In Focus

Onus of proving fraud lies on the plaintiff

By Gajanan Khergamker

It has been established that like any other charge of a criminal office, fraud too must be established beyond reasonable doubt. Suspicion, by itself, cannot assume the bearings of proof. That, notwithstanding, however suspicious may the circumstances be and however strange associated coincidence. Quite often, we encounter several situations that force us to acknowledge the unexplainable.

Allegations of fraud, undue influence and coercion cannot be vague but must be detailed in full particulars. The allegation must be stated in full so that the case can be decided on the particulars pleaded. Any sweeping allegation will hardly suffice for the court to act. Whenever allegations are made in a vague manner, the court simply can’t act on it for lack of specific pleadings.

The defence of mistake of fact is peculiar to the law of written contract due to the existence of the common law defence of not est factum. This permits the one who has signed a document, essentially different from what he intended to sign, to plead that, notwithstanding his signature, it is not “his deed in contemplation law”.

The defence of being too busy to read is not available. The plea must be kept within narrow limits in order to avoid confusion and uncertainty in the field of contract if a man is permitted to disown his signature simply by asserting that he did not understand what he signed. He must show that the transaction which the document purports is essentially different ‘in substance or kind’ from the transaction intended.

When the person executing the deed is not blind, infirm or otherwise incapacitated and fraudulent misrepresentation is made to him and he had opportunity of reading the deed, the plea of non est factum is not available. It is immaterial whether he read it or not. It operates as conclusive bar against him not because he read or understood, but because he has chosen to execute it and he is bound by the deed.

It must be understood that the plea can rarely be established by a person of full capacity. Though it is not confined to the blind or illiterate alone, any extension of the scope of the plea will have to be kept within specified limits. Also, the plea must be proved by the person setting it up. He must show that he acted with care. The rule will also have no application when there are vitiating circumstances.

Frauds are usually committed in secrecy and it becomes very difficult if not impossible for the aggrieved party to prove as to how fraud was committed. Therefore, fraud has to be inferred from the facts and circumstances of the case as well as from the materials on record. The burden of proof is undoubtedly is on the plaintiff to make out the case of fraud alleged by him by adducing satisfactory and convincing evidence.

Alleging fraud on the part of the defendants and then hoping to succeed in case the defendants do not adduce evidence to disprove such allegation won’t work. The defendant is simply not obliged to lead any evidence in that direction. The onus lies entirely on the plaintiff to support his allegation.

To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593

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