Sec 4 of IEA

Presumptions
Dr Nandini CP
DSNLU
Sec 4- Presumptions
Why presumptions?
 Presumptions are based on common sense and public policy and
not those necessarily of logic … however (see Phipson)
 When there is no direct evidence offered or obtainable, disputed
facts are sometimes inferred from other facts which are
themselves proved or known
 Presumptions or inferences are always the testimony of
circumstantial nature
 They are based on the wide experience of connection existing
b/w the facta probantia and facta probandum, which warrants
a presumption from the one to the other, whenever the two are
brought into contiguity
 Phipson distinguishes POL and POF
POL
• Derive their force from law
• It applies to a class- the
conditions of which are fixed
and uniform
• In English Law – POL are
drawn by court
• POL mandatory
• Mandatory and no option but
to draw the conclusion
POL Classified as Rebuttable
( ss 79-95, 89, 105. 107-111( In
these cases the court shall
regard such fact as proved,
unless and until it is disproved
and
irrebuttable Ss 41,112,113 &
82- in these cases the court
shall not allow evidence to be
given for the purpose of
disproving it
POF- May presume rebuttable
• Derive their force from logic
• Applies to individual cases ,
the conditions of which are
inconstant and fluctuating
• POF are drawn by jury
• POF discretionary depending
on circumstances
• 86-88,90,&114
 Types
 Presumptions as per English writers are of:

Of Law
• Artificial presumptions/ arbitrary inferences
• May be conclusive or rebuttable

Of Fact
• Inferences which the mind naturally and logically draws from the given
facts, irrespective of their legal effect
• They are rebuttable and the judge may decline to draw the inference
Mixed presumptions –presumptions of fact recognized by law- Mostly confined to English
Real Property/quasi presumptions juris
Indian practitioners need not pay much importance to them
Importance
 If a swab(mop) is left in the patients body, unless there is
explanation by the surgeon it can be presumed that accident
arose due to negligence ( Mahon V Osborne 1939 2 KB 14)NL
as it was an emergency operation
 Presumption by itself is NOT a evidence , but only makes a
prima facie case for a party, in whose favor it exists.
 When conclusive, it obviates the production of any other
evidence to dislodge conclusion to be drawn on proof of
certain facts.
 Presumptions
Compelling Irrebuttable
Permissive presumptions presumption or
or presumptions of fact presumptions of law
presumptions of law or conclusive proof
or natural presumptions
( rebuttable) or
Cl (i) of sec 4 artificial Cl (iii) of sec 4
Not obligatory to draw presumptions Ss 112/113
these presumptions
Cl (ii) of sec 4 ( However exception
Human actions/usages/
habits of society/ Ss is provided for s 112,
Sec 114 79/80/81/83/85/89/ by proving non-
105 of IEA access)
Presume

May Presume- …
Shall Presume …
Rebuttable- when Conclusive proof-…
directed by this
the Act provides declared by this Act,
Act, the court
for court to to be conclusive proof
shall presume a of another , the court
presume a fact, it
fact, it shall shall , on proof of the
may either regard
regard such fact as one fact, regard the
such fact as other as proved , and
proved, unless and
proved, unless and shall not allow
until it is
until it is evidence to be given
disproved…
disproved or may for the purpose of
accused presumed disproving it.
call for proof 86-
to be innocent
88.90& 114
facta probanda and facta probantia
 Facta probantia facts that are relied on but that are not material facts
in the sense that even if a party fails to prove them he will still succeed
 in his claim or defence;  facta probantia should not be pleaded).
 The issues to be framed must be confined to the material questions of fact
or law to facta probanda and not to facta probantia that is to say, the
evidence by which material questions of fact are proved or disproved.
 Ramanujam (2009) 7 SCC 130, it was held that mere averment in complaint
is no evidence and the complainant has to prove the allegations by cogent
evidence because the complainant is obliged to provide facta-probanda as
well as facta-probantia. (In this case there was simple hair-line fracture
which required operation and the complainant alleged rough handling by
the Hospital staff and the Doctor lacking basic skills in performing the
operation)
 Scope of sec 4
 Presumptions of fact are really in the nature of mere arguments
or maxims- sec 114
 Circumstances may, however induce the court to call for
confirmatory evidence ( Raghunath v.Hoti (1904) 1 ALJ 121)- See
Dist Board Patna V Bajirao Sao (1975 Pat)
 May Presume- St of WB v EITA India Ltd 2003 SC- Sales Tax of WB
challenged ( sec 11(1))
 Presumptions about Negotiable Instruments – that they are made
for consideration , signed by the maker etc.. Sec 118 of NI Act
Manyam Janakalakshmi V Manyam Madhava Rao -1973
 Until proved contrary see also sec 139 of the NI Act
 Conclusive Prof
 Voters list is conclusive on the question of age of the voter and the
election tribunal is not permitted to hold an inquiry on the question
of minimum age as required by Art 326 Constitution of India – Mohd
Husain V Onali Fiddali 1967 Guj
 Entryin school admission not conclusive proof of age of the person-
Bami Bewa V Krushna Chandra Swain 2004
 Marriage ceremony as per Japanese and also in the marriage register
– conclusive that marriage was as per the sec 14 (2) of the FMA,
1969.. So u/s of IEA the marriage was solemnized u/s HMA cannot be
allowed – Minoti Anand V subhash Anand (2011 Bom)
Kumar Exports v Sharma Carpets
AIR 2009 SC 1518
 Negotiable Instruments Act, 1881
 Appeal against conviction
 Held, in a trial under s. 138 a presumption will have to be
made that every negotiable instrument was made or
drawn for consideration and that it was executed for
discharge of debt or liability once the execution of
negotiable instrument is either proved or admitted
 Presumptions will live, exist and survive and shall end only
when the contrary is proved by the accused
Facts
 Jai Bhagwan Sharma, proprietor of M/s. Sharma Carpets, the respondent herein, deals in
carpets. Rajinder Kumar, proprietor of M/s. Kumar Exports, the appellant herein, is
carrying on business at Panipat. It is the case of the respondent that the appellant
purchased handtufted woolen carpets from him on August 6, 1994, cost of which was
Rs.1,90,348.39.
 According to the respondent, the appellant issued two cheques, i.e., one cheque bearing
No. 052912 dated August 25, 1994 for a sum of Rs.1,00,000/- and another cheque bearing
No. 052913 dated September 25, 1994 for an amount of Rs.90,348.39 drawn on Panipat
branch of Union Bank of India, for discharge of his liability.
 The case of the respondent is that the cheques were deposited in the bank by him for
encashment, but those cheques were received back unpaid with remarks "insufficient
funds". It is the case of the respondent that the fact that the cheques were dishonoured
for insufficient funds was brought to the notice of the appellant and on the request of the
appellant, the cheques were again presented for encashment in the bank on January 5,
1995, but they were again dishonoured due to lack of funds in the account of the firm of
the appellant
Kumar Exports v Sharma Carpets
AIR 2009 SC 1518
 The cheque was not issued for consideration and in discharge of any
debt or liability - respondent failed to establish his case under s. 138
as required by law –
 After finding the appellant guilty under s. 138, the judicial discretion
of imposing appropriate sentence could not have been abdicated by
the Single Judge in favour of the Magistrate
 Appeal allowed. acquitting the appellant under Section 138 of the
Negotiable Instruments Act, 1881 ('the Act' for short), is set aside and
after convicting the appellant under Section 138 of the Act the
matter is remitted to the learned Magistrate to pass appropriate
order of sentence.
Preamble of IEA-
15th March, 1872.
Commencement- Come into force on 1st September, 1872.
 WHEREAS it is expedient to consolidate, define and amend
the law of Evidence
 Extent. –– It extends to the whole of India 2 [except the
State of Jammu and Kashmir] and applies to all judicial
proceedings in or before any Court, including Courts-
martial, 3 [other than Courts-martial convened under the
Army Act (44 & 45 Vict., c. 58)] 4 [the Naval Discipline [29
& 30 Vict., 109] Act or 5 *** the Indian Navy (Discipline)
Act, 1934 (34 of 1934),] 6 [or the Air Force Act (7 Geo. 5,
c. 51)] but not to affidavits presented to any Court or
officer, nor to proceedings before an arbitrator;
Sodhi Transport Co. And Anr. Etc. Etc. v State of Uttar Pradesh and
Another (And Others) AIR 1986 SC 1099
 Question before the Court?
 Constitutionality of s.28B the and r.87 of the Sales tax Act
and Rules respectively - And whether transporter is a dealer
-Provisions are introduced to check evasion of tax and to
provide a machinery for levying tax from persons
(transporters) who dispose of goods inside the State and
avoid tax which they are otherwise liable to pay …
 Why Appeal before the SC?
 special leave filed against the judgment of the High Court of
Allahabad ..holding inter alia that section 28-B of the
Uttar Pradesh Sales Tax Act, 1948 and rule 87 of the Uttar
Pradesh Sales Tax Rules, 1948 framed by the Government of
Uttar Pradesh in exercise of its powers conferred under as
constitutionally valid and dismissing the Writ Petitions with
costs.
Facts ….
 Who has come before the court- Facts of the case
 appellants who claim to be engaged in the business of transport of goods
belonging to others for hire from one place to another and who in the
course of their business have to carry goods from one State to another
State along roads lying in the State of Uttar Pradesh filed the writ petitions
out of which these appeals
 For what action was this case?
 The Legislature of a State is entitled to levy tax on sales under Entry 54 of
List II of the Seventh Schedule
 If the transit pass not obtained –presumption can be drawn? ( See Notes
Below )
 it shall be presumed that the goods carried thereby have been sold within
the State by the owner or person in-charge of the vehicle.
 It also provides for the issue of the transit pass in triplicate and for
inspection of the documents, consignments and goods to ensure that the
statements made are true.
 Sodhi Transport Co. And Anr. Etc. Etc. v State of Uttar
Pradesh and Another (And Others) AIR 1986 SC 1099

 The Act, however, came into force prior to the commencement of the
Constitution. When the State of Uttar Pradesh found that there was
large scale evasion of sales tax by persons engaged in trade who
were bringing goods from outside the State of Uttar Pradesh
 establishment of check-posts and barriers ( S 28) at the boundaries
of the State and also for inspection of goods while in transit. Even
this provision was found to be inadequate. It was substituted also
added sections 28-A, 28-B, 28-C and 28-D to deal with the problems
of evasion
 Rule 87 of the Rules which was inserted into the Rules by the U.P.
Sales Tax (First Amendment) Rules, 1974 for the purpose of section
28-B of the Act reads thus :
 "87. Transit of goods by road through the State and issue of transit
pass
Broadly the contentions before the court were
that
 (i)the provisions were outside the scope of Entry 54 of List II of the Seventh
Schedule to the Constitution;
 (ii)
they infringed freedom of trade, commerce and intercourse guaranteed u/art.
301 of the Constitution; and
 (iii)they imposed unreasonable restrictions on the freedom of trade guaranteed
u/art. 19(1)(g) of the Constitution. The High Court rejected these contentions
and dismissed the writ petitions. Hence these appeals by special leave have been
filed. Some writ petitions have also been filed in this Court. All these were heard
together by us.
 Taxation laws usually consist of three parts –
 charging provisions,
 machinery provisions, and
 provisions providing for recovery of the tax.
Shall …. Presumption- Conclusive in nature
 Whitney v. Commissioner of Inland Revenue [1925] 10 T.C. 88 (110)
 Gursahai Saigal v. Commissioner of Income-tax, Punjab [1963] 3 S.C.R. 893 -----They
impose no charge on the subject. They are enacted to ensure that a person who has
brought the goods inside the State and who has made a declaration that the goods are
brought into the State for the purpose of carrying them outside the State should actually
take them outside the State.
 ……So Entry 54 should be read not only as authorising the imposition of a tax but also as
authorising an enactment which prevents the tax imposed being evaded. If it were not to
be so read, then the admitted power to tax a person on his own income might often be
made infructuous by ingenious contrivances. Experience has shown that attempts to
evade the tax are often made.“- -----Sardar Baldev Singh v. Commissioner of Income
Tax, Delhi & Ajmer [1961] 1 S.C.R. 482
 'it shall be presumed that the goods carried thereby have been sold within the State' in
section 28-B of the Act as meaning that it shall be conclusively
 The meaning of these words would become clear if we read the definitions of the words
'may presume', 'shall presume', and 'conclusive proof' given in s. 4 of the
Indian Evidence Act, 1872, although the said Act is not directly attracted to this case.
( See Notes)
 The history of the Rules regarding presumptions is succinctly given in W.S. Holdsworth's
'A History of English Law' (Vol.IX) ( p 14 and 15 of the Judgment)
About Presumption …Is it evidence by itself?

 A presumption is not in itself evidence …but only makes a prima facie

case for party in whose favour it exists. It is a rule concerning
evidence. It indicates the person on whom the burden of proof lies.
 When presumption is conclusive, it obviates the production of any other
evidence to dislodge the conclusion to be drawn on proof of certain facts.
 But when it is rebuttable it only points out the party on whom lies the
duty 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.
 The rules of presumption are deduced from enlightened human
knowledge and experience and are drawn from the connection, relation
and coincidence of facts, and circumstances. In Izhar Ahmad khan v.
Union of India, [1962] Suppl. 3 S.C.R. 235
Rules of Presumption
the meaning of a rebuttable presumption thus :
 "It is conceded, and we think, rightly, that a rule prescribing a
rebuttable presumption is a rule of evidence. It is necessary to analyse
what the rule about the rebuttable presumption really means. A fact A
which has relevance in the proof of fact and inherently has
some degree of probative or persuasive value in that behalf
may be weighed by a judicial mind after it is proved and before
a conclusion is reached as to whether fact is proved or not.
 …..A rebuttable presumption which is clearly a rule of evidence has the
effect of shifting the burden of proof and it is hard to see how it is
unconstitutional when the person concerned has the opportunity to
displace the presumption by leading evidence.
Dealer – Transporter? Art 301
 A person who sells goods inside the State of Uttar Pradesh and fulfills the other
conditions prescribed in that behalf is a dealer even as per amendments made
in 1959, 1961, 1964, 1973 and 1978 to the said definition. There is, therefore,
no substance in the contention that a transporter was being made liable for the
first time after 1979 with retrospective effect to pay sales tax on a transaction
which is not a sale. Tax becomes payable by him only after a finding is recorded
that he has sold the goods inside the State though with the help of the
presumption which is a rebuttable one.
 The levy of sates tax on goods which are held to have been sold inside the
State cannot be considered as contravening Art. 301 of the Constitution. The
restrictions imposed are not also shown to be unreasonable. They do not unduly
hamper trade. On the other hand they are imposed in the public interest. The
contentions based on art. 301 and Art. 19(1)(g) of the Constitution are,
therefore, without substance.
 …. The decision of the High Court upholding the Constitutionality of section 28-B
of the Act and rule 87 of the Rules does not call for any interference. We uphold
the validity of the said provisions.
Submission by the Counsel and SC
suggestion to the State Counsel…
 Keeping in view the submissions made by the learned counsel for the
appellants, this Hon'ble Court was pleased to suggest to the counsel appearing
for the State to evolve a suitable method to ensure that the Act and the
provisions would not operate unjustly or harshly against bona fide transporters.
 Earlier assessment to be ex parte withdraw and …A fresh notice containing as far as
possible relevant particulars, would be issued to the
assessees/appellants/petitioners.
 ….. State by the owner or person in charge of the vehicle, is a rebuttable
presumption and it would be open to the transporter, assessee, to
displace this presumption by producing adequate material or evidence.
 ..others who are not party can also file for appeal and revision and they can be
irrespective limitation law..
 The appeals and writ petitions are disposed of accordingly.
 There shall be no order as to costs.
Read
K V Baby v Food Inspector & Anr1994 CriLJ 3421
M/S Kumar Exports vs M/S Sharma Carpets
AIR 2009 SC 1518
Question???
 Izar Ahmad Khan V UOI 1962 SC ( Citizenship Rules) and (irrebuttable presumptions)
 May Presume and Shall Presume??...Haradhan Mahatha V. Dukhu Mahatha 1993 Indlaw PAT 1337
Izhar Ahmad khan v. Union of India,
[1962] Suppl. 3 S.C.R. 235
 three Writ Petitions are filed by the three respective
petitioners under Art. 32 of the Constitution for the
enforcement of their fundamental right under Article 19(1)
(e).
 They were heard separately but it would be convenient to
deal with them by one common judgment because they raise
for our decision the same constitutional questions.
 In all the petitions, the constitutional validity of section 9(2)
of the Citizen ship Act, 1955, (Act LVII of 1955) (hereinafter
called the Act) and of rule 3 in Schedule III of the Citizenship
Rules, 1956, is challenged.
Izhar Ahmad khan v. Union of India,
[1962] Suppl. 3 S.C.R. 235
 Citizenship, Termination of-Determination by Central Government-Rule making obtaining of
passport from another country conclusive evidence-Validity-Citizenship Act, 1955(57 of
1955), s. 9(2)-Citizenship Rules, 1956, Sch. III, r 3.
 The petitioners claiming to be Indian Citizens sought to enforce their fundamental rights
under Art. 19 (1) (e) of the Constitution. The crucial question was whether they were
citizens of India. While the petitions were pending the Government of India tinder s. 9(2) of
the citizenship Act, 1955 determined that they had voluntarily acquired the citizenship of
Pakistan by the application of r. 3 of' Sch. III of the Citizenship Rules, 1956, framed by the
Central Government under s. 18 of the Act. Section 9 of the Citizenship Act, 1955, provides
as follows:- "(1) Any citizen of India who by naturalization, registration or otherwise
voluntarily acquires, or has at any time between the 26th January, 1950, and the
commencement of this Act voluntarily acquired, the citizenship of another country, shall,
upon such acquisition or, as the case may be, such commencement, cease to be a citizen of
India
Rules under the Statute
 (2) If any question arises as to whether,, when or how any person has acquired the
citizenship of another country it shall be determined by such authority, in such manner,
and having regard to such rules of evidence, as may be prescribed in this behalf." Rule 30
of the Rules which made the Central Government the authority for the purpose of s.9(2)
provided that for a determination under that section the Central Government should have
due regard to the rules of evidence specified in Sch. III of the Rules.
 Rule 3 of the said schedule was as follows. "The fact that a citizen of India has obtained
on any date a passport from the Government of any other country shall be conclusive
proof of his having voluntarily acquired the citizenship of the country before that date."
After such determination by the Central Government the petitioners challenged the
constitutional validity of s. 9 (2) of the Citizenship Act, 1955, as also of r. 3 of Sch. III of
the Citizenship Rules, 1956. Their . case was that (1) r. 3 of Sch. III of the Rules was not a
rule of evidence but a rule of substantive law and as such outside the purview of the
delegated authority conferred by s. 9 (2) as also the general rule making power under s.
18 of the Act, and that (2) s. 9 (2) itself was ultra vires as it affected the status of
citizenship and deprived the petitioners of their fundamental rights under Art. 19 (1) (e)
of the Constitution.
Held
 Held, (per Gajendragadkar, Wanchoo and Ayyangar, JJ.) that the contentions raised by
the petitioners must fail. It was not correct to say that r. 3 of Sch III of the Citizenship
Rules, 1956, which made it obligatory on the authority to infer the acquisition of
foreign citizenship from the fact of obtaining a passport from a foreign country was
not a rule of evidence but a rule of substantive law. Like the rule of rebuttable
presumption, which was undoubtedly a rule of evidence.
 The function of an irrebuttable presumption was also to help the judicial mind in
appreciating the existence of facts with this difference that while the former was open
to rebuttal, the latter was placed beyond rebuttal.
 So considered a rule of irrebuttable presumption could not be said to fall outside the
law of evidence. D. B. Heiner v. John. H. Donnan, (I 932) 76 Law Ed. 772, referred to.
That such a rule might in some cases lead to hardship and injustice was not a relevant
consideration in judging its constitutional validity.
 The real test whether a rule of irrebuttable presumption was one of evidence was
inherent relevancy, If the fact from the proof of which the presumption was required to
be drawn was inherently relevant in proving it, the rule was one of evidence, no matter
whether the presumption prescribed was a rebuttable or irrebuttable. There could be no
doubt that a passport obtained from Pakistan was relevant in deciding whether or not
the citizenship of Pakistan had been voluntarily acquired and any argument to the
contrary would be clearly erroneous.
Rule of Evidence
 It was clear that under the law of Pakistan only a citizen of that country could apply
for and obtain passport. The impugned rule, therefore, was not a rule of substantive
law and was within the purview of s. 9 (2) of the Citizenship Act and its validity
could not be challenged.
 The expression rules of evidence' in s. 9 (2) must be construed in the light of its
legislature history. Ever since the passing of the Evidence Act a conclusive
presumption has been a part of the law of evidence. It was well settled that the
scope power to legislate on a topic, had to be determined by the denotation of that
topic obtaining in legislative practice. Croft. v. Dunphy, 1933 A.C. 156 and The
Central Provinces and Berar Act, No. XIV of 1938, (1939) F.C.R. 18, referred to.
Status of citizenship was not a fundamental right under the Constitution and the
Parliament had clearly the power under Art. II of the Constitution to regulate the
right of citizenship by law.
Is it substantive law of rule of evidence
 The challenge to s. 9(2) of the Act, therefore, on the ground that enabled the rule-
making authority to deprive the petitioners of their rights, of citizenship could not
be sustained. The scheme of the Act and principles it enunciated clearly showed
that the Legislature in enacting s. 9(2) had not abdicated its essential legislative
function in favour of the rule making authority. There would be no doubt
 therefore that the section was valid. Per Sarkar and Das Gupta, JJ.-Whether a
particular rule was one of substantive law or of evidence had to be judged by what
it sought to do. Did it create or extinguish or modify a right or liability or its sole
concern was with the adjective function of reaching a conclusion as to what had
taken place under the substantive law ?
 If the first, it would be a rule of substantive law, otherwise it would be a rule of
evidence. If a rule, purporting to be one of evidence, in effect said what must be
the right or liability on the happening of a paricular fact. it went beyond the scope
of the law of evidence and trenched on the domain of substantive law.
Is it a Rule of Conclusive Presumption
 A rule of conclusive presumption made with a view to affect a specified substantive
right was a rule of substantive law and did not cease to be so because it was rested on
a fact which was relevant to it.
 The test was not one of relevancy but whether it was intended to affect a specified
substantive right or provide a method of proof. So judged, when obtaining of a
passport from another country was made conclusive proof of voluntarily acquiring the
citizenship of that country, in the context of s. 9 of the Act, a substantive right was
directly affected and the rule could not obviously be one of evidence and must be one
of substantive law.
 It might so happen that when one voluntarily acquired the passport of a country he
might not have to acquire the citizenship of that country
Held
 Mohd. Khan v. Govt. of Andhra Pradesh , A.I.R. 1957 And. Pra. 1047 and
Sharafat Ali Khan v. State of U.P., A.I.R. 1960 All, 637, approved
 Mohomed Usman v. State of Madras A.I.R. 1961 Mad 129 and Ghaural Hasan,
v. State of Rajasthan, A.I.R. 1958 Raj. 173, disapproved.
 In view of Art, 11 of the Constitution it was not correct to say that the right
of citizenship was a fundamental right or that the power conferred by s. 9(2)
of the Act was an unguided power.
 That sub-section gave enough guidance to the General Government to frame
rules of evidence. The question whether the petitioners had acquired foreign
nationality must, therefore be determined by the Government leaving r. 3 of
Sch. III of the Citizenship Rules, 1956, out of account.
 Izhar
Ahmad Khan v. Union of India and Ors
 We may at this stage refer to a few decisions of this Court on the subject. In Izhar
Ahmad Khan v. Union of India and Ors. (AIR 1962 SC 1052), this Court was examining
the provisions of Schedule III Rule 3 of the Citizenship Rules, 1956 which made it
obligatory on the enquiring authority to infer the acquisition of citizenship of a foreign
country from the fact that the passport of foreign country has been obtained by an
Indian citizen. The question was whether a rule about irrebuttable presumption is a
rule of evidence or not. The question had arisen in the context of rule- making power
of the Central Government under Section 9(2) of the Citizenship Act, 1955 according to
which the Central Government could prescribe rules of evidence subject to which the
competent authority could hold an inquiry. The contention urged was that instead of
prescribing a rule of evidence the Central Government had by enacting Rule 3 and
raising a conclusive presumption regarding the acquisition of citizenship of another
country, framed a rule of substantive law and not a rule of evidence.
Kumar Exports v Sharma Carpets
AIR 2009 SC 1518
 Negotiable Instruments Act, 1881
 Appeal against conviction
 Held, in a trial under s. 138 a presumption will have to be made that
every negotiable instrument was made or drawn for consideration and
that it was executed for discharge of debt or liability once the
execution of negotiable instrument is either proved or admitted
 Presumptions will live, exist and survive and shall end only when the
contrary is proved by the accused
Facts
 Jai Bhagwan Sharma, proprietor of M/s. Sharma Carpets, the respondent herein, deals in carpets.
Rajinder Kumar, proprietor of M/s. Kumar Exports, the appellant herein, is carrying on business at
Panipat. It is the case of the respondent that the appellant purchased handtufted woolen carpets
from him on August 6, 1994, cost of which was Rs.1,90,348.39.
 According to the respondent, the appellant issued two cheques, i.e., one cheque bearing No. 052912
dated August 25, 1994 for a sum of Rs.1,00,000/- and another cheque bearing No. 052913 dated
September 25, 1994 for an amount of Rs.90,348.39 drawn on Panipat branch of Union Bank of India,
for discharge of his liability.
 The case of the respondent is that the cheques were deposited in the bank by him for encashment,
but those cheques were received back unpaid with remarks "insufficient funds". It is the case of the
respondent that the fact that the cheques were dishonoured for insufficient funds was brought to the
notice of the appellant and on the request of the appellant, the cheques were again presented for
encashment in the bank on January 5, 1995, but they were again dishonoured due to lack of funds in
the account of the firm of the appellant
Kumar Exports v Sharma Carpets
AIR 2009 SC 1518
 The cheque was not issued for consideration and in discharge of any
debt or liability - respondent failed to establish his case under s. 138
as required by law –
 After finding the appellant guilty under s. 138, the judicial
discretion of imposing appropriate sentence could not have been
abdicated by the Single Judge in favour of the Magistrate
 Appeal allowed. acquitting the appellant under Section 138 of the
Negotiable Instruments Act, 1881 ('the Act' for short), is set aside
and after convicting the appellant under Section 138 of the Act the
matter is remitted to the learned Magistrate to pass appropriate
order of sentence.
Cheque

 The appellant alleged that the respondent had stopped manufacturing carpets
and as the cheques were not issued in discharge of any liability, he was not
liable to be convicted under Section 138 of the Act.
 In order to determine the question whether offence punishable under Section
138 of the Act is made out against the appellant, it will be necessary to
examine the scope and ambit of presumptions to be raised as envisaged by
the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple
contract, the plaintiff has to aver in his pleading that it was made for good
consideration and must substantiate it by evidence. But to this rule, the
negotiable instruments are an exception. In a significant departure from the
general rule applicable to contracts, Section 118 of the Act provides certain
presumptions to be raised.
special rules of evidence
 This Section lays down some special rules of evidence relating to presumptions. The reason
for these presumptions is that, negotiable instrument passes from hand to hand on
endorsement and it would make trading very difficult and negotiability of the instrument
impossible, unless certain presumptions are made. The presumption, therefore, is a matter
of principle to facilitate negotiability as well as trade. Section 118 of the Act provides
presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date
of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of
indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due
course.
 Section 139 of the Act provides that it shall be presumed, unless the contrary is proved,
that the holder of a cheque received the cheque of the nature referred to in Section 138
for the discharge, in whole or in part, of any debt or other liability. Presumptions are
devices by use of which the courts are enabled and entitled to pronounce on an issue
notwithstanding that there is no evidence or insufficient evidence. Under the
Indian Evidence Act all presumptions must come under one or the other class of the three
classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume"
(rebuttable) and (3) "conclusive presumptions" (irrebuttable).
'presumption'
 The term 'presumption' is used to designate an inference,
affirmative or disaffirmative of the existence a fact,
conveniently called the "presumed fact" drawn by a judicial
tribunal, by a process of probable reasoning from some matter of
fact, either judicially noticed or admitted or established by legal
evidence to the satisfaction of the tribunal. Presumption literally
means "taking as true without examination or proof".
 The presumptions will live, exist and survive and shall end only
when the contrary is proved by the accused, that is, the cheque
was not issued for consideration and in discharge of any debt or
liability. A presumption is not in itself evidence, but only makes
a prima facie case for a party for whose benefit it exists.
Until contrary is proved …
 The use of the phrase "until the contrary is proved" in Section 118 of
the Act and use of the words "unless the contrary is proved" in Section 139
of the Act read with definitions of "may presume" and "shall presume" as
given in Section 4 of the Evidence Act, makes it at once clear that
presumptions to be raised under both the provisions are rebuttable.
 When a presumption is rebuttable, it only points out that the party on
whom lies the duty 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 the
presumption is over. The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and debt did not exist
or that under the particular circumstances of the case the non-existence of
consideration and debt is so probable that a prudent man ought to suppose
that no consideration and debt existed.
Conclusion
 To disprove the presumptions, the accused should bring on record such facts
and circumstances, upon consideration of which, the court may either believe
that the consideration and debt did not exist or their non-existence was so
probable that a prudent man would under the circumstances of the case, act
upon the plea that they did not exist.
 The accused may also rely upon presumptions of fact, for instance, those
mentioned in Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act
 Therefore, we do not approve or accept the procedure adopted by the High
Court. Be that as it may, in this case, we have found that reversal of acquittal
itself was not justified.
 Appeal allowed
Haradhan Mahatha and Others v Dukhu Mahatha 1993
Indlaw PAT 1337

 An application was filed for grant of Letters of Administration in favour of the applicants in
respect of the properties described in the Will giving rise to Probate Case No. 3/2 of
1970/71. The case of applicants, in short, was that one Chutamani Debya, a Hindu governed
by Mitakshara School, died issueless after executing a registered Will dated 22-12-1917 in
favour of Haliram Mahatha, Budhu Mahatha and Khudu Mahatha, in respect of the properties
described in the Will. After death of the testator, the legatees, who were ancestors of the
applicants, came in possession of the properties, which were subject-matter of the Will,
and upon the death of the legatees, the applicants as their heirs are continuing in
possession of the same. The said Will is said to be the last Will of the testator, who at the
time of execution of the Will, was of sound state of mind.
 After citations were issued to near relations, several objections were filed. One of the
objections was that the testator had no right, title and interest in the properties
bequeathed. It is said that the Will was obtained by fraud, coercion, misrepresentation and
after taking advantage of illiteracy of the testator, who was a lady. Thus, genuineness of
the Will was challenged on behalf of the objectors.
Haradhan Mahatha and Others v Dukhu Mahatha AIR 1993 PAT 129

 Head Notes
 Execution of Will –
 Obligation to presume – Proof of –
 One person-deceased died issueless after executing registered Will in favour of legatees-
ancestors of applicants and upon death of legatees, applicants as their heirs were continuing in
possession of same –
 Application was filed for grant of Letters of Administration in favour of applicants in respect of
properties which was granted by Trial Court –
 In appeal, Single Judge had set aside judgment of Trial Court –
 Hence, instant Appeal –
 Whether Court, u/s.90 of the Act, was obliged to presume due execution and attestation of Will.
 Indian Evidence Act,1872 - Formal proof of Will - Determination of - Whether Will has been
formally proved by AWs1,4, as required u/s.69 of the Act or not.
 Facts and Challenges

Testator
Chutamani Debya, a Hindu
governed by Mitakshara
School,
Issueless

Will dated 22-12-1917 in An application was filed for
favour of Haliram Mahatha, grant of Letters of
Budhu Mahatha and Khudu Administration in favour of the
Mahatha applicants in respect of the
properties described in the Will
giving rise to Probate Case No.
3/2 of 1970/71
One of the objections was led oral and documentary
evidence and trial Court after
that the illiterate lady considering the same, granted
Fraud, misrepresentation, Letters of Administration in
undue influence etc favour of the applicants after
So challenges the will holding that the Will was
genuine and duly executed by
testator.
Held-Appeal allowed.
 Held, if executant or attesting witnesses are not alive or available in relation to a
document, genuineness of which is disputed and mode of proof as required
u/s.69 of the Act is also not possible, Court should raise a presumption u/s.90 of
the Act in relation to due execution and attestation of document, if it comes to
the conclusion that document is such that it is likely to have been executed,
having regard to common course of human conduct and there are no
circumstances exciting suspicion of Court such as artificiality and unnaturalness
or correction or tampering with document.
 In instant case, Will apparently does not appear to be suspicious one but still
since its genuineness has been disputed and though scribe and attesting
witnesses are dead, but AWs1,4 are available to prove that attestation of one
attesting witness atleast is in his handwriting and signature of person executing
document is in handwriting of that person, as required u/s.69 of the Act.
Therefore, it is not possible to raise presumption u/s.90 of the Act regarding due
execution and attestation of Will and Will could not have been admitted into
evidence without its being formally proved.
S 69& Ss 79- 90? IEA
 Identification of signature is not necessary to prove a document, as required
u/s.69 of the Act.
 It is necessary only if document is not signed in presence of witness
 1917-1918-1973 years of birth of the witness
 Besides the fact that PW4 was incompetent on question of genuineness of Will,
he was also on inimical terms with one of attesting witnesses of Will.
 Thus, Will in question is genuine and has been duly executed and, as such, Trial
Court was justified in granting Letters of Administration in favour of applicants.
Hence, judgment of Single Judge is set aside and that of Trial Court is restored.
Arguments
 Devi counsel appearing on behalf of the appellants, in support of this appeal, has
raised three points;
 firstly, that the present Will was executed in the year 1917, as such, the same having
been executed 30 years ago, u/s. 90 of the Act, the Court was obliged to presume
its due execution and attestation and, therefore, requirement of formal proof, as
envisaged under S. 69 of the Act was not necessary to be complied with.
 Secondly, it has been submitted that provisions of S. 69 of the Act were fully complied
with and learned single Judge was not justified in holding otherwise,
 Thirdly, it has been submitted that though the question of genuineness or otherwise
of the Will has not been gone into by learned single Judge, this Bench should consider
the said question itself instead of remanding the matter to learned single Judge.
Counsel
 Learned counsel appearing on behalf of the respondent, contended that the present
case was not a fit one in which the presumption, as envisaged u/s. 90 of the Act,
could have been drawn; the Will was not duly proved, as envisaged under S. 69 of the
Act and the same was not genuine.
 chapter of presumptions as to documents and Ss. 79 to 90 fall within that chapter.
Under Ss. 79 to 85 and 89, a Court is obliged to presume a particular state of affairs,
if the conditions enumerated thereunder are satisfied, as the expression used in these
Sections is that the Court "shall presume"; whereas u/ss. 86 to 88 and 90, there is no
such obligation upon the Court to presume even if the conditions enumerated
thereunder exist, but it is discretionary matter of the Court to raise or not to raise a
presumption as the expression used in these Sections is that the Court "may
presume".
 The expressions "shall presume" and "may presume" have been defined in S. 4 of the
Act. According to S. 4 of the Act, whenever it is provided by this Act that the Court
may presume a fact, it may either regard such fact as proved, unless and until it is
disproved, or may call for proof of if. It further provides that whenever it is directed
by this Act that the Court shall presume a fact, it shall regard such fact as proved,
unless and until it is disproved.
Section 90 -Two Pre-Requisites
 For application of S. 90 of the Act, there are two pre-requisites,
 firstly, that the document is thirty years old and,
 secondly, that the same is produced from proper custody.
 If these two conditions are fulfilled, then the Court is required to consider whether it is a
fit case or not for raising presumption of due execution and attestation of a document.
 If the Court feels that it is not a fit case for exercising discretion and raising
presumption, in that event, as stated above, it will call upon the parties to formally
prove the document, even though the two conditions enumerated in S. 90 are in
existence.
 Ram Milan v. Sher Bahadur, 1976 AIR(All) 251
 Shafiq-un-Nissa v. Shaban Ali Khan, ILR XXVI Allahabad 581
 Baldeo MIssir v. Bharos Kunbi, 1926 AIR(All) 537 (1)
 Dhanapal Chettiar v. Govindaraja Chetty, 1961 AIR(Mad) 262
The real scope of S. 90
 "The real scope of S. 90 seems to be that in the normal
circumstances, where it is found that the document in question
emanates from an apparently lawful custody and where the
document is such that it is likely to have been executed having
regard to the common course of human conduct, and where there
are no circumstances to excite the suspicion of the Court, such as,
unnaturalness and artificiality surrounding the transaction or an
apparent interlineation or correction or tampering with the
document, the Court will draw the presumption.“
 ….. Therefore, in this case it is not possible to raise the
presumption u/s. 90 of the Act regarding due execution and
attestation of the Will and the Will could not have been admitted
into evidence without its being formally proved.
Presumptions as to
Documents
Documents

Public
Document
Offered for
evidence
Private
Presumptions

Presumption
General
s

Refer to 69th Law

commission report
General
114
English presumptions

Special Special this chapter

Documents offered in Evidence

• Section 74

public
• Two kinds – documents forming the
acts and records
• Public records kept in any state of
private documents

• Section 75

Private
• All other are public are private
Presumptions

Presumptions

Shall May

Ss 79-85&89 Ss 86-88&90
81A 90A
Inferences
Inference

May
Shall presume
Presume
Inference which the court is
bound to make Court is at liberty to take … until
is disproved once it is presumed
Fact taken a proved until it is
or call for proof of it in the first
disproved
instance
Why presumptions
 Law authorities inference in lieu of any other mode of proof
 If presumption not raised in one section it can be raised in another
 Ram Jas And Ors. vs Surendra Nath And Anr. AIR 1980 ALL 385-….Sale Deed and
Presumption u/s 90 or S 90A of the UP law
 "It is not disputed by the learned counsel for the defendants-appellants that the
sale deed in question was the basis of the defence and was relied upon by the
defendants in their written statement. Nothing therefore in Section 90 or Section
90-A of the Evidence Act as amended by the U. P. Civil Laws (Amendment) Act 1954
will come to the assistance of the defendants-appellants and the Courts will not
draw a legal presumption in favour of the defendants-appellants that it was
executed by Smt. Reoti Devi.
 … Except for this conclusion contained in the judgment there is no discussion from
which we may benefit for making an interpretation of Sections 90 and 90-A of the
Evidence Act.
 Two sets of presumptions may apply to the same documents
Ram Jas And Ors. vs Surendra Nath And Anr. AIR 1980 ALL 385

 The following question of law has been referred to us for our opinion :--
 "Whether Sub-section (2) of Section 90-A of the Evidence Act as amended by the U.
P. Civil Laws (Reforms and Amendment) Act controls the operation of Section
90(1) and (2) of the Evidence Act as amended by the said U. P. Civil Laws (Reforms
and Amendment) Act, 1954."
 The question arose in the following circumstances :--
 A certified copy of a registered will was pressed in evidence in the case and a
presumption about its execution, attestation and writing was sought to be raised by
reason of Section 90(2) of the Evidence Act. The Civil Judge did not accept the plea
on the ground that the provisions of Section 90 were not attracted. The learned
single Judge before whom the appeal came up for hearing was of the opinion that
in the circumstances of the case the presumption could be raised, meaning thereby
that the conditions contemplated by Section 90 of the Act were present.
  
Ram Jas And Ors. vs Surendra Nath
And Anr. AIR 1980 ALL 385
 The other objection which was taken before learned single Judge was that
because the document was the basis of the suit no presumption about its due
execution could be raised by reason of Sub-section (2) of Section 90-A of the
Evidence Act.
 As a Division Bench in Om Prakash v. Bhagwan, (AIR 1974 All 389) had taken a
different view the learned single Judge referred the question to a Division
Bench. The Division Bench, finding that the decision in Om Prakash's case
(supra) needed reconsideration and the question was of general importance,
referred the question for the opinion of a larger Bench. It is how the question
has come before us.
Ram Jas And Ors. vs Surendra Nath
And Anr. AIR 1980 ALL 385
 Section 90 of the Evidence Act was amended by the U. P. Civil Laws (Reforms
and Amendment) Act 34 of 1954, in two ways. The existing section was
renumbered as Section 90(1) and for the words "thirty years" the words
"twenty years" were substituted and Sub-section (2) was added which was in
the following terms:--
 ''(2) Where any such document as is referred to in Sub-section (1) was
registered in accordance with the law relating to registration of documents
and a duly certified copy thereof is produced, 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 person by whom it purports to have been executed or
attested."
Ram Jas And Ors. vs Surendra Nath
And Anr. AIR 1980 ALL 385
 In (Dalsingar v. Sita Ram (1969 All WR (HC) 188)) a learned single Judge
considered the matter and held that the two sections were independent of
each other and Section 90 was not controlled by Section 90-A and accordingly
Sub-section (2) of Section 90-A could not bar the raising of the presumption if
the case was covered by Section 90.
 Registered and unregistered document
 Difference between adjective law and substantive law discussed
Presumption – Double- Ram Jas And
Ors. vs Surendra Nath
 If the presumption is available in one section it can raise it under that section. If it is
not available in one section and is available in another section, then the Court can
raise presumption under that section. It all depends upon the circumstances available
in the case as applicable to a particular document. Hence, even if the case falls under
Section 90-A and sub-section (2) thereof is applicable and no presumption can be
drawn under Section 90-A(1) it will not exclude the Court from drawing the
presumption, if the circumstances permit it to be drawn, under any other provision of
the Evidence Act including Section 90 of the Act. The presumption, if available under
Section 90, can, therefore, be raised by the Court even after coming to the conclusion
that a presumption under Section 90-A is not available.
 The presumptions available under Sections 90 and 90-A are also not similar. Section
90(2) permits the raising of the presumption in respect of the signature, handwriting,
execution and attestation, while Section 90 permits a presumption only in respect of
execution. Section 90 deals with documents which are more than 20 years old while
Section 90-A places no such restriction and includes also documents from judicial
record Neither of the two sections, therefore, can be said to be occupying a field
which the other exclusively occupies. They deal with different fields and different
circumstances and permit different types of presumptions to be raised.
Judgment - Ram Jas And Ors. vs
Surendra Nath
 For the reasons given above it is not possible to hold that Sub-section (2) of
Section 90-A will override and nullify Section 90 if the document, though
more than twenty years old, is the basis of the suit or the defence or is relied
upon in the plaint or written statement. We are, therefore, of opinion that
Om Prakash v. Bhagwan (AIR 1974 All 389) does not lay down the correct law.
17. For the reasons given above we answer the question in the negative. Let
this opinion be laid before the learned single Judge dealing with the appeal.
 Heinz India Pvt. Ltd. & Anr. v State Of U.P. & Ors.
2012 Indlaw SC 102
 Glaxo India Ltd., set up an industrial unit at Aligarh for the manufacture of what is sold in the
market under the brand names Glacto, Complan, Farex, Glucon D and other products
generically called milk foods/weaning foods and energy beverages. It is not in dispute that the
manufacturing process undertaken in the said unit produced ghee as a by-product of the said
items. It is also not in dispute that with effect from 1st October, 1994, the Family Products
Division of Glaxo India Ltd. was taken over by Heinz India Pvt. Ltd. who continued
manufacturing the products mentioned above including ghee as a by-product of its
manufacturing activity. In terms of S. 17(iii) of the Act, sale of specified agricultural
produce within the Mandi limits attracts levy of what is described as Mandi Fee from
the person effecting the sale.
 The Mandi Samiti accordingly started demanding the said fee from Glaxo India Ltd., upto the
year 1994 and from Heinz India Ltd., from 1994 onwards qua sales effected by the said two
companies of its products including ghee. These demands were resisted by both the companies
primarily on the ground that bulk of the ghee produced in their unit at Aligarh, if not the entire
quantity, was sent out of the Mandi limits on stock transfer basis and that there was no sale
involved in such transfers so as to attract the levy of the Mandi Fee on the same. Even so, the
companies appear to have continued removing their goods from the Mandi limits in accordance
with the procedure in vogue at the relevant time.
Heinz India Pvt Ltd Case
 1…
 2. What precisely is the correct legal standard/test for determining whether or not the
presumption arising under the Explanation to Section 17(iii) of the Act has been
rebutted?
 3…
 Mr. Sudhir Chandra contended that the standard of proof applicable was that applied in
civil actions which are decided on the preponderance of probability and not the higher
standard of "proof beyond reasonable doubt" applied in criminal cases. The appellants
had according to the learned counsel discharged the burden of rebutting the
presumption by adducing evidence which tended to show that the ghee manufactured
by them had not been sold within the market area to attract the levy of market fee on
the price thereof. He urged that the produce had been removed out of the market area
on transfer of stock basis without any element of sale in such transfers. Reliance was in
support placed by Mr. Chandra upon an agreement which Heinz had executed with its
Clearing and Forwarding (C&F) Agent in the State of Rajasthan apart from other
material adduced before the Market Committee, in a bid to prove that the stocks in
question had not been sold within the market area.
Heinz India Pvt. Ltd. & Anr. v State Of
U.P. & Ors. 2012 Indlaw SC 102
 Appearing for the Market Committee Mr. Rakesh Dwivedi argued that the
mere production of some evidence howsoever feeble was not enough to rebut
the presumption which would continue to hold the field till such time the
trader adduced evidence to prove the contrary. It was only "proof to the
contrary" that could rebut the presumption and for doing so just any material
or evidence was not enough. It must, argued Mr. Dwivedi, be evidence that
would clearly establish that there was indeed no sale effected within the
market area as presumed in terms of the Explanation. The appellant-
companies had failed to do so as before the Market Committee and the
Director and even before the High Court.
Heinz India Pvt. Ltd. & Anr. v State Of U.P. & Ors.

 In Krishi Utpadan Mandi Samiti & Ors. v. Shree Mahalaxmi Sugar Works & Ors.
(1995) Supp (3) SCC 433 1995 Indlaw SC 1521, decided on 2nd February,
1995, this Court noticed the Explanation to S. 17(iii) of the Act and observed
that there was a presumption against the dealers.

 This Court held that in view of the said presumption it is open to the Mandi
Samiti to raise demands against the dealers before the issue of passes. If there
is a valid rebuttal to the presumption and it is shown that no sale took place
within the notified market area the dealers will be entitled to the passes,
otherwise not. This Court further held that even if the dealers are compelled to
pay the market fee as demanded it shall be open to them to challenge the
same in the manner provided under the Act. This implied that if the claim of
the dealers that the goods were not being removed pursuant to any sale
transaction was rejected and a demand for payment of Mandi Fee raised, the
aggrieved dealer could question that demand in appropriate proceedings.
Refer..Sodhi Transport Co 1986
Indlaw SC 136. 
 It is evident from a reading of the order passed by the Mandi Parishad that the earlier
procedure of issuing free gate passes remained in vogue upto February, 1995, whereafter the
Mandi Samiti started issuing gate passes only on payment of the Mandi Fee demanded by it.
 This change came about as a result of the aforementioned decision of this Court in Shree
Mahalaxmi Sugar Works 1995 Indlaw SC 1521 (supra). Subsequently, in Krishi Utpadan Mandi
Samiti v. M/s Saraswati Cane Crusher & Ors. (Civil Appeal Nos. 1769-1773 of 1998), decided
on 25th March, 1998 this Court prescribed the procedure to be followed in the matter of issue
of gate passes, making of provisional assessment and the time frame for making a final
assessment.

 Presumption is within the domain of the law of evidence, irrebuttable presumption is outside the
domain of that law and forms part of the substantive law.“
 …" the necessity for excluding doubt contained in the rule as to the onus upon the prosecution in
criminal cases might be regarded as an exception founded upon considerations of public policy.
There can be no consideration of public policy calling for similar stringency in the case of an
accused person endeavouring to displace a rebuttable presumption."
Heinz India Pvt. Ltd. & Anr. v State Of U.P. & Ors.
2012 Indlaw SC 102 ( Q 2 ans)
 There was also no evidence to prove that the rent of godown was
being paid by the appellant-company nor was there any evidence to
show the procedure followed for the sale of the products at Indore
and Jaipur. Twenty one of the invoices made for Jaipur had no
signature of the recipient of the goods nor it was clear as to who
received the payment and what was the mode of making of such
payments. The Samiti noted that these invoices were not in book
form but were in the form of loose papers and did not bear any book
number.
 No evidence was, according to the Mandi Samiti, produced by the
appellant regarding the decision of the company's marketing
department in connection with the stock transfer and in connection
with the directions given to the Aligarh office for transfer of a
particular consignment sent to a particular destination and in a
particular quantity.
Heinz India Pvt. Ltd. & Anr. v State Of
U.P. & Ors. 2012 Indlaw SC 102
 This Court held that while answering any such question it is not correct to assume that all
rules prescribing irrebuttable presumption are rules of substantive law. Any such question,
declared this Court, has to be answered after examining the rule and its impact on the
proof of the fact in issue. Explaining the juristic basis of a rebuttable presumption and the
approach to be adopted in applying such presumptions to different situations this Court
observed:
 “ It is conceded, and we think, rightly, that a rule prescribing a rebuttable presumption is
a rule of evidence. It is necessary to analyse what the rule about the rebuttable
presumption really means. A fact A which has relevance in the proof of fact B and
inherently has some degree of probative or persuasive value in that behalf may be weighed
by a judicial mind after it is proved and before a conclusion is reached as to whether fact B
is proved or not.
 Para 59… As a matter of fact, orders passed by the Mandi Samiti and the Mandi Parishad
show that sufficient opportunity was indeed afforded to the appellants and the matter had
remained pending for a number of years before those authorities.
Heinz India Pvt. Ltd. & Anr. v State Of U.P. &
Ors. 2012 Indlaw SC 102 ( Q 2 Ans)
 The heightened standard of proof required to rebut a presumption raised under the statute at hand is in
our view applicable for two distinct reasons. The first and foremost is that the presumption is raised in
relation to a fiscal statute. While the amount payable is not a tax it is nevertheless a statutory levy
which is attracted the moment the transaction of sale takes place within the market area. Goods,
admittedly produced within the market area and not consumed within such area are presumed to be
leaving pursuant to a transaction of sale unless the contrary is proved. That the goods are produced
within the market area is not in dispute in the instant case. That they left the market area is also
admitted. In the ordinary course, therefore, the presumption would be that the goods left pursuant to a
sale unless the appellants are in a position to prove the contrary.
 The second reason for applying a higher standard of proof than mere preponderance of probability is
that the nature of transaction pursuant to which the goods are removed from the market area is within
the exclusive knowledge of the appellants or the persons to whom such goods are being dispatched. In
other words, the circumstances in which the transactions, which the statute presumes to be sales, but
which the appellants claim are simple transfer of stocks are within the exclusive knowledge of the
appellants. The entire evidence relevant to the transactions, being available only with the appellants
and the true nature of the transactions being within their special knowledge, there is no reason why the
rebuttal evidence should not satisfy the higher standard of proof and clearly and convincingly establish
that the fact presumed is not the actual fact. Our answer to Question No.2 accordingly is that the
evidence intended to rebut the statutory presumption under Section 17 of the Adhiniyam ought to be
clear and convincing evidence showing that what is presumed under the provision is not the real fact.
Smt. Gitika Bagchi vs Subhabrota
Bagchi AIR 1996 Cal 246
 the petitioner and the respondent, both co-employees of the 'Aajkal Patrika' though
of different religion developed intimacy with each other which culminated in a
marriage between the two on 17th of June, 1988, in substantial compliance with the
provisions of the Special Marriage Act, 1954.
 . Consummation of marriage was allegedly stalled by her from the inception of
marriage for two reasons :
 (i) transfer of properties of her mother-in-law in her favour; and
 (ii) embracing of Christianity.
 . There was such hostility demonstrated by the relations of the petitioner, who
underwent such a marriage with a woman of opposite religion. Hopes interwoven in
her mind that a maiden visit by her along with the petitioner to his paternal home
would dissipate all unhappiness. The claim was initially deferred. It was substituted
by a claim of her to snap of all connections with his relations.
Smt. Gitika Bagchi vs Subhabrota
Bagchi AIR 1996 Cal 246
 Therefore, the plea of non-consummation of marriage has become the battle ground of two rival claims.
To adjudge the viability of the non-consummation and consummation of marriage, there is no embargo
under the law to lake advantage of presumption which may he available to either parties to lighten the
burden.
 The Court in Syad Akhar v. State of Karnafaka, broadly classified the presumptions into three types :
 (i) Permissive presumptions or presumptions of facts;
 (ii) compelling presumptions or presumptions of law-(rebuttable);
 (iii) irrebuttable presumption of law or on 'conslusive proof
 Classes (i), (ii), & (iii) are indicated in clauses (1), (2) & (3) respectively of Section 4, Evidence Act.
'Presumptions of fact' are inferences of certain fact patterns drawn from the experience and observation
of the common course of nature, the constitution of the human mind, the springs of human action, the
usages and habits of society and ordinary course of human affairs. Section 114 is a general section dealing
with presumptions of this kind. It is not obligatory for the Court to draw a presumption of facts. In
respect of such presumptions the Act allows the Judge a discretion in each case to decide whether the
fact which under Section 114 may he presumed has been proved by virtue of that presumption.
Smt. Gitika Bagchi vs Subhabrota
Bagchi AIR 1996 Cal 246
 In case of 'presumption of law' no discretion has been left to the Court, and it is bound
to presume the fact as proved until evidence is given by the party interested to rebut or
disprove it.
 In the background of the above, if the pathology of the circumstantial evidence is
considered and weighed in its proper perspective, there could be no shred of doubt that
soon after the marriage, the marital astmosphere was serene.
 To buttress such a view, leading of amorous life for a period of 8 years before the
marriage should not be given cast to the wind. It reinforces the conclusion since springs
up from presumption that two young couple otherwise sound in health and mind and
locked up in a room for months together, and in the background which the presumption
is conclusive that consummation of marriage was an accomplished fact. The Court does
not enjoy any discretion save to hold view of the operation of presumption that the
marriage is a proven fact.
 There is no material on record which could dislodge such irrebuttable presumption. We
are not at all in agreement with the findings of the Court below that the marriage was
not consummated. It was purely based upon conjectures and surmises.
Presumptions- 79 onwards
 Under the IEA if not available in one section is available in another section
 To save time court may draw double presumption ( Acquittal Creates Double
Presumption)
 Even in Evidence Law document can be presumed under two different sections

 Solemn and official acts were done in the ordinary manner

 U/s 90 Lapse of time as to the proof of documents …. As witnesses who can
personally speak about attestation or execution generally die out
 Section 79 applies to Certificates , Certified Copy or other documents those
certified by proper officials of officers duly authorized
 Is there are preemption relating to FIR?
‘Presumption’ and ‘Rebut’
 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."
79. Presumption as to genuineness of
certified copies
 The Court shall presume [to be genuine] every document purporting to be a certificate, certified
copy or other document, which is by law declared to be admissible as evidence of any particular
fact and which purports to be duly certified by any officer [of the Central Government or of a
State Government, or by any officer [in the State of Jammu and Kashmir] who is duly authorized
thereto by the central Government] :

Provided that such document is substantially in the form and purports to be executed in the
manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed
or certified held when he signed it, the official character which he claims in such paper.
Sec 79

 Documents declared by law

 .. Provided the document is substantially in the form and purporting to be executed
in the manner directed by law in that behalf Bhinka v Charan AIR 1959 SC 960
 Prima facie presumption-Govindram v Abdul Wahab AIR 1963 Raj 234
 This presumptions does not arise for original documents
 Deed of Confirmation v Deed of Conveyance 2009 1 Scc 568
 Date of birth
 School admission certificate is aslo a credible evidence Neeta Jaya v St of MP AIR
2016 MP 81
 Vasudha v City and Industrial development corp 2008 Bom HC
 ( Municipal Record v School Record ( Which will prevail)
Date of birth

Birth

Municipal School
Records Certificate

Strongest evidence Vasudha v City and

and prevails over Industrial Development Cannot prevail
school certificate Corporation 2008 Bom HC over MR
Neeta Jain v State of Deed of Conveyance v
MP AIR 2016 MP 81 Deed of Confirmation
2009 SC
Neeta Jain v State of MP AIR 2016 MP 81
 Roopali was major and more than 18 years of age is based only on the medical
certificate. That is not the right approach to answer this core issue. In the first
place, what will have to been seen is the primary document such as birth
certificate or school admission register. That will be credible evidence. For, in
law, there is presumption about the correctness of those documents, unless
rebutted. The respondent No.4 may have to not only produce evidence to rebut
the fact mentioned in the school admission register, but also substantiate the
stand taken that Roopali was more than 18 years of age as of now.
 Presently, she is staying with respondent No.4. The respondent No.4 claims to be
her husband. If the stand taken by the respondent No.4 that Roopali Jain @ Ranu
was major is to be rejected, it would necessarily follow that the so called
marriage between Roopali Jain @ Ranu and respondent No.4 would not be in
consonance with Section 5 of the Hindu Marriage Act, 1955 and, in any case,
Roopali cannot be permitted to take decision on her own being a minor
 Custody in shelter home ordered by the court and the case disposed with the order
that single judge to decide without any influence of this order
Neeta Jain v State of MP AIR 2016 MP 81
 ….The learned Single Judge after giving opportunity to both sides to produce relevant
evidence regarding age of Roopali, found that Roopali was major when she decided to
go along with respondent No.4. For reaching this conclusion, the learned Single Judge
relied on medical certificate in which Roopali's age was shown as 18 years. This
conclusion was reached notwithstanding the authentic document produced by the
appellant which would indicate that Roopali was minor and around 16 years of age.
The document such as school record was relied for that purpose. The respondent No.4
no doubt had relied on Progress Report issued by the school, to counter that factual
position. The learned Single Judge, in addition, relied on the statement of Roopali to
conclude that her custody should remain with respondent No.4. This decision is the
subject matter of challenge in the present intra-Court appeal.
 …..Pursuant to the said direction, school record which is the admission register was
produced before us in sealed cover, which indicates that Roopali Jain was born on
10.12.2000. The fact stated therein must be presumed to be correct, unless rebutted.
It would necessarily follow that Roopali would be less than 18 years of age as of now.
This evidence must weigh over the evidence such as Progress Report and other
documents. This would be the best primary evidence besides the birth certificate of
Roopali, if available. The respondent No.4, however, intends to place reliance on the
affidavit of father of Roopali and other documents such as medical evidence.NEETA
JAIN v. STATE OF MADHYA PRADESH
80. Presumption as to documents
produced as record of evidence
 Whenever any document is produced before any Court purporting to be a record or
memorandum of the evidence, or of any part of the evidence, given by a witness in
a judicial proceeding or before any officer authorized by law to take such evidence,
 or to be a statement or confession by any prisoner or accused person, taken in
accordance with law, and purporting to be signed by any Judge or Magistrate, or by
any such officer as aforesaid,
 the Court shall presume - that the document is genuine; that any statement as to
the circumstances under which it was taken, purporting to be made by the person
signing it, are true, and that such evidence, statement or confession was duly taken.
Sec 80
Following 3 presumptions arise
 That the document is genuine
 That any statement as to the circumstances under which it was taken
 That such evidence statements or confessions were duly taken
The presumptions applies mainly to 3 categories ( see sec 33also)
Record or memorandum- judicial proceedings or officers
Statement by prisoners and accused
Confession by a prisoner or accused
Sec 80 does not deal with the question of admissibility of evidence but simply dispenses with the
necessity of formal proof by raising presumptions…. That is every thing connection in the document
has been legally and correctly done
Maxim- omnia praesumuntur rite esse acta ( all things are presumed to be correctly and solemnly
done) Sec 80 gives Legal Sanction to the maxim
Channa v Jana AIR 1957 Pat 293/ R v Viran 9 Mad 224
Even 69th Law commission recommended for adding DD- DD does not come under this section – But
some courts have given this benefit In re Karunappan Sampan AIR 1916 Mad 121
Sec 80
 Memorandum of identification test- no presumptions pritam v State AIR 1971 Raj 184
 Deposition before the court for the purpose of proving or disproving a fact in issue or relevant fact ( Read
Conditions)
 Evidence given by witness Bhagawan singh v St AIR 1952 SC 214--- But the burden to rebut the presumptiomn
lies on the person who questions
 The procedure is to read over the deposition….. it is a must in both civil and criminal
 Affidavit is not evidence u/s 80
 u/s only statement can be presumed and not the identity of the deponent- Shri Navnitlal v St AIR 1951 MB 92
 Recording u/s 164 before JMFC and JMSC Not presumed unless confession recorded prior to the investigation
 Adoption Laxmi Bhai v Bhagawentbuva 2013 4 SCC 97- Party to the deed cannot be attesting witnesses
 ST Krishnappa v Shiva Kumar 2007 10 SCC 761- Adoption giving and receiving to be proved as it is a procedure
under the HAMA 1956 ( section 16 – Registration) Application of the "Dvyamushayana" form of adoption is in question
in this appeal which arises out of a judgment and order ….. Mr. P.S. Narasimha, learned counsel appearing on behalf
of the appellant would, in support of this appeal, submit that the learned Trial Judge as also the High Court
committed a serious error insofar as it failed to raise a presumption that the adoption of the appellant by Sohur
Thimmaiah took place in "dvyamushyayana" form as he was the only son of his natural father.
 Other Atluri Brahmanandam v. Anne Sai Bapuji 2010 14 SCC 466
ST Krishnappa v Shiva Kumar 2007 10
SCC 761-
 Application of the "Dvyamushayana" (dvi & amuṣya & āyana) A boy invested with the string in his
father's house and afterwards adopted into another family.  form of adoption is in question in this
appeal which arises out of a judgment and order
 Thimmadasappa executed a Will on or about 26.12.1981. He expired in the year 1984. The short question which
arose for consideration in the suit was as to whether the plaintiff/appellant continued to be a coparcener in
the joint family property of Thimmadasappa and thus became entitled to 2/3 share in the suit properties. The
learned trial judge framed the following issues:-
 1. Whether the plaintiff proves his right over the suit schedule properties?
 2. Whether the plaintiff is entitled for 2/3rd share in the suit schedule properties?
 3. Whether the plaintiff is entitled for the accounts?
 4. What decree or order?
 5. Whether the defendants prove that the court fee paid is sufficient?“
 … No independent witness was also examined to prove that his genetive parents gave in adoption to Sohur
Thimmaiah in the form of "dvyamushyayana" on the basis of oral agreement or otherwise. Such an oral
agreement might not have even been admissible in evidence in terms of Section 92 of the Indian Evidence Act.
 ….In view of the finding of fact arrived at by the courts below, we do not find any merit in this appeal which is
dismissed accordingly with costs. Counsel's fee assessed at Rs. 10,000/-.
In the same JP at a later stage or in another or
subsequent JP
 See also section 33- Dead or not found
 Document not covered under section 80 unless they are records of the statement by witnesses “
Evidence” in JP or before person authorized
 DD before Magistrate do not come u/s 80 AS it not evidence given in JP and does not come under
the category of other two clauses u/s 80
 Sec 164 of Cr pc does not come under the Jural Relation – if her fails to comply with the provisions
( sec 24 and 164 Cr pC ) No presumption under IEA would arise– in case if presumption drawn
..then it is the accused to displace the presumption
 See 69 th law commission report where it recommends that 164 should be brought u/s 80
 The Burden to rebut the presumptions lies as the person in question – Bhagwan v St AIR 1952 SC
214
 Vodofone Intl Holdings B V V UOI 2012 (6) SCC 613
 .. The court must look into the document or a transactions in a context to which it properly
belongs to”
 …."In a taxing Act one has to look merely at what is clearly said. There is no room for any
intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be
read in, nothing is to be implied. One can only look fairly at the language used.
Vodofone Intl Holdings B V V UOI 2012 (6) SCC
613- Corporate Taxation Case-On Documents….
 Lord Wilberforce opined as follows:
 "While obliging the court to accept documents or transactions, found to be genuine, as such, it does not
compel the court to look at a document or a transaction in blinkers, isolated from any context to which it
properly belongs. If it can be seen that a document or transaction was intended to have effect as part of a
nexus or series of transactions, or as an ingredient of a wider transaction intended as a whole, there is
nothing in the doctrine to prevent it being so regarded; to do so in not to prefer form to substance, or
substance to form.
 It is the task of the court to ascertain the legal nature of any transaction to which it is sought to attach a tax
or a tax consequence and if that emerges from a series or combination of transactions intended to operate as
such, it is that series or combination which may be regarded."(emphasis supplied) House of Lords, therefore,
made the following important remarks concerning what action the Court should consider in cases that involve
tax avoidance:
 (1) A taxpayer was only to be taxed if the Legislation clearly indicated that this was the case;
 (2) A taxpayer was entitled to manage his or her affairs so as to reduce tax;
 (3) Even if the purpose or object of a transaction was to avoid tax this did not invalidate a transaction unless
an anti- avoidance provision applied; and
 (4) If a document or transaction was genuine and not a sham in the traditional sense, the Court had to
adhere to the form of the transaction following the Duke Westminster concept.
 Delta Intl Ltd v Shyam Sundar Ganeriwalla (1999) 4 SCC 545
 Deed to be construed – Court has to examine the true purpose of the document and draw
an inference with respect to the intention of the parties Delta Intl Ltd v Shyam Sundar
Ganeriwalla (1999) 4 SCC 545
 ( Lease or License ) of the premise ( Demised premises does it mean landlord and tenant???)
word to be presumed if it is used in the document …. It is true that the word `demise'
indicates either lease or conveyance depending upon the terms of the document. But, at
the same time said Word is to be construed by finding out what is sought to be conveyed or
transferred in the context of all the terms of the document. If privilege of occupying the
premises exclusively is granted on certain terms and conditions specifically as a licensee or
what is agreed to be granted is exclusive possession of the premises on certain terms and
conditions as a licencee, then there is no question of holding to the contrary
 (a) The licensee is described in the agreement so as to include its successors and assigns as
per the Memorandum of Agreement. --(b) The expression "demised premises" has been used
three times in clause 18 which leaves no doubt that interest in the property is created. …
(c) The operative clause is in the language of a format lease. What is granted and given to
use, occupy, enjoy, run and work is the premises described in the First Schedule together
with the plant and machinery, fixtures and fittings set out in the Second Schedule
Judgment in Delta Case
 ….(An attempt was deliberately made to camouflage the true nature of the agreement, by
reciting in several clauses that the agreement was for lease and licence and it emphasise the
pretence, it was also recited that the defendant was not to have any right as tenant or sub-
tenant in respect of the loft.)
 If it is …..in fact intended to create an interest in the property it is a lease, if it does not, it
is a licence. In determining whether the agreement creates a lease or a licence the test of
exclusive possession, though not decisive, is of significance,"
 ( section 107 of TP Act) Lease
 Lastly, it is to be noted that if the document is a camouflage as stated earlier, the mask or
veil is required to be removed for determining the true intent and purpose of the document.
 In the present case, there is no pleading by the defendants that the document was a
camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of
the owner of the premises. As stated earlier, the document contemplates three types of
agreements, one, that of a leave and licence; secondly, in case a consent is obtained from
the tenant, for execution of sublease which would create interest in the property as sub-
tenant and thirdly, in. case of sub- lease, for purchase of equipment, fitting and fixtures at a
price of Rs.2,50,000. (Second and third part of the Agreement never came into operation.
Hence, for the reasons discussed above, we hold that the agreement dated 18th July, 1970 is
a deed of `leave and licence' and not a `lease‘).
81. Presumption as to Gazettes, newspapers, private Acts of
Parliament and other documents/E gazette of electronic
forms Sec 81A
The Court shall presume the genuineness of every document purporting to be the London Gazette or
[any official Gazette, or the Government Gazette] of any colony, dependency or possession of the
British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament [of
the United Kingdom] printed by the Queen's Printer and of every document purporting to be a
document directed by any law to be kept by any person, if such document is kept substantially in
the form required by law and is produced from proper custody.

[81-A. Presumption as to Gazettes in electronic forms. - The Court shall presume the genuineness of
every electronic record purporting to be the Official Gazette, or purporting to be electronic record
directed by any law to be kept by any person, if such electronic record is kept substantially in the
form required by law and is produced from proper custody.]
S 81 ( 81-84 principle That the official acts are presumed to
be performed regularly) common thread – connecting them

 Exception is 81 as it includes newspapers and journals

 81- First part – Published document ( Entire Gazette and not its cutting) – Gazetteer may be consulted to see public
history– “it can be looked into see historical material and for determination whether the muth is public or private MS
Srinivas v Suryanarayan Das AIR 1967 SC 256”
 Offical Gazette is an offical Document in terms of Seection 74 and Court can take Judicial Notice u/s 57
 81-Last part Applies to “ Every document purporting to be a document directed by any law to be kept by any person
 Both Public and Private Documents are included ( Newspapers and Journals)
 R/w section 4- Court shall regard the fact entered in electoral roll as proved as long it is not disproved
 Newspapers admissible as Specimen – Not proof of the content as to its truthiness– they do not per se constitute legally
acceptable evidence ( B Singh v UOI (2004) 3 SCC 368
 Newspaper extract of any govt notification is inadmissible ( Moti Lal Nehru v King Em 1931 AIR ALL 12
 NP is merely a hearsay…. In absence of the maker of the statement deposing as to his personal knowledge about the
fact reported ( harbahajan Singh Case)
 Report of speech in NP not admissible.. To prove speech –
 Proper custody Expln to section 90 See also sec 35 iEA
Sec 81- Newspapers & Journals? Exceptions
 Both Public and Private Document
 r/w sec 4 ( Gazzette Entire one and not that the cut part is produced)
 Sec 81-84- Rationale official acts are presumed to be performed regularly
 Substantially kept in the form required by law and is produced from proper custody
 Proper custody Expln sec 90 applies to 81- 81 A
 BOL- S K Network v M/s Amulya Exports (AIR 2007 Bom 15)
 Principle and scope
 1st part – LG/Govt Colony/Dependency or possession of the British crown/ Copy of the Private Act of parliament of
the UK printed in the Queens Printer/Newspapers & documents
 2nd part Ram Ch v R AIR 1930 Lah 371
 Harbhjan Singh AIR 1961 Punj 215
 News papers statements are hearsay Nageswarrao v St AIR 1959 SC 1376
 They are not per se constitute legally acceptable evidence B Singh v UOI AIR 2004 SC 1923- they only support nut
not as independent evidence Yaswanth Sarpal v ST of Pun AIR 2017 NOC 574 (P&H)
 Electoral Roll as proved so long as it is disproved – Kirtan v Thakur AIR 1972 Ori 158 FB……………….. court shall
regard the fact entered in electoral roll as proved so long it is not disproved
Harbhjan Singh AIR 1961 Punj 215
 Section 81 of the Indian Evidence Act lays down that the Court shall presume genuineness as to
gazettes, newspapers etc., if such a document is produced from proper custody. The
presumption of genuineness attached under this section to a newspaper cannot be treated as
proof of the facts reported therein as a statement of a fact contained in a newspaper is merely
hearsay and therefore inadmissible in evidence., in the absence of the maker of the statement
appearing in Court and deposing to have perceived the fact reported.
 …the legal effect of the evidence relating to the speeches made on the floor of the Vidhan
Sabha and of the editorials and news items, I may also examine the other evidence, both direct
and circumstantial, on which reliance was placed by the learned counsel for the appellant.
 (After discussion of evidence of certain defence witnesses his Lordship proceeded:) There is no
other defence witness on whose testimony the accused could rely in support of his allegations.
The statements of these witnesses, even if they are assumed to be true, do not even remotely
support the libel,
 the libellous imputations as to the complainant being leader of Smugglers and his being
responsible for a large number of crimes in the Punjab, imputed the commission by him of
criminal offences.
 (Octroi Charges) a duty levied in some countries on various goods entering a town or city.
Eng Law
 This matter was settled in England, in an early case, (R. v. Lord Abingdon, (1794) 5 R. R.
783.) In that case Lord Abingdon had delivered a speech in the House of Lords during
the course of which he had indulged in libellous invective against the character of one
Mr. Sermon, an attorney. Lord Abingdon sent the printed version of his speech for
publication in the newspapers. Lord Kenyon observed, that the privilege claimed by
Lord Abingdon was restricted to words spoken in the House of Lords and confined to its
walls. Lord Abingdon was found guilty of having published the libel-charge and was
sentenced to imprisonment and was also ordered to pay a fine,
 The same principle was reiterated in R. v. Creevey, (1813) 14 R. R. 427. It was held
that- "a member of the House of Commons may be convicted upon an indictment for a
libel in publishing in a newspaper the report of a speech delivered by him in that House,
if it contains libellous matter, although the publication be a correct report of such
speech.
 "A member of Parliament has undoubtedly the privilege for the purpose of producing
parliamentary effect to speak in Parliament boldly and clearly what he thinks conducive
to that end. He may even for that purpose, if he thinks it right, cast imputations in
Parliament against the character of any individual; and still he will he protected. But if
he is to be at liberty to circulate those imputations elsewhere, the evil would be very
extensive. No member therefore is at liberty so to do."
Can Privilege be extended to what ahs
been stated in the Assembly?
 It follows that the members of the Vidhan Sabha, if they had indulged in publishing
speeches, libellous in character, in newspapers, they would not have been protected.
Surely, the accused cannot escape the consequences of the criminal law of defamation
by giving publicity to libellous utterances made by members on the floor of the
Assembly. In this case it is to be noticed that the members of the Legislative Assembly,
to whose speeches reference was made, did not make any imputations against the
character of the complainant either inside or outside the Assembly.
 If any one of them had published libels to the world Outside by issuing press statements
or by addressing public meetings the protection of the parliamentary privilege could not
have been successfully claimed. It follows, that it is perilous, to repeat in public a
libellous statement, even if its first publication in a House of Legislature is privileged.
Each repetition is a fresh defamation and the reason, who has made the words of
another his own, is liable to the same extent as if he had originated the story. It is
equally well-settled that previous libellous publication by another, of the same
defamatory words, is neither an evidence of the truth I nor proof of the exercise of due
care and caution.
Rumours….
Exception 9
 Reliance upon rumours, even if widely current, is no defence to a charge of a
criminal libel not being protected by exception 9. It is no defence on the part of
the accused to say, that the matters referred to in the alleged libel were bruited
about and the rumours, which were in circulation, were being believed. By proving
prevalence of rumours, the accused can neither substantiate …the defence of
truth, nor of good faith. The accused can only succeed on producing proof of the
truth of the matter charged, as libellous, and not by leading evidence, as to his
own belief in its truth. Evidence of rumours, and of appellant's conviction, in their
veracity, will not suffice to stave off the injurious consequences of an assault, on
the other man's reputation. If an information is shown to have been obtained from
a supposedly reliable source, and thereafter it is subjected to a reasonable
investigation, a belief in its truth will mitigate the guilt. In order to earn complete
immunity all the ingredients of the ninth exception have to be substantiated
before a libeller can be suffered to injure the complainant's good name.
Character/ Reputation/Rumours
 Scott v. Sampson, (1882) 8 Q.B.D. 491, said:-- "To admit evidence of rumours and suspicions is to
give any one who knows nothing whatever of the plaintiff, or who may even have a grudge against
him, an opportunity of spreading, through the means of the publicity attending judicial proceedings,
what he may have picked from the most disreputable sources, and what no man of sens who knows
the plaintiff's character would for moment believe in”
 "character" 'reputation' and 'rumour' as these are prone to be confused. "Character" is what a person
actually is and 'reputation" is, what neighbours say, what he is. Thus a man may have, in fact, a good
character and yet suffer from bad reputation or vice versa. "Reputation" is what is reputed. It is the
common knowledge of the community or a general opinion in respect to a person. It is the estimation
in which a person is held by others and not the opinion which he may have of himself. "Reputation" is
a composite hearsay, but it is admitted in evidence on grounds of necessity. "Reputation", however,
is distinguished from "rumour". In the words of Professor Wigmore: "Reputation, being the
community's opinion, is distinguished from mere rumour in two respects. On the one hand,
reputation implies the definite and final formation of opinion by the community; while rumour
implies merely a report that is not yet finally credited. On the other hand, a rumour is usually
thought of as signifying a particular act or occurrence, while a reputation is predicated upon a
general trait of character, a man's reputation, for example, may declare him honest, and yet to-day
rumour may have circulated that this reputed honest man has defaulted yesterday in his accounts.“
 (A bad general reputation can, therefore, be proved but not rumours or suspicions. It is not Open
to give evidence of particular facts showing bad character or disposition. Section 55 of the Indian
Evidence Act allows as admissible the evidence of general reputation and of general disposition
but not of particular facts or of traits.)
For Damages – Can it be considered..
How it has to be connected to libel?
 "The bad reputation which is pleaded in mitigation of damages must bear
some relation to the libel that is complained of. You cannot, for example,
mitigate the fact that you have falsely called a man a traitor by proving that
he had a reputation for loose morals."
 Is the law different in Civil and Criminal Cases?
 The principles of law in a criminal prosecution for defamation are not
different in this matter. In this respect in either case loss of reputation is the
foundation for an action or prosecution. On the basis of the reasoning in the
above cases it is difficult to justify reception of evidence relating to the
incident in the college or pertaining to transactions of cement or timber or
even evidence of association. These pieces of evidence cannot be taken in
support of either of the two impugned imputations.
Standard of Proof
 It was, however, open to the accused to show that the complainant had the
reputation of being the leader of smugglers but no such evidence has been
placed on the record. Such evidence, as has been adduced, does not connect the
complainant with the gold smuggling
 The next question that arises in this case, is as to what evidence has to be led,
by the accused in a defamation case, when he is pleading either 'truth' or his
'good faith' as understood in law. ?
 The learned counsel for the appellant contended that the standard of proof
differs when the onus lies on the accused. The plea of justification of the charge
levelled by the accused has to be proved strictly as if it were an indictment.
 The law is stated thus by Lord Halsbury: "If the statement complained of imputes
the commission by the plaintiff of a criminal offence, the defendant, to succeed
in his plea of justification, must prove the commission of the offence charged as
strictly as if the plaintiff was being prosecuted for the offence."
Validity of reparation???
 Reparation to the defamed person must not be merely colourable. The accused
or the defendant, as the case may be, should admit that the charge was
unfounded, made without proper information and express regrets for its
publication. But the appellant has either not chosen to, or, has not been
advised to make amends for the injury caused. On the other hand, he has, by
his conduct during the trial, added to his offence. The written statement
which was filed by him more than 10 months after his oral statement under
Section 342 has been ill-advised in the extreme and whoever advised him to
adopt that course of conduct has not helped him but has harmed him.
 ….. The conduct of the accused during the trial, and even, some of the
arguments at the Bar gave me an impression that the real object was not to
substantiate the legal defences but to utilise the privileged occasion, of the
trial, for indulging in further libels.
 Is it mandatory? Ill Will / malice... Neither ill-will nor malice is an ingredient
of the offence of defamation, and want of either, cannot serve as a defence.
Privileged document?? Claimed by the
state?
 The last argument on behalf of the accused-appellant, to which I may now address myself, is, that fair
and proper opportunity for proving the defence case, was not given by the trial Court to the accused.
(This argument was reject-ed by his Lordship.)
 It was then urged that the accused had been prejudiced because privilege had been claimed by the Home
Ministry in the Government of India with respect to the report by the Deputy Director Intelligence Bureau
regarding smuggling in Punjab in the first half of 1956. D. W. 8, Shri Hari Parkash Sharma, Sectional
Officer, brought the original document asked for by the Court. He submitted an affidavit of the Joint
Secretary in the Ministry of Home Affairs claiming privilege for producing the document in the Court.
 On this the Additional Sessions Judge on 17th November, 1958, said "I have gone through the
document. The privilege is allowed.“
 According to the law in the United States of America it is within the power of a Court to overrule the
claim of privilege on the ground that the disclosure is essential for determination of the defence ofthe
accused and where Government insists on claiming privilege the Court can, if it so deems fit, acquit the
accused. The law in this country is contained in (Ss. 123, 124 and 162 of the Indian Evidence Act and it
does not even suggest that an accused is entitled to acquittal when privilege has been claimed with
respect to unpublished official records relating to any affairs of State. The contention of the learned
counsel for the accused, claiming acquittal for his client where privilege has been claimed on behalf of
the State, has no substance and must be rejected.)
What is the object of punishment in
defamation cases?
 After having taken careful note of the arguments at the Bar and after having examinee
the evidence on the record, I feel satisfied that the trial Court arrived at a correct
conclusion in finding the appellant guilty under Section 500, I. P. C., for defaming the
complainant,
 The question as to the appropriateness of the sentence is somewhat perplexing.
 …Though Harbhajan Singh by his injudicious zeal and insensate persistence in the libel
and later on by his recalcitrant attitude, has aggravated his offence and has thereby
deprived himself of lenity which might have been shown to him, the sentence of one
year's simple imprisonment passed on him is nevertheless unduly severe. I maintain the
conviction of the accused-appellant, but I order that instead of undergoing one year's
simple imprisonment, he shall undergo three month's simple imprisonment and I also
sentence him to pay a fine of Rs. 2,000/-. In default of payment of fine, he is sentenced
to undergo three months* simple imprisonment. He is on bail which is cancelled and he is
directed to surrender himself and to undergo the unserved portion of his sentence.
82. Presumption as to document admissible in England without proof of seal or
signature.

 When any document is produced before any Court, purporting to be a document which,
by the law in force for the time being in England or Ireland, would be admissible in proof
of any particular in any Court of Justice in England or Ireland, without proof of the seal
or stamp or signature authenticating it, or of the judicial or official character claimed by
the person by whom it purports to be signed, the Court shall presume that such seal,
stamp or signature is genuine and that the person signing it held, at the time when he
signed it, the judicial or official character which he claims, and the document shall be
admissible for the same purpose for which it would be admissible in England or Ireland.
 Probate Ordered in the Eng Court is admissible
 Documents admissible without proof of seal and signature ( Public and Judicial
Documents)
 Affidavit Sworn in before a Notory Public in the USA and forwarded under Certified of
Consulate General of India in NY is admissible in Evidence ( In Re KK Ray ( Pvt) Ltd AIR
1967 Cal 636)
Ss 83
 83. Presumption as to maps or plans made by authority of Government. - The Court
shall presume that maps or plans purporting to be made by authority of [the Central
Government or any State Government] were so made, and are accurate; but maps
or plans made for the purposes of any cause must be proved to be accurate.
 Principle and Scope- Statements made in Maps and Plans prepared under the
authority of the Govt have been made relevant under section 36 –
 Sec 36-relevancy of Statements as to fact of any public nature , any statement of
it , made in recital contained in any act of the parties
 Their contents provable under Ss 77-79 by production of the certified copy
 Sec 83 dispenses with the proof of execution and accuracy of the original Maps by
providing that the court shall presume that Maps or plans purporting to be made by
the authority of Central or State Government were so made and are accurate
Sec 84
 84. Presumption as to collections of laws and reports of decisions. - The Court shall
presume the genuineness of every book purporting to be printed or published under the
authority of the Government of any country, and to contain any of the laws of that
country, and of every book purporting to contain reports of decisions of the Courts of
such country.
Sc 85 and 85A
 85. Presumption as to powers-of-attorney. - The Court shall
presume that every document purporting to be a power-of-
attorney, and to have been executed before, and
authenticated by, a Notary Public, or any Court, Judge,
Magistrate, [Indian] Consul or Vice-Consul, or representative of
the [Central Government], was so executed and authenticated.

[85-A. Presumption as to electronic agreements. - The Court

shall presume that every electronic record purporting to be an
agreement containing the [electronic signatures] of the parties
was so concluded by affixing the [electronic signature] of the
parties.
85B and C
 [85-B. Presumptions as to electronic records and [electronic Signatures]

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved,
that the secure electronic record has not been altered since the specific point of time to which the secure
status relates.

(2) In any proceedings, involving secure [electronic signatures] the Court shall presume unless the contrary is
proved that -

(a) the secure [electronic signature] is affixed by subscriber with the intention of signing or approving the
electronic record;

(b) except in the case of a secure electronic record or a secure

[electronic signature]

, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic
record or any [electronic signature].
 85-C. Presumption as to [Electronic Signature Certificates] - The Court shall presume, unless contrary is proved,
that the information listed in a [electronic signature Certificate] is correct, except for information specified as
subscriber information which has not been verified, if the certificate was accepted by the subscriber].
S 86

 86. Presumption as to certified copies of foreign judicial records —The Court

may presume that any document purporting to be a certified copy of any
judicial record of any country not forming part of India or of Her Majesty's
dominions is genuine and accurate, if the document purports to be certified
in any manner which is certified by any representative of the Central
Government in or for such country to be the manner commonly in use in that
country for the certification of copies of judicial records. An officer who, with
respect to any territory or place not forming part of India or Her Majesty's
dominions, is a Political Agent therefore, as defined in Section 3, clause (43),
of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this
section, be deemed to be a representative of the Central Government in and
for the country comprising that territory or place.
Sec 87

 87. Presumption as to books, maps and charts —The Court may presume that
any book to which it may refer for information on matters of public or general
interest, and that any published map or chart, the statements of which are
relevant facts and which is produced for its inspection, was written and
published by the person and at the time and place, by whom or at which it
purports to have been written or published.
Sec 88

 88. Presumption as to telegraphic messages —The Court may presume that a

message, forwarded from a telegraph office to the person to whom such
message purports to be addressed corresponds with a message delivered for
transmission at the office from which the message purports to be sent; but
the Court shall not make any presumption as to the person by whom such
message was delivered for transmission. [15
Sec 88A

 [88A. Presumption as to electronic messages— The Court may presume that

an electronic message forwarded by the originator through an electronic mail
server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but
the Court shall not make any presumption as to the person by whom such
message was sent. Explanation—For the purposes of this section, the
expressions “addressee” and “originator” shall have the same meanings
respectively assigned to them in clauses (b) and (za) of sub-section (1) of
section 2 of the Information Technology Act, 2000.]
Section 89
 89. Presumption as to due execution, etc., of documents not produced. - The
Court shall presume that every document, called for and not produced after
notice to produce, was attested, stamped, and executed in the manner
required by law.
Sec 90

 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 purport 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 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.


Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds
relating to the land, showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in
possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him
by B for safe custody. The custody is proper.
Ss 90 and 90A
 [90-A. Presumption as to electronic records five years old. - Where any
electronic record, purporting or proved to be five years old, is produced from
any custody which the Court in the particular case considers proper, the
Court may presume that the [electronic signature] which purports to be the
[electronic signature] of any particular person was so affixed by him or any
person authorised by him in this behalf.

Explanation : Electronic records 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
naturally be; but no custody is improper if it is proved to have had a
legitimate origin, or the circumstances of the particular case are such as to
render such an origin probable.

[This Explanation applies also to section 81A.]

Section 13 /21 and section 90 Case
 Sital Das v Sant Ram and Others AIR 1954 SC 606
 (Indian Evidence Act, 1872, ss. 13 and 21 - Whether the lease in favour of defendants 1 and
2 which has been challenged in suit is supported by legal necessity and is binding on the
institution?)
 The lease was not a permanent one but was only for a period of 10 years, it could certainly
be supported on the footing of a transaction entered into in the ordinary course of
management - Evidence adduced by plaintiff to show that the head institution was at Sahri
of which Hira Das was the Mahant and Hira Das admittedly performed the funeral rites of
Kishore Das and took a leading part in the subsequent transactions,…..
 ….as the defendants point out that these Khasra papers carry no. presumption of
correctness but they are certainly relevant evidence admissible u/s. 35 of the Indian
Evidence Act and they do support the plaintiff's story that far from renouncing the world
and embracing the life of an ascetic, Ishar Das or Ujagar Singh, as he was called, was
carrying on cultivation with his brother and nephews during the years 1938 to 1946. Ishar
Das stated in course of his cross-examination that he did not cultivate his lands, but in the
same breath he admitted that he was joint with his nephews with regard to his paternal
properties.
Sec 90 ?
 Mr. Achhru Ram argues that the document being more than 30 years old, there is a
statutory presumption available to it u/s. 90 of the Indian Evidence Act. But this
contention is altogether unavailing.
 The language of s. 90 of the Indian Evidence Act requires the production of the
particular document in regard to which the court is invited to made the statutory
presumption. If the document produced is a copy, admissible as secondary evidence
u/s. 65 of the Indian Evidence Act and is produced from proper custody and is over
30 years old, then only the signatures authenticating the copy may be presumed to
be genuine; but production of a copy is not sufficient to raise the presumption of
the due execution of the original 'Basant Singh v. Brij Raj Saran Singh',
 In this case no. foundation was laid for reception of secondary evidence u/s. 65 of
the Indian Evidence Act, nor can the copy produced be regarded as secondary
evidence within the meaning of s. 63. In these circumstances, we must hold that the
will alleged to have been executed by Kishore Das in the year 1911 has not been
proved and the translation of an alleged copy of it which has been produced in this
case should be excluded from consideration.
Tirumala Tirupati Devasthanams
v K.M. Krishnaiah AIR 1998 SC 1132
 Specific Relief Act, 1963, s. 6 - Evidence Act, 1872, s. 13 - Code of Civil Procedure, 1908, s. 100
- Suit for possession - Plaintiff dispossessed from property - Suit for possession filed by him
beyond six months of dispossession - Held, not maintainable, moreover when title of defendant
not extinguished - Judgment produced as evidence to prove title in regard to suit property -
Admissible in evidence even though plaintiff was not party to that suit - Second Appellate Court
could not, for first time give a finding that title of one of party stood extinguished.
 The suit was filed by the respondent for grant of permanent injunction against the TTD in
respect of AC 2.29 of land in Tirumala Hills.
 Later filed amendment and sued for possession … The plaintiff then filed an application CMP No
289 of 1970 on 25.7.70 under order 6 Rule 17 CPC (beyond 6 months from the date of
dispossession) for amendment of plaint and converted the suit into one for possession.
 Both Trial and The appellate Court too held that the plaintiff had proved neither title nor
possession to the suit property. The appeal was dismissed by judgment dated 5.8.1982. We may
state here that both courts relied upon the judgment of the Sub-Court, Chittoor dated
15.6.1942 in an earlier suit filed by the TTD against the Hathiramji Mutt in 1937 (O.S. 51/1937)

Title to the suit property
 The learned Judge held that the oral evidence adduced by both sides was to be
rejected and that the TTD's title in respect of this extent of land of Ac 2.29 stood
"extinguished" inasmuch as the delivery receipt dated 12.1.1946 showed that some
'encroachers' were in possession of this piece of land. Such a finding as to
extinguishment of plaintiff's title was given for the first time in second Appeal,
even though there was no such issue in the courts below.
 It was held by this court that even if the time for filing a summary suit u/s. 9 the
Specific Relief Act, 1877 expired, the dispossessed person could still file a suit for
possession on the basis of prior possession. Such a suit is described as one based on
'possessory title'. But in such a suit filed by the dispossessed plaintiff beyond the
period specified in s. 9 of the Specific Relief Act, 1877 (or S. 6 of the 1963 Act)
defendant who dispossessed the plaintiff could defend himself by proving title and
if he proved title, he could remain in possession. After an exhaustive examination
of the law on this aspect, Hidayatullah, J. (as he then was) observed as follows:
 "When, however, the period of 6 months has passed, questions of title can be
raised by the defendant and if he does so, the plaintiff must establish a better
title or fail."
Other points in TTD Case

 "....the right is only restricted to possession only in a suit u/s. 9 of the Specific Relief Act but
does not bar a suit on prior possession within 12 years and title need not be proved unless the
defendant can prove one".
 …that was also the law applicable in our country and it was this principle that was engrafted into
Arts. 64 and 65 of the Indian Limitation Act, 1963. The said articles were, it was held,
declaratory of the law.
 These copies are said to be not true copies of the originals but contain false recitals showing a
grant by the Government in favour of the plaintiff's maternal grandfather instead of the Deity.
The counter filed by the Department says that the copies filed are not genuine and are forged
documents. No doubt, plaintiff filed a rejoinder stating that he had applied for copies and got
them but he does not know who prepared them and that Kumaraswamy is not related to him.
 Be that as it may, be make it clear that the plaintiff's counsel did not choose to rely on those
documents filed in IA 1 of 1991 before us. If he had relied upon them, we would have considered
if it was a fit case for ordering an inquiry into the genuiness of these documents. The IA, in the
circumstances, is dismissed.
 In the result, the Civil appeal is allowed as stated above and the IA 1 of 1991 is dismissed.
TTD Case-In view of the above contentions, the following
three points arise for consideration:

 (1) Whether the judgment in OS 51 of 1937, Sub-Court, Chittoor dated

15.6.1942 declaring the title of the TTD, was admissible and could be relied
upon by the TTD as evidence in the present case, even though present plaintiff
was not a party to OS 51 of 1937?
 (2) Whether it was open to the Second Appellate Court to reappreciate the
evidence and hold that the oral evidence adduced by the parties was not
acceptable and that in view of the recitals in Ex B6 delivery receipt dated
12.1.1946, the title of the TTD was to be deemed 'extinguished'. and whether
this could be done when there was no such issue raised in the courts below?
 (3) Whether, in case we should hold on Point 2 that the Second Appellate
Court could not hold that the TTD's title stood extinguished, the decree for
possession based on possessory title as granted by the Second Appellate Court,
could be sustained? Point 1:
 …the TTD had not filed a "single deed of lease" in support of its claim for
possession…
 In any event; when there was no issue on the question of adverse possession in the
Courts below, the Second Appellate Court could not, for the first time, have giving a
finding that the title of the TTd stood extinguished. The following finding in Second
Appeal that, for the TTD:
 ".....no physical possession of the property was obtained till 12.1.1946 or
thereafter. The defendants' title to the suit property was thus extinguished"
 26. Is, therefore, unsupportable. We accordingly set aside the same and hold that
the TTD continues to have absolute title to the property of Ac 2.29 in S.N. 669/1
and 669/2 and that its title never stood 'extinguished'.
 27. Point 2 is decided accordingly against the plaintiff and in favour of the
appellant.
Judgment TTD
 In Srinivas Krishna Rao Kango vs. Narayan Devji Kango & Others [AIR 1954 SC
379] 1954 Indlaw SC 214, speaking on behalf of a Bench of three learned
Judges of this Court, Venkatarama Ayyar, J.
 held that a judgment not inter parties is admissible in evidence u/s. 13 of the
Evidence Act as evidence of an assertion of a right to property in dispute. A
contention that judgments other than those falling u/ss. 40 to 44 of the
Evidence Act were not admissible in evidence was expressly rejected.
 Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of
four learned Judges in Sital Das vs. Sant Ram & Others [AIR 1954 SC 606] 1954
Indlaw SC 186 held that a previous judgment no inter partes, was admissible
in evidence u/s. 13 of the Evidence Act as a 'transaction' in which a right to
property was 'asserted' and 'recognised'.
Cases

1. State of Maharashtra v Dr Praful B Desai AIR 2003 SC

2053
2. Sidharth Vashit@ Manu Sharma v State NCT Delhi AIR
2010 SC 2352
3. Partap Singh (Dead), through Lrs. and others v Shiv
Ram (Dead), through Lrs
AIR 2019 SC 927