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CASE NO.:

Appeal (crl.) 66 of 2001

PETITIONER:

PANKAJBHAI NAGJIBHAI PATEL

Vs.

RESPONDENT:

THE STATE OF GUJARAT & ANR.

DATE OF JUDGMENT: 12/01/2001

BENCH:

K.T.Thomas,,, R.P.Sethi

JUDGMENT:

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J U D G M E N T

THOMAS, J. Leave granted. A Judicial Magistrate of

first class, after convicting an accused of the offence@@

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under Section 138 of the Negotiable Instruments Act (for@@

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short the NI Act) sentenced him to imprisonment for six

months and a fine of Rs.83,000/-. The conviction and

sentence were confirmed by the Sessions Judge in appeal and

the revision filed by the convicted person was dismissed by

the High Court. When the special leave petition was moved,

learned counsel confined his contention to the question

whether a Judicial Magistrate of first class could have

imposed a sentence of fine beyond Rs.5,000/- in view of the

limitation contained in Section 29(2) of the Code of

Criminal Procedure (for short the Code). As the decision

of this Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan

and anr. {1999 (7) SCC 510} is in support of the said

contention we issued notice to the respondent mentioning

that it is limited to the question of sentence. Learned

counsel for the respondent contended that the decision of

this Court to the effect that power of the Judicial

Magistrate of first class is limited in the matter of

imposing a sentence of fine of Rs.5000/- is not correct in

view of the non-obstante clause contained in Section 142 of

the NI Act. We, therefore, heard both counsel on that

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aspect.

Section 138 of the NI Act provides the punishment as

imprisonment for a term which may extend to one year or fine

which may extend to twice the amount of cheque or with

both. Section 29(2) of the Code was referred to in

Bhaskarans decision (supra) which contains the limitation

for a Magistrate of first class in the matter of imposing

fine as a sentence or as part of the sentence. That sub-

section says that the court of a Magistrate of the first

class may pass a sentence of imprisonment for a term not

exceeding three years, or of fine not exceeding five

thousand rupees, or of both. On the strength of the said

sub-section it was held in Bhaskarans case thus: The

trial in this case was held before a Judicial Magistrate of

the first class who could not have imposed a fine exceeding

Rs.5000/- besides imprisonment. The High Court while

convicting the accused in the same case could not impose a

sentence of fine exceeding the said limit.

In order to obviate the said hurdle learned counsel

for the respondent adopted a twin contention. First is that

the non-obstante clause in Section 142 of the Act is enough

to bypass the limitation imposed by Section 29(2) of the

Code. Second is that even apart from the said non- obstante

words in the said provision, Section 5 of the Code itself

mandated that nothing in the Code would affect any special

jurisdiction or power conferred by any other law.

We would first consider the effect of the non-obstante

clause in Section 142 of the NI Act. The section reads@@

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thus: 142. Cognizance of offences.- Notwithstanding

anything contained in the Code of Criminal Procedure, 1973

(2 of 1974), - (a) no court shall take cognizance of any

offence punishable under Section 138 except upon a

complaint, in writing, made by the payee or, as the case may

be, the holder in due course of the cheque; (b) such

complaint is made within one month of the date on which the

cause of action arises under clause (c) of the proviso to

Section 138; (c) no court inferior to that of a

Metropolitan Magistrate or a Judicial Magistrate of the

first class shall try any offence punishable under Section

138.

It is clear that the aforesaid non-obstante expression

is intended to operate only in respect of three aspects, and@@

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nothing more. The first is this: Under the Code Magistrate

can take cognizance of an offence either upon receiving a

complaint, or upon a police report, or upon receiving

information from any person, or upon his own knowledge

except in the cases differently indicated in Chapter XIV of

the Code. But Section 142 of the NI Act says that in so far

as the offence under Section 138 is concerned no court shall

take cognizance except upon a complaint made by the payee or

the holder in due course of the cheque.

The second is this: Under the Code a complaint could

be made at any time subject to the provisions of Chapter

XXXVI. But so far as the offence under Section 138 of the

NI Act is concerned such complaint shall be made within one

month of the cause of action. The third is this: Under

Article 511 of the First Schedule of the Code, if the

offence is punishable with imprisonment for less than 3

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years or with fine only under any enactment (other than

Indian Penal Code) such offence can be tried by any

Magistrate. Normally Section 138 of the NI Act which is

punishable with a maximum sentence of imprisonment for one

year would have fallen within the scope of the said Article.

But Section 142 of the NI Act says that for the offence

under Section 138, no court inferior to that of a

Metropolitan Magistrate or Judicial Magistrate of first

class shall try the said offence.

Thus, the non-obstante limb provided in Section 142 of

the NI Act is not intended to expand the powers of a@@

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Magistrate of first class beyond what is fixed in Chapter

III of the Code. Section 29, which falls within Chapter III

of the Code, contains a limit for a Magistrate of first

class in the matter of imposing a sentence as noticed above

i.e. if the sentence is imprisonment it shall not exceed 3

years and if the sentence is fine (even if it is part of the

sentence) it shall not exceed Rs.5000/-.

Two decisions holding a contrary view have been

brought to our notice. The first is that of a Single Judge

of the Madras High Court in A.Y. Prabhakar vs. Naresh

Kumar N. Shah {1994 Madras Law Journal (Crl.) 91 = 1995

Company Cases (Vol.83) 191}. The other is that of a Single

Judge of the Kerala High Court which simply followed the

aforesaid decision of the Madras High Court [K.P. Sahdevan

vs. T.K. Sreedharan, {1996(2) Criminal Law Journal 1223 =

1996(1) Kerala Law Times 40}]. The learned Single Judge of

the Kerala High Court (Balanarayana Marar, J) dissented from

a contrary view expressed in an earlier judgment of the same

High Court and had chosen to agree with the view of the

Madras High Court held in Prabhakar vs. Naresh Kumar N.

Shah (supra). What Marar, J. had adopted was not a healthy

course in the comity of Judges in that he had sidelined the

earlier decision of the same High Court even after the same

was brought to his notice. If he could not agree with the

earlier view of the same High Court he should have referred

the question to be decided by a larger bench. Learned

Single Judge of the Madras High Court did not advance any

reasoning except saying that Section 29(2) of the Code is

not applicable in view of the primary clause in Section 142

of the NI Act. As pointed out by us earlier, the scope of

the said primary clause cannot be stretched to any area

beyond the three facets mentioned therein. Hence the two

decision cited above cannot afford any assistance in this

appeal.

The second contention depends upon the construction of

Section 5 of the Code. Before that Section is considered it@@

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is advantageous to have a look at the preceding section

which is in a way cognate to the provision cited. Section

4(1) of the Code concerns only with offences under the

Indian Penal Code but sub-section (2) says that all offences

under any other law shall be investigated, inquired into,

tried, and otherwise dealt with according to the same

provisions of the Code unless any other enactment contains

provisions regulating the manner or place of such

investigation, inquiry or trial or how otherwise such

offences should be dealt with. This means, if an other

enactment does not regulate the manner or place of trial etc

of any particular offence the provisions of the Code will

continue to control the investigation or inquiry or trial of

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such offence. Now Section 5 of the Code has to be seen.

5.Saving.- Nothing contained in this Code shall, in the

absence of a specific provision to the contrary, affect any

special or local law for the time being in force, or any

special jurisdiction or power conferred, or any special form

of procedure prescribed, by any other law for the time being

in force.

Non-application of the Code on any special

jurisdiction or power conferred by any other law for the

time being in force is thus limited to the area where such

special jurisdiction or power is conferred. Section 142 of

the NI Act has not conferred any special jurisdiction or

power on a Judicial Magistrate of first class. That

section has only excluded the powers of other magistrates

from trying the offence under Section 138 of the NI Act.

In this context it is profitable to refer to the

method usually adopted by the Parliament for conferring

special jurisdiction or powers on magistrates of first class

in the matter of awarding sentences obviating the limitation

stipulated in Section 29(2) of the Code. The Essential

Commodities Act contained a provision as Section 12 which

read thus: 12. Special provision regarding fine-

Notwithstanding anything contained in section 29 of the Code

of Criminal Procedure, 1973 (2 of 1974), it shall be lawful

for any Metropolitan Magistrate, or any Judicial Magistrate

of the first class specially empowered by the State

Government in this behalf, to pass a sentence of fine

exceeding five thousand rupees on any person convicted of

contravening any order made under section 3.

(Of course the said provision has since been deleted

from the statute book when jurisdiction to try the offences

under the Essential Commodities Act has been conferred on

Special Court which is deemed to be a Court of Sessions.)

Another instance is, Section 36 of the Drugs and

Cosmetics Act which says that Notwithstanding anything

contained in the Code it shall be lawful for any

Metropolitan Magistrate or Judicial Magistrate of the first

class to pass any sentence authorised by this Act in excess

of the powers under the Code. A similar provision is

incorporated in Section 21 of the Prevention of Food

Adulteration Act also.

Those instances bear ample illustrations as to how the

legislature had exercised when it wanted the limitations@@

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specified under Section 29 of the Code to be surmounted

under special enactments. (Those instances are only

illustrative, and not exhaustive.) In the absence of any

such provision in the NI Act we cannot read any special

power into it as having conferred on a magistrate of first

class in the matter of imposition of sentence.

In this context, we may also point out that if a

Magistrate of first class thinks that the fact situation in

a particular case warrants imposition of a sentence more

severe than the limit fixed under Section 29 of the Code,

the legislature has taken care of such a situation also.

Section 325 of the Code is included for that purpose. Sub-

section (1) of that Section reads thus: Whenever a

Magistrate is of opinion, after hearing the evidence for the

prosecution and the accused, that the accused is guilty, and

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that he ought to receive a punishment different in kind

from, or more severe than that which such Magistrate is

empowered to inflict, or, being a Magistrate of the second

class, is of opinion that the accused ought to be required

to execute a bond under section 106, he may record the

opinion and submit his proceedings, and forward the accused,

to the Chief Judicial Magistrate to whom he is subordinate.

If proceedings are so submitted to the Chief Judicial

Magistrate under Section 325(1) of the Code it is for the

Chief Judicial Magistrate to pass such judgment, sentence or

order in the case, as he thinks fit. It is so provided in

sub-section (3) thereof. Even that apart, a Magistrate who

thinks it fit that the complainant must be compensated with

his loss he can resort to the course indicated in Section

357 of the Code. This aspect has been dealt with in

Bhaskarans case (supra) as follows: However, the

Magistrate in such cases can alleviate the grievance of the

complainant by making resort to Section 357(3) of the Code.

It is well to remember that this Court has emphasised the

need for making liberal use of that provision (Hari Singh v.

Sukhbir Singh, 1988 (4) SCC 551). No limit is mentioned in

the sub-section and therefore, a Magistrate can award any

sum as compensation. Of course while fixing the quantum of

such compensation the Magistrate has to consider what would

be the reasonable amount of compensation payable to the

complainant. Thus, even if the trial was before a Court of

Magistrate of the first class in respect of a cheque which

covers an amount exceeding Rs.5000/- the Court has power to

award compensation to be paid to the complainant.

In our view this question does not now pose any

practical difficulty. Whenever a magistrate of the first

class feels that the complainant should be compensated he

can, after imposing a term of imprisonment, award

compensation to the complainant for which no limit is

prescribed in Section 357 of the Code. In the result, while

retaining the sentence of imprisonment of six months we

delete the fine portion from the sentence and direct the

appellant to pay compensation of Rs.83,000/- to the

respondent-complainant. The said amount shall be deposited

with the trial court within six months failing which the

trial court shall resort to the steps permitted by law to

realise it from the appellant. This appeal is disposed of

accordingly.