Pankajbhai
Nagjibhai Patel Vs. The State of Gujarat & Anr [2001] Insc 19 (12 January 2001)
K.T.Thomas,,,
R.P.Sethi Thomas, J.
L.J
Leave
granted.
A
Judicial Magistrate of first class, after convicting an accused of the
offence under Section 138 of the Negotiable
Instruments Act (for 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 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 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 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 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 aMagistrate 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 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 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 limitationsspecified 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 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
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