VERY IMPORTANT POINT
While imposing sentence for offence under Section 138 of the Negotiable Instruments Act Magistrate cannot impose a fine exceeding Rs. 5000/-; however, the Magistrate can having recourse to Section 357 of the Cr.P.C. after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed under Section 357 of Cr.P.C.

Headnote:Negotiable Instruments Act, 1881-Sections 138 and 142-Code of Criminal Procedure, 1973-Section 29(2)-Dishonour of cheque-Sentence for-Power of Magistrate of First Class-He cannot impose fine beyond Rs. 5,000/--Section 142 of N.I. Act is not intended to expand powers of Magistrate beyond what is fixed in Section 29 of Cr.P.C.-Magistrate can, however, taking resort to Section 357 of Cr.P.C. award compensation to complainant, for which no limit is prescribed.
       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 Cr.P.C. 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." The non-obstante expression contained in Section 142 of the NI Act 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. (Paras 3, 5 & 6)
       Thus, the non-obstante limb provided in Section 142 of the Nl 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/-. (Para 7)
       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. 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. (Paras 14)
       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. 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. (Paras 15 & 16)

JUDGMENT

Thomas, J.-Leave granted.

2. 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 v. Sankaran Vaidhyan Balan and Anr.1 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.

3. 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 Bhaskaran s 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 Bhaskaran s 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."

4. 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.

5. 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 a

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2001 Supreme(SC) 67

Cases Referred (1)