TaxTMI 
TaxTMI 
2026 (2) TMI 464
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....nt"] passed by the learned Additional Sessions Judge (05), South East District, Saket Courts, New Delhi ["learned ASJ"] 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 complainant/ respondent ["respondent"] under Section 138 of the Negotiable Instruments Act, 1881 ["N.I. Act"] passed by the learned Metropolitan Magistrate, South East District, Saket Courts, New Delhi ["learned Trial Court"] was upheld. 2. Succinctly put, on request of the petitioner, the respondent entered into a Memorandum of Understanding date....
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....en 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....
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....upon Milind Shripad Chandurkar vs. Kalim M. Khan (2011) 4 SCC 275 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 pr....
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....en effect to, the courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, withou....
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.... executed the agreement on his behalf. Moreover, as confirmed from the deposition(s) of both CW2 and CW3, 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:- "15. In reference to issue of limitation, Ld. Trial Court rightly observed that it was the date of issuance of cheque and dishonour thereof that is relevant to compute limitation in complaint case filed U/s. 138 NI Act; the date of MOU had no relevancy in computation of limitation period." 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 t....