Full Judgment Text
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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.