Adv Adil Rashid Bhat & Associates

What is presumption regarding power of attorney executed before notary?

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 40 of 2011

Decided On: 16.03.2011

Ashish C. Shah Vs. Sheth Developers Pvt. Ltd.,

Hon'ble Judges/Coram:
J.H. Bhatia, J.
Citation: 2011(4) MHLJ 288

Document No. 2 is the original power of attorney tendered in evidence along with affidavit of evidence. The said power of attorney appears to have been executed on behalf of the complainant company by its director Ashwin Sheth. The affidavit appears to have been sworn in before and has been notarized by the Notary Public. Section 85 of the Evidence Act provides that the Court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Counsel or Vice Counsel or representative of the Central Government, was so executed and authenticated. Section 4 of the Evidence Act provides that whenever it is directed by the Evidence Act that the Court shall presume a fact, as it shall regard such fact as proved unless and until it is disproved. In view of Section 85 read with Section 4 of the Evidence Act, the power of attorney purporting to have been executed and authenticated before the Notary Public shall be presumed to have been executed and so authenticated unless and until it is disproved. Therefore, the burden lies on the accused to establish that the said power of attorney was not duly executed and authenticated by the person by whom it purports to have been executed. In view of this legal position, no objection could be taken to the admission and exhibition of the original power of attorney.

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