though she only mentioned it at the end of the prosecution's case in her decision. ... The appellant's argument consists of two main points: first, the learned Magistrate did not specify whether she invoked the presumption under s 37(d) at the conclusion of the prosecution's case; and second, she failed to state i....
Learned advocate Mr.Dave further submits that without any cogent reason the judgment and order of the acquittal was passed, therefore, the impugned judgment and order is required to be quashed and the respondent-accused is required to be convicted. ... 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. ... The Evidence Act provides for presumptio....
JUDGMENT : Rakesh Kainthla, J. ... Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. ... Learned Trial Court did not consider the presumption under Section 139 of the Negotiable Instruments Act. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned trial Court be set aside. 8. I ha....
CPC to inform the appellant whether she has invoked a presumption of possession against him. Additionally, it is well established in law that a trial judge is not legally required to provide his judgment or reasoning when calling for a defence; PP v. ... Although the learned Magistrate did not explicitly state in her judgment that she had invoked the presumption of possession at the conclusion of the prosecution's case and had only stated it at the end of the defence's case, this omission is not detrimental to the appel....
Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. He relied upon the judgment of Hon’ble Supreme Court in Sanjabij Tari versus Kishore S. ... Such general restrictions are essential to remind the appellate court that an accused is presumed to be innocent unless proven guilty beyond a reasonable doubt, and a judgment of acquittal further strengthens such presumption in favour of the accused. ... Needless to mention that the presumption#HL_EN....
There is no allegations on fraud in obtaining the judgment and there is no claim that the judgment is founded on any breach of law in force in India. Section 14 of CPC provides presumption on the judgment and the said presumption on the jurisdiction was not rebutted by the plaintiff.
The word 'Presumption' inherently imports an act of reasoning a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts. A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. (per ABBOTT, C.J., R. v. Burdett, (4 B. & Ald, 95, 161)
One of the presumption is in respect of the consideration. If states that the Court shall presume that the Negotiable Instrument was made or drawn for consideration, was accepted, indorsed. Section 118 of the Act, speaks of certain presumption as to Negotiable Instruments. In order to raise the said presumption, it is absolutely necessary for the complainant that the Negotiable Instrument was duly made, that means it was duly executed by the respondents.
One of the presumption is in respect of the consideration. In order to raise the said presumption, it is absolutely necessary for the complainant that the Negotiable Instrument was duly made, that means it was duly executed by the respondents. If states that the Court shall presume that the Negotiable Instrument was made or drawn for consideration, was accepted, indorsed. Section 118 of the Act, speaks of certain presumption as to Negotiable Instruments.
The judgment based on presumptions needs to be set aside. 4. Mr. S.N. Kumawat, learned counsel for appellant-RPSC submits that without verification of the facts as to whether unfilled vacancies were of a period prior to amendment in the rules i.e. 10.10.2002, learned Single Judge presumed all the unfilled vacancies of a period prior to 10.10.2002 and issued directions accordingly. the other argument raised herein is that reserve list cannot be operated after expiry of its life more so in regard to few petitions which were filed subsequent to the judgment in the cases of Vij....
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