Report No. 185

Illustrations

(a) A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally of good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself. The evidence of B shall have to be considered by the Court, while deciding on the negligence of A.

(b) A crime is committed by several persons. A, B and C, three of the criminals are captured on the spot and kept apart from each othe.- each gives an account of the crime implicating D, and the accounts corroborate each in such a manner as to render the previous concert highly improbable. The variance in the different accounts of facts given by A, B, C as to the part of D shall be taken into account by the Court while deciding if D was an accomplice."

We recommend accordingly so far Illustration (b) in Section 114 and Section 133 are concerned.

Illustration (c.- The Court may presume that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration. This has to read with the latter part of Section 114 in relation to Illustration (c). It says: The Court shall have regard to the fact that "A, the drawer of a bill of exchange, was a man of business. B, the acceptor was a young and ignorant person, completely under A's influence".

In Sri Lanka this illustration (c) has been omitted and the remaining paragraphs have been designated as (c) to (h) respectively.

Similarly, in the latter part of Section 114, the para relating to Illustration (c) has been omitted and the other latter paras are redesignated as (c) to (h) respectively.

Now, while Section 114 ill.(c) says that a Court 'may' presume that a bIllustration of exchange, accepted or endorsed, was accepted or endorsed for good consideration and gives discretion to the court to draw the presumption or not, Section 118 of the Negotiable Instruments Act requires that the court 'shall' draw a presumption that every bill of exchange and promissory note has been executed for consideration. The presumption, once raised under both provisions, is rebuttable Kundan v. Custodian of Evacuee Property AIR 1961 SC 1316).

No doubt, in Section 118 of the Negotiable Instruments Act, the presumption is against the maker. In ill.(c) of the Evidence Act, the presumption is against the acceptor, as stated by Sri Vepa P. Sarathi. But stIllustration the word 'may' is in the ill.(c), while Section 118 uses the word 'shall'. Both provisions are complementary to each other and cannot be treated as totally independent.

In view of the apparent difference between Illustration (c) and Section 118 of the Negotiable Instruments Act, it was recommended in para 56.26 of 69th Report that Illustration (c) and the latter part of Section 114 which refers to Illustration (c) and gives an example, have to be deleted. We agree.

Illustration (d): It says that the Court may presume that (d) a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence.

In the latter part of Section 114, in so far as cl. (d) is concerned, it is stated that the Court has to bear in min.- if it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course.

It is pointed out by Taylor (Evidence Section 190) that where the existence of person, or a personal relation, or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before till the contrary is shown, or till a different presumption is raised from the nature of the subject in question.

Wigmore points out (Section 437)(as quoted in Sarkar, 15th Ed., 1999 page 1658) "that Mt. Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence today will vary according to the nature of the conditions of life in the region."

The presumption under this Section has been applied to 'possession'. Once prior presumption is proved with a person, he is presumed to continue in possession, unless disproved.

In fact, in A.P. Thakur v. Kamal Singh AIR 1966 SC 605, the Supreme Court held that in appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this Section though on this point there is no illustration.

In Anangamanian v. Tripura Sundari (14 I.A. 101) the Privy Council observed that the presumption of continuance may operate retrospectively also.

For example, if existence of Mt. Everest is proved ten years ago, it can be presumed that it existed earlier. If an aged Banyan tree is there now, its prior existence can be presumed.

Though the 69th Report did not go into this aspect, we are making a recommendation for adding an illustration as 'da' as follows:

"(da) that a thing or state of things which has been shown to be in existence at a point of time, was in existence earlier within a period shorter than within which such things or state of things usually cease to exist"; and in the latter part of Section 114, the following may be added

"As to Illustration (da) : It is proved that a river is running in a certain course this year, but it is known that there have been floods for several years earlier, which might have changed its course." ;

Illustration (e): The court may presume under ill.(e) that judicial and official acts have been regularly performed. It may be noted that this refers to judicial as also official acts.

In the latter part of Section 114, it is stated, in connection with "illustration (e) as follows:

"as to illustration (e.- a judicial act, the regularity of which is in question, was performed under exceptional circumstances."

We have noted that Section 80 deals with 'presumption as to documents produced as record of evidence.' It refers to a presumption of genuineness.

The ordinary rule is "omnia praesumuntur rite at solenniter esse acta donec probetur in contrarium" meaning "everything is presumed to be rightly and duly performed until the contrary is shown. (Brooms Legal Maxims).

In State of Haryana v. Hari Ram Yadav, AIR 1994 SC 1262 it was pointed out that in cases where the exercise of statutory power is subject to the fulfillment of a condition, then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfillment of the condition, and the burden is on person who states that the condition is not fulfilled to prove the same.

Again, the absence of a recital as to formation of an opinion in an executive order does not lead to the inference that no such opinion was formed before the order was passed. It is open to the person who claims that such opinion was in fact formed, to produce the record or minutes recorded before the order was passed, to prove that such an opinion was formed before the order was passed. (Swadeshi Cotton MIllustration Co. Ltd. v. State of UP: AIR 1961 SC 1381.

There are a large number of decisions of the Supreme Court where presumption of regularity was raised in respect of forensic or medical or other technical reports.

Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the disputed arena. Judgments cannot be treated as mere counters in the game of litigation. The statement of Judges cannot be allowed to be contradicted by statements at the Bar, or by other evidence, placed in the appellate Court. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word in the subject. (State of Maharashtra v. Ramdas Shrinivas Naik AIR 1982 SC 1251).

In fact, in several cases, when a counsel contends in an appellate Court that a point argued was not dealt with or when it is contended that a concession by counsel recorded in the judgment was never made, the appellate Court does not call for a report from the lower court but will ask the parties to move the same Court which recorded such a statement, for review.

The presumption under Illustration (e) is 'optional' and is no doubt rebuttable.

In the 69th Report, para 56.29, it was said that no comments are necessary so far as Illustration (e) was concerned.

But, we recommend that in the latter part of Section 114, referable to Illustration (e), the words 'or official act' have to be added, after the word 'judicial'.

Illustration (f.- The Court may presume (f) that the common course of business has been followed in particular cases.

In the latter part of Section 114, it is stated that the Court may keep in min.-

"as to illustration (f.- the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances."

While the main illustration is general and refers to 'common course of business', the latter part of Section 114 refers to a specific situation of a letter. Sections 16 and 32(2) of the Evidence Act also refer to 'course of business'.

See also Section 27 of the General Clauses Act, 1897.

The presumption under this illustration is not mandatory and further, when raised, it is rebuttable. In fact, a certificate of posting a letter is not treated as falling within the scope of this Section. The Supreme Court said such a certificate is easy to produce and does not inspire confidence. (Gadhak Y.K. v. Balasaheb: AIR 1994 SC 678). See also Mst. LMS. Ummu Saleema v. B.B. Gujaral: AIR 1981 SC 1191. On the other hand, registered postal receipt along with a copy of the letter containing the court notice and bearing correct address raises a presumption that it was duly received by the addressee, in spite of the absence of a return of acknowledgment. (Anil Kumar v. Nanak Chandra: AIR 1990 SC 1215).

But if the evidence of the addressee that it was not delivered is believable and is believed, the presumption stands rebutted. (Radha-Kishan v. State: AIR 1963 SC 822). See also Green Radio Service v. Laxmibai Ramji: AIR 1990 SC 2156. No presumption can be drawn that the sealed envelop was 256 opened and the addressee read it. Such things do not happen when the addressee is determined to decline to accept the sealed envelop. (Harchand Singh v. Shiv Ram: AIR 1981 SC 1284).

When the notices sent to a party are received back unserved because of refusal of the addressee, they must be presumed to have been served. Jagdish Singh v. Nathu Singh: AIR 1992 SC 1604. A denial of service may be found to be incorrect from a party's own admission or conduct: Puwada v. Chidamana AIR 1976 SC 869.

Section 27 of the General Clauses Act, 1897 also raises a presumption but that presumption and the one under Section 114(f) are different. (Gangaram v. Phulwati: AIR 1970 All 446 (F.B.)).

Section 27 of the General Clauses Act, 1897 reads as follows:

"Section 27: Meaning of service by post: Where any Central Act or Registration made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'service' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting by registered post, a letter containing the 257 document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

But, if endorsement shows service 'refused', the Court has to examine whether it was really refused or such an entry was got up UOI v. Ramgopal AIR 1960 All SC 672. But see Harcharan's case AIR 1981 SC 1284 where both Section 27 and Section 114 were referred to, refusal was treated as service. See also Jagdish Singh v. Natthu Singh AIR 1992 SC 1604.

It will be noticed that while Illustration (f) of Section 114 refers to mere posting of a letter, i.e. by ordinary post, Section 27 of the General Clauses Act deals with a letter sent by registered post with proper address, prepaid. The Sections deal with different methods of communication by post. On the question whether an endorsement of refusal, in the case of a letter sent by registered post, amounts to service or not, there appears to be some need for clarification.

The appropriate statute where the clarification can be given is the General Clauses Act, 1897 because that question arises only in the case of registered letters. We, therefore, do not propose to make any amendment in illustration (f) in as much as the said illustration does not directly deal with registered letters. The 69th Report did not refer to this aspect (see para 56.29) but it did not also recommend any change. We agree.

Illustration (g): It states that the Court may presume (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

The latter part of Section 114 in so far as it relates to Illustration (g) states that the Court may also take into consideration other situations. It says that 'as to illustration (g), "a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family".

The main Illustration (g) deals with all types of evidences, oral or documentary. The explanation in the second half of Section 114 refers to a case of documentary evidence.

This rule is contained in the maxim: omnia praesumuntur centra solenniter. Adverse inference can be drawn only when there is withholding of evidence.

If a party considers a document irrelevant, he need not produce it. If the opposite party is dissatisfied he may apply by affidavit seeking its production for inspection (Bilas v. Desraj: A 1915 PC 96).

But in Murugesam v. Gnana AIR 1917 PC 6, the Privy Council made strong observations stating:

"a practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third party, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those deserving to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."

The principle was applied by K. Subba Rao J in Kundan v. Custodian of Evacuee Property: AIR 1961 SC 1316 by holding that the presumption under Section 118 of the Negotiable Instrument Act that every negotiable instrument is executed for consideration could be rebutted by the defendant by asking the Court to draw an adverse inference if the plaintiff who is a businessman maintaining accounts is withholding the said accounts from Court. The Court could draw an adverse inference that the accounts of the plaintiff, if produced, would not show that the plaintiff had advanced any monies to the defendant and hence it should be presumed that the negotiable instrument was not supported by consideration.

There are a number of other cases where the principle is applied.

As to non-production of documents after notice, we have already examined Section 65, 66. As to presumption of due execution, attestation of documents, we have already seen that in Section 89. Section 164 further provides that when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or order of the Court.

So far as criminal cases are concerned, there is no duty cast on the accused to call any evidence and no adverse inference can be drawn as to his guilt if he chooses not to offer evidence. Non examination of the Investigating Officer does not per se vitiate the trial in a criminal case (Bihari Prasad v. State: AIR 1996 SC 2905).

In S.Gopal Reddy v. State of AP: AIR 1996 SC 2184, where the allegation of the complainant was that the accused cancelled the marriage for non-fulfilment of dowry demand and it was based on a letter allegedly written by the accused, failure to produce the letter invites adverse inference to be drawn.

The presumption under Illustration (g) is discretionary and so in the event of non-examination of a witness by the prosecution, the Court is not bound to infer that if examined, he would have given a contrary version, unless there are other circumstances (Harpal Singh v. Devinder Singh: AIR 1997 SC 2919.

See also Sarwal v. State: AIR 1974 SC 778. But where evidence of interested eye witness suffered from various infirmities, non examination of independent witnesses could lead to adverse inference. (Bir Singh v. State: AIR 1978 SC 59). Where independent eye witness are kept back deliberately, adverse inference can be drawn: Karnesh v. State AIR 1968 SC 1402; Dalbir v. State: AIR 1977 SC 472.

But where the eye witness not examined belong to the faction opposed to the victims, their nonexamination is not material Ram Avatar Rai v. State of UP: AIR 1985 SC 880. Where the defence never questioned the prosecution statement that a witness was won over by the accused, no adverse inference can be drawn on account of non-examination of the witness (Gurmej Singh v. State of Punjab: AIR 1992 SC 214.

We have referred to the case law only to show that there are always a variety of situations, based on human conduct, as to why adverse inference could be drawn or not drawn.

We agree with para 56.30 of the 69th Report that no amendment of ill.(g) is necessary.

Illustration (h): Illustration (h) in Section 114 states that a Court may presume (h) "that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him."

The latter part of Section 114, relevant to Illustration (h) requires the Court to consider:-

"as to ill (h):- a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked."

As to questions which one is not compelled to answer see Sections 121 to 129. See also Section 148(4) of the Evidence Act which says (while dealing with questions which have to be answered (see Sections 132 and 147) with regard to such witnesses that:

"the Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable."

We agree with para 56.30 of the 69th Report that this illus. does not require any amendment.

Illustration (i): This illustration states that the Court may presume (i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

The latter part of Section 114 in relation to Illustration (i) states that the Court may consider the facts:

"as to illustration (i),:- a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it."

Section 81 of the Negotiable Instruments Act states that when a bill of exchange is produced by the acceptor, the presumption, is that it has been paid. The presumption is that a debtor, who had executed (say) a promissory note,- if he (debtor) is in possession of the promissory note,- has discharged 264 the debt and taken away the promissory note from the possession of the creditor. But it is rebuttable presumption. He may have in a given case, stolen it from the lender.

Where the mortgagor produces a deed of mortgage with an endorsement of payment of money under the signature of the mortgagee who is the plaintiff, the onus is on the mortgagee-plaintiff to prove that the endorsement was got by dishonest means or was a forgery (Chaudhari Md v. Sri Mandir: 39 I.A. 184 (PC).

The ill.(i) is illustrated by the judgments of the Privy Council in Bhoy Hong Kong v. Ramanathan: 29 I.A. 43.

We agree with para 56.31 of the 69th Report that Illustration (i) does not need any change.

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