Sikkim High Court
Ugen Dorjee Bhutia vs Pankaj Agarwal on 15 November, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Revisional Jurisdiction)
DATED : 15th November, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.Rev.P. No.02 of 2024
Petitioner/Revisionist : Ugen Dorjee Bhutia
versus
Respondent : Pankaj Agarwal
Application under Sections 397 and 401 read with
Section 482 of the Code of Criminal Procedure, 1973
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Appearance
Mr. Jorgay Namka, Senior Advocate with Ms. Deempal Tamang,
Advocate for the Petitioner/Revisionist.
Mr. S. S. Hamal, Senior Advocate with Mr. Leada T. Bhutia, Mr.
Pradeep Sharma and Mr. Anirudh Gupta, Advocates for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The two questions that fall for consideration in this
Revision are;
(i) Whether there was cause of action against the
Revisionist;
(ii) Whether there was a legally enforceable debt
against the Revisionist.
2. Learned Senior Counsel for the Revisionist raised the
contention that, the Respondent/Complainant issued the Legal
Notice, Ext-8, on 13-07-2020, which was served on the Revisionist
on 11-08-2020, as duly confirmed by CW-3, the area postman,
contrary to the claims of the Respondent that service was made on
the Revisionist/Accused on 02-08-2020. In view of the date of
service of notice, it is evident that the Complaint under Section 138
of the Negotiable Instruments Act, 1881 (hereinafter, the "NI
Act"), was filed prematurely, before the expiry of the period
Ugen Dorjee Bhutia vs. Pankaj Agarwal
mandated by the statute, hence no cause of action arises. To
fortify this contention Learned Senior Counsel relied on Prem Chand
Vijay Kumar vs. Yashpal Singh and Another and Yogendra Pratap Singh
vs. Savitri Pandey and Another .
(i) In the second leg of his argument, Learned Senior
Counsel canvassed that, there is no legally enforceable debt for the
reason that, Ext 6 money receipt, relied on by the Respondent
pertains to a loan of ₹ 10,00,000/- (Rupees ten lakhs) only, taken
by the Revisionist from the wife of the Respondent on 10-10-2017
and Ext 7 money receipt pertains to a loan of ₹ 10,00,000/-
(Rupees ten lakhs) only, taken by Revisionist from the Respondent
on the same date. DW-1, the Branch Manager of Karnataka Bank,
Gangtok Branch, has testified that vide Ext A, for the period 01-01-
2020 to 30-06-2020, a sum of ₹ 10,00,000/- (Rupees ten lakhs)
only, was deposited twice into the account of the Respondent on
02-01-2020 by the Revisionist, through Real Time Gross
Settlement (RTGS). That, Ext B indicates that a sum of ₹
23,00,000/- (Rupees twenty three lakhs) only, was again deposited
into the account of the Respondent on 27-05-2020, through
cheque clearance. Hence, a total sum of ₹ 43,00,000/- (Rupees
forty three lakhs) only, was deposited into the account of the
Respondent by the Revisionist. Consequently, the entire loan
amount was repaid and no further debt remains to be paid by the
Revisionist to the Respondent. The Courts below in their
Judgments were therefore in error in directing the Revisionist to re-
pay the sum of ₹ 24,00,000/- (Rupees twenty four lakhs) only,
(2005) 4 SCC 417
(2014) 10 SCC 713
Ugen Dorjee Bhutia vs. Pankaj Agarwal
hence the impugned Judgment be set aside and the Revisionist
acquitted.
3. Learned Senior Counsel for the Respondent repelling
the arguments advanced, contended that admittedly the Notice
was delivered on 11-08-2020, as has been noticed by the Courts
below and reflected in the Judgment of the Learned Chief Judicial
Magistrate, Gangtok District, Sikkim, dated 28-10-2022, in Pvt.
Complaint Case No.24 of 2020 (Pankaj Agarwal vs. Ugen Dorjee
Bhutia) and the Judgment of the Learned Sessions Judge, Gangtok,
dated 12-10-2023, being Criminal Appeal No.07 of 2022 (Ugen
Dorjee Bhutia vs. Pankaj Agarwal). Thus, the question of the time
period as mandated by Section 138 of the NI Act not having been
adhered to is a misleading submission advanced by Learned Senior
Counsel for the Revisionist. That, Paragraph 6 of Ext-8 (Legal
Notice under Section 138 of the NI Act) is also revelatory of the
fact that the period of limitation prescribed in the statute was
complied with. Opposing the arguments regarding repayment of
the loan, Learned Senior Counsel sought to clarify that Ext A and
Ext B (supra), pertains to repayment of another loan availed of
earlier by the Revisionist from the Respondent and his wife and re-
paid on 02-01-2020 and 27-05-2020. That, indubitably the
disputed cheque was issued on 29-06-2020, subsequent to the
payments reflected above, which itself suffices to establish that the
disputed cheque pertained to another unpaid loan, availed of by
the Revisionist from the Respondent. The Learned Courts below
duly considered this aspect and remarked that there would have
been no necessity for the Revisionist to have issued the cheque
dated 29-06-2020 if the loan had been repaid or for that matter, to
deposit money in excess of what the Revisionist owed the
Ugen Dorjee Bhutia vs. Pankaj Agarwal
Respondent, thereby disbelieving the claim of the Revisionist.
That, the earlier loan amounts availed of by the Revisionist had
been re-paid in January, 2020 and May, 2020, while the remaining
amount of ₹ 20,00,000/- (Rupees twenty lakhs) only, was the
outstanding loan. Learned Senior Counsel for the Respondent
placed reliance on Prahlad Sharma vs. Dipika Sharma and Another3.
Hence, the impugned Judgment warrants no interference.
4. I have considered the rival contentions advanced in
extenso by Learned Counsel for the parties, perused the
documents relied on by the parties, the impugned Judgment and
the citations made at the Bar.
5. Relevantly while perusing the records, it is seen that
the Learned Trial Court vide its Judgment dated 28-10-2022, in
Pvt. Complaint Case No.24 of 2020 (Pankaj Agarwal vs. Ugen Dorjee
Bhutia), while discussing the facts of the case and evidence on
record, was of the view that the legal notice was served on the
Revisionist and proved by CW-3, hence the ingredients of Section
138 of NI Act had been proved against the Respondent. The Trial
Court was not convinced by the argument of the Revisionist that he
had repaid a sum of ₹ 43,00,000/- (Rupees forty three lakhs) only,
against a loan of ₹ 20,00,000/- (Rupees twenty lakhs) only,
holding it improbable and unusual for any person to return more
than twice the amount availed of as loan. The Court found that the
Revisionist had failed to rebut the presumptions against him and
thereby convicted the Revisionist and sentenced him as under;
".......................................................................
The convict is sentenced to undergo simple
imprisonment of 3 months under Section 138 of the
N.I Act, 1881. He shall also pay a sum of ₹
24,00,000/- (Rupees twenty four lakhs only), in total
2022 SCC OnLine Sikk 74
Ugen Dorjee Bhutia vs. Pankaj Agarwal
to the complainant as compensation under Section
357 of the Cr.P.C., 1973.
The provisions of Probation of Offenders Act,
1958 is not considered and applied in this case for the
convict.
............................................................."
(i) The Learned Appellate Court vide the impugned
Judgment dated 12-10-2023, in Criminal Appeal No.07 of 2022
(Ugen Dorjee Bhutia vs. Pankaj Agarwal), upheld the Judgment of the
Learned Trial Court and in Paragraph 16 of its Judgment observed
that the Court was in agreement with the reasoning of the Learned
Trial Court made at Paragraph 20 of its impugned Judgment. The
Sentence imposed by the Learned Trial Court was however
modified by the Appellate Court as follows;
"18. .........................................................................
The appellant shall pay a fine of ₹ 24,00,000/-
(Rupees Twenty-Four Lakhs only) under Section 138
of the N.I. Act, 1881 and in default, he shall undergo
simple imprisonment for one (1) year. The fine
(supra) so recovered shall be made over to the
respondent as compensation."
6. Having perused the Judgments of the Learned Courts
below, it is imperative to remark that the Judgment of the Learned
Trial Court in Paragraph 20 is rather unhappily worded and fails to
discuss the application of Section 138 of the NI Act to the facts of
the Revisionist's case although the provision was duly extracted in
the Judgment. The Judgment merely observed as follows;
"20. The receipt of legal notice/exhibit 8 was also
disputed by the accused/respondent, however the
same is proved by CW 3 who identified exhibit 4 as
the postal receipt. The accused/respondent has also
admitted to being the son of Shri P. Bhutia and
resident of Sajong Rumtek, Sikkim during his cross-
examination and exhibit 8 was also sent to the same
address................"
7. The Appellate Court while upholding the Judgment of
the Trial Court attempted to elucidate on this aspect by recording a
finding that the fact of delivery of notice was confirmed by CW-3.
That, when the Revisionist did not repay the amount within the
Ugen Dorjee Bhutia vs. Pankaj Agarwal
prescribed period of fifteen days the Complaint was filed on 09-09-
2020. That, Ext-1 was the cheque issued to the Respondent by the
Revisionist for discharging a legally recoverable debt of ₹
20,00,000/- (Rupees twenty lakhs) only.
8. Pertinently, the Judgment of the Learned Trial Court
fails to discuss specifically the time limits prescribed by the
provision and the compliance or not thereof. In this context, the
Hon'ble Supreme Court has repeatedly expounded that Judgments
must exhibit clarity. In State Bank of India and Another vs. Ajay
Kumar Sood it was observed that incoherent Judgments have a
serious impact upon the dignity of our institutions. While Judges
may have their own style of Judgment writing they must ensure
lucidity in writing across these styles. In Shakuntala Shukla vs. State
of Uttar Pradesh and Another it was observed as follows;
"9.5. The judgment replicates the individuality
of the Judge and therefore it is indispensable that it
should be written with care and caution. The
reasoning in the judgment should be intelligible and
logical. Clarity and precision should be the goal. All
conclusions should be supported by reasons duly
recorded. The findings and directions should be
precise and specific. Writing judgments is an art,
though it involves skilful application of law and logic.
We are conscious of the fact that the Judges may be
overburdened with the pending cases and the arrears,
but at the same time, quality can never be sacrificed
for quantity. Unless judgment is not in a precise
manner, it would not have a sweeping impact. There
are some judgments that eventually get overruled
because of lack of clarity. Therefore, whenever a
judgment is written, it should have clarity on facts; on
submissions made on behalf of the rival parties;
discussion on law points and thereafter reasoning and
thereafter the ultimate conclusion and the findings
and thereafter the operative portion of the order.
There must be a clarity on the final relief granted. A
party to the litigation must know what actually he has
got by way of final relief. The aforesaid aspects are to
be borne in mind while writing the judgment, which
would reduce the burden of the appellate court too.
We have come across many judgments which lack
clarity on facts, reasoning and the findings and many
a times it is very difficult to appreciate what the
(2023) 7 SCC 282
(2021) 20 SCC 818
Ugen Dorjee Bhutia vs. Pankaj Agarwal
learned judge wants to convey through the judgment
and because of that, matters are required to be
remanded for fresh consideration. Therefore, it is
desirable that the judgment should have a clarity,
both on facts and law and on submissions, findings,
reasonings and the ultimate relief granted."
(i) Thus, it is the duty and responsibility of every Court to
pronounce a Judgment with clarity ringing through its reasoning
and conclusion. The parties should not leave the Court with the
impression that the Court has been indolent or inept in spelling out
its reasoning for the conclusions arrived at and articulating it in the
Judgment. Hence, the Trial Court would do well to abide by the
directions of the Hon'ble Supreme Court.
(ii) That having been said in a Revision Petition, the High
Court is to satisfy itself as to the correctness, legality or propriety
of any finding, sentence or order, recorded or passed, by any
inferior Criminal Court situate within its jurisdiction and examine
the regularity of any proceedings of such inferior court, while thus
examining the impugned Judgment, appositely, the statutory
provision of Section 138 of the NI Act is extracted hereinbelow for
easy reference;
"138. Dishonour of cheque for
insufficiency, etc., of funds in the
account.─Where any cheque drawn by a person on
an account maintained by him with a banker for
payment of any amount of money to another person
from out of that account for the discharge, in whole or
in part, of any debt or other liability, is returned by
the bank unpaid, either because of the amount of
money standing to the credit of that 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 that bank, such person shall
be deemed to have committed an offence and shall,
without prejudice to any other provisions of this Act,
be punished with imprisonment for a term which may
be extended to two years, or with fine which may
extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this
section shall apply unless─
(a) the cheque has been presented to
the bank within a period of six
Ugen Dorjee Bhutia vs. Pankaj Agarwal
months from the date on which it is
drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due
course of the cheque, as the case
may be, makes a demand for
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; and
(c) the drawer of such cheque fails to
make the payment of the said
amount of money to the payee or,
as the case may be, to the holder in
due course of the cheque, within
fifteen days of the receipt of the
said notice.
Explanation.─For the purposes of this section,
"debt or other liability" means a legally enforceable
debt or other liability."
From a bare perusal of the statute, it is evident that the
penalty prescribed in the provision will not be applicable unless
proviso (a), (b) and (c) (supra) kick into place.
9. Hence, while taking up the first question formulated
(supra) for consideration;
(a) The records and evidence reveal that the Legal Notice Ext-
8, dated 13-07-2020, was delivered to the Revisionist on
11-08-2020.
(b) CW-3 the postman deposed that he delivered the
consignment at the house of the Revisionist on 11-08-
2020. This testimony was not decimated by any other
evidence.
(c) The cheque in dispute, Ext-1 was made out to the
Respondent on 29-06-2020.
(d) The cheque was presented by the Respondent to the Bank
vide Ext-2 on 03-07-2020 i.e., within six months from the
Ugen Dorjee Bhutia vs. Pankaj Agarwal
date on which it was drawn, thereby complying with
Section 138(a) of the NI Act.
(e) Vide Ext 3, the Bank returned the cheque dishonoured, on
06-07-2020.
(f) Pursuant to such return, Legal Notice Ext-8 was issued on
13-07-2020, by the Respondent to the Revisionist, i.e.
within thirty days of the receipt of the information by him
from the Bank regarding the return of the cheque as
unpaid, in terms of Section 138(b) of the NI Act.
(g) Notice having been delivered on 11-08-2020, fifteen days
on receipt of the notice by the Revisionist would be
completed on 26-08-2020 as envisaged by Section 138(c)
of the NI Act.
(h) The cause of action would thus arise from 27-08-2020.
The Respondent chose to take action and file the
Complaint on 09-09-2020.
(i) The above facts indicate that the timelines prescribed
in Section 138(a), Section 138(b) and Section 138(c) of the NI Act
were duly complied with and no evidence to the contrary
emanates.
(ii) At this juncture notice may be taken of the provisions
of Section 139 of the NI Act which provides as follows;
"139. Presumption in favour of holder.─It
shall be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque of the
nature referred to in Section 138 for discharge, in
whole or in part, of any debt or other liability."
(iii) The Revisionist did not discharge the burden cast on
him, hence the cheque is presumed to have been issued in the
discharge of a debt or liability.
Ugen Dorjee Bhutia vs. Pankaj Agarwal
10. The judgments relied on by Learned Senior Counsel for
the Revisionist in Prem Chand Vijay Kumar (supra) and Yogendra
Pratap Singh (supra) are of no avail to his case. In view of the
foregoing discussions, the first question is given a quietus.
(i) As regards the second question, the argument that Ext-
6 and Ext-7 were for different loans advanced also hold no water
as the Complainant has specifically mentioned that when he failed
to refund the amount even after two years, the Respondent
requested the Revisionist to repay the money, to which the
Respondent requested him to wait for a few months. The amount
deposited by the Revisionist into the account of the Respondent as
per the evidence of DW-1 was for a different loan availed by him
which had already been paid by him on 02-01-2020 and 28-05-
2020. Had ₹ 43,00,000/- (Rupees forty three lakhs) only, actually
been paid towards a debt of ₹ 20,00,000/- (Rupees twenty lakhs)
only, it would not only have been a preposterous proposition, but
there would also have been no requirement whatsoever for the
Revisionist to have issued the cheque dated 29-06-2020,
amounting to ₹ 20,00,000/- (Rupees twenty lakhs) only. It is
unbelievable that even after all debts were repaid another cheque
would also be issued sans reason by the Revisionist to the benefit
of the Respondent.
11. In light of the foregoing discussions, I find no reason
whatsoever to interfere in the findings arrived at in the impugned
Judgment.
12. The sentence imposed on the Revisionist as also the
modification made by the Appellate Court to the sentence imposed
by the Trial Court on the Revisionist is accordingly upheld.
Ugen Dorjee Bhutia vs. Pankaj Agarwal
13. The Revisionist shall pay the legally recoverable debt of
₹ 24,00,000/- (Rupees twenty four lakhs) only, to the Respondent,
before the Court of the Learned Chief Judicial Magistrate, Gangtok,
within six weeks' from today, failing which he shall undergo the
imprisonment imposed on him by the Learned Appellate Court.
14. Revision Petition stands disposed of accordingly.
15. Copy of this Judgment be transmitted to the Court of
the Learned Chief Judicial Magistrate, Gangtok, the then Learned
Chief Judicial Magistrate, Gangtok, all other Learned Magisterial
Courts and the Court of the Learned Sessions Judge, Gangtok.
16. Lower Court records be returned forthwith.
( Meenakshi Madan Rai )
Judge
15-11-2024
Approved for reporting : Yes
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