Ii Addl. Judicial First Class ... vs State Of A.P. Represented By The Public ... on 7 September, 2004
8. Similar issue arose before the Supreme Court in PANKAJBHAI NAGIBHAI PATEL V. THE STATE OF GUJARAT. Section 138 of Negotiable Instruments Act provides punishment of imprisonment for a term, which may extend to one year or fine, which may extend to twice the amount of cheque or with both. This provision would not result in any anomaly when the amount of cheque is less than Rs. 2,500/- as the maximum fine which could be imposed by the Magistrate is Rs. 5,000/-. In the said case, the Judicial Magistrate of First Class after convicting the accused for the offence under Section 138 of Negotiable Instruments Act sentenced him to suffer Rigorous Imprisonment for six months and a fine of Rs. 83,000/- and they were confirmed in appeal and also in revision. On a special leave petition, moved by the accused, the question arose as to whether Judicial Magistrate of First Class could impose fine beyond Rs. 5,000/- in view of the limitation as contained in Section 29(2) of the Code arose for consideration. The Supreme Court referred to the provisions contained in Sections 138 and 142 of Negotiable Instruments Act and it was held that the non-obstante clause was intended to operate only in respect of the three aspects and nothing more. The first is - 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 N.I. Act says that insofar 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 - 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 Negotiable Instruments Act is concerned such complaint shall be made within one month of the cause of action. Third is: 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 N.I. 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 N. I. 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 sane. Thus, the Supreme Court observed that non-obstante limb provided in Section 142 of N.I. Act was not intended to expand the powers of a Magistrate of First Class beyond what is fixed under 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. 5,000/-. In such an event, the Supreme Court observed as follows: