Delhi District Court
3.2. Hon'Ble Supreme Court In ... vs The State Of Gujarat & Anr 2001 Air Sc 567 ... on 20 January, 2011
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
20.01.2011
CC No. 915/10
ORDER
Both the parties to the present complaint case have been heard on several dates.
2. After going through the arguments and the record, I am of the opinion that accused persons are guilty for the offence charged.
3. In the peculiar circumstances of the present case, I am of the opinion that this matter ought to be referred to the Ld. Chief Metropolitian Megistrate so that adequate sentence may be passed. 3.1. It may be noted that a sentence of fine can be imposed upon the accused company, however, this Court can not impose a fine exceeding Rs. 10,000/- (See Section-29(2) CrPC). Though Section-138 NI Act provides that a fine of twice the amount of cheque can be imposed, a Magistrate can not impose the same. 3.2. Hon'ble Supreme Court in Pankajbhai Nagjibhai Patel vs The State Of Gujarat & Anr 2001 AIR SC 567 has held that:
"Thus, the non-obstante limb provided in Section 142 of the NI Act is not intended to expand the powers of a 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 1 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."
3.3. Clearly, this Court can not impose a fine exceeding Rs. 10,000/-. (It is pertinent to mention that this complainat was instituted prior to the amendment in the Negotiable Instruments Act. Though other procedural amendement may apply, the provision for the sentence as provided under Section-143 NI Act can not be made applicable to this case.) 3.4. The cheques in the present complaint are of Rs. 50,15,993/-. In such circumstances, a fine of Rs. 10,000/- will not be sufficient. Justice to the complainatn should also be done. 3.5. No doubt, this Court has power to grant compensation under Section-357(3) CrPC. But this provision requires passing of sentence of which fine does not form any part. Intrestingly, this can not be done in case where company is the accused. Section-357(1) Cr.PC will not be sufficient since this Court can not impose a fine exceeding Rs. 10,000/-. 2 3.6. Two other accused persons (related to the company) may be awarded substansive sentence. However, it would not be justifiable to direct these person to pay a compensation of Rs. 50,00,000/- or more (they have also to be awarded a substansive sentence if compensation is to be awarded under Section-357(3) Cr.PC). 3.7. Naturally, the option which may be exercised in these circumstances is to impose a fine on the company out of which complainant may be sufficiently compensated under Section-357(3) Cr.PC. The two other accused persons may easily be awarded sybstansive sentence and fine.
3.8. If we see the requirement of the present case, the fine ought to be of Rs. 50,00,000/- or more. And this Court can not impose such fine.
3.9. But the Court of Chief Metropolitian Megistrate can impose unlimited fine (see Section-29(1) Cr.PC).
4. In this respect, Section-325 Cr.PC. may be noted.
4.1. Section-325 Cr.PC reads as under:
"325. Procedure when Magistrate cannot pass sentence sufficiently severe.-(1) 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.
(2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.
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(3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law."
4.2. Hon'ble Supreme Court in Pankajbhai Nagjibhai Patel vs The State Of Gujarat & Anr 2001 AIR SC 567 has held that:
"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."
4.3. It is clear from the above that such cases may be referred to the Ld. Chief Metropolitian Megistrate under Section-325 Cr.PC.
5. It is accordingly directed.
(Rakesh Kumar Singh) MM(NI Act)-01, Central 20.01.2011 4