chandru former judge mhc –Cheque-bouncing cases back to square one Mr.Patty, there is no hard and fast rule in the matter of burden of proof. On the other hand, depending on the statute, the burden can always be shifted. In many criminal laws (e.g. rape offence), the burden has also been shifted to the accused in certain circumstances.

[6/15, 17:17] Sekarreporter 1: chandru former judge mhc –Cheque-bouncing cases back to square one
Mr.Patty, there is no hard and fast rule in the matter of burden of proof. On the other hand, depending on the statute, the burden can always be shifted. In many criminal laws (e.g. rape offence), the burden has also been shifted to the accused in certain circumstances.
What is to be noted is the law relating to cheque bouncing cases has come through a full circle. Originally for a cheque-bounced case, only a civil suit will lie. Since it was getting delayed, Chapter 37 was introduced in CPC for a summary trial of cases relating to negotiable instruments. In that summary procedure, the defendant will have to seek “leave to sue” and then only his defence will be taken. But that became more cumbersome and parties were indulging in delay tactics.
Thereafter the law became criminal. Matters were shifted to criminal courts by the introduction Section 138 of the N.I.Act. This did not take into account the existing work load in criminal courts and completely derailed those courts from dealing with IPC offences.
Now once again they want to bring it back to the civil courts without any prison terms. This time they want to shift the burden to the defendant and also a compulsory mediation before conducting the trial.
The Parliament could not deal with the ingenuity of our people in dealing with negotiable instruments. Any how lawyers will not lose as the parties will have to come to court one way or other. May be the criminal lawyers who were having green pastures will lose and the income may flow to civil lawyers.
[6/15, 17:17] Sekarreporter 1: Putting in the laundry bag will not escape scrutiny

There are suggestions from some quarters that including all the reservation legislations into the Ninth Schedule of the Constitution (nicknamed as laundry bag) will disable the courts from invalidating those laws. However, contrary to that view, a Nine Judge Bench of the Supreme Court has held even inclusion of a legislation will not exclude the scrutiny of the courts in case those legislations destroys or damages the basic structure as indicated in Article 21 read with Article14, Article 19 and the principles underlying thereunder (see: I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors. reported in 2007 (2) SCC 1 (Nine Judges Bench)
….. if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article14, Article 19 and the principles underlying thereunder.

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