Presumptions:

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

S. ABDUL NAZEER; J., B.R. GAVAI; J., A.S. BOPANNA; J., V. RAMASUBRAMANIAN; J., 

B. V. NAGARATHNA; J.

CRIMINAL APPEAL NO. 1669 OF 2009; 15 December, 2022

NEERAJ DUTTA versus STATE (GOVT. OF N.C.T. OF DELHI)

Presumptions:

46. Courts are authorised to draw a particular inference from a particular fact, unless

and until the truth of such inference is disproved by other facts. The court can, under

Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well

settled that a presumption is not in itself evidence but only makes a prima facie case for a

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party for whose benefit it exists. As per English Law, there are three categories of

presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of

law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., “presumptions of mixed

law and fact” or “presumptions of fact recognised by law”. The expression “may presume”

and “shall presume” in Section 4 of the Evidence Act are also categories of presumptions.

Factual presumptions or discretionary presumptions come under the division of “may

presume” while legal presumptions or compulsory presumptions come under the division

of “shall presume”. “May presume” leaves it to the discretion of the court to make the

presumption according to the circumstances of the case but “shall presume” leaves no

option with the court, and it is bound to presume the fact as proved until evidence is given

to disprove it, for instance, the genuineness of a document purporting to be the Gazette

of India. The expression “shall presume” is found in Sections 79, 80, 81, 83, 85, 89 and

105 of the Evidence Act.

47. Similarly in a trial under Section 138 of the Negotiable Instruments 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 vide Kumar Exports vs.

Sharma Carpets (2009) 2 SCC 513 (“Kumar Exports”). Further, the question as to

whether the presumption stood rebutted or not must, therefore, be determined keeping in

view the other evidence on record. [Krishna Janardhan Bhat vs. Dattatraya G Hegde

(2008) 4 SCC 54 (“Krishna Janardhan Bhat”)].

48. Section 20 of the Act deals with presumption where public servant accepts

gratification other than legal remuneration. It uses the expression “shall be presumed” in

sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals

with a legal presumption which is in the nature of a command that it has to be presumed

that the accused accepted the gratification as a motive or reward for doing or forbearing

to do any official act etc., if the condition envisaged in the former part of the Section is

satisfied. The only condition for drawing a legal presumption under Section 20 of the Act

is that during trial, it should be proved that the accused had accepted or agreed to

accept any gratification. The Section does not say that the said condition should be

satisfied through direct evidence. Its only requirement is that it must be proved that the

accused has accepted or agreed to accept gratification.

49. In State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 (“A. Vaidyanatha

Iyer”), it was observed that the presumption under Section 4(1) of the 1947 Act which is

similar to Section 20 of the Act under consideration would arise where illegal gratification

has been accepted, then the presumption introduces an exception to the general rule as

to the burden of proof in criminal cases and shifts the onus on to the accused. The

legislature has used the words “shall presume” and not “may presume” which means that

the presumption has to be raised as it is a presumption of law and therefore it is obligatory

on the court to raise this presumption. Further, the presumptions of law constitute a branch

of jurisprudence unlike a case of presumption of fact which is discretionary.

50. Distinguishing a presumption under Section 4(1) of the 1947 Act with a presumption

under Section 114 of the Evidence Act, it was observed in Dhanvantrai Balwantrai Desai

vs. State of Maharashtra AIR 1964 SC 575 (“Dhanvantrai Balwantrai Desai”) that a

presumption under Section 114 of the Evidence Act is discretionary in nature inasmuch

as it is open to the court to draw or not to draw a presumption as to the existence of one

fact from the proof of another fact. This is unlike a presumption under Section 4(1) of the

1947 Act or Section 20 of the Act where the court has to draw such presumption, if a

certain fact is proved, that is, where any illegal gratification has been received by an

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accused. In such a case the presumption that has to be drawn that the person received

that thing as a motive of reward. Therefore, the court has no choice in the matter, once it

is established that the accused has received a sum of money which was not due to him

as a legal remuneration. Of course, it is open to the accused to show that though that

money was not due to him as a legal remuneration it was legally due to him in some other

manner or that he had received it under a transaction or an arrangement which is lawful.

The burden resting on the accused in such a case would not be as light as it is where a

presumption is raised under Section 114 of the Evidence Act and cannot be held to be

discharged merely by reason of the fact that the explanation offered by the accused is

reasonable and probable. It must further be shown that the explanation is a true one. The

words “unless the contrary is proved” which occur in this provision make it clear that the

presumption has to be rebutted by “proof” and not by a bare explanation which is merely

plausible. A fact is said to be proved when its existence is directly established or when

upon the material brought before it, the Court finds its existence to be so probable that a

reasonable man would act on the supposition that it exists. Unless, therefore, the

explanation is supported by proof, the presumption created by the provision cannot be

said to be rebutted.

51. One of the modes through which a fact can be proved. But, that is not the only mode

envisaged under the Evidence Act. Proof of the fact depends upon the degree of

probability of it having existed. The standard required for reaching the supposition is that

of a prudent man acting in any important matter concerning him.

52. As opposed to the expressions “may presume” and “shall presume”, the expression

“conclusive proof” is also used in Section 4 of the Evidence Act. When the law says that

a particular kind of evidence would be conclusive, that fact can be proved either by that

evidence or by some other evidence that the court permits or requires. When evidence

which is made conclusive is adduced, the court has no option but to hold that the fact

exists. For instance, the statement in an order of the court is conclusive of what happened

before the presiding officer of the court. Thus, conclusive proof gives an artificial probative

effect by the law to certain facts. No evidence is allowed to be produced with a view to

combat that effect. When a statute makes certain facts final and conclusive, evidence to

disprove such facts is not to be allowed.