Delhi District Court
Alka Agarwal vs Ascent Constructions Pvt. Ltd on 5 July, 2025
DLND010030382025 Page 1 of 13
CR No.242/25
Alka Aggarwal & Anr.
Vs.
Ascent Construction Pvt. Ltd.
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05
NEW DELHI DISTRICT : PATIALA HOUSE COURTS : NEW DELHI
Criminal Appeal No. 243/2025
In the matter of :-
1. Alka Aggarwal
R/o. D-88, Sector-26,
Noida, UP .....Revisionist no.1
2. Madhav Saran Aggarwal
S/o. Late Sh. Ram Avtar Aggarwal
R/o. D-88, Sector-26,
Noida, UP ..... Revisionist no.2
(R1 & R2 represented
by Sh. Onkar Nath,
Adv.)
Versus
Ascent Constructions Pvt. Ltd. .............Respondent
D-43, Sector-6, NOIDA, UP (complainant)
CRIMINAL REVISION UNDER SECTION 438 BNSS 2023
Date of institution : 05.05.2025
Date when judgment reserved : 02.07.2025
Date of Judgment : 05.07.2025
Digitally
SAURABH signed by
PARTAP SAURABH
SINGH PARTAP
LALER SINGH
DLND010030382025 Page 2 of 13
CR No.242/25
Alka Aggarwal & Anr.
Vs.
Ascent Construction Pvt. Ltd.
JUDGMENT:-
1. The Revisionist/Petitioners, Accused No. 3 and 2, have invoked the revisional jurisdiction of this Court under Section 397 of the Code of Criminal Procedure, 1973 (CrPC), challenging the orders dated September 7, 2024, and February 27, 2025, passed by the Learned Judicial Magistrate First Class (JMFC) in a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). The impugned orders closed the Petitioner's right to cross-examine the complainant's witness and dismissed an application under Section 91 CrPC for production of documents from the Resolution Professional of Accused No. 1 (MSA Developers Pvt. Ltd.), respectively.
2. Impugned order dated 07.09.2024 is reproduced as under :
"07.09.2024 Present: Sh. Neeraj Kumar, Counsel for complainant alongwith AR.
All the accused persons present (through VC).
Matter is at the stage of cross examination of AR of the complainant. Accused no. 4 submits that counsel is not available today due to personal exigency. Same is opposed by counsel for complainant.
Accused submits that settlement payment has already been made in the present matter. Same has been denied by counsel for complainant.
Heard.
Perusal of last ordersheet reveals that one last and final opportunity was granted for cross examination of AR of the complainant subject to cost of Rs. 7000/-.
It was expressly made clear on LDOH that if cross examination is not condcuted then the the right shall stand closed. Despite the same, one more opportunity is being sought by the accused and even the previous cost has not been paid till date. Accordingly right of accused to cross examine the AR of the complainant stands closed.
Previous cost of Rs. 9000/- stands unpaid. One last and final opportunity is granted to pay the same failing which adverse action shall be taken against the accused.
Put up for recording of statement of accused U/s. 313 Cr.P.C on 19.10.2024.DLND010030382025 Page 3 of 13 CR No.242/25
Alka Aggarwal & Anr.
Vs. Ascent Construction Pvt. Ltd.
Date is given as per convenience of both the parties.
(Nishi Jindal) Judicial Magistrate First Class (NI Act)-05/NDD/RACC 07.09.2024
3. Impugned order dated 27.02.2025 is reproduced as under :
"27.02.2025 Present: Sh. Neeraj Kumar. Counsel for complainant. Sh. Vishal Sharma. Proxy Counsel for the accused.
Accused Alka Aggarwal present (through VC).
ORDER Vide this order, this court shall decide the application moved by the accused persons (hereinafter referred as 'Applicant') to bring documents on record by resolution professional.
BRIEF FACTS-
2. Briefly stated, it is contended by the Applicant that the present matter is at the stage of cross examination of the AR of the complainant (hereinafter referred as 'Respondent'). However, as CIRP process was initiated against applicant no. 1 company, all the relevant documents related to books of account, banking details, allotment details etc. have been handed over to the resolution professional and thus are not within the possession of the applicant. The same are essential for proper adjudication of the present case. It is, therefore, prayed that the instant application shall be allowed and all the documents should be summons forthwith. ARGUMENTS:
3 Applicant has reiterated the contents of his application and has prayed for allowing the instant application.
Per contra, the Respondent has contended that the said documents which are proposed to be brought on record have no bearing to the facts of the present matter and the instant application has been filed merely to delay the proceedings. With these contentions, he has prayed for dismissing the instant application.
Heard. Record perused.
REASONS-
4. As per law, cross examination is that stage of the matter wherein the veracity and reliability of the witness as well as the documents produced by the party are tested on oath. This is done by shaking their credibility by putting across various questions at that stage. It is only after the stage of cross examination, if the witness remains unrebutted and uncontroverted in his testimony that the version put forth by him is said to be worthy of belief and trust.
However, perusal of the present matter reveals that the right of the applicant/accused to cross examine the AR of the complainant/respondent has already DLND010030382025 Page 4 of 13 CR No.242/25 Alka Aggarwal & Anr.
Vs. Ascent Construction Pvt. Ltd.
been closed vide order dated 07.09.2024 after giving sufficient opportunities to the applicant for the same and thereafter, the matter was fixed for recording statement of accused under section 313 Cr.P.C. Moreover, total cost of Rs. 9000/- is still pending to be paid by the applicant.
5. Hence, this court is of the opinion that the instant application is nothing but a mere dilatory tactic to delay the proceedings of the present matter.
6. In view of the same, the instant application being devoid of merits is accordingly, dismissed.
At this stage, Proxy Counsel for accused submits that they are not liable to pay the cost of Rs. 9000/- as the same was imposed as the condition precedent for conducting the cross examination of the AR of the complainant.
Heard.
Perusal of record reveals that total cost of Rs. 9000/- was imposed upon the accused for wasting the Court's date and getting the matter adjourned for NDOH. Furthermore, no application for waiver of cost has been filed by Counsel for accused.
In view of the same, let warrants of attachment be issued for recovery of the outstanding cost from the movable and immovable property or both of the accused persons through Collector/SDM concerned as arrears of land revenue on filing of PF within 10 days from today. Compliance report shall be filed by the Collector/SDM concerned on or before NDOH.
Put up the matter for recording of statement of accused U/s. 313 Cr.P.C on 04.04.2025.
(Nishi Jindal) Judicial Magistrate First Class (NI Act)-05/NDD/RACC 27.02.2025"
Background and proceedings before Trial Court
4. The complainant, Assent Constructions Ltd., engaged Accused No. 1, MSA Developers Pvt. Ltd., for construction of residential apartments in Gautam Budh Nagar, Uttar Pradesh. An invoice dated August 5, 2015, for Rs. 40,22,445.12 was raised. To discharge part of this liability, Accused No. 1 issued a cheque of Rs. 5,00,000/- (Cheque No.323152, dated October 19, 2016), which was dishonored. Following non-payment despite a legal notice dated November 7, 2016, the complainant filed a complaint under Section 138 NI Act. Accused No. 1 entered DLND010030382025 Page 5 of 13 CR No.242/25 Alka Aggarwal & Anr.
Vs. Ascent Construction Pvt. Ltd.
Corporate Insolvency Resolution Process (CIRP) vide an NCLT order dated October 10, 2019. Proceedings were stayed by the Hon'ble Supreme Court from December 14, 2020, to March 1, 2021. Notice under Section 251 CrPC was framed against Accused Nos. 2 and 3 on May 6, 2022, who pleaded not guilty. The Petitioner's application under Section 145(2) NI Act was allowed, permitting cross-examination.
5. Accused No. 1 entered Corporate Insolvency Resolution Process (CIRP) vide an NCLT order dated October 10, 2019, with an Interim Resolution Professional (IRP) appointed. The Hon'ble Supreme Court granted an interim stay on the case from December 14, 2020, to March 1, 2021, in Writ Petition (Crl.) 339 of 2020.
Notice under Section 251 CrPC was framed against Accused Nos. 2 and 3 on May 6, 2022, who pleaded not guilty. The Petitioner's application under Section 145(2) NI Act was allowed, permitting cross-examination.
6. Due to Accused No. 1's CIRP, relevant documents were held by the IRP. The Petitioner's application under Section 91 CrPC for document production was allowed on December 5, 2023, summoning the IRP for March 2, 2024. On May 14, 2024, the Petitioner informed the court that Accused No. 1's resolution plan was approved, transferring document custody to the Successful Resolution Applicant (SRA), and sought time to produce the NCLT order.
7. On June 22, 2024, the trial court granted a final opportunity for cross-
examination, subject to a cost of Rs. 2,000/-. On August 31, 2024, the Petitioner sought time to file settlement documents, opposed by the complainant, and was granted another opportunity with a cost of Rs. 7,000/-. On September 7, 2024, DLND010030382025 Page 6 of 13 CR No.242/25 Alka Aggarwal & Anr.
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due to the absence of the Petitioner's counsel for personal reasons, the court closed the right to cross-examination and imposed a cost of Rs. 9,000/- . On October 19, 2024, a further Section 91 CrPC application was filed, with a final opportunity to pay the Rs. 9,000/- cost. Non-payment led to bailable warrants of Rs. 20,000/- on November 25, 2024. On February 27, 2025, the Section 91 CrPC application was dismissed as a dilatory tactic, and attachment of the Petitioner's property was ordered for unpaid costs.
Application for condonation of delay w.r.t. order dated 07.09.2024
8. The revision petition is also accompanied with an application for condonation of delay in filing the revision petition against order dated 7.9.2024, wherein condonation is sought of delay of 178 days. In the application the Petitioner submits that the delay of 178 days in filing the revision petition was due to the failure of their previous counsel to inform or advise them of the legal repercussions of the closure of the right to cross-examination. The Petitioner claims to have been unaware of the critical importance of timely action and asserts that the delay was not due to willful negligence or deliberate inaction. The Petitioner argues that condonation is necessary to prevent grave and irreparable prejudice, as the closure of cross-examination has handicapped their defense, potentially leading to a miscarriage of justice. It is further contended that no prejudice will be caused to the Respondent if the delay is condoned. Grounds for Challenging the Impugned Orders
9. The Petitioner contends that the impugned orders dated September 7, 2024, and February 27, 2025, are arbitrary, legally unsustainable, and passed without due DLND010030382025 Page 7 of 13 CR No.242/25 Alka Aggarwal & Anr.
Vs. Ascent Construction Pvt. Ltd.
appreciation of the facts, causing grave prejudice to the Petitioner's rights and violating principles of natural justice.
10. The closure of the right to cross-examination (September 7, 2024) is alleged to contravene the substantive right under Section 138 of the Indian Evidence Act, 1872, and Article 21 of the Constitution, as it is essential for testing witness credibility and ensuring a fair trial. The trial court's emphasis on expeditious trial overlooked this procedural safeguard.
a. The Petitioner argues that while the Hon'ble Supreme Court cautions against undue delays, it equally emphasizes the court's duty to ensure a fair and legally compliant trial. The trial court's actions prioritized speedy disposal over the Petitioner's right to a meaningful defense, resulting in a miscarriage of justice.
b. The trial court failed to appreciate that Accused No. 1's CIRP placed relevant documents in the custody of the IRP and later the SRA, hindering the Petitioner's ability to prepare for cross-examination. The initial allowance of the Section 91 CrPC application on December 5, 2023, acknowledged this constraint, but the dismissal on February 27, 2025, erroneously reversed this order, prejudicing the defense. c. The Petitioner asserts that a settlement with Accused No. 1 extinguishes the joint and several liability of Accused Nos. 2 and 3. This could only be established through cross-examination, which was denied, rendering the complaint liable to dismissal.
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Submissions of the Petitioner
11. The Petitioner contends that the impugned orders are arbitrary, violate natural justice, and prejudice their defense. The closure of cross-examination, a substantive right under Section 138 of the Indian Evidence Act, 1872, and Article 21 of the Constitution, is alleged to undermine a fair trial. The Petitioner argues that the trial court's emphasis on expeditious trial overlooked procedural fairness, as cross-examination is essential to test witness credibility. The dismissal of the Section 91 CrPC application is claimed to be erroneous, given Accused No. 1's CIRP and the transfer of documents to the SRA. The Petitioner asserts that settlement with Accused No. 1 extinguishes liability for Accused Nos. 2 and 3, which required cross-examination to establish.
12. With respect to application for condonation of delay the Learned Counsel for the Petitioner submits that the delay of 178 days was occasioned solely by the lack of proper legal guidance from the previous counsel, who failed to apprise the Petitioner of the adverse implications of the impugned orders. The Petitioner acted promptly upon becoming aware of the consequences and contends that the delay is bona fide. The Petitioner asserts that the revision petition raises substantial grounds, including violations of natural justice due to the closure of cross-examination and dismissal of the Section 91 CrPC application, and that failure to condone the delay would result in irreparable harm. The Petitioner further claims that the Respondent will suffer no prejudice if the delay is condoned, as the matter would be decided on merits.
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Findings of the court on the application for condonation of delay:
13. Legal Framework for Condonation: The power to condone delay in filing a revision petition is governed by Section 5 of the Limitation Act, 1963, read with Section 397 CrPC, which requires the applicant to demonstrate "sufficient cause"
for the delay. The Hon'ble Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649 and other precedents has held that condonation is not a matter of right and must be supported by cogent and specific reasons. In proceedings under Section 138 of the NI Act, where expeditious disposal is a statutory mandate, courts must exercise caution to prevent abuse of process through undue delays.
14. Sufficiency of Grounds for Delay: The Petitioner attributes the 178-day delay to the failure of their previous counsel to inform them of the legal repercussions of the impugned orders. However, this explanation lacks specificity and supporting evidence. The Petitioner has not provided details of when they became aware of the counsel's alleged failure, the steps taken thereafter, or any documentary proof, such as correspondence with the previous counsel, to substantiate the claim. The assertion of ignorance of legal consequences is insufficient, as parties are expected to exercise due diligence in pursuing their legal remedies, particularly in matters involving serious procedural consequences like the closure of cross- examination.
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15. Impact on Judicial Proceedings: The complaint under Section 138 NI Act, filed in 2016, has already been protracted due to various factors. The trial court provided the Petitioner multiple opportunities to conduct cross-examination on June 22, 2024, and August 31, 2024, subject to costs, which were not complied with, leading to the closure of the right on September 7, 2024. The Petitioner's failure to act diligently during the trial proceedings, coupled with a substantial delay of 178 days in filing the revision petition, undermines the objective of expeditious justice in NI Act cases.
16. Prejudice to Parties: While the Petitioner claims that condonation would cause no prejudice to the Respondent, the prolonged delay in a case pending since 2016 risks further frustrating the complainant's right to timely adjudication. The Petitioner's contention that failure to condone the delay would cause irreparable harm is outweighed by their own lack of diligence, both in the trial court and in filing the revision petition. The trial court's actions, including the imposition of costs and closure of cross-examination, were within its discretion under Section 309 CrPC to prevent dilatory tactics.
17. Bona Fides of the Application: The Petitioner's claim of bona fide intent is not supported by sufficient cause to justify a delay of 178 days. The absence of specific details regarding the alleged failure of the previous counsel and the lack of proactive steps by the Petitioner to monitor the case's progress render the application for condonation untenable. The Hon'ble Supreme Court has reportedly emphasized that condonation must be based on genuine and compelling reasons, which are lacking in the present case.
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18. In view of the foregoing, this Court finds that the Petitioner has failed to demonstrate sufficient cause for the delay of 178 days in filing the accompanying revision petition w.r.t. impugned order dated 07.09.2024. The explanation of lack of legal guidance from the previous counsel is vague, unsupported by evidence, and insufficient to justify such a substantial delay, particularly in the context of a Section 138 NI Act case where expeditious disposal is paramount. The application for condonation of delay is, therefore, dismissed. Findings of the Court on Merits of revision petition
19. Maintainability of Revision Petition w.r.t. order dated 27.2.2025, vide which the application under section 91 Cr P C was dismissed: The primary issue before this Court is whether the revision petition is maintainable against the impugned order dated February 27, 2025, passed under Section 91 CrPC. Section 397(2) CrPC explicitly bars revision against interlocutory orders. An order under Section 91 CrPC, which pertains to the summoning of documents or things for the purpose of investigation, inquiry, trial, or other proceedings, is procedural in nature and does not determine the rights or liabilities of the parties. It is well-settled law, as held in Sethuraman Vs. Rajamanickam, (2009) 5 SCC 153, a case under the N.I. Act, that orders under Section 91 CrPC are interlocutory and not amenable to revision under Section 397 CrPC.
20. The order dated February 27, 2025, dismissed the Petitioner's application under Section 91 CrPC, reasoning that it was a dilatory tactic following the closure of the right to cross-examination. This order is purely procedural, aimed at managing the trial's progress, and does not adjudicate any substantive rights. As DLND010030382025 Page 12 of 13 CR No.242/25 Alka Aggarwal & Anr.
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such, it falls squarely within the ambit of interlocutory orders under Section 397(2) CrPC, rendering the revision petition non-maintainable against it.
21. Order of September 7, 2024: The order closing the right to cross-examination, while potentially impacting the Petitioner's defense, was passed after multiple opportunities were granted on June 22, 2024, and August 31, 2024, subject to costs of Rs. 2,000/- and Rs. 7,000/-, respectively, which the Petitioner failed to utilize or comply with. The trial court's discretion to regulate proceedings under Section 309 CrPC, particularly in NI Act cases where expeditious disposal is mandated, was exercised reasonably. The Petitioner's failure to act diligently, including non-payment of imposed costs and absence of counsel on September 7, 2024, justified the closure of cross-examination.
22. Natural Justice and Fair Trial: The Petitioner's contention that the impugned orders violate natural justice is untenable. The trial court provided ample opportunities for cross-examination and document production, as evidenced by the orders dated December 5, 2023, June 22, 2024, and August 31, 2024. The Petitioner's repeated non-compliance, including failure to pay costs and conduct cross-examination, cannot be attributed to the trial court's actions. The principles of natural justice do not entitle a party to indefinite adjournments or non- compliance with court directives.
23. Settlement Claim: The Petitioner's claim of a settlement with Accused No. 1 lacks substantiation in the absence of timely documentary evidence or cross- examination. The trial court's refusal to entertain further delays was within its discretion, given the protracted nature of the proceedings since 2016. It may DLND010030382025 Page 13 of 13 CR No.242/25 Alka Aggarwal & Anr.
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however be noted that the petitioner would get an opportunity to summon witness with record at the stage of defence evidence, which is yet to come. Decision
24. In view of the foregoing, this Court holds that the revision petition against the order dated February 27, 2025, passed under Section 91 CrPC, is not maintainable, as it is an interlocutory order barred from revision under Section 397(2) CrPC.
25. The order dated September 7, 2024, closing the right to cross-examination, was passed within the trial court's discretion, following the Petitioner's repeated failure to comply with court directives. The Petitioner's repeated failure to comply with court directives, including payment of costs and timely conduct of cross-examination, justified the trial court's actions. Even otherwise, the application for condonation of the 178-day delay in filing revision against the said impugned order is dismissed for lack of sufficient cause.
26. The revision petition is accordingly dismissed. The trial court is directed to proceed with the case, ensuring compliance with all procedural requirements under the NI Act and CrPC.No order as to costs.
27. The revision petition is accordingly disposed of.
28. Revision file be consigned to Record Room.
29. TCR, if any, be sent back alongwith copy of this judgment.
Announced in the open Court
on 05th of July 2025 (Saurabh Partap Singh Laler)
ASJ-05 New Delhi
Patiala House Courts
Delhi/05.07.2025