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EVIDENCE
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QUESTION BANK.
Q.1. What are the special rules of evidence applicable to negotiable instrument? Nov. 05, Apr. 05.
Q.2. Enumerate the presumptions under the Negotiable instrument Act, as to negotiable instruments. .
Q.3. What are the presumptions operating in favour of Holder in due course?
Q.4. What are the estoppels created by the Negotiable instrument Act?
SHORT NOTES.
- Presumption as to consideration.
- Presumption as to holder in due course.
SYNOPSIS
- EVIDENCE:-
- SPECIAL RULES OF EVIDENCE:-
A] PRESUMPTION REGARDING NEGOTIATION (S.118, 119):-
1) Presumption as to consideration:-
2) Presumption as to date:-
3) Presumption as to time of acceptance:-
4) Presumption as to time of transfer:-
5) Presumption as to time order of indorsement:-
6) Presumption as to stamp:-
7) Presumption as to holder:-
8) Presumption on proof of protest (S. 119):-
- B) ESTOPPEL (SS. 120 TO 122):-
1) Estoppel against denying original validity of instrument (S. 120):-
2) Estoppel against denying capacity of payee to indorse (S. 121):-
3) Estoppel against denying signature or capacity of prior party (S. 122):-
I. EVIDENCE:-
Evidence means ‘proof by which any disputed fact is either proved or disproved’. In other words, ‘evidence means anything that makes the thing in question evident to the court’. Thus, the evidence is the material placed before the court, on the basis of which the court comes to a conclusion as to the existence or non-existence of a disputed fact.
II. SPECIAL RULES OF EVIDENCE:-
Special rules of evidence contain certain presumptions and estoppel regarding:-
A] PRESUMPTION REGARDING NEGOTIATION[1] (S. 118, S.119):-
The presumptions in this topic are the presumptions of law. The court is bound to raise these presumptions in favour of one and against the other party. The party on whose favour presumption is drawn is discharged from proving that fact, and it is on the opposite party to rebut (disprove) that presumption by adducing (bringing) evidence. S. 118 raises the following presumptions:-
1) Presumption as to consideration:-
Under the general law of contract, the law does not presume consideration, i.e. it is up to the Plaintiff to prove that there was consideration to the presumption. However, under the Negotiable Instrument Act 1881, ‘presumption as to contract’ is an exception to the above general rule. Under the Negotiable Instrument Act, there is a ‘presumption as to contract’; therefore, Plaintiff need not prove the fact as to consideration. It is presumed that every negotiable instrument is made or drawn for consideration. When it is found that the negotiable instrument was issued, it is presumed that it was issued for consideration. However, this presumption is rebuttable, i.e., the defendant can disprove the presumption by adducing evidence that there was no consideration.[2].
2) Presumption as to date:-
The date which appears on the face of the instrument is presumed to be the date of making it. The burden of proof (onus of proof) lies on the party pleading otherwise.
3) Presumption as to the time of acceptance:-
When a Bill of Exchange is accepted, it is presumed to be accepted within a reasonable time (after its date and maturity).
4) Presumption as to the time of transfer:-
Every transfer of a negotiable instrument is presumed to have been made before its maturity.
5) Presumption as to time/ order of indorsement:-
Another presumption is that the endorsements appearing on a negotiable instrument were made in the same order as they appear thereon.
6) Presumption as to stamp:-
Where an instrument is lost, the presumption is that it was duly stamped.
7) Presumption as to holder:-
Every holder is presumed to be a holder in due course.
8) Presumption on proof of protest (S. 119):-
In a suit upon a dishonoured instrument, the court shall, on proof of the protest, presume that fact of dishonour unless and until such fact is disproved.
B) ESTOPPEL (S. 120 TO 122):-
Ss. 120 to 122 deals with estoppels against the parties, viz:-
1) Estoppel against denying original validity of the instrument (S. 120):-
When the holder, in due course, has filed a suit on the basis of a negotiable instrument, the party liable to pay it is not permitted to deny the original validity of the instrument. The maker of the Promissory Note, the drawer of the cheque, and the drawer and acceptor of the bill are the parties liable for the instrument.
2) Estoppel against denying capacity of the payee to indorse (S. 121):-
The maker of a note or an acceptor of a bill is not permitted to deny the payee’s capacity to endorse against a holder in due course. This estoppel arises when an instrument is payable to a certain person or his order.
3) Estoppel against denying signature or capacity of the prior party (S. 122):-
An indorser of an instrument is not permitted, as against the subsequent holders, to say that the signature of any prior indorser was not genuine or that he could not contract.
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[1] हस्तांतरण संबंधी गृहिते. [हस्तांतरण के संबंध में अनुमान]
[2] In Smt. Sheel Arora, v. Sanjay Faetah Bahadur Srivastava.[AIR 2004 Bom. 99.]
Held:- Plaintiff has to prove pro-note accordance with law. This presumption of consideration can not be drawn unless Plaintiff proves it.