TMI Blog2022 (3) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances that exist. In the reply notice the appellant has not set up any case that the respondent did not have the financial capacity to advance the loan. In fact even we notice that there is no reference to the loss of the cheque book or signed cheque leaf. No complaint was given of the loss of the cheque book or the signed cheque leaf either to the police or to 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. There is no evidence to establish that the appellant had informed the Bank about the loss of the cheque book containing blank cheque. In fact, In the statement under Section 313 Cr.PC. appellant had stated that this cheque book containing a blank cheque was lost. Appellant has no case that the signature on the cheque in question was not put by him - in the totality of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned 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 regard to the effect of a probable defence . She drew our attention to the judgment of this Court in Basalingapa Vs. Mudibasappa reported in (2019) 5 SCC 418. This Court, inter alia has held as follow:- 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 witnesses in this regard. Learned counsel for the appellant also pointed out that this is a case where contrary to the finding of the Trial Court a reply notice was in fact given by the appellant as admitted by the complainant. 6. Per-contra, Mr. Ajay Marwah, learned counsel for the complainant-respondent would draw our attention to the version which was sought to be built up by the appellant through DW-5 who incidentally happened to be the son of the appellant. He took us through the evidence and then made the point that the version of the appellant was that the signed cheque in question along with the cheque book was lost while it was being carried by DW-5 but he requests the Court to notice that neither DW-5 nor the appellant had made complaint of the loss of the signed cheque to either the Bank or to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to DW-4. She is also correct when she drew our attention to the accounts of the Gramin Bank i.e. Gramin Bank, Kullu to show that before the 5th of August, 2011 the appellant had stopped operating the account in the said bank and a very small and ignorable amount alone was available in the said account. 9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 noticed that there is no evidence to establish that the appellant had informed the Bank about the loss of the cheque book containing blank cheque. In fact, In the statement under Section 313 Cr.PC. appellant had stated that this cheque book containing a blank cheque was lost. Appellant has no case that the signature on the cheque in question was not put by him. 11. We must hasten here and observe that this Court even exercising power under Article 136 of the Constitution may not refuse to interfere in a case where three Courts have gone completely wrong. The jurisdiction generated in an appeal under Article 136 is undoubtedly rare and extraordinary. Article 136 of the Constitution only confers a right to obtain special leave in rare and extraordinary cases. However, this is not to be understood ..... X X X X Extracts X X X X X X X X Extracts X X X X
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