A. Indian Evidence Act, 1872 (1 of 1872), Section 5, 6, 7, 8, 9, 45 -- Succession matters -- DNA evidence – Relevancy of -- DNA evidence has assumed great significance and legal recognition -- Scientific investigations are the need of the hour and must be carried out -- DNA test is a scientific test and its accuracy is 99.99% and as such this must be used as evidence not only in sexual assault and violent crime cases, but also in civil cases involving question of paternity and consequent question of succession -- Section 5 to 9 of the Evidence Act relate to relevancy of facts and the outcome of DNA test can certainly be treated as relevant evidence according to these provisions – Outcome of DNA test in addition be governed by provisions relating to Expert Evidence.

(Para 12)

B. Indian Evidence Act, 1872 (1 of 1872), Section 45, 46, 51 – Expert evidence -- Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the theory or technique is generally accepted in the scientific community.

(Para 12)

C. Indian Evidence Act, 1872 (1 of 1872), Section 45 – Expert evidence -- Admissibility of DNA analysis as evidence -- There is no longer any question on the validity of the use of DNA analysis as evidence -- DNA evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the High Court Rules and Orders -- Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence -- Section 45 section does not pose any legal obstacle to the admissibility of DNA analysis as an evidence -- DNA analysis is admissible as evidence even on collateral matters when it tends in any reasonable degree to establish the probability or improbability of the fact in issue as per provisions of the Evidence Act.

(Para 13, 14)

D. Indian Evidence Act, 1872 (1 of 1872), Section 45 – Constitution of India, Article 20, 21 – Self incrimination -- Right to life – DNA test -- In paternity disputes, DNA test can be directed.

(Para 17)

E. Indian Evidence Act, 1872 (1 of 1872), Section 45, 112 – Code of Civil Procedure, 1908 (V of 1908), Section 75(e), Order 26 Rule 10-A -- Paternity dispute – DNA test -- During the subsistence of marriage between the parties u/s 112 of the Act, presumption is raised that child is from the subsisting relationship of marriage between the husband and wife -- In the old days, nothing could be done to prove parentage -- Today things have changed; paternity can be proved or disproved conclusively with DNA test -- When there is serious breach of trust and honesty with regard to birth of a child then the fundamental question of awareness arises -- It does not matter that some one is going to lose, certainly the DNA test for establishing the paternity is a necessity -- Since there is a fundamental question of fairness in decision, the scientific investigation is necessity which can be ordered by the Court, keeping in view the provisions of the Evidence Act as well as provisions of the Code of Civil Procedure specifically Section 75(e) and Order 26 Rule 10-A.

(Para 20,21)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 52A – NDPS case -- Delay in sending sample to FSL -- Alleged recovery was effected on 12.08.2007 -- Samples were sent on 27.08.2007 to the FSL -- No explanation as to why the samples were not sent within the stipulated period of 72 hours as prescribed in the standing instructions issued by the Narcotics Control Bureau -- Samples were directly sent to the FSL without obtaining orders from the Court as mandated by Section 52A of the Act -- Therefore, an adverse inference has to be drawn against the prosecution.

(Para 13)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS case – Non-Investigaiton of owner of vehicle – No independent witness – Material contradiction – Acquittal of accused -- Owner of the vehicle was neither involved at any stage of investigation, nor was summoned by the prosecution to verify as to how the vehicle in question came into the possession of the appellants -- Recovery was allegedly effected at canal bridge, which is admittedly a public place -- In spite of that, no independent witness was joined -- As per the FIR, the recovery was effected from the car being driven by appellant No.1, whereas appellant No.2 was sitting on the rear seat and one bag each was lying on the front as well as the rear seat – However, PW5, S.I. categorically stated before the Court that both the appellants were sitting on the front seats -- This is a material contradiction which goes to falsify the case of the prosecution -- Judgment of conviction and order of sentence set aside.

(Para14-18)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 145 – Code of Criminal Procedure, 1973 (2 of 1974), Section 200 -- Cheque bounce complaint – Cognizance by Magistrate – Evidence of complainant – Affidavit of complainant in evidence -- For the purpose of issuing process u/s 200 of the Cr. P.C., it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint u/s 138 of the NI Act, 1881 and the Magistrate is not obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witnesses upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.

-- It is only if and where the Magistrate, after considering the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness is required, that the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.

(Para 59)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 145 – Code of Criminal Procedure, 1973 (2 of 1974), Section 200 -- Cheque bounce complaint – Cognizance by Magistrate – Evidence of complainant -- Affidavit of complainant in evidence -- Nothing wrong with filing the affidavit in support of the complaint in a format indicating all the essential facts satisfying the ingredients of Section 138 of the NI Act, 1881 for the purpose of enabling the Magistrate to decide whether or not to issue process on the complaint u/s 138 of the NI Act, 1881.

(Para 59)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 143, 145 -- Affidavit of complainant in evidence – Absence of accused -- Section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused -- Accused, however, is fully protected, as under sub-section (2) of section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination.

(Para 16)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 143, 144, 145, 146, 147 – Object of Amendment Act, 2002 -- Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial.

(Para 17)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 143, 145, 147 -- Indian Evidence Act, 1872 (1 of 1872), Section 137 – Affidavit of complainant in evidence – Examination-in-chief – Requirement of -- Whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit ? – Nothing in section 145(2) to suggest that -- Deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit -- Prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit.

(Para 21, 22)

D. Negotiable Instruments Act, 1881 (26 of 1881). Section 143, 145(1) -- Affidavit of accused in evidence – Permissibility of -- High Court held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit – Held, High Court overreached itself and took a course that amounts to taking over the legislative functions.

-- On a bare reading of section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word ‘accused’ with the word ‘complainant’ in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission.

High Court was in error in taking the view, that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit.

(Para 30-32)

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)