TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 797
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....a sum of Rs. 7 Lakhs. 3. The complaint of the respondent was based on the allegation that in the month of August, 2011 the appellant was in urgent need of money and out of friendship he gave a sum of Rs. 7 Lakhs and the cheque given by the appellant was dishonored. In the trial, following the complaint the appellant examined DW-1 to DW-4. They are Officers of four Banks. This was done by the appellant in an attempt at putting up what can be described in the words of the learned counsel for the appellant 'a probable defence'. It was an attempt by the appellant to show that the version of the complainant that he had the financial wherewithal to advance a loan of Rs. 7 Lakhs was not to be accepted. This is the matter which has been agitated by Ms. Sangeeta Bharti, learned counsel for the appellant. She would, in fact, complain that in the impugned judgment, the High Court has observed that it is not known as to what is the purpose for which DW-1 to DW-4 have been examined. It is appellant's case that the finding would clearly help the appellant advance the contention that this is a case where the High Court as also the two Courts have not appreciated the law which is laid down in reg....
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....d not given any money to the accused. I do not know that the accused had lost his cheque book. Volunteered that the accused had himself given me the cheque. It is also incorrect that I had filled my name and amount in the lost cheque with accused had signed and kept for his family members to withdraw money in case of need and I had presented the said forged cheque. I had received reply to the notice. It is incorrect that I have presented a false case on the basis of a forged cheque." 5. She would, therefore, point out that when the evidence adduced by the appellant through DW-1 to DW-4 would categorically establish that the version of the complainant-respondent that he had withdrawn a specific sum of Rs. 2 or 2.5 Lakhs from the Bank and gave it the appellant along with the money he had and when this aspect is established to be false the entire case of the complainant would collapse and what is more important a probable defence has been made out by the accused. In such circumstances, the three Courts which held in favour of the complainant were entirely wrong and, in fact, the High Court as already pointed out has not even appreciated the very purpose of examination of the defence ....
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....d to in Section 138 for the discharge, in whole or in part, of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of 'probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist. 8. It is indeed true that there is some merit in the complaint of Ms. Sangeeta Bharti, learned counsel for the appellant that in the impugned judgment the High Court has not appreciated the real purpose of examining DW-1 ....
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....que book or the signed cheque leaf either to the police or to the bank. In the evidence of DW5, the son of the appellant, the version given is that on 5.10.2011, PW5 had left home with the cheque book of the appellant which had a cheque signed by the appellant for withdrawing money, if needed in the absence of the appellant. He set up the version that he drove away an unowned cow. in the field. Thereafter, while sitting in the bus he saw the cheque book was not with him. He further deposed that since his father was not at home he could not tell him about the incident and got engrossed in his study and forgot the incident. In his statement under Section 313 Cr.PC given on 10.01.2013, appellant has taken the stand that he informed the Bank. It is relevant to notice that DW5 has further deposed that when the appellant received the notice he asked him about the cheque book and then he told him about the incident of the loss of cheque book. Still, at the time when the reply notice was sent, the case is not set up about the loss of cheque book and about the cheque relied upon by the respondent being one which is brought into existence using the lost signed cheque leaf. We have already no....