IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1371 of 2007 Kishore Singh son of late Ram Bachan Singh R/o village Makhdumpur Bagicha Shivajee Nagar, P.O. Digha Ghat, P.S. Digha, District Patna …. Petitioner/ O.P. No.2 Versus 1. The State Of Bihar 2. Dilip Kumar Singh proprietor of D.K. and sons YAMACO, Son of Shri Ram Sudist Singh at present resident of village Sheikhpura Brahmasthani, Opposite to Satyam Nursing Home, P.S. Shastrinagar, P.O. Shastrinagar, Patna-14, District Patna Permanent resident of village Deshari Western side of Deshari Railway Station, P.S. & P.O. Deshri, District Vaishali Accused….O .P. No.2. ---------------------------------- For the petitioner. : Mr. Devendra Kumar Sinha, Sr. Advocate. Mr. Satya Ranjan Sinha, Advocate. Mr. Ashok Nandan Prasad, Advocate. For the O.P. : None. ----------- 4 29.08.2011 The petitioner has preferred this revision application against part of the order dated 28th July 2007 passed in Cri. Appeal No. 190 of 2005 by the Additional District & Session Judge VII, Patna and against part of the order dated 31.10.2005 passed by the learned Judicial Magistrate, Ist Class , Patna in complaint case no. 1360 C of 2003/ Tr. No. 1226 of 2005 under section 138 of the Negotiable Instrument Act (in short N.I.Act). The prosecution case, in brief is that accused O.P. no.2 Dilip Kumar Singh is a proprietor of D.K. and sons YAMACO and on the basis of an agreement in between the complainant petitioner and the accused, the petitioner invested Rs. 6.50,000/. Out of the dues amount the accused had given two cheques dated 15.3.2003 and dated 22.3.2003 for Rs. 1.50,000/ and Rs. 20,000/- respectively drawn at Bombay Mercantile Cooperative Bank Ltd, Patna. Both the cheques were deposited in the bank for 2 encashment by the complainant but both were bounced on 29.3.2003 due to insufficient amount in the bank account of the accused. Both the cheques were deposited by the complainant twice but they were dishonoured on 7.5.2003 and 28.5.2003 respectively due to the same reason of insufficient money. Having no option the complainant sent a legal notice on 7.9.2003 through his advocate with a request to make payment within 15 days which was neither replied by the accused nor was payment made. Thereafter the complainant-petitioner filed the present complaint case in the court of learned Chief Judicial Magistrate, Patna on 24.6.2003. Learned Chief Judicial Magistrate transferred the case in the court of Judicial Magistrate Ist class for inquiry under section 200 (2) Cr.P.C. and after inquiry cognizance was taken for the offence punishable under section 138 N.I.Act, against the accused on 2.4.2004 and ordered for issuance of summons against him. After trial the accused was held guilty under section 138 N.I. Act and he was sentenced to undergo S.I. for one year and to pay a fine of Rs. 2000/ in case of default of payment of fine further S.I. for six months was awarded. It was further directed to the accused to deposit Rs. 1.70,000/- to the complainant with interest @ bank rate with effect from March 2003 and to deposit the amount of fine in the Government treasury. In case of deposit of aforesaid amount the sentence of imprisonment will be set of otherwise further imprisonment of one year with fine of Rs. 2000/- has been awarded. It has been submitted by the learned counsel for the 3 petitioner that the learned Magistrate has held the accused guilty under section 138 N.I. Act but has not passed the order of sentence in accordance with law. According to the provision the punishment may extend to two years or with fine which may extent to twice the amount of cheque, or with both. But the learned Magistrate in the alternative has sentenced the accused only to pay a sum of Rs. 1.70,000/- with interest @ bank rate from March 2003 to the date of payment and to deposit the amount of Rs. 2000/- in the Government Treasury, failing which his imprisonment will be for one and half year. This sentence is not in accordance with section 138 of the N.I. Act. The accused O.P.2 would have been sentenced to imprisonment which may extend to two years or with fine which may extent to twice the amount of eheque or both. The learned Trial Court has imposed such a condition that the petitioner has been only entitled to get the principal amount with bank rate interest from March 2003 till the date of payment which will not be equivalent to total of the principal amount. The accused filed a Criminal Appeal no.190 of 2005 which was dismissed but the error in the sentence was not corrected although the appeal was dismissed and the conviction of the accused was confirmed. Learned counsel for the petitioner has referred a decision reported in PLJR 2004 (1) (SC) 248, Goa Plast (P) Ltd V Chico Ursula D’Souza. In that case the Hon’ble Supreme Court has after setting aside the judgment of the trial court as well as the High Court imposed the fine double the amount of the principal 4 The accused O.P. no.2 has appeared through Vakalaltnama. The name of the learned counsel for the accused O.P. no.2 has also been printed on the cause list but in spite of adjournment no one appeared on behalf of O.P. no.2. After hearing the learned counsel for the petitioner and on perusal of the order passed by the learned trial court it appears that petitioner has been able to prove his case under section 138 N.I. Act and the conviction made by the trial court has been affirmed by the learned appellate court but so far as the sentence part is concerned, it is not in accordance with the provision contained in section 138 N.I. Act, therefore, the sentence passed by the appellate court as well as the trial court is set aside and the case is remitted to the learned trial court for passing the order of sentence in accordance with law preferably within three months. In the result this revision application is allowed to the aforesaid extent. M.Rahman (Amaresh Kumar Lal,J)