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66. In above context, the counsel referred extensively to the pleadings of the civil suit and orders passed therein including the one whereby the matter has been referred to the arbitration (copies of which have been submitted as additional material under Section 391 Cr.P.C.)

67. I have considered the submissions in light of the material which has been referred but find no substance in the defence arguments. Even with the additional material having been taken on board, the conclusions reached by the trial court deserve to be reiterated. The over all facts and circumstances prevailing around 09.11.2006 need to be borne in mind The claim of the complainant in the two complaint cases under Section 138 Negotiable Instruments Act pending in the court of Metropolitan Magistrate at Patiala House courts was also larger than the amount for which it was eventually settled. This is demonstrated by the additional material submitted by the accused himself under Section 391 Cr.P.C. including the final order passed on 15.11.2006, whereby the settlement was recorded. Apparently, the spirit of give and take and amicable settlement was obtaining between the parties at that time. It may Crl. Appeal Nos. 73/13, 74/13, 75/13, 90/13, 91/13 & 92/13 Page No. 38 of 55 be that in the civil suit, the defendant has raised a counter claim much more than the amount claimed by the plaintiff but mere claim does not mean it is a claim wholly justified or permissible in the context in which it was staked.

71. The arguments do not impress me. While it is correct that the cases under Section 138 Negotiable Instruments Act at Patiala House Courts were not listed for hearing on 09.11.2006, the material on record itself shows that the parties were in touch with each other for amicable settlement. It does appear from the material submitted under Section 391 Cr.P.C. that the cases in Crl. Appeal Nos. 73/13, 74/13, 75/13, 90/13, 91/13 & 92/13 Page No. 40 of 55 question had last come up before the Metropolitan Magistrate on 31.10.2006 when the accused was absent and had sought exemption from personal appearance on medical grounds. The cases had been adjourned for 17.11.2006, with the request for exemption having been allowed subject to the condition that the accused would produce medical certificate on the next date of hearing. The material submitted under Section 391 Cr.P.C. further shows that, against the said backdrop, an application had been prepared supported by affidavit of the accused seeking to place on record the necessary documents about the illness. The said affidavit was sworn before the Oath Commissioner at New Delhi on 09.11.2006. It also needs to be highlighted that the cases in question, though adjourned for 17.11.2006, were actually taken up and disposed of on 15.11.2006, in the presence of the counsel on both sides, with the complainant of the cases also present, on 15.11.2006, two days ahead of the date fixed for hearing.

77. For the foregoing reasons, I do not find any ground to disbelieve the complainant with regard to his presence in the Patiala House Courts on 09.11.2006.

78.The appellant further argued that the trial court misdirected itself by ignoring the substantial material on record evidencing the accused having taken appropriate legal action respecting the acts of commission/omission involving ex­employee Sh. Narendra Chaukhani. The counsel argued that the material already submitted on record as defence evidence clearly showed that immediately after receipt of the demand notice the accused had become alive to the theft and misuse of the cheques which had been entrusted to the said employee and, thus, had promptly lodged a report with the local police in Mumbai which investigated into the matter and had initiated prosecution for criminal breach of trust and allied Crl. Appeal Nos. 73/13, 74/13, 75/13, 90/13, 91/13 & 92/13 Page No. 44 of 55 offences, in which proceedings the complainant of the present case and his son have also been made an accused. The counsel submitted that if any doubts were to persist about his version regarding the private loan (against which EMIs were to be paid and for which purpose the cheque books in question had been got issued from the concerned bank), the additional material submitted with the applications under Section 391 Cr.P.C. should provide the necessary clarity. For such purposes, he referred extensively to the defence evidence led and the documents submitted with the applications under Section 391 Cr.P.C.

82. The defence story about Naresh Chaukhani being the custodian of the cheques and he having misused the same does not deserve to be believed. The material on record relied upon by the accused himself (including the one submitted under Section 391 Cr.P.C.) itself punctures it beyond repair. The document dated 06.04.2002 issued by the Standard Chartered Bank in respect of loan account no. 40130525 does show a personal loan having been taken by the accused on 01.04.2002 which was repayable in 36 equated monthly instalments (EMIs) each of Rs. 3691/­ starting with 01.06.2002 and ending with 01.05.2003. The material under Section 391 Cr.P.C. further shows that the accused was maintaining personal savings Crl. Appeal Nos. 73/13, 74/13, 75/13, 90/13, 91/13 & 92/13 Page No. 47 of 55 bank account no. 8809 with Punjab & Sindh Bank, Khar, Mumbai. It does further substantiate the fact that at least three cheque books each containing 20 leaves were got issued against the said bank account. Admittedly, the three cheques involved in the cases at hand form part of the said 60 cheques. The impression sought to be created by the accused is that all the cheque leaves in the said cheque books were signed by him and handed over to Narender Chaukhani (an employee of RITVL) for purposes of using for repayment of the said personal loan through EMIs. If that were the purpose of the said cheques to be issued, there is no explanation why 60 cheques were got issued as against only 36 which would actually be required.