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6. Thereafter, final arguments were advanced on behalf of both parties. Ld. Counsel for accused argued before this court that the accused has successfully rebutted the presumption against him under Section 139 NI act and it is clear from the evidence on record that the complainant had never known the accused and she simply procured his lost cheques through her husband and filed a false claim. He further argued that the complainant had failed to satisfactorily explain her source of funds to the extent of the alleged loan. Further even though the CC No. 52321-16 Smt. Mamta Khanna v. Vaibhav Bhargava Page of 13 of 16 complainant herself admits in her examination as CW1 that she knew the accused through her husband Amit Khanna, she intentionally did not examine him in support of his complaint. While pointing out several lacunae in the case of the complainant, ld. counsel has argued that it is highly unlikely that a person would issue three separate cheques of the same date towards common liability as alleged in the present case and this itself shows that the claim of the complainant is spurious. Further it is pointed by ld. counsel that the complainant has intentionally deposed wrong facts in her evidence of way of affidavit. She has wrongly mentioned in her affidavit Ex CW1/A and complaint that she shared friendly relations with the accused for a substantial time. Also she has wrongly mentioned that all impugned cheques were returned dishonored for the reason "Insufficient funds" whereas only two of the impugned cheques were dishonored for Insufficient funds and the third one was for "Payment Stopped by Drawer". Ld. counsel also submitted a written synopsis of his submissions.

13. Non-existence of legal Liability

a) It is the narrative of the accused that the impugned cheques were lost by him and he filed a compliant in this regard to his bank. He has placed on record a document dated 07.12.12 (Ex DW1/A) whereby the accused has given Stop Payment Instruction to his banker HDFC Bank regarding cheque serial number 131317 to 131340. It is alleged by the accused that the complainant somehow procured these cheques, filled them in her favor without any authority or permission and misused it by CC No. 52321-16 Smt. Mamta Khanna v. Vaibhav Bhargava Page of 13 of 16 presentation. Now, examination of the evidence on record reveals that apart from bare averments, the accused has furnished absolutely no details in his application under section 145(2) NI act, in his statement of defence under section 251 CrPC, in his statement recorded under section 313 CrPC read with section 281(1) CrPC or even in his deposition on oath as DW1 as to how and when the accused lost the impugned cheques and when exactly did he realize that his cheques have gone missing. Also no mention has been made if the entire cheque book was lost or was it only some loose cheques since the impugned cheques belong to two separate banks altogether. Even if his averments are presumed to be true, no reasoning has been offered as to why the accused had kept signed blank cheques with him for it is not common for individuals to do so. In absence of such details therefore, the averments of the accused seem highly unconvincing.

b) This court is also perplexed as to why the accused issued "Stop Payment Instruction" to his banker only regarding one of the impugned cheques i.e. regarding cheque bearing number 131320, if all of them were allegedly lost. Even in the Stop Instruction Form Ex DW1/A no details have been furnished as to how and when the cheques were lost. Now, the said Stop Payment instruction as laid in Ex DW1/A, is not in regards to just one cheque but for an entire cheque range i.e. cheque bearing number 131317 to 131340 drawn on HDFC Bank. The accused has not offered any explanation or even a hypothesis to elucidate that if the accused had indeed lost multiple cheques at the same point in time and in similar circumstances, how did only one of those reach the present complainant and was misused. Also how did cheques beyond the ones that CC No. 52321-16 Smt. Mamta Khanna v. Vaibhav Bhargava Page no. 16 of 16 are reported to be lost, reached the complainant for misuse. It is also strange as to why the accused not register any complaint or NCR with the police to safeguard his interest against any probable misuse. In such circumstances, the version of the accused does not inspire much confidence, for it would be really convenient for a drawer to give away a cheque against due liability and then turn around and casually file a complaint of it being lost with his banker or the police to prepare a self- serving defence ahead of any prosecution upon dishonor of cheque.

c) Now in his plea of defence to the notice under section 251 CrPC the accused has submitted that he had lost the cheuqes, however in his statement under section 281(1) read with section 313 CrPC recorded on 20.04.2018 he has taken an inconsistent plea and submitted that Amit Khanna, the husband of complainant somehow lay hands on his blank signed cheques and misused them through his wife, the present complainant. In his evidence as DW1 as well, the accused has submitted that the complainant has misused his cheques by procuring them illegally through her husband. He has also made a similar suggestion to the complainant in her cross examination. Further in his deposition as DW1, the accused has submitted that he had known Amit Khanna earlier, however, he never had any friendship with him. Now where the accused has alleged, at the most a formal acquaintance, with the husband of the complainant, no explanation has been offered by him as to how the said Amit Khanna procured his lost cheques om the first place. It is not the case that the two used to work together, or that the two were close friends who used to meet regularly etc., and therefore he had access and opportunity to steal his cheques from his possession nor has he averred CC No. 52321-16 Smt. Mamta Khanna v. Vaibhav Bhargava Page of 13 of 16 that the said Amit Khanna, extorted or coerced him to forcefully hand over the impugned cheques to him. Therefore, in such circumstances, it is highly unlikely to believe that some cheques were lost by the accused and somehow miraculously they landed up with his acquaintance Sh. Amit Khanna who allegedly connived with his wife to file the present false complaint.