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[Cites 25, Cited by 0]

Delhi District Court

Rekha Sharma vs Ashok Dandona (Now Deceased) on 8 February, 2021

     IN THE COURT OF SH. AJAY KUMAR JAIN : SPECIAL JUDGE NDPS:
                PATIALA HOUSE COURTS: NEW DELHI

Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020

Rekha Sharma
Proprietor of M/s RVR Plastics
W/o Sh. Vijay Sharma
R/o C­104, Ashoka Enclave Part­II,
Sector­37, Faridabad, Haryana
                                                     Appellant/Accused


                              Versus
Ashok Dandona (now deceased)
Proprietor of M/s LPC Polymers
Through its Authorized Representative/Legal Heir
At BE­84, Hari Nagar,
New Delhi
                                              Respondent/Complainant


JUDGMENT

1. Vide this common judgment, I shall decide all above captioned criminal appeals.

2. By way of present criminal appeals, the impugned judgment dated 14.10.2019 of conviction u/s 138 NI Act and order on sentence dated 18.12.2019 in all the respective complaint cases i.e. 58611/16, 58432/16, 58434/16 and 58433/16 are challenged.

3. In CC NO. 58611/16 (CA 19/2020), the dishonored cheques numbers 333821 amounting Rs. 1,10,000/­, 333822 amounting Rs. 1,10,000/­, 333823 amounting Rs. 1,10,000/­ and 333824 amounting Rs. 1,10,000/­ for which the accused is sentenced to fine of Rs. 6,70,000/­ alongwith SI of six months and in default of payment of fine, shall undergo SI for six months and fine imposed shall be released to complainant as Rekha Sharma Vs. Ashok Dandona Page No. 1 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 compensation.

4. In CC NO. 58432/16 (CA 20/2020), the dishonored cheque numbers 312998 amounting Rs. 1,42,000/­, 584593 amounting Rs. 93,000/­, 584552 amounting Rs. 50,000/­ and 584592 amounting Rs. 1,00,000/­ for which the accused is sentenced to fine of Rs. 5,85,000/­ alongwith SI of six months and in default of payment of fine, shall undergo SI for six months and fine imposed shall be released to complainant as compensation.

5. In CC NO. 58434/16 (CA 21/2020), the dishonored cheque numbers 474484 amounting Rs. 1,00,000/­, 474485 amounting Rs. 1,00,000/­, 474487 amounting Rs. 1,00,000/­ and 474486 amounting Rs. 1,00,000/­ for which the accused is sentenced to fine of Rs. 6,50,000/­ alongwith SI of six months and in default of payment of fine, shall undergo SI for six months and fine imposed shall be released to complainant as compensation.

6. In CC NO. 58433/16 (CA 22/2020), the dishonored cheque numbers 333817 amounting Rs. 1,05,000/­, 333818 amounting Rs. 1,05,000/­, 333819 amounting Rs. 1,05,000/­ and 333820 amounting Rs. 1,10,000/­ for which the accused is sentenced to fine of Rs. 6,75,000/­ alongwith SI of six months and in default of payment of fine, shall undergo SI for six months and fine imposed shall be released to complainant as compensation.

7. Facts in nutshell, as per the complaints filed before the trial court are that the complainant is sole proprietor of LPC Polymers having business dealings and relationships with the accused Rekha Sharma, proprietor of RVR Plastics and accused used to purchase raw material, goods, plastic dana from the complainant. In the middle of month of November, 2012 complainant met accused for her past liability for different transactions pursuant to which the complainant gave number of cheques and at the time of handing over of the cheques assured that these will be honoured however when the respective cheques were presented, the same were dishonored Rekha Sharma Vs. Ashok Dandona Page No. 2 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 with remarks 'account closed'. Thereafter legal notice was sent for demanding payment of cheques however despite receiving legal notice, amount of cheques was not paid therefore, respective complaints were filed.

8. Brief proceedings of the case is that these complaints initially filed before the court of Ld. MM, Dwarka Court however after the judgment of Hon'ble Supreme court in case titled as Dashrath Roopsingh Rathore Vs. State of Maharashtra & Anr, the matter was returned for filing in the jurisdiction of Faridabad Court, Haryana where cognizance was taken by concerned court at Faridabad, however after introduction of amendment, the matter was transferred to the jurisdiction of Patiala House courts. Thereafter, vide order dated 03.03.2017 summons were issued to accused. On appearance notice u/s 251 Cr.PC was framed against the accused thereafter application u/s 145(2) NI Act moved on behalf of accused which was allowed and the matter was fixed for complainant evidence. The complainant Ashok Dandona expired on 27.04.2017 thereafter, Hemant Dandona, son of complainant Ashok Dandona was substituted vide order dated 19.07.2019. The complainant evidence was closed vide order dated 30.08.2019 thereafter, the statement of accused u/s 281 r/w section 313 Cr.PC was recorded on 12.09.2019. Accused examined DW1 Vijay Sharma, her husband and after conclusion of defence evidence, arguments were heard and vide judgment dated 14.10.2019 accused stood convicted.

9. Accused Rekha Sharma in her statement u/s 251 Cr.PC stated that cheques were given as a security and no amount is due to the complainant however admitted signatures and further stated she had not received any legal notice. Accused Rekha Sharma in her defence plea before the court of JMIC Faridabad stated that cheques in question neither filled nor issued in favour of complainant however the same were handed over as blank cheques to complainant by her husband as security but admitted her Rekha Sharma Vs. Ashok Dandona Page No. 3 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 signatures. Depositions of CW1 and DW1 in brief as under:

10. CW1 Hemant Dandona, LR of complainant late Sh. Ashok Dandona in his affidavit of evidence narrated the averments as per the complaint. In cross­examination stated that he had not filed any proof regarding registration of LPC polymers and he had also never signed any document with respect any dealing in LPC polymers with accused. He further stated that he do not know the accused in any manner except business relations however he knows the husband of accused. Accused and complainant firm were having business relations for approximately 10­15 years. He also stated that he visited the house of accused to receive an amount of Rs. 30 lacs, and also stated it is correct that he has not filed any bill or invoices with respect to material supplied to accused however stated that he can provide statement of accounts. He also stated that he can check from his office records whether any proof of delivery of goods has been taken from accused or not. He also stated it is correct that his firm raises four copies of invoices. He denied suggestion he is not aware of business transaction.

11. In further cross­examination stated that he has brought the bank statement from Standard Chartered Bank and also the ledger account detail however stated it is correct that statement does not bear the stamp and signature of any of its bearer of Standard Chartered Bank. He also denied suggestion that the said statement is not correct. He also stated that it is correct that no payment was received in bank statement Ex.CW1/X (colly). He further stated he has not placed on record any document with respect to payment made by accused. The ledger account Ex.CW1/Y (colly) does not bear signature of any authorized person of complainant firm however denied suggestion that it is a fabricated document and also stated that it is a digital document hence do not require any signature. No certificate u/s 65B is also annexed. He further stated that no settlement of account of Rekha Sharma Vs. Ashok Dandona Page No. 4 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 statement ever happened with complainant. Volunteered as accused has always denied the liability. In further cross­examination stated there is no business written contract between complainant and accused, also volunteered that they do not have any such practice of having contract document. He further stated that Ram Dandona, younger brother of Ashok Dandona is also in the business of supply of plastic raw material. He denied suggestion that accused was not having any kind of business transaction and all the business transactions were related to Ram Dandona. He also denied suggestion that no business transaction took place between Ram Dandona and Ashok Dandona. He denied suggestion that he could not produce any VAT return, ITR bills/invoices due to the reason no business transaction took place between him and the accused. He denied the suggestion that all business transaction took place between Ram Dondona and accused only. He denied suggestion that accused was having liability of Rs. 7,55,000/­ towards Ram Dandona which was fully and finally settled with Ram Dandona. He denied suggestion that accused never handed over cheque in question to complainant but the same were given to Ram Dandona. He denied suggestion that he had obtained all cheques in question from Ram Dandona and on the basis of same filed cases against the accused.

12. Accused in her statement u/s 281(1) Cr.PC r/w section 313 Cr.PC stated that she does not know anything about business or monetary transaction and if anything, all used to be done by her husband as business was done by her husband and she has no liability towards complainant, and not received any legal notice from complainant.

13. DW1 Vijay Sharma, husband of accused Rekha Sharma stated that he had business dealing only with Ram Dandona and used to issue cheques to him against material delivered. He used to maintain the ledger accounts and also used to file ITR every financial year. Ram Dandona filed a cheque Rekha Sharma Vs. Ashok Dandona Page No. 5 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 bounce case in Tis Hazari and same was settled with him. Every time whenever Ram Dandona asked him to pay the amount, he used to hand over cheques and Ram Dandona used to send the bills from three companies­ Laxmi Plastic Center, DD Polymer and LPC Polymer. Complainant company also got confirmation of account in the year 2010 against all business transactions for Rs. 7,55,665/­. Settlement also took place with Ram Dandona in Tis Hazari and all cases were withdrawn. He further stated he is relying upon documents letter sent by LPC polymer on 01.09.2010 mark A and statement of ledger account (Ex.DW1/2). He also stated that he has settled his ledger account with all the above said three firms with Sh. Ram Dandona.

14. In cross­examination stated that he has not filed any complaint with respect to miuse of cheques in question nor filed any suit for declaration of cheques null and void. After perusing document Ex.DW1/3, stated it is correct that there is no mention of present case settled. The document settled Ex.DW1/3 do not show any bill. He denied suggestion that letter dated 01.09.2010 (mark A) is a forged and fabricated letter. During cross­ examination DW1 filed Ex.DW1/6 and Ex.DW1/7 alongwith certain cheques which were taken on record as Ex.DW1/8 (colly) though objected. He also denied suggestion that Ex.DW1/8 has nothing to do with present complaint. He also denied suggestion that document produced at this stage are forged and fabricated.

Material Exhibits:

15. Ex.CW1/A to CW1/H are the impugned cheques with memo of dishonour on account of 'accounts closed'. Ex.CW1/I is the demand legal notice. Ex.CW1/K and CW1/J is the courier receipts and registered AD with delivery track Ex.CW1/I. Ex.CW1/Y (colly) is the ledger of LPC Polymer (complainant firm) of the account of RVR Plastics from 01.04.2009 to Rekha Sharma Vs. Ashok Dandona Page No. 6 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 31.10.2012 showing the transaction through last bill no. 889 dated 07.08.2009 with total amount due is Rs. 17,12,326/­ thereafter showing the payments after crediting the interest till 31.10.2012 to the tune of Rs.36,15,982/­ and thereafter, account of RVR Plastics from 01.11.2012 to 31.03.2013 for Rs. 39,79,991/­. Account statement of RVR Plastics from 01.04.2013 to 31.12.2014 showing entry of cheques credit of payment through cheques on 09.07.2013 which were debited on dishonor on 31.07.2013, and thereafter the total payment due till 31.12.2014 is Rs. 58, 50, 912/­. Ex. CW1/X (colly) is the bank account statement dated 31.07.2013 of LPC polymer showing no payment from RVR Plastics. Ex.DW1/2 is the ledger account of RVR Plastics showing the transactions with LPC Polymers from 01.04.2006 to 31.03.2010. As per this statement, the closing balance on 31.03.2010 which is due towards RVR Plastics from LPC is Rs. 7,55,965/­. Ex. DW1/3 is the mediation settlement agreement dated 04.12.2017 between the accused Rekha Sharma and Ram Dandona in a case under Section 138 between the parties at Mediation Centre, Tis Hazari whereby both the parties have settled the dispute for a sum of Rs. 5,80,000/­. Mark A (Ex.DW1/1) is the letter dated 01.09.2020 written by LPC Polymers to RVR Plastics showing total amount due is Rs. 7,55,965/­ as on 01.09.2010, alongwith statement of account of LPC Polymer showing opening balance of Rs. 1.19,943/­ and thereafter sales on 21.09.2009 through bill no. 757, 758 and then sales through bill no. 760 dated 22.07.2009 and through bill no. 889 the total amount due till 31.03.2010 is Rs. 7,55,965/­ (but this Ex.DW1/1 not found mentioned in deposition of DW1 Vijay Sharma but mentioned as Mark 'A' only).

16. Ex. DW1/CW1 is the complaint dated 25.01.2012 under Section 138 between Ram Dandona and Rekha Sharma annexing therein the legal notice dated 13.12.2011 showing the cheques dishonoured on account of account Rekha Sharma Vs. Ashok Dandona Page No. 7 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 closed. Ex. DW1/6 and Ex. DW1/7 along with Ex. DW1/8 (colly) are the ITRs along with computation of income with the balance sheets/list of sundry creditors and the cheques taken back from Ram Dandona of the year 2008.

17. Ld. Counsel for the accused/appellant submitted that the entire case of the complainant is vague and improbable. Ld. Counsel submits that it is quite unnatural and improbable that accused who is denying the liability will come and give 31 post dated cheques in one go to the complainant for a time barred liability and this fact is totally ignored by ld. Trial court. Ld. Counsel submits that the multiple cheques issued for the same date is not at all possible and if the accused has the liability then accused might have issued one consolidated cheque for one date. The cheques were also not issued in chronological order but in haphazard manner. The cheque no. 474491 which was reflected in the account statement Ex.DW1/2 has already been cleared on 05.01.2009 therefore the cheques prior to that number i.e. 474484­474487 cannot be issued in November, 2012. Ld. Counsel submits that this itself suggests that the blank cheques for security has been taken during transaction and later on misused by complainant.

18. Ld. Counsel submits that as per the case of complainant, total 31 cheques were given in November, 2012 for past liability in presence of employee of complainant however no employee was examined. The complainant Ashok Dandona died and present complainant Hemant Dandona (CW1), his son is not a competent witness to depose over the said date of handing over of cheque, thus the complainant could not prove that the cheques were given in November, 2012. Ld. Counsel submits that the last transaction as per the statement of accounts of the complainant is of 07.08.2009, and cheques were given in November, 2012, thus liability time barred, therefore, there is no presumption for legally enforceable liability as Rekha Sharma Vs. Ashok Dandona Page No. 8 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 the liability is time barred. Ld. Counsel also submits that it is unbelievable and improbable that any person would issue cheques of such huge amount without settlement of account and that too of a time barred account.

19. Ld. Counsel for accused submitted that though there is no specific question or the defence raised by accused during trial regarding the time bar debt or misuse of security cheques however the complainant is at liberty to make inferences from the evidence and material on record which are unnatural and improbable. Ld. Counsel submits that Apex Court in case titled M.S. Menon Vs. State of Kerala Appeal (Crl.) 1012/99 dated 04.07.2006 held that inference of preponderance of probability can be drawn not only from material on record but also by reference to circumstances on which the party relies. Ld. Counsel submits that the account statement of complainant do not suggest any transaction after August, 2009, therefore, it is not plausible that the complainant will agree for huge interest for a mere liability for Rs. 7 lacs and will issue the cheques for an amount of Rs. 36 lacs. Ld. Counsel submits that in present case the cheques relied upon belong to four different series of cheque books which also make the story of complainant improbable that the cheques were issued in the year 2012 in one go. Ld. Counsel submits that this fact itself suggests that blank signed security cheques were misused by the accused.

20. Ld. Counsel submits that the main complainant Ashok Dandona died and Hemant Dandona, son of Ashok Dandona is substituted in his place however he does not have any knowledge about business transactions and cheques were not given in his presence. The dealings alleged to be with Ram Dandona however Ram Dandona was not examined by complainant. Apex court in A.C. Narainan Vs. State of Maharashtra Crl.(A) 73/2007 dated 13.09.2013 held that power of attorney holder who has no knowledge regarding transactions cannot be examined as a witness therefore, in Rekha Sharma Vs. Ashok Dandona Page No. 9 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 present case the deposition of Hemant Dandona cannot prove the factum of delivery of cheques in the year 2012. Thus, complainant could not discharge the onus of handing over of cheques in question.

21. Ld. Counsel submits that though the fact that the cheques in question are security cheques not found mentioned in the testimony of DW1, however this is the defence of accused in her statement u/s 251 as well as before the Faridabad Court from where cases were transferred. The liability as per the account statement of complainant lastly of 07.08.2009, therefore, despite without any express deposition in this regard by DW1, it can be inferred that these were security cheques which were misused in November, 2012.

22. This fact is substantiated also from the material on record. The written memo in complaint case of Ram Dandona shows that the accounts were closed in the year 2010 therefore the cheques could not be issued in the year 2012. The knowledge of accounts closed could be easily inferred because in cross­examination, one complaint Ex.DW1/CW1 was put to DW1 in which it is categorically mentioned that account was already closed in November, 2011, thus it can be inferred that the complainant made a false averment that these cheques were given in November, 2012. It is improbable that when the complainant has the knowledge that the accounts have been closed will accept the 31 cheques (including the 16 cheques in question). Furthermore, the cheques issued for odd amounts from different cheque books which also suggests that the cheques were not issued in one go and been misused.

23. Ld. Counsel submits that mere negligence in prosecuting the case cannot be read against the accused when there is sufficient material on record suggesting that the cheques in question were not issued for any liabilities. The accused has to prove the case on the basis of preponderance Rekha Sharma Vs. Ashok Dandona Page No. 10 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 of probability and that preponderance of probability could be discharged from the natural inference of circumstances arising from documents on record as relied by the complainant. Mere fact that accused has not taken any action against the complainant for misusing the cheques is not at a relevant ground when there is ample material on record to suggest that the cheques in question were not issued in discharge of liability. There is no explanation as to why the accused would give the cheques from his closed account.

24. Ld. Counsel for accused submits that the trial court observed that as per the ledger statement of accused, no transaction took place post 2010, but opined that the transaction might have taken place because cheques were issued in 2013, and the interest imposed might be on the basis of some agreement/business transaction.

25. Ld. Counsel submits that trial court not appreciated the material documents in true perspective and falsely assumed that the debt is not time barred. Ld. Counsel submits that as per the account statement of accused, the last dealing took place between parties on 07.08.2009 and thereafter the entire liabilities on the basis of interest therefore limitation period for the recovery of due amount remained till 08.08.2012 i.e. three years from the amount becoming due. Admittedly, till 08.08.2012 neither any written acknowledgment was issued by the accused to the complainant as per section 18 of Limitation Act nor any payment was made by the accused to the complainant in terms of section 19 Limitation Act to constitute implied acknowledgment. It is also not the case of complainant that any person made any acknowledgment or payment under due authorization of accused in terms of section 21 of Limitation Act therefore, the liability is completely time barred liability and not a legally recoverable liability (relied upon Vijay Polymers Pvt. Ltd. Vs. Vinnay Aggarwal 162(2009) DLT 23), therefore the Rekha Sharma Vs. Ashok Dandona Page No. 11 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 presumption stands rebutted and the complainant has not led any evidence after rebuttal of presumption. Ld. Counsel submits that Delhi High Court in Prajan Kumar Jain Vs. Ravi Malhotra MANU/DE/2779/2009 held that the cheques were found to be in discharge of time barred liability therefore the debt was not legally enforceable within the meaning of section 138 explanation of NI Act. For this preposition, Ld. Counsel also relied upon M.P. Faruque Vs. K. Sashi Kumar MANU/TN/9661/2019, Priya Bhode Vs. Speer Finance Pvt. Ltd. MANU/MH/ 0924/2009 and Zahida Qazi Vs. Ashraf Khan III (2007) BC 767. Ld. Counsel submits that Apex Court in case titled Basalingappa Vs. Mudibasappa Crl. Appeal No. 636/2019 dated 09.04.2019 have categorically held that to rebut the presumption, it is open to the accused to rely upon the evidence led by him or the material supplied by complainant in order to raise the probable defence. The inference of probable defence can be raised not only from the material brought on record by the parties but also by reference to the circumstances upon which they rely. Ld. Counsel submits that the evidence on record categorically suggest that impugned cheques were misused and not issued from any legally recoverable liability. Ld. Trial court failed to appreciate the evidence in true perspective therefore the impugned judgment is liable to be set aside and accused is to be acquitted.

26. Ld. Counsel for complainant/respondent on the other hand submitted that the accused is changing the defence at every stage and all the grounds raised during the arguments do not emanate from the evidence on record. The entire defence raised not put to CW1 in his cross­ examination. Not even a single question was put to the complainant with respect to the security cheque, handwriting on the cheque or the cheque being undated. DW1 in his defence also nothing stated about the security cheques, handwriting on cheques or cheques undated. DW1 admitted that Rekha Sharma Vs. Ashok Dandona Page No. 12 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 he issued the cheques against the material delivered and not even a hint of issuance of any security cheque in entire evidence. The accused has not replied to legal notice despite receiving same, and also not lodged any proceedings that the complainant misused the cheques. Accused never demanded the cheques in question at any point of time. Ld. Counsel submits that therefore impugned judgment cannot be challenged on the grounds which were never raised during the course of trial before the trial court. The accused is required to prove in what circumstances and how the cheques were given to complainant. Accused in his statement u/s 251 stated that cheques in question were given for security purposes however during cross­ examination raised a contradictory defence that accused was not having any kind of business transaction whereas again raised a contradictory defence when DW1 stated in his chief that Sh. Ram Dandona used to send him bills for three companies i.e. Laxmi Plastic Center, DD Polymer and complainant company LPC Polymer. The accused also has fluid stands when it comes to explaining handing over the cheque in statement u/s 251 stated it is a security cheque whereas in cross­examination of CW1 raised stand there is no business, and in defence evidence as DW1 admitted the business transaction. Ld. Counsel submits that no inference could be drawn if the facts are not confronted with complainant in his evidence (relied upon Bijaya Patra Vs. State of Orissa Crl. Appeal No. 466/2008 dated 05.08.2015).

27. Ld. Counsel submits that the accused admitted the signatures and also not raised any defence through the cross­examination of complainant or in his own evidence that these are blank and security cheques therefore, presumption is in favour of complainant and accused has to discharge the burden that it was not issued for any liability but was issued by way of security or any other reason (relied upon Vijay Vs. Laxman Crl. Appeal No. 261/2013 dated 07.02.2013 (SC)). Ld. Counsel submits that Delhi High Rekha Sharma Vs. Ashok Dandona Page No. 13 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 Court in case titled B.S. Yadav Vs. Reena Crl. A. No. 1136/2010 held that the accused has to prove by cogent evidence that no loan was taken and the cheques were retained, and if no loan was given then he should have protested immediately and ask to return the cheques and must have served the notice. Ld. Counsel submits in this case accused has not taken any steps that cheques in question were for security purpose and were misused. Ld. Counsel submits that Delhi High Court in Suresh Chand Goel Vs. Amit Singhal Crl. L.P. 706/2014 dated 14.05.2015 held that security cheque is not a magic word and merely on the basis of general and vague statement, it cannot be accepted. Ld. Counsel submits that there is no defence taken by accused in his statement u/s 251 that the cheques were taken blank and was issued prior to 2009 and this fact was also not taken in the evidence of complainant or the accused. It is also not denied by the complainant that business relations ended upto 07.08.2009. Even as per the complainant as stated in examination in chief of DW1 dated 12.09.2019, the copy of income tax return showing outstanding as per ledger account from 2009 to 2013.

28. There is a defence raised that accounts were settled with Ram Dandona in the mediation which is not reflected in the mediation agreement. The argument that cheques of different amounts and different cheque books issued itself suggests that they were misused cannot be looked into because was not put in the trial to complainant in cross­examination, and neither raised in defence evidence through DW1. Ld. Counsel submits that the transactions of running account and accused also admitted the liability of Rs. 7.55 lacs therefore, the defence of time barred debt is not at all tenable. Ld. Counsel submits that complainant able to prove its case, and the trial court rightly convicted the accused and there is no infirmity in the impugned judgment and order on sentence passed by the trial court.

Rekha Sharma Vs. Ashok Dandona Page No. 14 of 30

Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020

29. Both the Counsels, besides oral arguments also filed written submissions.

30. Arguments heard. Record perused.

31. As per the case of the complainant, the accused has given 16 cheques in present four complaint cases which on presentation dishonoured on account of 'accounts closed' and thereafter despite receiving respective legal notices, not made the payment. The accused in her statement u/s 251 Cr.PC raised a plea that the cheques were given as a security and no amount is due to the complainant and despite request cheques were not returned, however admitted that cheques bears her signature. The complainant Ashok Dandona, proprietor of the complainant firm died during the proceedings thereafter, his son Hemant Dandona (CW1) is substituted as a complainant. He filed affidavit of evidence. In affidavit of evidence, he raised the plea that his father was the original complainant, sole proprietor of LPC Polymers at the time of filing present complaint and they had business transactions with the accused firm RVR plastics for the last 10­15 years and in the middle of the month of November, 2012 original complainant met the accused and her AR who for her past part liabilities and for different transactions gave the cheques in question which on presentation bounced on the grounds of accounts closed. After dishonoring of cheques notices were issued in statutory period and sent through registered post/courier, however despite this no amount is received. The accused in her statement u/s 281 r/w section 313 Cr.PC raised another plea that she do not know anything about the business transaction and everything is done by her husband and having no liability towards the complainant in any manner and also not received any legal notice. CW1 was thoroughly cross­examined but no suggestion put to him that the cheques were given as a security cheque and it was misused by him. On the other hand, the pleas raised in cross­examination that all the Rekha Sharma Vs. Ashok Dandona Page No. 15 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 business transactions were related to Ram Dandona, younger brother of Ashok Dandona, original complainant. It was also suggested to him that the liability is only around Rs. 7.55 lacs that also towards Ram Dandona which is settled with him. Though this stand also found contradictory to own version of accused as emanates from ledger account Ex.DW1/2, mark A letter dated 01.09.2010 and Ex.DW1/7 (colly). It is also suggested to CW1 in cross­examination that the cheques in question were handed over to Ram Dandona and not Ashok Dandona. There is no suggestion that unfilled and undated cheques were handed over to complainant or his brother. Accused examined her husband, Vijay Sharma (DW1) who also deposed in his deposition that he used to issue the cheques to Sh. Ram Dandona against the material delivered and the transactions have been shown in his ledger accounts and ITRs, and he has settled the case with Ram Dandona in Tis Hazari Courts who used to send the bills from Laxmi Plastic Center, DD Polymer and LPC Polymer (present complainant). He further deposed that complainant company also got a confirmation of account in the year 2010 by virtue of which the entire outstanding is Rs. 7.55 lacs. There is nothing in the testimony of DW1 that the cheques in question were security cheques given as blank signed cheques in which date, time and amount was filled later on. In these facts and circumstances, the issuance of cheques duly signed by the accused Rekha Sharma, proprietor of RVR Plastics is duly proved therefore, presumption of legally enforceable liability u/s 118 and 139 NI Act arose in favour of complainant and against the accused (relied upon Rangappa Vs. Sri Mohan Crl. Appeal No. 1020/2010 dated 07.05.2010, 2010 (11) SCC 441, Rohitbhai Jeevanlal Patel Vs. State of Gujarat & Anr. Crl. Appeal No. 508/2019 dated 15.03.2019). Apex Court in case titled Bir Singh Vs. Mukesh Kumar (2019) 4SCC 197 even held if a signed blank cheque is voluntarily handed over to a payee, towards some payment, the payee may Rekha Sharma Vs. Ashok Dandona Page No. 16 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer.

32. Once the presumption arose in favour of complainant, the burden shifts towards the accused who has to raise the probable defence and the standard of proof for rebutting the presumption is that of preponderance of probability. It is also open for the accused to rely on the evidence led by him or can also rely upon the materials submitted by the complainant in order to raise the probable defence. Inference of preponderance of probability can be drawn not only from the material brought on record by the parties but also by reference to circumstances upon which they rely. It is also not necessary that the accused to come in witness box in support of his defence however section 139 imposes an evidentiary burden and not a pursuasive burden (relied upon Rangappa Basilingappa Mudisbaappa (supra)). The accused in order to rebut the presumption could rely upon his own evidence or the evidence of complainant or the material brought on record by the parties and also by reference to circumstances on which they rely.

33. It is pertinent to mention that in present case, the accused was given statutory legal demand notice within time by the complainant at the correct address and this fact is also not found disputed in the testimony of CW1. DW1 also not stated in his examination in chief that no notice is received however accused in her statement u/s 251 and 313 Cr.PC raised the plea that she had not received any legal notice. In these circumstances, this bald plea of non receiving of notice is not at all tenable, therefore, accused able to prove that the legal notice was duly served. As accused has not made any reply to the said notice and also not raised the defence of security cheques Rekha Sharma Vs. Ashok Dandona Page No. 17 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 or misuse of blank signed cheques at the first stage, the inference of liability also corroborated through this circumstance.

34. Ld. Counsel for accused submitted that CW1 in cross­examination stated that they had business dealing for 10­15 years however could not place any bills or invoices for the payment claimed through dishonored cheques. Ld. Counsel submits that this itself suggests that complainant unable to prove the payment due on account of dishonored cheques. It is pertinent to mention that DW1 in his testimony candidly stated that he used to issue the cheques to Ram Dandona, brother of original complainant against the material supplied. He also admitted his dealings with LPC Polymers. At this stage, it is pertinent to refer to the documents as relied upon by DW1 in his evidence i.e. mark A, photocopy of letter dated 01.09.2010 of LPC Polymer showing the outstanding of Rs. 7,55,965/­ with account sheet against RVR plastics however this document is denied by complainant in cross of DW1 and also not put to the complainant in his cross­examination, but could be used for the purpose that accused has dealings with LPC polymers which accused is denying. The accused also exhibited ledger (Ex.DW1/2) and the income tax return alongwith computation of income with balance sheets (Ex.DW1/7) showing liability towards the complainant company to the tune of Rs. 7,55,965/­. Therefore, as per the case of accused, she is dealing with complainant company but disputing the liability with the complainant firm. The stand of accused is contradictory, therefore, no benefit of non filing of invoices or bills could be given to accused.

35. The presumption is for legally enforceable liability therefore, it is for the accused to prove by cogent evidence that the cheques were not issued for any legally enforceable liability. The plea raised in the written submissions that the presumption is only for consideration not for quantum or the Rekha Sharma Vs. Ashok Dandona Page No. 18 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 extent. In this regard, it is pertinent to reproduce the relevant paras of the judgment of Apex Court Rangappa (Supra) held that:

"14. In light of these extracts, we are in agreement with the respondent­claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
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36. In view of the mandate of this judgment, the presumption is not only for mere consideration but also for the amount mentioned in the cheques issued, and it is for the accused to prove that accused has not issued the cheques or the cheques are not issued for the amount mentioned in the cheques. Neither in cross­examination of CW1, it is suggested that the blank security cheques were given and misused nor DW1 in his testimony alleged the said fact, thus accused unable to prove the defence of misuse of blank security cheques.

37. Ld. Counsel for accused submitted that though the accused in his testimony has not raised any plea of time barred debt but from the material on record, it is clear that the cheques in question were for the time barred debt. In this regard, Ld. Counsel for accused relied upon Ex.CW1/Y (colly), the ledger and the account statement of LPC Polymers (complainant) of account of RVR Plastics showing the last dealing on 07.08.2009 through bill no. 889 of Rs. 2,49,600/­ and the total liability is Rs. 17,12,326/­. Ld. Counsel for accused submits that thereafter all the liabilities till the filing of cheques are of interest and showing no dealing with the complainant company. The statement of account from 01.04.2013 to 31.12.2014 of LPC Polymer also shows no bill after 07.08.2009. Ld. Counsel submits that the plea of accused that the cheques in question were given in November, 2012, whereas last dealing admittedly as per the ledger statement of complainant is 07.08.2009 therefore, even if it is presumed that cheques were given in November, 2012 then those cheques were for time barred liability as limitation expires by 08.08.2009, thus, no legal recoverable amount is due to the accused. Hence, accused able to rebut the presumption that accused has no legally recoverable amount due to him of the date of handing over of cheques i.e. in November, 2012.

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38. It is pertinent to notice that accused himself exhibited Ex.DW1/7, its ITR (form no. 3CD) alongwith the balance sheet/list of sundry creditors showing the liability towards LPC Polymers to the tune of Rs. 7,55,965/­ on 31.03.2010. Therefore, there is a categorical acknowledgment on 31.03.2010 on the part of the accused that this amount is due from the complainant company, thus the computation of period of limitation will begin on 31.03.2010. In the present case, the cheques were said to be given in November, 2012 which were bounced in 2013 therefore, debt do not fall in the category of time barred debt as argued.

39. Apex court in case titled A.V. Murthy Vs. B.S. Nagabasavanna 2002 (2) SCC 642 held as under:

"As the complaint has been rejected at the threshold, we do not propose to express any opinion on this question as the matter is yet to be agitated by the parties. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub­section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31st March 1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period Rekha Sharma Vs. Ashok Dandona Page No. 21 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 of limitation from the date on which the acknowledgement was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent. This is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type.

But we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous."

40. This view was also reiterated by the Apex Court in case titled S. Natrajan Vs. Sama Dharman & Anr. Crl. Appeal No. 1524/14 dated 15.07.2014 (2015 ALL MR (Cri) 4911 (SC)):

8. In this connection, we may usefully refer to a judgment of this Court in A.V. Murthy v. B.S. Nagabasavanna (2002) 2 SCC 642 :
[2002 ALL MR (Cri) 709 (S.C.)] where the accused had alleged that the cheque issued by him in favour of the complainant in respect of sum advanced to the accused by the complainant four years ago was dishonoured by the bank for the reasons "account closed". The Magistrate had issued summons to the accused. The Sessions Court quashed the proceedings on the ground that the alleged debt was barred by limitation at the time of issuance of cheque and, therefore, there was no legally enforceable debt or liability against the accused under the Explanation to Section 138 of the NI Act and, therefore, the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under sub­Section (3) of Section 25 of Rekha Sharma Vs. Ashok Dandona Page No. 22 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 the Contract Act, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Referring to the facts before it, this Court observed that the complainant therein had submitted his balance sheet, prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. After highlighting further facts of the case, this Court held that at this stage of proceedings, to say that the cheque drawn by the accused was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. In the circumstances, this Court set aside the order passed by the High Court upholding the Sessions Court's order quashing the entire proceedings on the ground that the debt or liability is barred by limitation and, hence, the complaint was not maintainable. It is, therefore, clear that the contention urged by the appellant herein can be examined only during trial since it involves examination of facts."
41. The mandate of above judgment is clear that with the acknowledgment in the balance sheets the limitation period stands extended. In present case, the said acknowledgement on 31.03.2010 is clearly made through the balance sheet Ex.DW1/7 as relied upon by the accused herself. The acknowledgment can also be inferred from the ledger Ex.DW1/2 and mark A, the letter dated 01.09.2010 and the account statement dated 01.04.2009 to 31.03.2009 of the complainant as relied by the defence though denied to be wrong by the complainant in cross­ examination of DW1. The limitation period in terms of above judgment stands extended every time the debt is shown in the balance sheets. In present case the ITR forms alongwith list of sundry creditors/balance sheet Rekha Sharma Vs. Ashok Dandona Page No. 23 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 of the firm showing liability of Rs. 7,55,965/­ on 31.03.2010. This liability is not discharged as no payment is made therefore, stands extended till the next year and also for subsequent years as entry of liability remained in balance sheets. The limitation period thus do not even expired on the date of presentation of cheques in the month of July, 2013. Thus, the plea of time bar debt is not at all tenable.
42. Ld. Counsel vehemently submits that these cheques were given as security cheques which can easily be inferred from the fact that multiple cheques were issued from same date, cheques were not issued in chronological order. The complainant has a knowledge of accounts closed in the year 2011 because he himself confronted the accused with the complaint filed by Ram Dandona in which it is mentioned that accounts were closed in 2010 therefore, cheques cannot be issued for the said account in the year 2012. Ld. Counsel submits that the statement of account Ex.DW1/2 of RVR Plastics showing cheque no. 474491 cleared on 05.01.2009 therefore the cheques of prior number i.e. 474484­474487 cannot be given in the year 2012. It is also improbable that the accused will hand over multiple cheques of different amounts of single day instead of one consolidated cheque, and the cheques from different cheque books will be given to complainant. Ld. Counsel submits that these facts in itself suggest that blank security cheques were misused by accused for time barred debt.
43. The accused has to raise the probable defence which should be evidentiary in nature and not pursuasive. The accused in her statement u/s 251 Cr.PC when the notice was framed raised the plea only of security cheques and nowhere stated that it is blank signed cheques, but accused in her plea of defence before Faridabad Court raised plea of blank signed security cheques which were not filled by her, but it is settled law these are Rekha Sharma Vs. Ashok Dandona Page No. 24 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 not the evidences. These pleas were not put to CW1 in his cross­ examination. Even this plea was not raised by DW1 who is the main person running the business in the name of accused. Even in statement u/s 281 r/w 313 Cr.PC, this plea is not raised therefore, from mere the common sense perspective, this court cannot accept the argument of Ld. Defence counsel that cheques in question could not be given in the manner projected from the material on record.
44. The accused when neither raising this plea in his evidence or in cross­ examination of CW1, then this kind of plea cannot be accepted despite the fact that it appears impressive on the face of it. The opportunity is required to be given to complainant in his cross­examination to explain all these anomalies as raised or through the examination of DW1. DW1 has not raised all these pleas of blank signed cheques or security cheques in his examination in chief therefore there is also no question of any cross­ examination on that point.
45. Now let me again relook at the testimonies of CW1 Hemant Dandona and DW1 Vijay Sharma. CW1 was cross­examined in detail. He categorically stated that they have business dealings for approximately 10­15 years and also stated they had not received any payment when visited the house and he visited the house to collect the payment of around Rs. 30 lacs and the payment raised to accused was based on the material supplied. This witness also exhibited statement of accounts Ex.CW1/X (colly) and the ledger account Ex.CW1/Y. The said ledger account showing the last bill upto 07.08.2009 and thereafter all the liabilities through interest. It was specifically suggested to this witness in cross­examination that no settlement happened with the accused. It is specifically suggested to this CW1 in cross­ examination that all the business transaction took place between Ram Dandona and the accused and the accused was having only liability around Rekha Sharma Vs. Ashok Dandona Page No. 25 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 Rs. 7.55 lacs towards Ram Dandona which was settled with Ram Dandona.

This plea of accused is contradictory to the documents Ex.DW1/2, mark A and DW1/7 relied upon by the accused which is showing that liability of Rs. 7.55 lacs persisting on 31.03.2010 with complainant not Ram Dandona. The mediation settlement with Ram Dandona (Ex.DW1/3) is in some other complaint case for a total amount of Rs. 5,80,000/­, and there is no mention in the said mediation agreement that that settlement is also with respect to the complainant firm. Therefore the stand of the defence that they have paid the entire admitted liability of Rs. 7.55 lacs towards complainant firm is falsified. Record shows even the admitted liability of Rs. 7.55 lacs has not been paid to the complainant. There is nothing in cross­examination of CW1 that there is misuse of the present cheques by complainant party or those cheques were given as security cheques. There is nothing in the cross­ examination that the complainant had the knowledge of accounts closed when the cheques were presented. It is also not put in cross­examination that accused at any point of time demanded the cheques in question from the complainant. It is also not put to CW1 in cross­examination that different cheques from different cheque books cannot be issued. The entire inference improbable case of prosecution is not put to CW1 in cross­ examination despite opportunity, therefore, this court cannot consider said defence.

46. Now it is also pertinent to appreciate the testimony of DW1 Vijay Sharma, the husband of accused Rekha Sharma. This witness is the main person who is dealing with accused firm though for the name sake made accused Rekha Sharma as a proprietor. He in his examination in chief categorically stated that he had issued the cheques for the material delivered however given the cheques to Sh. Ram Dandona, brother of complainant. He nowhere in his examination in chief stated that the Rekha Sharma Vs. Ashok Dandona Page No. 26 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 cheques in question were given as security cheques. He also stated that he has got confirmation of admitted liability of Rs. 7,55,965/­ but also raised plea that he has settled the said liability with Ram Dandona therefore he withdrew his complaint in Tis Hazari however the said settlement not at all showing that it was also settled for the present complaints. This witness also exhibited the ledger account Ex.DW1/2 and ITRs alongwith list of sundry creditors (Ex.DW1/7) including name of present firm showing outstanding amount of Rs. 7.55 lacs due on 31.03.2010. This witness nowhere stated that he has discharged the liability of present cheques or present cheques were taken as security cheques. He categorically stated that he had not filed any complaint with respect to misuse of cheques in question. The present case is pending since 2014 and this accused has not raised any plea of misuse of cheques or security cheques during evidence. Once both the parties had led the evidence and accused neither made all these alleged improbable facts part of his testimony nor put them in cross­examination of CW1, therefore no benefit could be given at this stage.

47. Ld. Counsel for accused also vehemently relied upon the document 'mark A' exhibited during the testimony of DW1. This mark A is the photocopy of letter dated 01.09.2010 issued by complainant firm to the accused firm showing their debit balance as Rs. 7,55,965/­. This letter also accompany the copy of statement of accounts dated 01.04.2009 to 31.03.2010 of complainant firm. However, these documents were not put to CW1 in his cross­examination. Furthermore, the complainant has specifically suggested to DW1 in cross­examination that letter dated 01.09.2010 is forged and fabricated and never sent by the complainant. The original of the said document not produced, and also not confronted in cross­examination by CW1, thus this document mark A is inadmissible in evidence against the complainant however the said documents could be Rekha Sharma Vs. Ashok Dandona Page No. 27 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020 used against the accused for admitting the liability atleast upto Rs. 7,55,965/­ which is also not found to be paid by accused at any point of time.

48. Ld. Counsel vehemently argued that complainant had the knowledge of accounts closed in the year 2011 itself because he has put the complaint case (Ex.DW1/CW1) going between Ram Dandona and Rekha Sharma and Ex. CW1/F, written memo categorically shows that said account is closed. Ld. Counsel submits that this itself suggests that blank cheques lying with complainant were filled and presented in the bank account in 2013 which was already closed in the year 2010. Mere putting entire complaint case on 17.09.2019 during cross­examination of DW1 do not itself suggests that it was in the knowledge of complainant that account was closed in 2010. The accused neither put any question in cross­examination of CW1 or have averred the said fact in DW1 testimony. The complainant conduct since beginning appears to be evasive, furthermore despite raising the plea admitted liability of Rs. 7.55 lacs, unable to show that she has cleared the said liability.

49. The burden is on the accused to raise the probable defence however the accused neither in cross­examination of CW1 nor in the testimony of DW1 opted to raise the improbable defences of security cheques, blank signed cheques, the cheques cannot be issued in the month of November, 2012 or that the cheques cannot be issued of different amounts from different cheque books therefore these inferences of improbabilities cannot be raised in favour of accused or against the complainant. The complainant raised the plea of security cheques in her statement u/s 281 and also in the defence plea before the Faridabad court however these are not the evidence and not substantiated in the evidence led by the parties therefore no benefit could be given to the accused of these pleas.

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50. From re­appreciation of evidence on record, I am also of the view that complainant has been able to raise the presumption in his favour however accused unable to rebut the presumption through probable defence hence rightly convicted by trial court, and there is no infirmity in impugned judgments convicting the accused u/s 138 NI Act.

51. As far as the order on sentence is concerned, besides imposition of fine, accused also sentenced to SI for six months in each case, and also with default sentence of SI for six months in each case. From the evidence on record, it is clear that this accused is an old lady and the proprietor of accused firm only in the name, and the entire business is run by her husband Vijay Sharma (DW1). Her complicity in the present case only because being the proprietor she signed the cheques however not found to be involved in any dealings with complainant or even in conduct of business of accused firm. In these circumstances, the substantive sentence of SI of six months in each case appears excessive hence set aside. Furthermore, the default sentence imposed in each case is also reduced from six months to three months in present facts and circumstances.

52. The modified sentence in all cases i.e. in (i) CC No. 58611/16 is fine of Rs. 6,70,000/­, in default of fine amount, further SI of three months, (ii) CC No. 58432/16 is fine of Rs. 5,85,000/­, in default of fine amount, further SI of three months, (iii) CC No. 58434/16 is fine of Rs. 6,50,000/­, in default of fine amount, further SI of three months and (iv) CC No. 58433/16 is fine of Rs. 6,75,000/­, in default of fine amount, further SI of three months. The said fine amounts imposed in each case shall be released to the complainant as compensation. The amount already deposited should be adjusted and the balance fine to be deposited within one month from today. In case accused fails to deposit balance fine within one month, she must surrender before trial court to undergo default sentence as imposed.

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53. Appeal disposed of accordingly. Copy of this judgment is given dasti to the parties. Copy of this judgment alongwith TCR be sent back to Ld. Trial Court. File be consigned to record room.

Announced in the open court on this 8th day of February, 2021 (Ajay Kumar Jain) Special Judge NDPS Patiala House Courts New Delhi Rekha Sharma Vs. Ashok Dandona Page No. 30 of 30 Case No. CA/19/2020, CA/20/2020, CA/21/2020 and CA/22/2020