Vijay Kumar vs Rakesh Kumar Jain

Barin Ghosh, C.J.—On a complaint, revisionist has been convicted for an offence punishable u/s 138 of the Negotiable instruments Act. The first court convicted the revisionist by sentencing him to six months'' simple imprisonment and by imposing a fine of Rs. 5,000/-. Aggrieved thereby, revisionist went before the appellate court. The appellate court enhanced the fine from Rs. 5,000/- to Rs. 65,000/-. I personally feel that the same was rightly done, inasmuch as, the value of the cheque, which was dishonoured was Rs. 60,000/-. However, in view of the provisions contained in Section 386 of the Negotiable Instruments Act, since the appeal was from a conviction, the appellate court was incompetent to enhance the sentence. The other contention raised in the revision is utterly frivolous. It has been contended that in the complaint, the date of the service of the notice was not mentioned. There is no requirement either in the Negotiable Instruments Act or in the CPC to mention the date of service of the notice u/s 138 of the Negotiable Instruments Act in the complaint. In terms of the provisions contained in Section 138 of the Negotiable Instruments Act, the cause of action to file a proceeding thereunder commences on and from the date of service of the said notice. At the trial, it was required to be established that the notice was served, but despite such service, payment was not made and, accordingly, a proceeding u/s 138 of the Negotiable Instruments Act was maintainable. The same was established before the first court as well as before the appellate court. I have not been shown any manifest error in accepting on record the evidence tendered in support of the case and appreciation of such tendered evidence pertaining to service of notice. In the circumstances, the revision application is partly allowed and, thereby, enhancement of the fine by the appellate court from Rs. 5,000/- to Rs. 65,000/- is struck down. The revisionist is on bail (sic) cancelled. He is directed to surrender forthwith before the court below to serve out the remaining part of the sentence.

Let a copy of this judgment be returned to the court below in order to ensure compliance of the directions contained herein.