A. Indian Evidence Act, 1872 (1 of 1872), Section 4 -- May presume – Shall Presume – Section 4 of Evidence Act inter-alia defines the words ‘may presume’ and ‘shall presume as follows:-

“(a) ‘may presume’ – 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 it.

(b) ‘shall presume’ – 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.”

In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.

(Para 9)

B. Negotiable Instruments Act (26 of 1881), Section 118, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 3 – Cheque against consideration -- Legally enforceable debt or liability – Presumption -- Rebuttal – In a trial u/s 138 of the Act 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 -- As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused -- 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.

(Para 10)

C. Negotiable Instruments Act (26 of 1881), Section 118, 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 4 – Cheque against consideration -- Legally enforceable debt or liability – Presumption -- Rebuttal – Phrase “until the contrary is proved” 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.

(Para 11)

D. Negotiable Instruments Act (26 of 1881), Section 118, 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 4, 114 – Rebuttal of presumption – Accused in a trial u/s 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 – To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial – Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated – At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused – Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.

-- 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.

-- Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant – 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.

-- Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial.

Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant’s rescue.

(Para 11)

E. Negotiable Instruments Act (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378(4), 386 -- Acquittal by trial court – Conviction in appeal by High Court – Sentence to accused -- High Court, after convicting the appellant u/s 138 of the Act, remitted the matter to the learned Magistrate for passing appropriate order of sentence – Held, this course, is unknown to law -- Powers of the Appellate Court, in an appeal from an order of acquittal, are enumerated in Section 386(a) of the Code of Criminal Procedure, 1973 -- Powers do not contemplate that an Appellate Court, after recording conviction, can remit the matter to the trial court for passing appropriate order of sentence -- Judicial function of imposing appropriate sentence can be performed only by the Appellate Court when it reverses the order of acquittal and not by any other court -- Procedure adopted by the High Court not approved.

(Para 13)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Demand Notice for payment – Mandatory in nature -- Object of – Object of the proviso is to avoid unnecessary hardship to an honest drawer -- Giving a notice to the drawer before filing complaint u/s 138 of the Act is a mandatory requirement.

(Para 6)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Demand Notice for payment – Serviced of notice -- Presumption of – Cause of action -- Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted -- Requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque -- Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.

(Para 10)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 – Demand Notice for payment – Service of notice – Presumption of -- Pleadings – Requirement of -- Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post – It is not necessary to aver in the complaint u/s 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved -- Complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque.

(Para 14, 15)

D. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Demand Notice for payment – Service of notice – Presumption of – Rebuttal of -- At the time of taking cognizance of the complaint u/s 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the mandatory statutory procedural requirements have been complied with -- It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect.

(Para 15)

E. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Demand Notice for payment – Service of notice – Presumption of – Rebuttal of – Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected -- A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint u/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act.

(Para 17)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(ii)(a) – Sub-letting – Evidence – Photographs -- Photographs Marks C and D have been amply proved by oral evidence of the landlady as well as by admissions made by the witnesses produced by the tenant – Absence of negatives and photographer may assume some importance in criminal cases -- In civil cases that too before tribunal photographs authenticated by oral evidence must be treated as sufficient proof of its genuineness.

The witnesses have also deposed that the board of Popular Cycle Store has been installed on the portion where the smaller shutter is fixed. These photographs have not been denied when the tenant-petitioner was confronted and he infact admitted that his wife and daughter were visible in the photographs. It was stated by Lakhvinder Singh, PW-3, who is son of the landlady-respondent, that he got the photographs clicked and the negatives were torn by the tenant-petitioner under threat. In the facts and circumstances, I am inclined to take the view that the photographs Marks C and D have been amply proved by oral evidence of the landlady-respondent as well as by admissions made by the witnesses produced by the tenant-petitioner. The photographer stand substantively authenticated by oral statements. Afterall the object of calling the photographer in the witness box or for insisting on the production of negatives is to ensure that no doctored photographs are passed as genuine one. The absence of negatives and photographer may assume some significance in criminal cases. However, in civil cases that too before tribunal photographs authenticated by oral evidence must be treated as sufficient proof of its genuineness. In such circumstances, both the Courts below have adopted a correct approach by rejecting the argument that no photograph could be proved in the absence of negatives and photographer.

 (Para 8)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(ii)(a) – Sub-letting – Possession -- Once the landlord has proved exclusive possession of a third party without her consent of the demised premises, then, it is the duty of the tenant to explain the nature of possession of third party.

Once the landlady has proved exclusive possession of a third party without her consent of the demised shop, then, it is the duty of the tenant to explain the nature of possession of the third party. In this regard, reliance could be placed on a judgment of the Supreme Court in the case of Rajbir Kaur versus S. Chokesiri and Company, (1989)1 SCC 19, United Bank of India versus Cooks and Kelvey Properties (P) Limited, (1994)5 SCC 9 and Bharat Sales Limited versus LIC of India, (1998)3 SCC1. If the primary fact of exclusive possession is proved by the tenant and there is no reasonable explanation tendered by the tenant-petitioner, then by operation of law, it could be assumed that there was some clandestine arrangement between the tenant and the sub tenant with regard to consideration of rent. In this regard, reliance can be placed on a judgment of the Supreme Court in the case of Kala versus Madho Parshad Vaidya, (1998) 6 SCC 573.

(Para 9)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(ii)(a) – Sub-letting – Necessary Party – The sub tenant is merely a proper party and not a necessary party -- The ejectment petition in his absence is maintainable -- Absence of a proper party would not result into any damaging effect on the ejectment petition filed by the landlady-respondent.

The argument, that the sub tenant was a necessary party, has to be rejected because more than 50 years ago, the Supreme Court has held in the case of Importers and Manufactures Limited versus Pheroze Framroze Taraporewala, AIR 1953 SC 73 that the sub tenant is merely a proper party and not a necessary party and therefore the ejectment petition in his absence is maintainable. Therefore, absence of a proper party would not result into any damaging effect on the ejectment petition filed by the landlady-respondent.

(Para 10)

Sikh Gurdawara Act, 1925, Section 12 – Indian Evidence Act, 1872 (1 of 1872), Section 85 – Execution – Execution filed through power of attorney holder – Mere fact that resolution authorising to execute power of attorney is not produced on record is not sufficient to lead inference that the President was not competent to execute power of attorney.

The mere fact that the resolution No. 131 has not been produced on record is not sufficient to lead an inference that the President of the petitioner was not competent to execute a power of attorney in favour of Sardar Bharpur Singh. The recital in the power of attorney in respect of resolution No. 131 is deemed to be correct. It was open to the respondents that in fact, there is no such resolution. Still further, there is no challenge to the authority of Sardar Gurcharan Singh Tohra as President of the Committee. Therefore, I am unable to maintain the findings recorded by the Executing Court that on account of absence of resolution No. 131, Sardar Bharpur Singh is not proved to be attorney of the petitioner. Such view is wholly illegal and not sustainable in law.

(Para 10)