UGEN DORJEE BHUTIA Vs. PANKAJ AGARWAL

JUDGEMENT

(1.) The two questions that fall for consideration in this Revision are;

(2.) Learned Senior Counsel for the Revisionist raised the contention that, the Respondent/Complainant issued the Legal Notice, Ext-8, on 13/7/2020, which was served on the Revisionist on 11/8/2020, 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 2/8/2020. In view of the date of service of notice, it is evident that the Complaint under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter, the 'NI Act'), was filed prematurely, before the expiry of the period 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 (2005) 4 SCC 417 and Yogendra Pratap Singh vs. Savitri Pandey and Another (2014) 10 SCC 713.

(3.) Learned Senior Counsel for the Respondent repelling the arguments advanced, contended that admittedly the Notice was delivered on 11/8/2020, as has been noticed by the Courts below and reflected in the Judgment of the Learned Chief Judicial Magistrate, Gangtok District, Sikkim, dtd. 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, dtd. 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 Sec. 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 Sec. 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 2/1/2020 and 27/5/2020. That, indubitably the disputed cheque was issued on 29/6/2020, 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 dtd. 29/6/2020 if the loan had been repaid or for that matter, to deposit money in excess of what the Revisionist owed the 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 Another 2022 SCC OnLine Sikk 74. Hence, the impugned Judgment warrants no interference.