IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Revision No.377 of 2012

======================================================

Ajay Kumar Rai S/O Late Ram Narayan Rai Resident Of Village-

Nayayipur, P.S.- Buxar (Mufassil), In the District of Buxar.

.... .... Petitioner/s

Versus

1. The State Of Bihar.

2. Bidya Sagar Pandey, son of late Chedi Pandey, Vill. Sukrwaliya, P.S.

Itadhi, Distt. Buxar.

.... .... Opp. Party/s

======================================================

Appearance :

For the Petitioner/s : Mr.

For the Opp. Party/s : Mr.

======================================================

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

ORAL ORDER

4

27-04-2012

Heard learned counsel for the petitioner, learned counsel

for the opposite party no. 2 and learned A.P.P. for the State.

I.A. No. 659 of 2012 has been filed for condoning the

delay in filing of the present revision application. For the reasons

mentioned in the I.A., the delay in filing of the revision

application stands condoned. I.A. No. 659 of 2012 stands allowed.

This revision application is directed against the appellate

judgment and order dated 19.12.2011 passed by the Sessions

Judge, Buxar in Cr. Appeal No. 27 of 2011 by which the

judgment and order dated 02.05.2011 passed by the Judicial

Magistrate, 1^st Class, Buxar in Complaint Case No. 1234 (C) of

Patna High Court CR. REV. No.377 of 2012 (4) dt.27-04-2012

2

2009, Tr. No. 1968 of 2009 convicting and sentencing the

petitioner, has been upheld.

The opposite party no. 2 had filed Complaint Case No.

1234 (C) of 2009 against the petitioner and upon trial the

petitioner was convicted under Section 138 of the Negotiable

Instruments Act and sentenced to undergo simple imprisonment

for two years and fine of Rs. 4,50,000/- and in default to undergo

further simple imprisonment for six months. It was also stipulated

that from the amount of fine the complainant be compensated to

the tune of Rs. 2,44,685/- which was the cheque amount that

remained unpaid.

Learned counsel for the petitioner submits that the

impugned judgment is unsustainable both in law as well as on

facts. It is stated that consent of the petitioner ought to have been

taken before the cheque was deposited so that he could have

ensured that the amount was in his account and payment made. It

is further submitted that there was an understanding between the

parties with regard to the same but the complainant was not fair

and went ahead to enchash the cheque without any information to

the petitioner.

Learned A.P.P. for the State as well as learned counsel

for the opposite party no. 2 have argued that there is no infirmity

Patna High Court CR. REV. No.377 of 2012 (4) dt.27-04-2012

3

in the judgment impugned inasmuch as the law does not

contemplate any motive. The offence stands proved if the cheque

remains unpaid despite notice within the period as stipulated in

the statute. In the present case, two courts have concurrently held

that the offence stood true as per the requirement of the statute

and thus the same could not be said to be affirmed in law. It is

further submitted that the fine also is well within the limit

prescribed by the statute and is appropriate in the facts and

circumstances of the case. At this stage, learned counsel

appearing for the opposite party no. 2 (complainant) submits that

he shall not seriously oppose the application since he is only

concerned with the amount which was due to him and the court

may consider with regard to the other portion of the sentence.

Upon consideration of the submissions of learned

counsel for the parties and after going through the impugned

judgment of the trial court as well as the appellate court, this

Court does not find any infirmity in the order of conviction.

However, this Court also feels that the purpose of justice would

be served, if the sentence is modified to imprisonment for t