Full Text
HIGH COURT OF DELHI
OMPAL YADAV .....Petitioner
Through: Mr. Piyush Pahuja and Mr. Upender Kumar, Advocates.
Through: Mr. Raj Kumar and Mr. H. Rehman, Advocates.
JUDGMENT
1. By virtue of the present petition filed under Section(s) 401/ 397 of the Code of Criminal Procedure, 1973[1] read with Section 482 of the Cr.P.C., the petitioner/ convict/ revisionist[2] seeks setting aside of the impugned order dated 10.04.2024[3] passed by the learned Additional Sessions Judge (05), South East District, Saket Courts, New Delhi[4] in the Criminal Appeal No.79/2022 entitled ‘Ompal Yadav vs. Farhan Empexo Export and Import Co.’, whereby the appeal preferred by the petitioner was dismissed and the judgment and order on sentence dated 26.04.2022 and 07.05.2022 respectively passed in a complaint made by the Hereinafter as “Cr.P.C.” Hereinafter as “petitioner” Hereinafter as “impugned judgment” Hereinafter as “learned ASJ” complainant/ respondent[5] under Section 138 of the Negotiable Instruments Act, 18816 passed by the learned Metropolitan Magistrate, South East District, Saket Courts, New Delhi[7] was upheld.
2. Succinctly put, on request of the petitioner, the respondent entered into a Memorandum of Understanding dated 22.05.2009[8] [Ex.CW-1/A] with the petitioner’s brother, one Mr. Gajender Singh, to jointly construct the property bearing kharsa no.287 situated at Batla House, Jamia Nagar, Okhla, New Delhi-110025, by investing funds with profits from its sale to be shared proportionately after deduction of expenses, interest, and remuneration. After construction, the petitioner and his brother sold the property without the consent of the respondent and failed to pay the respondent’s share of profits as per the MoU.
3. In order to discharge his liability, the petitioner issued Cheque No.563207 dated 14.03.2017[9] for Rs.8,00,000/- drawn on Standard Chartered Bank Branch, New Friends Colony, New Delhi, which was dishonoured on 18.05.2017 with the remark “Account Closed.”. Pursuant thereto, despite receipt of the statutory Legal Notice dated 07.06.2017 by the petitioner, as the same remained unanswered, the respondent filed a Complaint under Section 138 of the N.I. Act.
4. Subsequently, the respondent led pre-summoning evidence and after the petitioner entered appearance, he pleaded not guilty and, thereafter the respondent examined one Mr. Nafees Ahmed [CW-2] and one Mr. Bilal Hereinafter as “respondent” Hereinafter as “N.I. Act” Hereinafter as “learned Trial Court” Hereinafter as “MoU” Hereinafter as “Cheque Ex. CWI/B” Saif [CW-3] in post-summoning evidence and they were cross-examined as well. More so, although the petitioner did not lead any evidence, however, in his Statement under Section 313 Cr.P.C. he averred before the learned Trial Court, inter alia, that the Cheque being [Ex. CWI/B] was stolen by the respondent from his house and there was no ‘legally enforceable debt’, since the respondent was not privy to the MoU being [Ex.CW-1/A], as also the same was executed in the year 2009, whereas, the said Complaint was filed in the year 2016, which, as per the petitioner, was barred by limitation.
5. Upon completion of trial, the learned Trial Court convicted the petitioner vide judgment dated 26.04.2022 and sentenced him vide order on sentence dated 07.05.2022 whereby it was directed that the petitioner shall pay a fine of Rs.12,50,000/-, payable to the respondent within one month from the date of the said order, failing which he shall undergo simple imprisonment for six months.
6. In an appeal bearing no.79/2022 preferred by the petitioner under Section 374(3) of the Cr.P.C., the learned ASJ, upheld the aforesaid order of the learned Trial Court vide the impugned judgment dated 10.04.2024.
7. Being aggrieved thereby, the petitioner preferred the present revision petition impugning the judgment dated 10.04.2024 of the learned ASJ.
8. Mr. Piyush Pahuja, learned counsel for the petitioner primarily submitted that since the MoU being [Ex.CW-1/A] was executed inter se his brother, Mr. Gajender Singh, and the respondent, there is/ was no ‘legally enforceable debt’ with respect to the petitioner, and that there was no privity of contract between the respondent and the petitioner. As such, based thereon, the learned counsel submitted that it is well settled that liability under Section 138 of the N.I. Act arises only from a ‘legally enforceable debt’ of the drawer and cannot extend to a third party’s liability in the absence of an express undertaking. Mere presentation of a cheque or its dishonour does not automatically mean that there is an enforceable debt.
9. Mr. Piyush Pahuja, learned counsel then submitted that since the MoU [Ex.CW-1/A] was executed in the year 2009 and the alleged construction was also completed in the year 2009-2010, the liability arising therefrom was time barred. Reliance in this regard was placed on Ashwani Kumar vs. Raj Kumar10 and Social Leasing India Ltd. vs. Rajan Kumar Kanthwal11. Relying upon Milind Shripad Chandurkar vs. Kalim M. Khan12 and Ashwani Kumar (supra), the learned counsel further submitted that the respondent failed to prove his alleged status of being the sole proprietor of M/s. Farhan Empexo Export and Import Co. and no documentary proof was ever adduced. The same goes to the root of maintainability of the Complaint before the learned Trial Court.
10. Besides these, Mr. Piyush Pahuja, learned counsel submitted that there are major discrepancies in the cross-examination of the respondent as also that there was no documentary proof pertaining to the money invested in the construction business by the respondent and no document was placed on record by the respondent to show construction of the property and consequently, the ground of joint construction and profit sharing rests solely on self-serving oral assertions.
11. Per contra, Mr. Raj Kumar, learned counsel for the respondent, Judgment dated 12.12.2025 in Crl. Appeal no. 87/2013.
relying upon the impugned judgment submitted that the learned ASJ had rightly affirmed the presumption under Section 118(a) and Section 139 of the N.I. Act, especially considering the fact that the petitioner refused to lead any evidence to support his case with cogent material.
12. This Court has heard the learned counsels for the parties and perused the documents on record including the judgments relied upon by them.
13. As per settled law, since execution of the cheque and the receipt of the legal notice are admitted, a presumption arises in favour of the holder of the cheque i.e. the respondent and that it was issued in discharge, either in whole or in part, of a legally enforceable debt or liability. Based thereon, the Cheque involved [Ex. CWI/B] is a valid instrument issued for dispensing a legal debt.
14. As such, the presumption under Section 118(a) and Section 139 of the N.I. Act was attracted and the burden lay upon the petitioner to rebut the above presumption by raising a probable defence either by leading direct evidence or by pointing out serious contradictions or improbabilities in the respondent’s case, as held by the Apex Court in Rajesh Jain vs. Ajay Singh13 which is as under:-
17. It cannot be disputed that the petitioner works for the Delhi Police or that his brother executed the agreement on his behalf. Moreover, as confirmed from the deposition(s) of both CW[2] and CW[3], the Cheque involved [Ex. CWI/B] was given by the petitioner to the respondent.
18. In fact, dealing with the issue of limitation, the learned ASJ has held as under:-
19. This Court agrees with the aforesaid finding rendered by the learned ASJ as the time period for calculating the limitation for filing a Complaint under Section 138 of the N.I. Act is the date of presentation and dishonour of the instrument involved.
20. Since the Cheque involved [Ex. CWI/B] was issued under the name of M/s Farhan Empexo Export and Import Co., there was no requirement for the respondent to show his relationship with it.
21. Even otherwise, in revisional jurisdiction under Section(s) 401/ 397 of the Cr.P.C., this Court in its limited jurisdiction, cannot assume the role of a Court of Appeal, as the revisional power is circumscribed and is intended only to test the legality, correctness, or propriety, if any.
22. The petitioner can neither be allowed to reagitate the very same issues which have been duly negated twice over nor to raise any new/ fresh grounds herein.
23. Finding no illegality and/ or perversity therein, no grounds are made out for setting aside of the impugned judgement dated 10.04.2024 passed by the learned ASJ. As such, the judgment dated 26.04.2022 as also the order on sentence dated 07.05.2022 passed by the learned Trial Court are upheld.
24. Accordingly, in view of the foregoing, the present petition is hereby dismissed with no orders as to costs.
SAURABH BANERJEE, J. FEBRUARY 09, 2026/Ab/aks