Delhi District Court
Sh. Subhash vs Rekha Singh on 2 April, 2025
CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
IN THE COURT OF MS GARIMA GARG, JUDICIAL
MAGISTRATE FIRST CLASS (NI ACT) DIGITAL COURT-01,
NORTH WEST, ROHINI COURTS, NEW DELHI
CC NI ACT/1204/2021
Subhash
S/O Sh. Kartar Singh
R/O H.N. 1057, Near Old Mandir,
Karala, Delhi-110081.
.....Complainant
Versus
Rekha Singh
W/o Sh Narendra Singh
R/o H. No. E-215, Vinay Enclave,
Prem Nagar-III, Delhi-110086.
.....Accused
PS. Kanjhawala
Digitally signed
Page No. 1/18 by GARIMA
GARIMA GARG
GARG Date:
2025.04.02
16:11:17 +0530
CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
DLNW020099712021
Complaint case no CC NI ACT 1204/2021
CNR No. DLNW020099712021
Title Subhash vs. Rekha Singh
Name of complainant Subhash
Name of accused Rekha Singh
Date of institution of complainant 14.06.2021
Date of final arguments 02.04.2025
Date of pronouncement 02.04.2025
Offence complained of Under section 138 NI Act
Offence charged with Under section 138 NI Act
Plea of accused Pleaded Not Guilty And Claimed Trial
Final Order Acquittal
Digitally
signed by
GARIMA GARIMA
Date:
GARG
GARG 2025.04.02
16:11:21
Page No. 2/18
+0530
CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
JUDGMENT
Vide this Judgment, I shall dispose of the present complaint under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act).
FACTUAL MATRIX
1. In essence, the case of the complainant is that accused had approached the complainant in April 2013 for a friendly loan of Rs.7,00,000/- as she was in need of money. Considering the same, the complainant advanced her a friendly loan of the same amount on 12.04.2013 for a period of five years to be paid in 60 monthly installments and for the same, a receipt was executed between the parties.
2. It is further stated that the accused again approached the complainant for sale of her property, situated in Mundka, Delhi and the same was purchased by the complainant on 26.04.2013 for a sum of Rs.5,00,000/- and the said sum was paid to the accused by him in cash. Sale documents were executed for the same and the possession of the said property was transferred by the accused to the complainant.
3. It is alleged that, the accused failed to return the aforesaid loan in the agreed time and in discharge of her liability towards the complainant, the accused issued the cheque in question bearing number 585212 dated 30.12.2020 drawn on Bank of Baroda for a sum of Rs.7,00,000/-, which was returned unpaid with the remarks "Refer to Drawer" vide return memo dated 19.03.2021. Despite sending the Legal Demand Notice dated 23.03.2021, no payment was received and thus, the present proceedings were initiated.
Digitally signedAPPEARANCE OF THE ACCUSED AND TRIAL GARIMA by
GARG
GARIMA
GARG
Date: 2025.04.02
16:11:24 +0530
Page No. 3/18
CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
4. On the basis of pre summoning evidence, accused was summoned to face the trial vide order dated 09.12.2021. Vide order dated 04.05.2022, a notice U/s 251 Code of Criminal Procedure, 1973 (hereinafter Cr.P.C.) for the offence punishable under Section 138 N.I. Act was framed against the accused to which she pleaded not guilty and claimed trial.
5. The accused took the plea of defence as follows:
" I took Rs. 5,00,000/- in the year 2013 from the complainant which were duly returned to complainant in installments. The cheque in question was taken by the complainant at the time of giving a loan of Rs. 5,00,000/-.The complainant did not return the cheque despite my repeated requests. I did not make any complaint with respect of returning of cheque against the complainant."
6. In view of the plea of defence and the application moved by the accused under Sec.145(2) NI Act, the trial was converted from summary to a summons case and vide order dated 05.07.2022, the Court granted the accused, right to cross examine the complainant.
COMPLAINANT EVIDENCE
7. To support his case, the complainant testified as CW-1 and tendered his affidavit as Ex. CW-1 into evidence, reiterating the averments made in the complaint. The complainant also relied on the following documents:
Ex. CW-1/2: Original Cheque bearing no. dated 30.12.2020 Ex. CW-1/3: Original Return Memo dated 19.03.21 Page No. 4/18 GARIMA Digitally signed by GARIMA GARG GARG Date: 2025.04.02 16:11:28 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 Ex. CW-1/4: Legal notice dated 23.03.21 Ex. CW-1/5: Speed post receipt CW-1 Mark A: GPA Documents Ex. CW-1/1 de-exhibited as Mark B: Receipt for cheque amount by Accused Ex. CW-1/6 de-exhibited as Mark C: Tracking Report
8. The Complainant (CW-1) was cross-examined by the Ld. Counsel for the Accused. As no further witnesses were presented by the Complainant, his evidence was concluded.
STATEMENT OF ACCUSED u/S. 313 Cr.P.C. r/w 281 Cr.P.C.
9. Thereafter, the accused's statement was recorded on 25.02.23 under Section 313 Cr.P.C., allowing her to explain the circumstances appearing in evidence against her. The accused has stated, "I took a loan of Rs.5 lakhs from the complainant in the year 2013. The cheque in question was taken by the complainant on the pretext that the same was required to check if I had any bank account. I have neither signed nor filled any particular on the cheque in question. Thereafter, I have returned the entire loan amount into various installments. However, the complainant did not return the cheque in question despite repeated requests. The complainant has filed false case against me. Complaint/witness has deposed falsely before this court. I want to lead defence evidence."
Digitally signed by GARIMA GARIMA GARG Page No. 5/18 GARG Date: 2025.04.02 16:11:31 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
10. The accused had examined herself as a witness under Section 315 Cr.P.C.. The accused had not called any other witness or brought on record or any documentary evidence as a part of her defence evidence. Therefore, vide a separate statement of the accused, DE was closed on 02.04.2024.
11. Thereafter, an application under Section 311 Cr.P.C. was filed on behalf of the accused on 26.08.2023, seeking the summoning of bank witnesses, which was duly allowed by an order passed on the same date. In compliance with this order, the testimony of Sh. Ashish Kumar (DW-2) was recorded on 24.01.2024. He produced the reply to the email (Ex.DW-2/A) sent by the Bank of Baroda (the drawer's bank), wherein it was stated that the cheque was returned with the remark 'Refer to Drawer' as it was a non-CTS cheque. Subsequently, the testimony of Sh. Jatin Guri (DW-3) was recorded on 08.10.2024. He presented the account opening form (Mark A), along with the originals of the signature card, statement of account, and return memo (Ex.D2/A (colly)). He confirmed that the reason for the return of the cheque was that it was a non-CTS cheque. He further clarified that the cheque in question had been issued from a set of cheques dated prior to 2013, and as such, it was not in compliance with the Reserve Bank of India (RBI) regulations and could not be processed. He further stated that it is correct that the signatures of every account holder are taken in their presence and if the cheque in question was not objected under non-CTS cheque, it would still not have been encashed as the signatures of the accused would not have matched upon cheque in question.
FINAL ARGUMENTS GARIMA Digitally signed by GARIMA GARG GARG Date: 2025.04.02 16:11:37 +0530 Page No. 6/18 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
12. Arguments were heard on 20.01.2025 and 2.04.2025 from both the sides. Written Submissions have been moved by both the parties.
13. I have gone through and considered the record.
THE LAW APPLICABLE
14. Sec.138 NI Act outlines specific ingredients that must be met cumulatively to establish that the accused has committed the offence of dishonour of cheque:
I. The cheque must be drawn by an individual on an account maintained by him;
II. The said cheque must have been issued, wholly or partly, for discharging a 'legal debt or other liability'; III. The said cheque was presented to the bank within its validity period and was dishonoured;
IV. The payee issued a legal demand notice in writing, within 30 days of the receipt of information of dishonor of the cheque; V. The drawer of the cheque failed to make payment within 15 days of receiving the legal demand notice.
15. Further, NI Act raises two significant legal presumptions in favour of the holder of the cheque once the cheque is proved to be executed. Pursuant to Sec.118(a),NI Act, it is presumed that every negotiable instrument has been 'made, accepted, transferred, negotiated, or endorsed for consideration', unless contrary is proved. Furthermore, Sec.139 NI Act stipulates that unless contrary is proved, a presumption shall be raised that the holder of a cheque received the Page No. 7/18 Digitally signed by GARIMA GARIMA GARG GARG Date:
2025.04.02 16:11:40 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
16. The three-Judge Bench of Hon'ble Supreme Court in Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 has held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertains to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence.
17. The Hon'ble Apex Court after analysing various judicial pronouncements in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, summarised the principles as follows: -
"(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
Page No. 8/18 Digitally signed
by GARIMA
GARIMA GARG
GARG Date:
2025.04.02
16:11:45 +0530
CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden."
POINTS FOR DETERMINATION
18. Applying the preposition of law as noted above, in facts of the present case, i. The cheque was presented within the period of validity and was dishonoured vide return memo Ex. CW1/3 dated 19.03.2021 with the reason 'funds insufficient'.
ii. Accused has admitted the receipt of legal demand notice Ex. CW1/4 dated 23.03.21, in the notice framed against her under Sec. 251 Cr.P.C. She has further stated that she had replied to the said legal demand notice.
iii. The ingredient of non-payment within fifteen days after receipt of legal demand notice is not disputed by the accused.
19. Thus, three ingredients i.e. III,IV,V of Sec. 138 NI Act, as aforementioned, stand proved in favour of the complainant. The two points of determination which remain to be decided, are ingredient no. I and II i.e. whether the cheque in question has been issued by the accused and if yes, whether the same has been issued in discharge of a legal liability.
Ingredient I: The cheque must be drawn by an individual on an account maintained by him.
20. In the instant case, the accused has denied that the signature on the said cheque is hers or that she has filled the particulars in the said cheque, in the notice u/s 251 Page No. 9/18 Digitally signed by GARIMA GARIMA GARG GARG Date:
2025.04.02 16:11:48 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 Cr.P.C as well as in her statement u/s 313 Cr.P.C. Furthermore, she has stated that the cheque in question was taken by the complainant at the time of lending the money, i.e. in 2013, under the pretext that the same was required to check if the accused had a bank account or not.
21. It has been contended by the accused that she did not sign the said cheque. Section 118 of the NI Act plays a significant role here.
"118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:
...(e) as to order of indorsements: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon..."
21.1 Section 118(e), NI Act creates a clear presumption that the endorsements on a negotiable instrument are made in the order in which they are presented on the instrument. Thus, a presumption arises in the favour of the complainant that the indorsement on the said cheque is genuine.
21.2 In Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.([2024] 1 S.C.R. 1083), the Hon'ble Supreme Court of India has held that to rebut the presumption under Section 118(e), NI Act the accused should have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque. It further held that, "Certified copy of a document issued by a Bank is itself admissible under the Bankers' Books Evidence Act, 1891 without any formal proof thereof. Hence, Page No. 10/18 Digitally signed GARIMA by GARIMA GARG GARG Date: 2025.04.02 16:12:08 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Indian Evidence Act, 1872."
21.3 In the present case, to rebut the presumption and demonstrate that the signature on the cheque in question does not belong to the accused, the accused called a bank official from Bank of Baroda i.e. the drawer's bank, along with the specimen signatures of the accused. A comparison of the specimen signatures, as evidenced by Ex. D2/A (colly), reveals difference from the signature on the cheque in question. Notably, the specimen signatures in the bank records are in Hindi, while the signature on the cheque is in English. Additionally, every document submitted before the Court including the notice under Section 251 Cr.P.C, the statement under Section 313 Cr.PC, the examination-in-chief, and the cross-examination has been signed by the accused in Hindi, and these signatures seem to be different from the one on the cheque in question. Furthermore, according to the testimony of Bank witness/ DW-3, had the cheque not been returned for being non-CTS in nature, it would have been dishonoured due to a 'signature mismatch'. Thus, the accused has been able to raise doubts in the case of prosecution to the extent of preponderance of probabilities and rebut the presumption raised under Section 118, NI Act.
22. Alternatively, even if the said presumption is not rebutted, and presuming that the cheque in question was indeed issued by the accused, the presumption under in view of Sec.139, NI Act and decision of the Hon'ble Apex Court in Rangappa (supra), the presumption under Sec.139, NI Act for legally enforceable debt is raised and the burden now shifts upon the accused to rebut the said presumption.
Page No. 11/18 Digitally signedGARIMA by GARIMA GARG GARG Date: 2025.04.02 16:12:13 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 To rebut the aforesaid presumption, the accused has chosen to cross examine the complainant has chosen to cross examine the complainant to poke holes in his case and has also led defence evidence.
Ingredient II: The said cheque must have been issued, wholly or partly, for discharging a 'legal debt or other liability';
23. Firstly, it is the defence of the accused that, the said cheque is a NON CTS (Cheque Truncated Scheme) cheque, which is also the reason of its return (as can be seen in Ex. D2/A (colly)), and therefore, the same is not a legal tender. Though, Non-CTS cheques were discontinued in 2010 but can still be presented to banks for payment, following specific guidelines from RBI. While it was clarified that non-CTS cheques lost their value on 01.01.2019, they remain valid negotiable instruments. Therefore, the accused's defence that the cheque is non- CTS is untenable, as such cheques are valid negotiable instrument.
24. Secondly, the accused contends that the cheque in question was provided to the complainant at his request in 2013, solely to verify whether the accused had a bank account, and not in 2020 against discharge of any liability, as alleged by the complainant. Perusal of the record reveals that the testimony of the Bank witness/DW-2 states, "The cheque in question was obtained from the cheques issued prior from 2013 hence it was not entertained by the rules of RBI". Furthermore, even if the complainant's version is accepted, namely, that the cheque was issued on 30.12.2020, the onus was on the complainant to verify the validity of the cheque prior to its acceptance. As observed in Rohith v. Anil Kumar (2023:KHC:24782), the CTS was introduced by the Reserve Bank of India (RBI) in the year 2011 and the scheme was still in operation up to Page No. 12/18 Digitally signed GARIMA by GARIMA GARG GARG Date: 2025.04.02 16:12:17 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 31.12.2018. Therefore, on and from 01.01.2019, the non-CTS cheque would lose its validity. Banks issued notice to customers nationwide, informing the same and if despite it, the complainant failed to take cognizance and accepted the cheque in question, it would constitute a lapse on the part of the complainant, as ignorance of the law is no excuse in eyes of the law. In light of the testimony provided by the bank witness, and considering the claims put forth by both parties, the version presented by the accused appears more credible to the Court.
25. Thirdly, it is admitted by the accused that she had taken a loan from the complainant though not of the cheque amount i.e. Rs.7,00,000/- but only of Rs. 5,00,000/- in 2013. The accused contends that the loan was fully repaid in installments. Though to substantiate the same, the accused has not brought any document on record or any witness to corroborate her version. Notably, the complainant himself has acknowledged that the loan was extended in 2013 with a repayment period of five years by way of sixty installments. If the accused had indeed defaulted on payments during this period, a pertinent question arises as to why the complainant failed to take any action against the accused when the first default in the payment of the installment occurred or even during the subsequent five-year period of non-payment. Moreover, even after the five-year term expired, an additional two years elapsed before the alleged cheque was issued. As noted in Paragraph 24, the cheque in question is believed to have been provided to the complainant in 2013. This raises an important question as to why the complainant failed to file a complaint or initiate a recovery suit earlier if no payment was made by the accused between 2013 and 2020. The complainant has failed to offer any reasonable explanation or provide cogent evidence to persuade the Court on this issue. It is highly improbable that no repayment was done and yet the complainant did nothing. It is more plausible that partial Page No. 13/18 GARIMA Digitally signed by GARIMA GARG GARG Date: 2025.04.02 16:12:31 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 payments were made at various stages of the transaction which likely compelled the complainant to not take any legal action. This makes it more probable that repayment occurred, as opposed to the loan amount remaining unpaid. As a result, the balance of probability tilts in favour of the accused and the version of the accused seems more probable rather than that of the complainant.
26. Fourthly, in his cross examination by the Ld. counsel for the accused, the complainant/CW-1 has stated that he had advanced loan to the accused at the request of one person namely Tonny Mistry. The relevant portion of the cross examination of the complainant/CW-1 is as follows:
"I know accused through some scooter wala and I used to go at his shop, hence accused met me there only. I am not aware why accused used to visit the scooter shop. I met accused in April 2012 first time at Scooter shop. Thereafter, we met at Scooter shop once or twice only. One Mr Tonny Mistry at scooter shop approached me to provide the loan as accused was needy for the same. I used to know Tonny since 4 to 5 years prior to April 2012. I gave the loan of Rs.7 Lakhs to accused Rekha at the request of Tony Mistry. I gave loan of Rs. 7 Lakhs cash only to accused at the instance and reputation of Mr. Tony Mistry. I arranged the loan amount from my brother and relatives."
26.1. It is the case of the defence that no reference to the said person is made in the complaint and has only been mentioned for the first time in cross examination of the complainant. It is further alleged that the said person has not been brought on stand to substantiate the complainant's claim. Moreover, in his cross examination, complainant/CW-1 has stated that he arranged funds for advancement of the loan to the accused from his brother and relatives. In the opinion of the Court, it seems improbable that Page No. 14/18 GARIMA by Digitally signed GARIMA GARG GARG Date: 2025.04.02 16:12:36 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 any prudent man would give a friendly loan amounting to Rs.7,00,000/- without interest to a person, for a time period of five years, after arranging funds from other people. More so, when he has met the accused only once or twice before advancement of the said loan and knows her only through a third person. Hence, this claim of the complainant does not seem plausible and fails to inspire confidence of this Court.
27. Fifthly, Ld. Counsel for the accused has pointed out some material contradictions in the case of the complainant and his cross examination by the Ld. Counsel for the accused.
27.1. It is the contention of the accused that the complainant has placed on record two copies of the receipts executed between the parties, both attested on same date. While the first (Mark A dated 12.04.2013) states that an amount of Rs.7,00,000/- is paid to the accused, the second one (Mark B(colly)) states that an amount of Rs.5,00,000/- is paid to the accused. The second receipt is executed in lieu of the alleged transfer of the property by the accused. It is the case of the accused that no such transfer of property took place between the parties and only a loan of Rs.5,00,000/- was given by the complainant to the accused and no other amount. Further, it is the claim of the accused that the said receipts are fabricated, and only the copies of the said documents are produced on record, and not the original.
27.2. At this juncture, it is pertinent to reproduce the relevant portion of the complainant/CW-1's cross-examination:
"It is correct that I have not paid a single penny to the accused after paying her the cash amount of Rs.7 Lakhs at any point of time. (Vol. I have Page No. 15/18 Digitally signed by GARIMA GARIMA GARG GARG Date:
2025.04.02 16:12:39 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 not paid any loan amount after paying her cash of Rs.7 Lakhs). I have not prepared any stamp documents in respect of loan amount of Rs.7 lakhs. (Vol. I have prepared an affidavit but I don't know anything about that). I do not know the affidavit in respect of loan of Rs.7 lakhs was prepared on which date. I do not remember whether I got prepared the above affidavit prior to, on the same date or after dispersion of the loan. I have purchased a property from the accused but I do not remember the date month or year. I do not remember the sale consideration amount of the property which I purchased from the accused. I do not remember the date of time when I purchased the property from the accuse whether it was prior or after dispersion of the loan"
"It is correct that the receipt dated 12.04.2013 is attested on 26.04.2013 and the property executed by the accused in favour of the complainant is also attested on 26.04.2013. It is wrong to suggest that I have not paid the amount of Rs.7 Lakhs to accused at any point of time. It is further wrong to suggest that I have not purchased any property from the accused or paid any sale consideration amount to the accused. It is further wrong to suggest that the sale consideration of property bearing number E-3/215, land measuring 50 sq. yard out of Khasra Number 4/13, situated in area of village Mundka, Delhi Abadi, also known as Vinay enclave, Prem Nagar, 3 Delhi 86 is not been paid by me or executed by accused in my favour. It is further wrong to suggest that the receipt dated 12.04.2013 as well as property documents dated 26.04.2013 are forged and fabricated."
27.3. A perusal of the cross examination of Complainant/ CW-1 reveals that the complainant could not reveal any material particulars with respect to the alleged execution of the first receipt/affidavit pertaining to lending of the Page No. 16/18 Digitally signed GARIMA by GARIMA GARG GARG Date: 2025.04.02 16:12:44 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 loan amount of Rs.7 Lakhs. Furthermore, the complainant could not provide any details with respect to the alleged transfer of the property or the second receipt. Hence, the complainant's testimony did not withstand the rigors of cross-examination, and has undermined the credibility of his case.
28. The contradictions in the versions put up by complainant in his complaint and his cross examination are not insignificant: they strike at the heart of this issue. Whereas, the accused, has maintained unwavering consistency in her stand right from the defence disclosed, to the case put up by her in the cross examination of CW-1, the statement recorded under Section 313, Cr.P.C and in the defence evidence led by her.
29. The phrase 'preponderance of probabilities' in Charles R. Cooper v. F.W. Slade (1857-59) was interpreted to mean the "more probable and rational view of the case." This definition was recently upheld in Ramanand v. State of U.P., 2022 SCC OnLine SC 1396, at para 100.
30. The version of events presented by the accused appears to be more plausible and a rational view of the case than that of the complainant. When considering the facts, including the case set up by the complainant, the cross-examination of complainant and the evidence led by the accused, it is clear that the accused has raised a reasonable defence. Regarding the presumption in favour of the complainant, at first it is not raised in the present case and alternatively, even if raised, it is well-established that a presumption is not evidence in itself but merely establishes a prima facie case for a party for whose benefit it exists. The accused in this case has been able to poke holes in the case of the complainant Page No. 17/18 Digitally signed GARIMA by GARIMA GARG GARG Date: 2025.04.02 16:12:47 +0530 CC No. 1204/2021 Subhash vs. Rekha Singh Date of Pronouncement 02.04.2025 and to bring evidence on record to show that the true facts are not as presumed. Further, it is also imperative to understand that in order to pronounce a conviction in a criminal case, the accused "must be" guilty. And for an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidences.
31. In the aforementioned context, the accused has successfully raised a plausible defense, thereby shifting the burden of proof back onto the Complainant to establish his case beyond a reasonable doubt, which the Complainant has utterly failed to do. The complainant has not been able to establish that the cheque was drawn by accused on an account maintained by her and the existence of a legally enforceable debt. As the same has not been proven, the offense under Section 138 of the Negotiable Instruments Act is not made out, and consequently, the prosecution fails.
32. In view of the above, the accused Ms. Rekha, is acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act in respect of cheque Ex. CW 1/2.
Note: This judgement contains 18 signed pages and 32 paragraphs and each page of this judgement has been digitally signed by the undersigned.
Announced in the open court on 02.04.2025 Digitally signed by GARIMA GARIMA GARG GARG Date:
2025.04.02 16:12:53 +0530 (Garima Garg) Judicial Magistrate First Class (NI Act) Digital Court-01, North West, Rohini Courts, Delhi/02.04.2025 Page No. 18/18