Delhi District Court
Alok vs Suchita Pathak on 23 November, 2023
IN THE COURT OF MS. AAKANKSHA, METROPOLITAN
MAGISTRATE, (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW
DELHI
Ct. Case No. 1609/2017
CNR No. DLSW02-000827-2017
Alok .......Complainant
Through: Mr. Jai Dev Solanki, Advocate
Versus
(1) Suchita Pathak &
(2) Parmod Pathak ..........Accused(s)
Through: Mr. Vinay Tomar, Advocate
(1) Name of the Alok
complainant
S/o Sh. Hari Ram
R/o H.No. 111, Post Office
to Palam Vihar Road,
Bijwas, New Delhi-110061.
(2) Name of the accused (1) Suchita Pathak
W/o Sh. Parmod Pathak
R/o H.No.290, Vill. Pakadi
Chhapar Patakhuali, Distt
Deoria, Uttar Pradesh-
Ct. Case No.1609/2017 Digitally signed
Alok vs Suchita Pathak & Ors. by
AAKANKSHA
Page 1 of 33 AAKANKSHA
Date:
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27400.
(2) Parmod Pathak
S/o Vishnu Dev Pathak
R/o H.No.290, Village
Pakadi Chhapar Patakhauli,
Distt. Deoria, U.P.-27400.
(3) Offence complained of Section 138 Negotiable
or proved Instruments Act, 1881
(4) Plea of accused Pleaded not guilty
(5) Date of institution of 16.01.2017
case
(6) Date of conclusion of 09.11.2023
arguments
(7) Date of Final Order 23.11.2023
(8) Final Order ACQUITTAL
JUDGMENT
1. The complainant Alok has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Suchita Pathak and Parmod Pathak on 13.01.2017.
2. The factual matrix as can be culled out from the Ct. Case No.1609/2017 Digitally signed by AAKANKSHA Alok vs Suchita Pathak & Ors.
Page 2 of 33 AAKANKSHA Date:2023.11.23 14:51:41 +0530 complaint is that having family/friendly relations and having known each other since long, accused persons borrowed loan of Rs. 10,00,000/- from complainant in the first week of September, 2016 citing some urgent financial requirement for a period of one week, the complete amount of Rs.10,00,000/- was given by the complainant in two instances on 05.09.2016 viz. Rs.5,50,000/- through transfer by cheque in the account of accused no.2 and Rs.4,50,000/- in cash to both the accused persons and in discharge of their liability, accused no.1 issued the cheque in question bearing no. 000008 dated 05.09.2016 for a sum of Rs.10,00,000/- drawn on HDFC Bank, Bijwasan Main Road, Delhi. Upon repeated requests of complainant, when accused persons failed to return the borrowed money in a week they asked the complainant to present the cheque in question. However, to the complainant's dismay the said cheque was returned unpaid with remarks "Funds Insufficient" vide return memo dated 08.11.2016. Thereafter, the complainant contacted the accused persons but they failed to make any payment and also starting avoiding the complainant's request on one pretext or the other. The complainant then issued a legal notice dated 07.12.2016 calling upon the accused persons to pay the cheque amount within 15 days from the receipt thereof, but the accused persons failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') seeking redress against the dishonor of the cheque in question.
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3. With a view to establish a prima facie case in order to enable the court to summon the accused persons, complainant led pre-summoning evidence by way of affidavit Ex. CW-1/2. The complainant relied upon following documentary evidence:
(a) Original cheque bearing no.000008 dated 05.09.2016 for a sum of Rs.10,00,000/- drawn on HDFC Bank, which is Ex. CW-1/A.
(b) Original cheque return memo dated 08.11.2016, which is Ex.
CW1/B.
(c) Office copy of legal notice dated 17.12.2016, which is Ex.CW- 1/C.
(d) Postal receipts, which are Ex. CW-1/D and Ex.CW1/E.
(e) Tracking report, which is Ex. CW1/F (colly).
(f) Complaint, which is Ex. CW-1/1.
Complainant closed his pre-summoning evidence on 16.01.2017.
4. On the basis of above material and finding a prima facie case made out against the accused, the accused persons were summoned vide order dated 16.01.2017. Accused persons entered their first appearance on 27.03.2017.
5. Notice u/s 251 Cr.P.C. was framed against accused no.1 on 07.11.2017 stating out to her the substance of accusation, to which she pleaded not guilty and claimed trial. Her defence was Ct. Case No.1609/2017 Digitally signed Alok vs Suchita Pathak & Ors. by AAKANKSHA Page 4 of 33 AAKANKSHA Date: 2023.11.23 14:51:50 +0530 recorded at the stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused no.1 took defence that the cheque in issue bears her signature, it was handed over to complainant as a security in a blank signed manner, she and her husband took loan of Rs. 12 lacs from complainant and repaid Rs. 13 lacs by way of cheque no. 788475 for a sum of Rs. 7 lacs and cheque no. 488474 for a sum of Rs. 6 lacs, the papers of the house are also in possession of complainant, despite demand complainant refused to hand over the papers of house and security cheque, she also filed an application u/s 156(3) Cr.P.C. against complainant which is pending before Ld. MM, Dwarka.
6. Accused was granted right to cross-examine the complainant on application u/s 145(2) NI Act vide order dated 06.03.2018. Vide separate statement of complainant, accused no.2 Parmod Pathak was dropped from the array of parties on 06.07.2019. The complainant was then examined as CW-1 thereby adopting his pre-summoning evidence as post-summoning evidence and was duly cross-examined and discharged. Vide separate statement of complainant, complainant evidence was closed on 06.07.2019.
7. Statement of accused no.1 was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 24.07.2019 wherein all the incriminating Ct. Case No.1609/2017 Digitally signed by Alok vs Suchita Pathak & Ors. AAKANKSHA Page 5 of 33 AAKANKSHA Date: 2023.11.23 14:51:54 +0530 evidence was put to the accused and she was granted an opportunity to explain the circumstances appearing against her at trial. While explaining the circumstances appearing in evidence against her, accused no.1 stated without oath that she did not borrow loan of Rs. 10 lacs but her husband borrowed Rs. 12 lacs from complainant in 2015, her husband told her to give cheque as security to complainant and it was given in blank signed manner in 2015, she cannot read English and thus cannot say whether or not she received the legal notice, she has been falsely implicated, her husband mortgaged his property to complainant while taking loan of Rs. 12 lacs, complainant did not return the property papers till date, he also misused her security cheque and taken possession of the property forcefully. Accused preferred to lead evidence in her defence.
8. At the stage of defence evidence, accused no.1 examined herself as DW1. Right of complainant to cross-examine DW-1 stood closed vide order dated 05.02.2020 and defence evidence was closed vide separate statement of accused.
9. At the stage of final arguments, an application u/s 311 Cr.P.C. was preferred by complainant, to seek another opportunity to cross- examine the accused. The application was allowed vide order dated 05.02.2021 and complainant was granted one opportunity to cross- examine DW-1. Thus, DW-1 was duly cross-examined and discharged on 03.08.2022.
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AAKANKSHA
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10. At the stage of final arguments, Ld. counsel for complainant submitted that accused and her husband approached complainant for personal loan of Rs. 10 lacs in first week of September 2016, there were various transactions between the parties, the defence taken by accused is that accused repaid Rs. 13 lacs through cheque in the account of complainant and complainant's mother, that she never borrowed any loan and the payment made by her husband was towards mortgage deed, however the case of the complainant is that since the parties new each other from long there were many transactions between them, earlier Rs. 12,00,000/- were advanced by complainant to husband of accused by executing a mortgage deed which was a separate transaction, that accused has also taken money from various other people and has been convicted in many other cases, despite receiving the legal notice no reply was filed by accused, the accused did not mention repayment of Rs.13,00,000/- in her police complaint, who would give Rs.13,00,000/- against Rs.10,00,000/- that too within one week even if it was on interest, no stop payment instruction was issued by accused, it is admitted fact that Rs. 12,00,000/- was borrowed by accused from complainant towards mortgage deed, then why did accused return Rs. 13,00,000/- to the complainant, the said money was also returned back in the account of complainant and his mother and if the money returned by accused was towards mortgage deed, why no payment was made to the co- mortgagee, further there is a receipt of Rs. 12,00,000/- with Ct. Case No.1609/2017 Alok vs Suchita Pathak & Ors. Digitally signed by AAKANKSHA Page 7 of 33 AAKANKSHA Date: 2023.11.23 14:52:06 +0530 mortgage deed but the accused has raised defence that the whole amount of Rs. 12,00,000/- was not given to her in one go, accused herself gave details of cases which have been filed against accused and her husband and those cases have been filed by the people who are from the same locality and prayed to convict the accused.
11. Per contra, Ld. counsel for accused filed written submissions and argued that a mortgage deed was executed between husband of accused, brother in law of accused and complainant and Suresh on 22.06.2015, there were smooth relations between the parties and therefore accused mortgaged his property against loan of Rs. 12,00,000/- wherein Rs. 2,50,000/- each was given to husband of accused and brother in law of accused by complainant and his partner Suresh and the same was accepted by accused thereafter cash was given to accused and finally a cheque of Rs. 5,50,000/- was given to accused on 05.09.2016 but till then accused did not require the money and therefore the husband of accused returned Rs. 13,00,000/- to complainant on 27.09.2016 by transferring Rs. 6,00,000/- to complainant and Rs. 7,00,000/- in the account of complainant's mother, the cheque and property papers were not returned by the accused, thereafter in the end of October 2016 accused went to his native village with his family on the occasion of Diwali, when he returned back he found that complainant had taken possession of the property by breaking open the locks and many complaints were filed by husband of the accused, he also filed an application u/s 156(3) Cr.P.C, then complainant filed a civil suit for Ct. Case No.1609/2017 Digitally signed Alok vs Suchita Pathak & Ors. by AAKANKSHA Page 8 of 33 AAKANKSHA Date: 2023.11.23 14:52:12 +0530 foreclosure of mortgage and recovery of the money which was decided on merits vide judgement dated 19.02.2020 and was decided in favour of husband of accused, no possession was handed over by the accused to the complainant, husband of accused used to keep signed cheque books with his wife who is illiterate but when complainant took forcible possession of his house, all his documents including his signed cheque books went into possession of complainant, who then started distributing those cheques to other people and filed many cases against husband of accused, husband of accused gave information to the bank as he did not know the exact cheque numbers, later husband of accused came to know that all those people who filed cases against him are related to the complainant including father-in-law of brother of complainant who is a contractor in Uttarakhand, and a relative of complainant filed a case in Jhajjar, another case was which is pending in this court at behest of complainant, one case is filed before Almora district, despite return of the money related to mortgage deed a recovery suit was filed by co-mortgagee Suresh Rana against husband of accused and brother-in-law of accused in April 2018, all the cases filed by complainant or at his behest are filed after November or December 2016 i.e. after taking forcible possession of property of husband of accused, there was no case or complaint against accused or her husband prior to Diwali of 2016, further the complainant has failed to prove the transaction of Rs.10,00,000/-, why did complainant advance Rs. 10,00,000/- to an illiterate lady without executing any document but got the husband of the accused to undergo all the Digitally signed Ct. Case No.1609/2017 by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 9 of 33 2023.11.2314:52:18 +0530 legal formalities and execute a mortgage deed for loan of Rs. 12,00,000/-, till 27.09.2016 when husband of accused gave Rs.13,00,000/- through cheque in the account of complainant and his mother there was no dispute and the husband of accused give separate payments in different accounts upon asking of complainant, and prayed to acquit the accused stating that complainant has been harassing the accused and her husband since the end of 2016 after taking forcible possession of his house and distributing his signed cheques to other people and filing false cases against him that too by the same counsel.
12. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.
13. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
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AAKANKSHA
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(ii) that the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) that the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
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14. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has Digitally signed Ct. Case No.1609/2017 by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 12 of 33 2023.11.2314:52:31 +0530 to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.
This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show non-existence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused and that negative evidence is not easy to be led by its very nature, it is now settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person, ought under the circumstances of the case, act on the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant in the testing ordeal of cross-examination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to Ct. Case No.1609/2017 Digitally signed by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:Page 13 of 33 2023.11.23
14:52:36 +0530 exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
Further, in Bharat Barrel v. Drum Manufacturing:
AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence. It is, thus, clear that in cases of Section 138 NI Act, upon proof of foundational facts, law presumes in favour of drawee that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut the same is upon the accused. The burden does not have to be conclusively established but the accused has to prove his defence on preponderance of probability.
15. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.
15.1. The first legal requirement is:
"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused no.1 had issued the cheque in question on her account maintained with a bank for discharge of any debt or other liability. In the instant case, accused has admitted her signature on the cheque in question in her Ct. Case No.1609/2017 Digitally signed Alok vs Suchita Pathak & Ors. by AAKANKSHA AAKANKSHA Page 14 of 33 Date: 2023.11.23 14:52:40 +0530 statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. The cheque in question has also been drawn on the account maintained by her with HDFC Bank. The said fact has not been denied by accused at any stage of proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021 SCC Online SC 75 Hon'ble Supreme Court held that:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NI Act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
The above said principle has also been crystallized by Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa:
(2019) 5 SCC 418, by observing that:
"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:
(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.
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(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence."
15.2. In the instant case, the accused having admitted her signature on the cheque in question and the said cheque being drawn on her bank account, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheque in question was issued by her in discharge of, whole or part of, legally enforceable debt or liability.
15.3. Now the burden shifts upon accused to rebut the above presumption by raising a probable defence, by leading evidence or bringing such facts on record in the cross-examination of the complainant that could make the latter's case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as a matter of fact and failure to do so will disentitle him to any relief on the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT
289).
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15.4. The accused has chosen to do so by cross-examining the complainant and leading defence evidence. It is the defence of accused that she did not borrow any loan from the complainant but her husband borrowed loan of Rs. 12,00,000/- from complainant in the year 2015 and executed a mortgage deed, her husband asked her to give a blank signed cheque to the complainant for security and her husband already repaid Rs. 13,00,000/- by two separate cheques in the account of complainant and his mother but the documents of the house are also with the complainant who refused to return the documents and the cheque and misused the same and even took forcible possession of property of husband of accused.
15.5. To prove her defence, accused cross-examined the complainant. During cross-examination CW-1/complainant deposed, in brief, that he knows the accused since 2-3 years prior to giving the cheque in question and had no financial transaction with accused prior to that but had financial transaction with husband of accused, there was no document of loan executed, he is in the business of readymade garment with his family and also give rent services to his client and his family rental income is Rs.1,50,000/- to Rs.2,00,000/-, he does not know his income filed in 2015-2016, he used to give loan to other people also, in 2015 he entered into a mortgage with husband and brother of accused and gave Rs.12,00,000/- to them on 22.06.2015, although another sum of Rs.2,50,000/- was given to them in March 2016 and cheque of Rs.5,50,000/- in September 2016 but these had nothing to do with Ct. Case No.1609/2017 Alok vs Suchita Pathak & Ors. Digitally signed by AAKANKSHA Page 17 of 33 AAKANKSHA Date:
2023.11.23 14:52:54 +0530 the mortgage, the present loan was given in September 2016 and the cheque in issue was not a security towards mortgage, cheque of Rs.7,00,000/- was given by accused and her husband which was encashed by him on 27.09.2016 and cheque of Rs.6,00,000/- was encashed in the account of his mother but these are separate transactions.
15.6. Accused examined herself as DW-1 in defence evidence who relied upon her passbook Ex. DW-1/1, certified copy of civil proceedings and testimony of complainant Ex. DW-1/2, plaint filed by complainant Ex.DW-1/3, intimation given to bank Ex. DW-1/4 and police complaint Ex. DW- 1/5. DW-1 deposed, in brief, that her husband had taken Rs.12,00,000/- in installments from the complainant in 2015 and told her to give a cheque to the complainant as security, her husband mortgaged his property to complainant and Suresh Rana while taking part amount, complainant took possession of the property forcibly, he did not return the property papers to her husband and also misused the security cheque, her husband already returned Rs.13,00,000/- to complainant and his mother through two cheques on 27.09.2016, complainant also filed one suit of foreclosure against her husband and Avnish Pathak, she intimated the bank regarding misuse of the cheque on 19.05.2017 and she has been falsely implicated in the present case and also in many other cases. During cross examination, she deposed, in brief, that she is illiterate and only 5th standard pass, she can only sign, she does not discuss all the money Ct. Case No.1609/2017 Alok vs Suchita Pathak & Ors. Digitally signed by Page 18 of 33 AAKANKSHA AAKANKSHA Date:
2023.11.23 14:52:57 +0530 transactions with her husband, the mortgage deed does not mention that any cheque was issued by her to the complainant and does not mention that Rs.12,00,000/- were received by her husband in installments, as per her knowledge her husband took loan only once from the complainant, her husband did not borrow Rs.2,50,000/- from complainant in May 2016, her husband did not borrow money from mother and father of complainant, her husband did not borrow Rs.2,00,000/- from father of complainant on 04.10.2016.
15.7. Admittedly, there is no proof of any loan. However, in view of admission by accused of her signature on cheque in issue and cheque being drawn on her bank account, legal presumption has arisen in favour of complainant that the cheque in question was issued by accused in discharge of legal liability and the burden, now is upon accused to rebut such presumption. Now let us examine the defence of accused to ascertain whether accused has been able to raise any probable defence to rebut the legal presumption. The accused has taken defence that she did not borrow any money from complainant but her husband borrowed Rs. 12 lacs from complainant and executed a mortgage deed Ex. CW-1/D1 dated 22.06.2015 and that whole of the amount was not given to her husband in one go and she gave the cheque in issue to complainant in a blank signed manner as security upon asking of her husband, that her husband already returned Rs. 13 lacs in the account of complainant and his mother to redeem the mortgage but complainant did not return the property papers and also misused the Ct. Case No.1609/2017 Digitally signed Alok vs Suchita Pathak & Ors. by AAKANKSHA Page 19 of 33 AAKANKSHA Date: 2023.11.23 14:53:02 +0530 cheque in question. Whereas the point of contention of Ld. counsel for complainant has been that why would accused return Rs.13 lacs as against loan of Rs. 12 lacs even if it was on interest, why would loan be repaid to complainant and not to co-mortgagee Suresh Rana and that these were separate transactions as husband of accused used to borrow money from various people including complainant and his family.
15.8. The sequence of events that admittedly occurred between the parties is summarized as under:
(a) 22.06.2015- A mortgage deed is executed between husband of accused/Parmod Pathak and brother of accused/Avnish Pathak on one hand and complainant and Suresh Rana on the other hand, for advancing Rs. 12 lacs to husband and brother of accused against property of Parmod Pathak being mortgaged.
(b) 27.09.2016- A sum of Rs. 13 lacs is returned by Parmod Pathak (husband of accused) to complainant and his mother Anita by two separate cheques of Rs. 6 lacs and Rs. 7 lacs.
(c) 21.12.2016- A civil suit is filed by complainant against Parmod Pathak and Avnish Pathak for foreclosure of mortgaged property on the ground of non-payment of loan of Rs. 12 lacs.
(d) 13.01.2017- The present case is filed by complainant against accused and her husband u/s 138 NI Act.Digitally signed by AAKANKSHA
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(e) 19.05.2017- A notice is given by husband of accused to bank regarding trespass and misuse of cheque book (Ex. DW-1/4).
(f) 10.03.2017- An FIR no. 6/2017 is lodged by husband of accused against complainant (Ex.DW-1/5).
(g) 19.02.2020- The civil suit for foreclosure of mortgage is dismissed vide judgment passed by the court of Ld. ADJ-03, South-
West, Dwarka on the ground that the mortgage deed is inadmissible in evidence for want of registration.
The complainant has further claimed that in the first week of September 2016, accused again borrowed loan in question for a sum of Rs. 10 lacs, which has been out rightly denied by accused.
15.9. It is admitted fact that there is no document proving advancement of such loan. Accused has deposed that she is only 5 th standard pass and knows only to sign. No opposition to the said fact has come forth by complainant during cross-examination of DW-1. Ld. Counsel for accused has vehemently pointed out that how is it possible that on one hand complainant gets husband of accused to undergo all legal formalities and execute a mortgage deed for advancement of Rs. 12 lacs on 22.06.2015 but advances Rs. 10 lacs to his illiterate wife in September 2016 without any document whatsoever. No explanation to the above objection was led by complainant. As per the mortgage deed Ex. CW-1/D1, the date fixed for repayment of a sum of Rs. 12 lacs was fixed on or before Ct. Case No.1609/2017 Digitally signed by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 21 of 33 2023.11.2314:53:11 +0530 31.12.2015. Complainant filed a civil suit Ex. DW-1/3 dated 21.12.2016 for foreclosure of mortgage against husband and brother of accused claiming that he again advanced a sum of Rs. 2 lacs to husband of accused on 04.10.2016 who promised to pay whole of Rs. 14 lacs but has failed to repay the same and thus claiming himself to be declared owner of the mortgaged property, which was eventually dismissed and complainant was directed to handover vacant physical possession of the property to husband of accused and also to compensate them for wrongful loss. Although Ld. counsel for complainant has argued that the judgment cannot be looked into as an appeal has been filed by him against the said judgment, however it is also not the plea of complainant that the judgment has been stayed by Ld. Appellate/Revisional Court and there appears to be no ground to not take judicial notice of the same.
Together with this, if the cross-examination of DW-1 is carefully perused, the complainant has also alleged that husband of accused borrowed another sum of Rs. 2.5 lacs from complainant in May 2016, Rs. 2 lacs from father of complainant on 04.10.2016 and also borrowed money from mother of complainant. Thus what catches the attention of the court is that the complainant has brought out a case that despite husband of accused not repaying the borrowed sum of Rs. 12 lacs plus Rs. 2 lacs (as alleged in the civil suit) for almost 8 months after the date fixed for repayment, and despite a civil litigation already pending between the parties complainant and his family continued to advance money to husband of accused during that period and complainant again advanced a sum of Rs. 10 lacs to Ct. Case No.1609/2017 Digitally signed by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 22 of 33 2023.11.2314:53:15 +0530 accused in September 2016 that too without any proof of the same. One must not lose sight of the fact that CW-1 has admitted in his cross-examination that for all other loans advanced no document was ever executed with accused except the mortgage deed. The said case brought out by complainant does not convince the conscience of the court and raises a doubt over the advancement of loan in question.
15.10. Now coming to the other defence taken by accused that the cheque in question was issued in a blank signed manner as a security for the loan of Rs. 12 lacs.
Complainant has cross-examined accused on the above defence and it is an admitted fact and also a matter of record that the mortgage deed Ex. CW-1/D1 is devoid of any such clause of a cheque being taken as security at the time of mortgage. However, accused has relied upon a police complaint dated 10.03.2017 filed by her husband against the complainant which is Ex. DW-1/5. It has been alleged therein that at the time of entering into the mortgage deed, only part amount of Rs. 5 lacs was given to him through cheque drawn on account of Suresh Rana with promise to give Rs. 7 lacs later and when complainant gave him a cheque for a sum of Rs. 5.5 lacs on 05.09.2016 he took away one undated blank signed cheque and filled it for Rs.10 lacs, when later husband of accused returned Rs. 13 lacs vide two cheques and demanded his property papers and cheque back, complainant denied and since their relations were Digitally signed Ct. Case No.1609/2017 by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 23 of 33 2023.11.2314:53:19 +0530 cordial, husband of accused did not sense any foul intention and went to his village for Diwali in September 2016. Thus, the defence of accused as carved out from this FIR is that the cheque in issue was not given at the time of mortgage but later when the remaining amount was handed over to husband of accused, and thus it could not have been incorporated in the mortgage deed. No suggestion to the contrary was also put on behalf of complainant during cross- examination of DW-1.
15.11. Now coming to the contention raised by Ld. Counsel for complainant that why would a person return Rs.13 lacs against advanced sum of only Rs. 12 lacs, why would husband of accused return the entire money only to complainant and not to co-
mortgagee Suresh Rana if it was qua mortgage deed, who would return Rs. 13 lacs that too within a week even if loan of Rs. 10 lacs was on interest and thus the return of Rs. 13 lacs was a separate transaction.
Admittedly, a sum of Rs. 7 lacs was returned to complainant vide cheque and Rs. 6 lacs was returned to the account of complainant's mother vide cheque, both on 27.09.2016. First and foremost, it is essential to carefully peruse the defence of accused that accused has not admitted borrowing of the alleged sum of Rs.10 lacs in first week of September 2016 and therefore the question of return of the same within the same week does not arise. Secondly, return of the money only to complainant and not to co-mortgagee Suresh Rana Ct. Case No.1609/2017 Digitally signed Alok vs Suchita Pathak & Ors. by AAKANKSHA Page 24 of 33 AAKANKSHA Date: 2023.11.23 14:53:24 +0530 can be explained from cursory perusal of the civil suit filed by complainant, which is Ex. DW-1/3. In the plaint, complainant has himself alleged that he had already paid money to co-mortgagee Suresh Rana due to urgent needs and thus all the rights etc. under the mortgage deed of Suresh Rana have been transferred to the complainant. Thus it is the case of complainant himself that Suresh Rana has no concern with the mortgaged property. Further, accused was not cross-examined by complainant on the above plea. Next, the police complaint Ex. DW-1/5 spells out the sequence of events as alleged by accused that although a receipt of Rs. 12 lacs was taken by complainant but only a sum of Rs. 5 lacs through cheque was given to husband of accused at the time of executing mortgage with promise to give further sum of Rs. 7 lacs later. It has been further pleaded by husband of accused in the said FIR Ex.DW-1/5 that after much time complainant gave Rs. 2.5 lacs in cash to him and on 05.09.2016 complainant gave him a cheque of Rs. 5.5 lacs and took a blank signed cheque and got it filled for Rs. 10 lacs. Thus, accused has pleaded that complainant himself gave him Rs. 13 lacs which he later returned back. The same defence was put to CW-1 by accused in cross-examination where complainant merely denied that he did not give two cheques of Rs. 2.5 lac each to husband of accused and Avnish Pathak on 06.05.2015, he did not give Rs.2.5 lac to husband of accused and Avnish Pathak in March 2016 for mortgage and he did not give a cheque of Rs.5.5 lacs to husband of accused in September 2016 for mortgage. Complainant merely deposed that these were separate transactions. But the nature of any such separate Digitally signed Ct. Case No.1609/2017 by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 25 of 33 2023.11.2314:53:28 +0530 transaction has not been disclosed. No statement of account has been led in evidence by complainant to object that no such cheque was given by him to husband of accused. No proof of any such separate transaction has come on record. In fact, the complainant has failed to convince the court as to why he and his family members have been allegedly advancing money to accused and her husband despite alleging in the civil suit that husband of accused has not even repaid the first borrowed sum of Rs. 12 lacs since 31.12.2015.
15.12. Accused has taken yet another plea that there was no dispute between the parties till Diwali of 2016 and only after complainant trespassed the property of husband of accused during October-November 2016 and came into possession of all his signed cheque books and documents, complainant started distributing his cheques to other people and got several cases filed against accused and her husband and that all those cases were filed by people known to complainant. The details of such cases have been disclosed but accused herself in her examination. Ld. Counsel for accused argued that one case is filed against husband of accused by father-in-law of brother of complainant who is a contractor in Uttarakhand, one case in Jhajjar has been filed by a relative of complainant, another case has been filed which is pending in this court at behest of complainant by Aman Rana who is known to co-mortgagee Suresh Rana, one case is filed before Almora district and despite return of the money related to mortgage deed a recovery suit was filed by co-Ct. Case No.1609/2017 Digitally signed
Alok vs Suchita Pathak & Ors. by
Page 26 of 33 AAKANKSHA
AAKANKSHA Date:
2023.11.23
14:53:33 +0530
mortgagee Suresh Rana against husband of accused and brother-in-
law of accused in April 2018. Although Ld. Counsel for complainant pleaded that accused has been held guilty in several cases no such proof has been placed on record despite denial of said allegation by Ld. Counsel for accused. During final arguments it was pleaded by Ld. Counsel for complainant that all these people who filed cases against husband of accused are people from the same locality but did not deny they being relatives or known to the complainant. Whereas accused has relied upon FIR (Ex.DW-1/5) alleging misuse of signed cheques by complainant after taking forcible possession of property of husband of accused. Accused also relied upon a letter written by her husband to bank official on 19.05.2017 (Ex.DW-1/4) informing the bank of trespass in his house and misuse of signed cheques and therefore praying to block his account. Thus, accused on one hand has acted in a prudent manner. Whereas on the other hand a doubt is raised over the case of complainant when it has been pleaded by accused during the course of arguments, and not disputed, that all the cases filed against accused and her husband pertain to the period after taking possession of the property of husband of accused, all those cases being filed by persons known to complainant.
15.13. Thus, on one hand complainant has failed to prove advancement of loan in question for a sum of Rs. 10 lacs to accused in first week of September 2016 despite her husband not returning the previous borrowed amount to complainant. On the other hand, Ct. Case No.1609/2017 Alok vs Suchita Pathak & Ors. Digitally signed by AAKANKSHA Page 27 of 33 AAKANKSHA Date: 2023.11.23 14:53:38 +0530 accused has pleaded that her husband already returned a sum of Rs. 13 lacs (vide two cheques of Rs. 6 lacs and Rs. 7 lacs) for redeeming the mortgage as he received Rs. 13 lacs in instalments from complainant and she and her husband did not borrow any loan for Rs. 10 lacs from complainant and gave the cheque in issue as security to complainant in respect of mortgage after the final amount mentioned in the mortgage deed was paid by complainant on 05.09.2016. Documents in the form of FIR, notice to banker of accused, civil suit filed by complainant and judgment dismissing the same, have been filed by accused to prove her defence. Complainant has himself pleaded in his complaint that he advanced Rs. 5.5 lacs to husband of accused on 05.09.2016 and Rs. 4.5 lacs in cash and took the cheque in issue from accused. Whereas accused has taken defence that no cash was paid to her or her husband and Rs. 5.5 lacs was given to her husband through cheque and cheque in issue was taken in blank signed manner but the same was towards final advancement of Rs. 12 lacs towards mortgage. A cursory perusal of the cheque in issue also suggests that the signature are appended over it in Hindi but the cheque is filled in English language. DW-1 has deposed that she does not know how to write, she is illiterate and can only sign. No contrary fact was pleaded by complainant to this deposition. The receipt with the mortgage also contains blank spaces in the details of cheque/DD etc. Further accused has pleaded in his complaint to SHO and during cross-examination of complainant that although a receipt was made for Rs.12 lacs but only Rs.5 lacs through two cheques were given at the time of Digitally signed by Ct. Case No.1609/2017 AAKANKSHA AAKANKSHA Date:
Alok vs Suchita Pathak & Ors.Page 28 of 33 2023.11.23
14:53:42 +0530 mortgage by complainant and remaining sum was given later in March 2016 and September 2016. No suggestion to the contrary was put to DW-1 on behalf of complainant to contradict the above fact. Although the last date of repayment fixed by mortgage deed was 31.12.2015, the complainant chose not to take any action against husband of accused qua foreclosure till 21.12.2016 i.e. for almost a year. No explanation for the same has also come forth, which aids the defence of accused. This indicates towards the cordial relationship shared by complainant and husband of accused at least till Diwali of 2016, as both the civil suit and plea of accused in this case point towards handing over of possession/taking forcible possession of mortgaged property in October 2016. It also creates a doubt whether whole of the payment of Rs. 12 lacs was advanced to husband of accused at the time of mortgage itself as no action was taken by complainant despite alleging non-payment by husband of accused. Be that as it may, considering the documents on record together with defence pleaded by accused and failure of complainant to prove the advancement of loan in question and failure to convince the court for continuously allegedly advancing loan to accused and her husband despite pending litigation between parties, it can be safely concluded that accused has been successful in raising a doubt over the case of complainant.
15.14. Thus, accused has been able to successfully rebut the presumption of law and discharge the burden of proof by raising a Ct. Case No.1609/2017 Digitally signed by AAKANKSHA Alok vs Suchita Pathak & Ors. AAKANKSHA Date: 2023.11.23 Page 29 of 33 14:53:47 +0530 probable defence that the cheque in question was not issued in discharge of her liability.
The first legal requirement is, thus, proved in favour of accused and against the complainant.
16. The second legal requirement is:
"That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier."
The cheque in question Ex. CW-1/A is dated 05.09.2016. The cheque returning memo Ex. CW-1/B is dated 08.11.2016, which proves that the cheque in question was presented within the period of its validity. Further, defence has failed to controvert the said fact.
Thus, the second legal requirement is adjudicated in favour of complainant.
17. The third legal requirement is:
"That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank."
Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official Ct. Case No.1609/2017 Digitally signed Alok vs Suchita Pathak & Ors. by AAKANKSHA Page 30 of 33 AAKANKSHA Date: 2023.11.23 14:53:53 +0530 mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and the upon production of such bank memo, the burden shifts upon accused to disprove the same. In the instant case, a presumption has been raised in favour of complainant by virtue of Section 146 NI Act that the cheque in question was dishonored for the reason stated therein viz. Funds Insufficient which falls within the offence u/s 138 NI Act and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has admitted her signature on the cheque in question.
Thus, the third legal requirement is adjudicated in favour of complainant.
18. The fourth legal requirement is:
"The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
In the instant case, the cheque in issue was returned dishonoured on 08.11.2016. The complainant sent a legal notice dated 07.12.2016 (Ex.CW-1/C) addressed to the accused. Speed post receipts dated 07.12.2016 are also on record (Ex. CW-1/D and Ex. CW-1/E) and the tracking report Ex. CW-1/F reflects delivery upon accused. Accused has neither admitted nor denied receiving of legal Ct. Case No.1609/2017 Digitally signed by Alok vs Suchita Pathak & Ors. AAKANKSHA AAKANKSHA Date:
Page 31 of 332023.11.23 14:53:57 +0530 notice in her statement u/s 313 Cr.P.C. and in her corss-examination. However, she has also not disputed her address to which the legal notice was addressed. Further, the address mentioned in the legal notice is the same address which the accused has pleaded in her evidence on record. Thus, it can be said that the legal notice was properly addressed to the correct address of accused and by virtue of presumption u/s 27 General Clauses Act accused is deemed to have received the legal notice, if the notice has been sent to correct address by post. Thus, it is proved that the legal notice was sent to accused within thirty days of receipt of intimation of dishonor of cheque in issue.
The fourth legal requirement is, thus, adjudicated in favour of complainant.
19. The fifth legal requirement is:
"The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
It is an undisputed fact and also a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice.
Thus, the fifth legal requirement is adjudicated in favour of complainant.
Digitally signed byCt. Case No.1609/2017 AAKANKSHA
Alok vs Suchita Pathak & Ors. AAKANKSHA Date:
Page 32 of 33 2023.11.23
14:54:02 +0530
20. All the legal requirements constituting an offence u/s 138 NI Act being cumulative in nature, the fact that the first legal requirement has not been proved in favour of complainant, the ingredients necessary to bring home the guilt of accused remain incomplete. Accordingly, accused no.1 Suchita Pathak is acquitted for the alleged offence u/s 138 NI Act. Accused no.2/Parmod Pathak has also been dropped from the array of parties on 06.07.2019.
Digitally signed by AAKANKSHAAAKANKSHA Date:
2023.11.23Announced in the open 14:54:07 +0530
court on 23.11.2023.
(Aakanksha)
Metropolitan Magistrate(NI Act)-07
South West District, Dwarka Courts,
New Delhi
Ct. Case No.1609/2017
Alok vs Suchita Pathak & Ors.
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