What are presumptions under s 29 and 30 of Pocso Act?

 Sections 29 and 30 of the POCSO Act, 2012, create a mandatory "reverse burden of proof," requiring special courts to presume the accused is guilty of sexual offences (Section 29) and possessed a culpable mental state (Section 30). The accused must prove their innocence, rather than the prosecution proving guilt, departing from traditional criminal jurisprudence. 

Key Aspects of Section 29 (Presumption of Guilt):

• Application: Applies to offences under Sections 3, 5, 7, and 9 (sexual assault, aggravated assault).
• Requirement: The Special Court shall presume the accused committed, abetted, or attempted the offence.
• Rebuttal: The accused must prove the contrary to overcome this presumption.
• Limitation: Courts have held that this presumption is not absolute; the prosecution must first establish foundational facts (i.e., that the act actually occurred). 

Key Aspects of Section 30 (Presumption of Culpable Mental State):

• Requirement: The court will presume a "culpable mental state" (intention, motive, knowledge) on the part of the accused.
• Burden: The burden lies on the accused to prove they had no such mental state.
• For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Judicial Interpretation & Scope

• Not a Replacement for Prosecution Evidence: While these sections shift the onus, the prosecution must still prove "foundational facts" to trigger the presumption.
• Purpose: These provisions aim to protect vulnerable children from the trauma of prolonged trials and rigorous cross-examination, reflecting the need for swift justice in child abuse cases.

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What is the difference between presumption of law and presumption of fact ?

 The Indian Evidence Act distinguishes between two fundamental types of presumptions that courts can draw during legal proceedings. Understanding their differences is crucial for comprehending how evidence law operates.

Definition of Presumptions

A presumption is defined as an inference of the existence or non-existence of a fact, rather than evidence itself. According to Black's Law Dictionary, it is "a legal inference, or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts".

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Under which circumstances the court can not convict accused based on presumption under Section 29 of POCSO Act?

 Similar question was posed before Learned Single Judge of this Court in case of Ramprasad v/s State of Maharashtra MANU/MH/1943/2018. Learned Single Judge was dealing with an appeal filed by the convicted accused. While interpreting the nature of presumption under Section 29 of the said Act, it is observed :--

" Thus the presumption that operates under Section 29 of the Protection of Children from Sexual Offences Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that the foundational facts of the prosecution case have been established " (para 29).{Para 85}

86. On facts it was observed :--

" In fact for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in the present case, does not appear to have been done by the prosecution " (para 27)

• Conclusion

88. In nutshell, the trial court simply cannot be convict the accused on the basis of the presumption. Because the Court cannot start with only on the basis of the presumption. However presumption will come into picture only when foundational facts are established. That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 and 9 of the POCSO Act are committed. One may not find such wordings in the section itself. But the Constitutional Courts have interpreted similar provisions relating 'presumptions' en-grafted in various Acts. This interpretation of the provisions of relevant Acts is arrived at after considering those provisions of Acts on one hand and presumption of innocence on the other hand. It is interpreted presumption of innocence is human right though not a fundamental right.

89. In this case, foundational facts are not proved. I have already observed the evidence on the basis of statement under Section 164 of the Code can not be considered. So also on the basis of admitted medical case papers, we cannot draw an inference about involvement of the culprit/accused. Hence trial court was wrong in taking recourse to the presumption under Section 29 of the Protection of Children from Sexual Offences Act.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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Whether it is mandatory to determine age of victim in the Pocso Act at the stage of hearing on bail application?

 93. In wake of the preceding narrative, the manner of

consideration of age of a victim in a bail application under the

POCSO Act shall be guided as follows:

I. The procedure for determination of a victim’s age

provided in Section 94 of the JJ Act, 2015 read with JJ

Rules, 2016 shall not apply to bail applications, though the

documents therein are liable to be considered. Age of

victim as per procedure prescribed in Section 94 of the JJ

Act, 2015 is determined conclusively only in the trial.

II. The line of enquiry and relevant factors to assess the age

of the victim in a bail application under the POCSO Act

offences are these. The consideration of the age related

documents mentioned in Section 94 of the JJ Act, 2015 i.e.

school certificate (including matriculation), date of birth

certificate issued by a local body, and medical report for

age determination as produced by the prosecution is a good

start point in the process.

III. The accused has a right to assail the veracity of the age

of the victim as stated in the prosecution case.

IV. The court while deciding the said bail application is

obligated to independently:

A. Examine the challenge laid to the victim’s age by

the accused applicant.

B. Evaluate credible doubts about the age of the

victim.

V. The assessment of age in a bail order is of a tentative

nature, and is based on probative value of documents which

are yet to be proved or statements of witnesses who are still

to be examined in court. Such determination by a court is

not conclusive and is made only for the limited purpose for

deciding the bail application. {Para 93}.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

 Monish Vs State Of U.P. And 3 Other

 Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated:  09.02.2023.

Read full Judgment here: Click here.

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Whether the presumption of culpable intent U/S 29 of the POCSO Act, 2012 is attracted against the accused at the stage of bail?

 Section 29 of the POCSO Act, 2012 creates a presumption

of culpable intent against the accused person. The provision

cannot be read to mean that the accused shall be presumed to

be guilty at the lodgement of the F.I.R. or criminal complaint

till proven innocent at the trial. The presumption of innocence

which is a fundamental tenet of criminal jurisprudence cannot

be turned on its head by a faulty interpretation of the provision.

The prosecution has to establish primary facts after attaining

the required standards of evidence to trigger the presumption

of culpable intent. {Para 67}

IX. b. Conclusions : Sections 29 and 30 of POCSO

Act & bails under the POCSO Act:

94. The consideration of presumption of culpable intent under

Sections 29 and 30 of the POCSO Act and as contemplated in

Rajballav (supra) at the stage of bail shall be governed by the

principles of evidential law as regard presumptions and the

holdings in Tofan Singh (supra), Joy V.S. (supra), Navin

Dhaniram Baraiye (supra), Dharmander Singh (supra) and

Sahid Hossain Biswas (supra) and shall be made in the

following manner:

1. Presumption of culpable intent under Section 29 of the

POCSO Act, 2012 will be attracted only in the manner and

stage discussed earlier in the judgement.

2. Presumption of culpable intent of the accused under

Sections 29 of the POCSO Act, 2012 shall not apply at the

stage of pretrial bails.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

 Monish Vs State Of U.P. And 3 Other

 Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated:  09.02.2023.

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Whether the court should acquit an accused for an offence under the Prevention of Corruption Act if there is not valid sanction for prosecution?

 The respondent/accused was appointed by the Secretary to the Government of Maharashtra vide appointment letter dated 27th September 1995. The sanction for prosecution has been granted by PW4, Under Secretary to the State of Maharashtra. PW4 in his cross-examination has admitted that he was 5th in the hierarchy after Principal Secretary, Secretary, Joint Secretary and Deputy Secretary. He also admitted that as per the Government Rules, only the appointing authority is empowered to remove the Government Servant. He admitted that he has not seen the appointment letter by which the respondent/accused was appointed by the Secretary to the State of Maharashtra. He in his cross-examination also admitted that in case of minor offences, sanction of prosecution should not be granted and departmental inquiry should be ordered. He admitted that he did not call for any papers relating to the matter nor did he put the note to the superior officer before granting the sanction to prosecute the respondent/accused. Let me now examine based on these facts, whether sanction was obtained from competent authority under Section 19 of the P. C. Act. Section 19(1)(b) of the P. C. Act provides that in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the State Government, the sanction for prosecution should be granted by the State Government and Section 19(1)(c) provides that in the case of any other person, the sanctioning authority would be the authority competent to remove the accused from his office. In the instant case, PW4-Under Secretary has admitted that the appointing authority of the respondent/accused is the Principal Secretary. If that be so, then under Section 19, the power to remove the respondent/accused would be with the Principal Secretary and, therefore, it is the Principal Secretary, who was supposed to sanction the prosecution under Section 19 and not the Under Secretary and, therefore, on this count, the prosecution should not have been initiated under the P. C. Act without obtaining the sanction of the appropriate authority. Therefore, the sanction having not been obtained by the competent authority, the impugned judgment acquitting respondent/ accused does not call for any interference. The view taken by me is supported by a decision of the Co-ordinate Bench of this Court in the case of State of Maharashtra Vs. Ramchandra Sudam Ingale 2008 SCC Online Bom 1765 and Gopal Vs. State of Maharashtra 2010 SCC Online Bom 600.

{Para 5}

6. PW4 in his cross-examination has also admitted that he did not call for any papers relating to the matter nor had he discussed this issue with his superior before granting the sanction. PW4 has thereby admitted that he has not applied his mind to the facts of the case before granting the sanction. Therefore, even on this count, the sanction granted by the Under Secretary (assuming he is empowered) is without application of mind and, therefore, such a mechanical sanction does not pass the test of Section 19 of the P. C. Act for launching the prosecution.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1301 of 2012

Decided On: 03.10.2023

The State of Maharashtra Vs. Anil Kacharu Shinde

Hon'ble Judges/Coram:

Jitendra Jain, J.

Citation: MANU/MH/3982/2023.

Read full Judgment here: Click here

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Whether the court can refuse to draw presumption of Corruption if sum involved is trivial?

The Advocate for the respondent/accused brought to my attention the evidence of PW3, Inspector ACB, wherein, PW3 in her cross-examination has stated that she was aware that there is a Government G.R., which states that if the bribe amount is up to Rs. 100/-, it is considered as trivial amount. On a query raised by me to produce such a G.R., neither the Advocate for the respondent/accused nor the Advocate for the appellant could produce the same. However, provisions of Section 20 of the P. C. Act gives an indication about dealing with trivial matters. Section 20(1) of the P. C. Act provides that if in trial punishable under Sections 7, 11, 13(1)(a) or 13(1)(b) the charges are proved then it shall be presumed that the accused with a motive or reward or for inadequate consideration has accepted gratification etc. Similar presumption appears in Section 20(2) with regard to trial of offence under Sections 12 or 14(b) of the P. C. Act. However, Section 20(3) of the P. C. Act provides that if gratification etc. is trivial then no interference of corruption may be drawn. Section 20(3) of the P. C. Act gives a clue that in case of trivial matter, the court may refuse to draw the presumption of corruption. Therefore, the issue to be examined is whether the offence in the facts of the present case is trivial. In the instant case, the allegation is acceptance of bribe of Rs. 100/-in the year 2007. The amount appears to be too small in the year 2007 and moreso, in the year 2023 when the appeal is being heard against the acquittal. Therefore, assuming that the appellant-complainant is able to prove the charges, (although, I have already held that they have failed to prove the charges), in my view after considering quantum at the relevant time this could be a fit case to be treated as a trivial matter to uphold the acquittal order. In this connection, it is relevant to note the decision of this High Court in Bhagwan Jathya Bhoir Vs. State of Maharashtra MANU/MH/0144/1991 : 1992 (11) L.L.N 505 (Criminal Appeal No. 253 of 1984). Wherein, the Court observed that in case of trivial matter, the provisions of the P. C. Act should not be invoked, but a departmental proceeding could have been initiated. In the said case before the Coordinate Bench, the amount involved was Rs. 30/-and the appeal came to be decided in the year 1991. Applying the ratio of the said decision to the facts of the present appeal before me, the amount of Rs. 100/-can be considered as a trivial amount, so as to not to call for any interference in the order of acquittal. I, further draw support from the decision of Coordinate Bench of this Court in Hanmantappa Murtyappa Vijapure through L.R. Vs. State of Maharashtra MANU/MH/0297/2004 : 2004 (3) M.L.J. 410, where the Court considered bribe of Rs. 150/-as trivial for launching criminal prosecution and the appropriate action could have been departmental inquiry. The discussion made herein is only for the purpose of non-interference in acquittal order and not to be construed that the charges have been proved against the respondent/accused. {Para 10}

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1301 of 2012

Decided On: 03.10.2023

The State of Maharashtra Vs. Anil Kacharu Shinde

Hon'ble Judges/Coram:

Jitendra Jain, J.

Citation: MANU/MH/3982/2023.

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Whether it is mandatory to register adoption deed?

 The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. This was not done and the petition was rejected. The second ground was that the adoption deed was not registered. In that context if we peruse Section 16 of HAMA, it raises a statutory presumption as to registered documents relating to adoption provided that the condition precedent is satisfied and cannot be interpreted to mean that the adoption deed is required to be registered. In that context if we peruse the provisions of Section 17 of Indian Registration Act, 1908, the deed of adoption does not find mention in the documents required to be compulsorily registered.  The provisions of HAMA do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. In the present case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption. 

{Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

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Circumstances where gazette publication is not conclusive proof of immovable property being wakf property?

  It may be noted that Wakf Board is a statutory authority under the Wakf Act. Therefore, the official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the State Government is not bound by such a publication of the notification published in the official Gazette merely for the reason that it has been so published. In State of Andhra Pradesh v. A.P. State Wakf Board and Ors. MANU/SC/0155/2022, this Court consisting of one of us (V. Ramasubramanian, J. as a Member) held that the publication of a notification in the official Gazette has a presumption of knowledge to the general public just like an advertisement published in the newspaper but such a notification published at the instance of the Wakf Board in the State Gazette is not binding upon the State Government. It means that the notification, if any, published in the official Gazette at the behest of the Wakf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed Under Section 4 of the Wakf Act has been followed in issuing the same.{Para 35}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7467-7470 of 2014

Salem Muslim Burial Ground Protection Committee  Vs.  State of Tamil Nadu and Ors.

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Decided On: 18.05.2023.

Citation: MANU/SC/0597/2023.

Read full Judgment here: Click here

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Can the court presume that decisions taken by persons occupying high posts are valid?

 Another submission of Mr. Balasubramanian is that the Selection Board consists of senior officers of the Army and deference has to be shown to the discretion exercised by them in the matter of promotion. We disagree. Lord Acton said: - "I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases[1*].

[1* Letter to Mandell (later, Bishop) Creighton, April 5, 1887 Historical Essays and Studies, 1907.] {Para 19}

20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any diference.

SUPREME COURT OF INDIA

Civil Appeal No.5751 of 2017.

 BRIG. NALIN KUMAR BHATIA vs. UNION OF

INDIA

Before :- L. Nageswara Rao and Hemant Gupta, JJ.

 Date : 11 Feb, 2020

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Whether presumption under S 29 of the Pocso Act is applicable if prosecution has failed to prove foundational facts?

 The learned Additional Public Prosecutor Shri S.S. Doifode would strenuously contend that the statutory presumption under Section 29 of the POCSO Act is absolute. The date of birth of the victim 12-10-2001 is duly proved, and is indeed not challenged by the accused, and the victim, therefore, was a child within the meaning of Section 2(d) of the POCSO Act, is the submission. The submission that the statutory presumption under Section 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act  would render the said provision vulnerable to the vice of unconstitutionality. The statutory presumption would stand activated only if the prosecution proves the foundational facts, and then, even if the statutory presumption is activated, the burden on the accused is not to rebut the presumption beyond reasonable doubt. Suffice it if the accused is in a position to create a serious doubt about the veracity of the prosecution case or the accused brings on record material to render the prosecution version highly improbable.

6. The statutory presumption under Section 29 of the POCSO Act must be understood and tested on the anvil of the golden thread which runs through web of the criminal jurisprudence system in this country that an accused is presumed to be innocent till the guilt is conclusively established beyond reasonable doubt. In the factual matrix, at best, the prosecution has succeeded in bringing on record material giving rise to some suspicion. However, it is trite law that suspicion is not a substitute to proof. The gulf between "might have committed" and "must have committed" must be bridged by the prosecution by unimpeachable and confidence inspiring evidence. The fact that Hindi test books were found on the bench of the victim who was answering the Hindi paper, that the Investigating Officer did not  make any enquiry with the victim and that the Investigating Officer did not make any effort to record the statement of the seventeen students who were present in the examination hall when the incident allegedly happened, cumulatively creates a doubt, and the doubt is not a speculative or fanciful doubt, about the veracity of the version of the victim. The benefit of this nagging doubt must necessarily go to the accused.

Bombay High Court

Amol  Dudhram Barsagade Vs State Of Maharashtra on 23 April, 2018

Bench: R. B. Deo

CRIMINAL APPEAL NO.600 OF 2017

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Whether parties claiming based on doubtful will should approach civil court before approaching revenue court for mutation entry?

 It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of

Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when

the mutation entry is sought to be made on the basis of the will, the partywho is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made. {Para 5}

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No. 13146/2021

JITENDRA SINGH  Vs THE STATE OF MADHYA PRADESH 

Dated: SEPTEMBER 06, 2021

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Whether the contents of the adoption deed can rebut the presumption of the registered adoption deed?

  Now, we shall examine the nature of presumption

that arises under section 16 of the 1956 Act. In Jai Singh v.

Shakuntala, (2002) 3 SCC 634, the Apex Court had held that

the presumption that arises out of section 16 of the 1956 Act is

rebuttable and the inclusion of the words “unless and until it is

disproved” appearing at the end of the statutory provision has

made the situation not that rigid but flexible enough to depend

upon the evidence on record in support of adoption. The

relevant portion of that judgment, as found in paragraph No.2

thereof, is extracted below:

“2. The section thus envisages a statutory presumption

that in the event of there being a registered document

pertaining to adoption there would be a presumption that

adoption has been made in accordance with law. Mandate

of the statute is rather definite since the legislature has

used “shall” instead of any other word of lesser

significance. Incidentally, however, the inclusion of the

words “unless and until it is disproved” appearing at the

end of the statutory provision has made the situation not

that rigid but flexible enough to depend upon the evidence

available on record in support of adoption. It is a matter of

grave significance by reason of the factum of adoption and

displacement of the person adopted from the natural

succession — thus onus of proof is rather heavy. Statute

has allowed some amount of flexibility, lest it turns out to

be solely dependent on a registered adoption deed. The

reason for inclusion of the words “unless and until it is

disproved” shall have to be ascertained in its proper

perspective and as such the presumption cannot but be

said to be a rebuttable presumption. Statutory intent thus

stands out to be rather expressive depicting therein that

the presumption cannot be an irrebuttable presumption by

reason of the inclusion of the words just noticed above.”

{Para 13}

14. Even in the decision in Laxmibai’s case (supra),

relied by the learned counsel for the appellant, the Apex Court

held that a very heavy burden is placed upon the propounder to

prove adoption but once a registered document recording the

adoption is brought before the court the onus shifts. The court

however clarified that this aspect must be considered taking

note of various attending circumstances. The relevant portion of

that judgment i.e.paragraph 33, is extracted below:

“33. The appellate court could therefore, not have drawn

any adverse inference against the appellant-plaintiffs on

the basis of a mere technicality, to the effect that the

natural parents of the adoptive child had acted as

witnesses, and not as executors of the document.

Undoubtedly, adoption disturbs the natural line of

succession, owing to which, a very heavy burden is placed

upon the propounder to prove the adoption. However, this

onus shifts to the person who challenges the adoption,

once a registered document recording the adoption is

brought before the court. This aspect must be considered

taking note of various other attending circumstances i.e.

evidence regarding the religious ceremony (giving and

taking of the child), as the same is a sine qua non for valid

adoption.”

(Emphasis supplied)

15. The legal principle deducible from the decisions

noticed above is that once a registered deed of adoption is

produced though there arises a presumption that the adoption

has been made in compliance with the provisions of the 1956

Act but that presumption is rebuttable. Whether that

presumption has been rebutted depends on the facts of each

case borne out from the evidence on record.

16. In the instant case, the adoption deed on which

reliance has been placed by the appellant declares Rajendra

Singh as unmarried whereas, it is established on the record, he

was married and had a wife living on the date of adoption.

Therefore once it was proved that Rajendra Singh had a living

wife, the presumption, if any, arising from that deed with regard

to the adoption being in accordance with the provisions of the

1956 Act stood demolished because how could it be presumed

that the wife had given her consent for her husband to take a

son in adoption when even the existence of that wife is not

acknowledged. In fact in the adoption deed Rajendra Singh has

been described as unmarried. Thus, when clinching evidence

had come on board that the person who allegedly took the

appellant in adoption had a living wife, whose existence was

denied in the deed, the presumption, whatever available, stood

rebutted.

ALLAHABAD HIGH COURT

Case :- SPECIAL APPEAL No. - 22 of 2021

Appellant :- Bhanu Pratap Singh

Respondent :- State Of U.P. And 3 Others

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Supreme court: Registered Document Is Presumed To Be Genuine; Onus To Prove Otherwise Is On Person Who Challenges It

 To appreciate the findings arrived at by the Courts below,

we must first see on whom the onus of proof lies. The record

reveals that the disputed documents are registered. We are,

therefore, guided by the settled legal principle that a document is

presumed to be genuine if the same is registered, as held by this

Court in Prem Singh and Ors. v. Birbal and Ors.8. The relevant

portion of the said decision reads as below:

“27. There is a presumption that a registered

document is validly executed. A registered document,

therefore, prima facie would be valid in law. The onus of

proof, thus, would be on a person who leads evidence to

rebut the presumption. In the instant case, Respondent

1 has not been able to rebut the said presumption.”

(emphasis supplied)

In view thereof, in the present cases, the initial onus was on the

plaintiff, who had challenged the stated registered document.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3681-3682 OF 2020

Rattan Singh Vs  Nirmal Gill 

Author: A.M. Khanwilkar, J.

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Kerala HC: The modern concept of access and non-access for drawing presumption of legitimacy of the child as per S 112 of Evidence Act

When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Sec. 112. All we intend to note now is that even in a case where the presumption under Sec. 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct, indirect, circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.

45. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Sec. 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period/date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. 

46. That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Sec. 112 of the Evidence Act. "Access" in Sec. 112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Sec. 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.

The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum. 

50. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All ELR 356] cited by Sri C.S. Dias, the learned Amicus Curiae. We extract the same below:

When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.

51. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression 'access' in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.

It is hence that we think that a realistic understanding of the expression 'access' would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility/opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse.If such access is contra indicated conclusively by the D.N.A test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

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Whether court can draw presumption that cheque was issued legally enforceable debt or liability if accused admits his signature on cheque?

Coming back to the facts in the present case and considering the fact that the Accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the Accused some amount was due and payable, there is a presumption Under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. of course such presumption is rebuttable in nature. However, to rebut the presumption the Accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the Accused. The story put forward by the Accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. It appears that both, the Learned Trial Court as well as the High Court, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption Under Section 139 of N.I. Act. As observed above, Section 139 of the Act is an example of reverse onus Clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 271 and 272 of 2020

Decided On: 14.02.2020

APS Forex Services Pvt. Ltd. Vs.  Shakti International Fashion Linkers and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and M.R. Shah, JJ.

Citation: MANU/SC/0179/2020

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Whether it is necessary to prove that there was joint family for seeking partition of joint family property?

Re: Burden of Proof:

26. Initial burden of proving that himself and defendants constituted the joint family was on the plaintiff. Mere admission that he was the son of defendant no. 1 does not lead to the presumption that himself and defendants constituted the joint family and were the members of the joint family.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.S.A. Nos. 1813/2015 and 2188/2016 (DEC-PAR-INJ)

Decided On: 04.04.2019

 M. Krishna Vs.  M. Ramachandra and Ors.

Hon'ble Judges/Coram:

K.S. Mudagal, J.

Citation: AIR 2019 Karnat 188

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Chhatis HC: Presumption U/S 90 of evidence Act can be raised in respect of executed documents only

It would thus be seen that the plaintiffs' case rests only on the certified

copy of the sale deed which do not contain the signature or thumb

impression of any of the parties or their witnesses. Even the copy of two

sale deeds, said to be available in the records, is not stated to contain

signature or thumb impression of the parties to the transaction or the

witnesses. The parties to the transaction were not available to be examined

as they are dead. No witness has been examined. There is no other

material on record to prove execution of sale deed. There is no evidence on

record to prove that there was an intention to sell the property for

consideration either paid or promised to be paid or part paid and partly

promised to be paid. Sale deed was executed in favour of Ishrat Khan by

respective vendors named in so called sale deed dated 11.11.1932 and

19.3.1934. Thus, the plaintiffs completely failed to prove execution of sale

deed so as to transfer a valid title in favour of Late Ishrat Khan.

14.Much reliance has been placed by learned counsel for the

appellants/plaintiff on the oral evidence of Abdul Shakil (PW3) that it has

been deposed by him that as per the then prevalent practice, copy of only

those documents were retained in the office which were executed,

therefore, a presumption will have to be drawn that sale deed was

executed. We are unable to accept this submission. In the absence of there

being proof of actual execution of the document of sale, particularly when

the plaintiffs were not allowed to lead secondary evidence, the evidence of

Abdul Shakil (PW3) would not, by itself, carry such a great probative value

as to hold that a transaction of sale had taken place in which consideration

passed, transaction of sale was completed, possession transferred in favour

of late Ishrat Khan.

15.Reliance placed in the case of Kaliya (supra) is of no help because that

deals with a situation where the party has been permitted to lead

secondary evidence by allowing his application under Section 65 of the

Evidence Act. In the present case, the application was dismissed as not

pressed.

16.Section 90 of the Evidence Act would also not come to the aid of the

plaintiffs, because it does not create presumption in respect of an ordinary

copy of a document. It is only when the document is executed then only

the presumption, in particular circumstances, would be available to be

made regarding genuineness of the document in so far as execution and

attestation thereof is concerned.

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal No. 22 of 2008

 Smt. Kadir Bee, W/o Late Ishrat Khan, Vs  Smt. Mumtaj Begum, W/o Latif Miyan Musalman, 

Division Bench : Hon'ble Mr. Justice Manindra Mohan Shrivastava

Hon'ble Mrs. Justice Rajani Dubey

Dated: 20/06/2018

Per Manindra Mohan Shrivastava, J.

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Whether court can raise presumption that notice was duly served even if defendant denies his signature on acknowledgment?

Validity of notice cannot be raised in view of provisions of Section 106 of the T.P. Act since the suit in the present case was filed after expiry of fifteen days period of giving notice. Though the appellant-defendant has denied receipt of any such notice but AD Receipt Ex. 4 was produced on record bearing signature of Mukesh Kumar, the proprietor of appellant firm. Mere objection on behalf of defendant that the signature on AD Receipt were not of Mukesh Kumar is of no avail and the learned trial Court, in absence of any application for examining the signature on AD Receipt from FSL, rightly found the notice under Section 106 of the T.P. Act duly served and, thus, there is no force in the submissions of the learned counsel for the appellant defendant with respect to the validity of notice under Section 106 of the T.P. Act and the eviction decree has rightly been passed by the learned trial Court against the defendant-appellant.

12. A close scrutiny of above-quoted sub-section (4) of Section 106 of the T.P. Act makes it abundantly clear that law envisages notice under sub-section (1) in writing, signed by or on behalf of the person giving it, and either it be sent by post to the party, who is intended to be bound by it, or to be tendered or delivered personally to such party. The oral and documentary evidence, which was available on record in the matter, is clear and unequivocal showing written notice sent by respondent-plaintiff to appellant-defendant. The respondent-plaintiff has also produced acknowledgment receipt Ex. 4 bearing signature of Mukesh Kumar. During cross-examination, proprietor of the appellant firm, Mukesh Kumar, has very candidly admitted correct address of the addressee, but for denying his signature. Bare denial of the signature, without substantiating the same by cogent evidence, is not sufficient to dislodge presumption about service of notice. Therefore, both the Courts below have rightly invoked Section 27 of the General Clauses Act, 1897, which envisages that unless the contrary is proved, service shall be deemed to have been effected by properly addressing, prepaying and posting by registered post, a letter containing the notice.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Second Appeal No. 186 of 2018

Decided On: 06.10.2018

 Mishra Electronics  Vs.  Jagdish Kumar Jat

Hon'ble Judges/Coram:

Pratap Krishna Lohra, J.

Citation: 2019(1) RCR(Rent) 7

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Whether there is presumption that business standing in name of any member of joint family is joint family business?

THERE IS NO PRESUMPTION THAT A BUSINESS STANDING IN THE NAME OF ANY MEMBER OF THE JOINT FAMILY IS A JOINT FAMILY BUSINESS.

46. It is also settled law that there is no presumption that a business standing in the name of any member of the joint family is a joint family business. The Supreme Court in P.S. Sairam & Am. Vs. P.S. Rama Rao Pissey & Ors. MANU/SC/0085/2004 : (2004) 11 SCC 320 has held as under:-

"7. Crucial question in the present appeal is as to whether business which was conducted by defendant No. 1 was his separate business or it belonged to joint family, consisting of himself and his sons. It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business. Reference in this connection may be made to a decision of this Court in the case of G. Narayana Raju v. G. Chamaraju: MANU/SC/0113/1968 : AIR 1968 SC 1276 wherein in a suit for partition defence was taken that business of Ambika Stores was separate business of defendant as the business did not grow out of joint family funds or at least by efforts of members of joint family which was accepted by the trial court as well as the High Court. When the matter was brought to this Court in appeal, upholding the judgment of the High Court, the Court observed thus at page 466:- (AIR p. 1278, para 3)

"It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate."

(emphasis supplied)

IN THE HIGH COURT OF DELHI

CS (OS) 2223/2013, 

Decided On: 04.02.2019

Aarshiya Gulati  Vs.  Kuldeep Singh Gulati and Ors.

Hon'ble Judges/Coram:

Manmohan, J.

Citation: AIR 2019(NOC) 577 Del
Read full judgment here: Click here

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