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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:

L.....I.........T.......T.......T.......T.......T.......T..J

     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@@                                  JJJJJJJJJJJJJJJJJJJJJJJJJJJ under  Section  138 of the Negotiable Instruments  Act  (for@@ JJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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.