The elementary Rule under Section 101 of the Evidence Act, is inflexible. Ordinarily, the burden to prove the fact rests on the party who substantially asserts affirmative of the issue and not on the party who denies it. In terms of Section 102 of the Act, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the relief. In the case of Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 (para-19), Hon’ble Supreme Court held that a distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others.
In the case of Rangmmal v. Kuppuswami and another, (2011) 12 SCC 220 (para-21), Hon’ble Supreme Court held that Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. In paragraph 29 of the judgment, Supreme Court further held that the party who alleged the sale deed to be not genuine, sham or bogus, had to prove nothing until the party relying upon the document, establishes its genuineness. In the present set of facts, the plaintiff respondent No.1 has neither proved the alleged two bank drafts nor its encashment by the defendant appellant and thus failed to discharge the burden to prove.
Apart from this, the evidences led by the plaintiff respondent No.1 and the defendant-appellant clearly shows that the plaintiff respondent No.1 has completely failed to establish that the alleged two bank drafts in question were got prepared by him and were given by him to the defendant-appellant towards cost of 1620 MT coal. In the case of Bala Shankar Mama Shankar Bhattji v. Charity Commissioner, Gujrat State, 1995 Suppl. (1) SCC 485 (para-19), Hon’ble Supreme Court held that burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. Either of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only when the party on which it is placed, would eventually lose if he failed to discharge the same. Where, however, parties joined the issue and led evidence then such evidence can be weighed in order to determine the issue and in that situation, the question of burden becomes academic.
In Subhra Mukherjee v. Bharat Coling Coal Ltd., (2000) 3 SCC 312, Hon’ble Supreme Court held that the party that makes allegation, must prove it but where the question before the court was “whether the transaction in question was a bona fide and genuine one” the party relying upon the transaction has to prove its genuineness first and only thereafter would the defendant be required to dislodge such proof and prove that the transaction was sham and fictitious.
In the case of Deena v. Union of India, 1983 (4) SCC 645, Hon’ble Supreme Court held that the question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case. But then, the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies.
The plaintiff-respondent No. 1 completely failed to lay any evidence to establish that he made payment to the defendant-appellant through the alleged two bank drafts. In the case of State of J. & K. v. Hindustan Forest Company, (2006) 12 SCC 198, Hon’ble Supreme Court held that the onus is on the plaintiff to establish positively its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus. In the case of Corporation of City of Bengalore v. Zulekha Bi, (2008) 11 SCC 306, it was held that it is for the plaintiff to prove his title to the property.
