Brief facts as alleged by the complainant are that the complainant Ashok Dandona was in a business relationship with the accused who is the proprietor of M/S RVR Plastics through his proprietorship concern M/S LPC Polymers and used to supply the accused proprietorship concern plastic danna. In November 2012, the accused issued the impugned cheques to the complainant to clear the outstanding dues, however upon presentation, all were returned CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 dishonored for reason "Account Closed". Details of these cheques is as follows:

2. Thereafter, the complainant sent a legal notice dated 12.08.2013 demanding the amount due, however despite service of the legal demand notice, the accused did not repay within 15 days of the stipulated period. Therefore, the present complaint under Section 138 of the Negotiable Instruments Act,1881 (hereinafter called "the act").

3. The present complaint was initially filed before the court of Ld. MM, Dwarka Courts, South West District, New Delhi. However after the judgment of the Honorable Supreme Court of India in case titled as "Dashrath Roop Singh Rathod Vs State of Maharashtra & Anr", the matter was returned for filing in the jurisdiction of Faridabad court, Haryana where after perusal of material on record, prima facie case was made out and cognizance was taken by the court of Ld. JMIC, Faridabad, Haryana vide order dated 14.11.2014. Accused appeared on bailable summons and secured bail. Pursuant to the introduction of the Negotiable Instruments (Amendment) Second Ordinance, 2015, the matter was transferred to the jurisdiction of Patiala House Courts, New Delhi District, New CC no. 58433­16 Ashok Dandona Vs. Rekha Sharma Page 2 of 22 Delhi.

4. Fresh notice was sent to the accused for appearance. Notice u/s 251 Cr. PC was served upon her on 10.10.2018 to which she pleaded not guilty and claimed trial. In her plea of defence, the accused while admitting her signatures on the cheques, submitted that the cheques in question were given to the complainant as security cheques. Despite repeated requests the complainant did not return the same and instead misused them to file the present false complaint. She further submitted that no amount was due towards the complainant on the date of presentation of these cheques. After her application under section 145(2) NI Act was allowed, the accused was granted opportunity to examine the complainant. Unfortunately, the complainant expired before his deposition. His Son, Sh. Hemant Dandona then moved an application for substitution as the new complainant, supported by a No objection certificate in his favour by all the surviving legal heirs of the complainant. Further he placed on record his post summoning evidence by way of affidavit wherein he averred to have been working with his father in his proprietorship concern and therefore having personal knowledge of the transaction between the parties. Accordingly, he was substituted as the complainant and was thereafter duly cross­examined by the accused, in his new capacity. CE was closed vide order dated 30.08.2019.

5. Thereafter, all incriminating evidence was put to the accused and her statement under Section 281 read with Section 313 was recorded wherein the accused again denied the claim of the complainant. She submitted that she was not actively involved in the operations of her proprietorship concern RVR Plastics and the same was taken care of by her husband. Further she denied having CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 received any legal notice from the complainant and submitted that she has no liability towards the complainant.

6. In her defence, the accused examined her husband Sh. Vijay Sharma as witness DW2 who while denying the claim of the complainant submitted that the proprietorship concern RVR plastics had no business transaction with the complainant or his proprietorship concern and instead he was dealing with the brother of deceased complainant Sh. Ram Dandona and issued him the impugned cheques as security for the business transactions between them. Further he submitted that he has already settled all the outstanding dues of the proprietorship concern RVR Plastics with the said Sh. Ram Dandona in mediation in a separate litigation under section 138 NI Act, filed by Sh. Ram Dandona against the accused in Tis Hazari Court, New Delhi vide agreement dated 04.12.2017(Ex DW1/3 (OSR)) for an amount of Rs. 5,80,000/­ only. The witness also tendered in evidence copy of complaint case number no 523860/16 u/s 138 NI act filed before the court Ld. MM, THC, Delhi to support his averments. Further to establish that dues of the accused proprietorship concern RVR Plastics towards LPC Polymers if any, were limited to the extent of Rs. 7,55,965/­ only in the year 2009, the witness DW2 placed on record copy of his Ledger Statement (Ex DW1/2), a letter dated 01.09.2010 (Ex DW1/1 (OSR)) and his income tax return statement for FY 2009­ 2010. No other witnesses were sought to be examined by accused and therefore DE was closed vide order dated 12.09.2019.

7. 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 CC no. 58433­16 Ashok Dandona Vs. Rekha Sharma Page 4 of 22 is clear from the evidence on record that the complainant had never had any transaction with the deceased complainant or his son instead he was dealing with the brother of deceased complainant Sh. Ram Dandona proproietor of M/S Laxmi Plastic centre, who used to ask him to pay through cheques at times in name of Laxmi Plastic centre, at times DD Polymers and other times in name of the complainant concern M/S LPC Polymer. It is argued that the complainant somehow procured the security cheques given to his brother Sh Ram Dandona and misused them to raise a false claim. He further argued that the complainant had failed to satisfactorily explain the liability due. He has neither placed any invoice or purchase order on record nor filed any ITR or VAT returns. Further Ld. counsel disputed the genuineness and admissibility of the statement of accounts (Ex CW1/4(colly)) placed on record by the complainant since the same is neither stamped or authenticated by any Chartered accountant nor it is supported by a certificate under section 65 B of Indian Evidence Act. Ld. counsel also submitted a written synopsis of his submissions.

8. Per Contra, Ld. Counsel for complainant has argued that the defence as averred by the accused is a complete sham. He argued that the accused duly purchased material from the complainant and now to escape his liability is presenting a false defence before this court. Further, it is advanced by ld. counsel that the accused has miserably failed to establish any probable defence as she did not even step into the witness box to depose her statement on oath and has solely relied upon the deposition of her husband (DW2) whose testimony is at the most hearsay. It also pointed out by Ld. counsel that even in his deposition the witness DW2 has not supported the stand of the accused as he has no where deposed that the impugned cheques were given as security cheques. Further ld. counsel has also CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 argued that though the accused initially denied having any business relation with the complainant, in contrary to the earlier stand, through witness DW2, she has herself placed on record documents and admitted having liability of Rs 7,55,965/­ towards the complainant. Therefore, it is argued by ld. counsel for the complainant that the accused is intentionally avoiding making payment for his due liability by presenting before this court, a false and concocted defence, devoid of any merit. Ld. counsel for complainant also submitted a written synopsis of his submissions.

9. I have considered the rival submissions and perused the record.

10. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises.

11. Admittedly, the said cheques Ex. CW1/A, Ex. CW1/B, Ex. CW1/C, and Ex. CW1/D were drawn upon the account of the accused. The same were presented to the bank within its validity period and were returned dishonored as established vide return memo Ex. CW1/E, Ex. CW1/F, Ex. CW1/G and Ex. CW1/H. Legal demand notice dated 12.08.2013 demanding the cheque amount was dispatched within statutory period as established by postal receipts Ex.CW1/J. CC no. 58433­16 Ashok Dandona Vs. Rekha Sharma Page 6 of 22 Therefore, essentials of Section 138 NI Act stand prima facie satisfied and a presumption under Section 139 read with Section 118 of NI Act arises in favor of complainant, for the accused to rebut either by discrediting the veracity of material relied upon by the complainant or by leading positive evidence to probablise his defence on the touchstone of preponderance of probabilities as provided by a three Judge bench of the Honorable Supreme Court in Rangappa Vs Sri Mohan (2010) 11 SCC 441.

12. I shall now discuss each of the defences put forth by the accused in light of the evidence on record.

demand notice dated 12.12.2013 (Ex CW1/C) addressed to the accused at "C­104, Ashoka Enclave, Part II, Faridabad, Haryana" along with postal and courier receipts (Ex CW1/J). However, the accused in her plea of defence to notice under section 251 CrPC and her statement under section 281 read with section 313 CrPC has submitted that she never received any legal notice from the complainant.

b) Now perusal of file shows that the address on which the legal notice is sent is the same as furnished by the accused in her own bail bonds furnished by her on 28.08.2018 and also submitted the same address before this court while framing of the notice under section 251 CrPC. Further summons and warrants from this court were duly CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 served to the accused on the same address upon which she made appearance before the transferee court and also this court. In light of such contradictions, it cannot be said that the address so mentioned on the legal demand notice was not that of the accused. Therefore, by virtue of Section 27 of General Clauses Act read with section 114 of Indian evidence act, delivery of the legal demand notice (Ex.CW1/C) can be safely presumed.

c) Further, we may also place reliance on the dicta as laid by Supreme court in C.C Alavi Haji Vs Palapetty Muhammed & Anr (2007) 6 SCC 555, wherein three judge bench of the apex court has categorically stated that non­receipt of legal demand notice cannot be the only defence. If at all the accused did not receive the legal notice he can make the payment so due within 15 days of receipt of summons from court along with copy of the complaint. A person who does not pay even after the receipt of court summons cannot contend that there was no proper service of notice as required under Section 138 NI Act, by ignoring the statutory presumption under Section 27 of General Clauses Act.

a) During the trial, the original complainant Sh Ashok Dandona expired and his son Sh. Hemant Dandona was substituted as the new complainant. It is the argued by Ld. counsel for accused that the CC no. 58433­16 Ashok Dandona Vs. Rekha Sharma Page 8 of 22 substituted AR is not competent to depose in the present complaint as he was never a party to the transaction between the parties and has joined the complainant proprietorship firm only after the death of his father.

b) With regards to this submission, the judgement of Honorable Supreme Court in case titled A.C. Narayanan Vs State of Maharashtra & Anr. , 2013(11) Scale 360 is relevant wherein the three judge bench while discussing the provision, scope and powers of a power of attorney holder laid the following:

However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.

CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22

(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person."

c) Now in the case in hand, where the substituted complainant, Sh.

Hemant Dandona, has deposed on oath that he was working with his father in his proprietorship firm during his lifetime and was therefore aware of the transaction between the parties there is no reason to raise doubts on his competency and ability to depose, only because he could not provide the exact date as to when the first dealing ever took place between the parties or because he has not placed on record any proof that he is now the sole proprietor of the proprietorship concern earlier run by his father. His deposition on affidavit dated 19.07.2019 that he is well conversant with the facts and circumstances of the case is enough to hold him eligible for his present role. Therefore, contention of Ld. counsel for accused in this regard stands rejected.

III Defence of security cheque

a) It is submitted by the accused in her plea of defence to the notice under section 251 CrPC and again in her statement recorded under section 313 CrPC read with section 281(1) CrPC that the impugned cheques were given as security to the complainant and he presented them for encashment without any authorization or permission and therefore misused the same. Now, the scope of security cheques under Section 138 NI Act was discussed by the Honorable Delhi High Court in Credential Leasing & Credits Ltd. vs Shruti Investments & Anr .

CRL. L.P. 558/2014. Relevant para is enumerated as follows:

b) Therefore, in the present facts and circumstances, where the accused has admittedly signed the cheques in question and handed them against the running business transaction, she cannot escape his liability by mere averment that the cheques in question were security cheques and were not issued for discharge of liability, if it is established that an CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 ascertained and crystallized debt or other liability existed on the date when the cheque was presented. What needs determination therefore is whether any legally recoverable liability existed on the date of presentation of the cheque. Further even if blank cheques were handed over to the complainant by the accused and it was the complainant who affixed the name of payee, date and the amount thereon, the same will not be a material alteration so as to render the impugned cheques void as laid by the Honorable Delhi High Court in judgement in case titled Ravi Chopra vs State 2008(2) JCC (NI)

c) There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. Reliance is placed upon the decision of Honorable Delhi High Court in judgement in case titled The Jammu and Kashmir Bank vs. Abhishek Mittal, Crl . A. No. 294/2011 (Decided on 26.05.2011)

d) However, the accused cannot fill and present the cheque for an amount more than what is due to him on the date of presentation. Accordingly, this court shall now go on to determine the liability of accused on the date of presentation of the impugned cheques.

concern had no transaction or any business dealing with the deceased complainant but instead all dealings were with his brother Sh Ram Dandona, who used to deal with him in name of three proprietorship concerns i.e. Laxmi Plastic center, DD Polymers and the complainant concern LPC Polymers and accused has already settled her entire consolidated dues towards all three proprietorship concerns with him in a separate litigation and therefore she has no liability as to the impugned cheques. DW­1 has placed on record the settlement agreement dated 04.12.2017(Ex DW1/3(OSR)) and a few cheques (Ex DW1/8) which were allegedly returned by Sh Ram Dandona after their validity had expired and the accused had issued fresh cheques against them to support his submissions.

b) Perusal of the evidence shows that except bare averments there is nothing on record to support the said submission of the accused. No submission regarding involvement of any third party, let alone any Ram Dandona, was ever made by the accused either in her plea of defence to the notice under section 251 CrPc or in her statement recorded under section 313 CrPC read with section 281(1) CrPC or her application under section 145(2) NI Act seeking opportunity to cross examine the complainant. The existence and involvement of Ram Dandona was introduced for the first time, years later, only by the witness Sh. Vijay Sharma, husband of the accused in his deposition as DW1. Also CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 this new stand is in direct contradiction with the plea as taken by the accused in her plea of defence to the notice under section 251 CrPc or in her statement recorded under section 313 CrPC read with section 281(1) CrPC that the impugned cheques were issued to the complainant only but as security cheques which he did not return despite repeated requests and instead misused them to file the present complaint. Though the said statements of the accused were not made on oath and thus cannot be relied upon, the contradictions it is leading to, cannot be ignored in toto. Therefore, introduction of involvement of a third party in the evidence of DW1, was more like an afterthought to improvise the earlier stand and therefore does not seem credible.

c) Now even if the theory as propounded by DW2 is assumed to be true that dealings of the accused proprietorship firm were with one Sh Ram Dandona, brother of the complainant only, with whom he settled his accounts through a settlement agreement (Ex DW1/3(OSR)), this court is prompted to question as to why the accused never summoned Sh. Ram Dandona to prove his case. Even if the accused had apprehension that the complainant unlawfully procured the impugned cheques from his brother, Sh Ram Dandona and filed a false and fabricated complaint against her in connivance with his brother, and therefore he could not be expected to support her case, why is it that she never initiated any criminal action against the deceased complainant or the said Ram Dandona or against any other member of his family and this is so when the accused is vehemently contesting the present complaint since 2013.

d) Even other wise, the settlement agreement dated 04.12.2017(Ex DW1/3(OSR)) between the accused and the brother of the complainant Sh. Ram Dandona, relied upon by the accused, bears no mention of settlement regarding any transaction between the accused, the impugned cheques, the present complainant or his proprietorship concern LPC Polymers even when the settlement agreement (Ex DW1/3(OSR)) has been executed during the pendency of the present trial. Further, the accused has never even made any submission before the trial court at any time after the above settlement, that claim as to the impugned cheques has been settled between her and the family of the complainant and therefore the present proceedings should either be compounded or stopped under section 258 CrPC. Again, though DW1 has deposed in his evidence that the alleged cheques were handed over to the said Sh. Ram Dandona, no request for return of cheques was ever made either before, after or in the settlement agreement dated 04.12.2017 (Ex DW1/3(OSR)). The conduct of the accused, therefore, does not resonate with what can be expected of a reasonable, prudent business man who can be expected to take a rather precautionary approach on his cheques being misplaced and can be expected to use every legal remedy to defend his lawful rights.

e) Also, no explanation has been put forth by the accused that why would she issue cheques for the purpose of payment against invoice or even as security to any business associate from an account that was "closed" before the date of presentation of the cheques as reflected by the return memos. Alternatively, if the accused much after CC No. 58433­16 Ashok Dandona Vs. Rekha Sharma Page of 22 the issuance of cheques, decided to close down her bank account for any reason, why is it that she did not send any written intimation to the holder of the cheques in this regard to avoid dishonor of such cheque. Accordingly, this court finds the version as elucidated by the accused highly non­plausible.

f) Now with respect to the quantum of dues, DW1 has submitted that the liability of the accused proprietorship concern RVR Plastics towards the complainant concern was only limited to Rs. 7,55,965/­ and not to the tune of Rs.36,15,982/­ as propounded by the complainant. He disputed the genuineness of the Statement of accounts (Ex CW1/4 (Colly)) as placed on record by the complainant and has instead relied upon his own Ledger Statement for the period 1.04.2006 to 31.03.2010 (Ex DW1/2), Income Tax return statements of the accused prop concern RVR Plastics for FY 2009­10 (Ex DW1/6 (OSR)) and its financial statement for the FY 2010­11(Ex DW1/7 (OSR)) and a letter dated 01.09.2010 (Mark A) sent by LPC Polymers to RVR Plastics to support his submissions.

g) Though the ledger statement (Ex DW1/2) is a computer generated document, DW1 did not annex any certificate under section 65 B of Indian Evidence Act to prove the same. However, the same was later placed on record by DW1 in his further examination as ex DW1/5. Ld. Counsel for complainant objected to the stage of production of the certificate under section 65 B IEA (DW1/5). The objection is however, dismissed and document Ex DW1/2 is admitted into evidence CC no. 58433­16 Ashok Dandona Vs. Rekha Sharma Page 16 of 22 since the production of certificate under 65 B of Indian evidence act at a later stage during the evidence itself is not barred by any provision of law and ld. counsel for complainant had ample opportunity to cross examine the witness upon such certificate. Reliance is placed on the judgment on the honorable apex court in Paras Jain v. State of Rajasthan , MANU RH 1150 2015. Now with respect to the contents of the statement, DW1 has deposed that the same is in congruence with the statement as produced by the complainant till 2009. However, entry dated 08.04.2009 for Rs 1,48,330/­, entry dated 08.04.2009 for Rs 2,50,250/­, entry dated 08.05.2009 for Rs 1,28,700/­, entry dated 08.06.2009 for Rs 1,52,750/­ and entry dated 05.06.2009 for Rs 2,76,331/­ are false and fabricated and no such bills have ever been raised upon the accused concern. Now firstly, the said ledger statement belongs to the period 1.04.2006 to 31.03.2010 and the cheques in question belongs to the year 2013, therefore it cannot be said that no transaction took place between the parties post 2010 taking the total liability of the accused to the amount so claimed by the complainant.

h) Secondly, even if no transaction took place between the parties post 07.08.2009 which is the last entry in the Ledger Statement (Ex DW1/2), since the accused or DW2 has never deposed to have paid the said Rs 7,55,965/­ to the complainant concern, it cannot be ruled out that charges and interest etc. were imposed by the complainant concern as per some agreement or business practice, and added to the principle amount, so as to mount the liability of the accused firm towards the complainant concern to the amount so alleged by the complainant.

legitimacy of five entries in the ledge statement as produced by the accused, he has neither confronted the complainant in his cross examination as CW1 with the ledger statement (Ex DW1/2) nor questioned him upon the authenticity of the specific entries denied by him or even given a suggestion to this effect. Similarly, the Income Tax return statement (Ex DW1/6 (OSR)) placed on record pertain to the financial year 2009­10 and the financial statement (Ex DW1/7 (OSR)) pertains to the financial year 2010­11 and no record pertaining to the year 2011­12, 2012­13 or 2013­14 has been placed on record which is relevant in the present complaint, given the impugned cheques, all belong to the year 2013 and what needs determination is the liability due on the date of presentation which remains unproved by the documents placed on record by the accused.

j) Even otherwise the Ledger Statement for the period 1.04.2006 to 31.03.2010 (Ex DW1/2), Income Tax return statements of the accused proprietorship concern RVR Plastics for FY 2009­10 (Ex DW1/6 (OSR)) and its financial statement for the FY 2010­11(Ex DW1/7 (OSR)) are all self­declaratory documents, authored by the accused herself and such self serving evidence cannot be relied upon blindly in absence of any corroborative evidence since mere filling of returns is an ipso facto proof of its correctness.

k) Next, with respect to the letter dated 01.09.2010 CC no. 58433­16 Ashok Dandona Vs. Rekha Sharma Page 18 of 22 (Mark A) sent by LPC Polymers to RVR Plastics, wherein it is alleged that the complainant concern LPC Polymers has itself mentioned the dues to the accused as Rs 7,55,965/­ cannot be relied upon, since being a photocopy it is inadmissible in evidence. Even otherwise Mark A does not bear any stamp of the complainant proprietorship concern nor does it bear signatures of either the deceased complainant Sh. Ashok Dandona or the substituted complainant Sh. Hemant Dandona who were the only sole proprietors of the complainant concern at different times. The said conclusion has been reached by the court on comparison of the signature on the document Mark A with that of the deceased and substitute complainant on their respective evidence by way of affidavit.

l) For the reasons discussed above, this court is of the opinion that the accused has not been able to establish any probable defence.

m) Now while discussing the burden of proof in a complaint under section 138 Negotiable Instruments act, the apex court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal , 1999 3 SCC 35 laid as follows: