IMPORTANT POINT
After the Amendment Act of 2002 in Negotiable Instruments Act, Magistrate of 1st Class may impose fine exceeding
Rs. 5,000/- for offence under Section 138 of the Act.

Mohan Shantanagoudar, J.—The petitioner herein who is appellant in Criminal Appeal No. 1407/2005 pending on the file of the learned Additional District and Sessions Judge/Fast Track Court Hall No. 7, Bangalore city has sought for setting aside/modification of the Order dated 8.11.2005 passed by the said Court, by which, a condition is imposed on the petitioner to deposit 25% of the cheque amount, while suspending the sentence passed by the Trial Court.

2. The petitioner herein is convicted in C. C. No. 15062 of 2003 by the 19th Additional Chief Metropolitan Magistrate, Bangalore by the Judgment and Order dated 28.10.2005 for the offence punishable under Section 138 of the Negotiable Instruments Act. She is sentenced to pay fine of Rs. 90,00,000/- and to undergo simple imprisonment for two years. Out of the fine amount, a sum of Rs. 89,00,000/- is Ordered to be paid to the complainant as compensation. It is relevant to mention here itself that the amount involved in the cheque is Rs. 65,00,000/-. Against the said Judgment and Order of conviction, the petitioner herein has filed Criminal Appeal No. 1407/2005. The Order of suspension of sentence passed by the Appellate Court in said criminal appeal reads thus:

“Appellant counsel is present. Respondent is present. Sri M.S.B. filed power for respondent.

Heard.

The execution of sentence passed in C. C. No. 15062/2003 is suspended subject to deposit of 25% of the cheque amount within one month from the date of Order and subject to execution of bond for Rs. 50,000/- with two solvent sureties, before Trial Court and report compliance.”

Petitioner, being aggrieved by the aforesaid Order of imposition of condition to deposit 25% of the cheque amount has preferred this petition. Though the matter listed for Orders on 1.A.1 the matter is argued for admission.

3. Smt. Nalini Chidambaram, learned senior counsel appearing on behalf of the petitioner, placing reliance on the Judgment of the Apex Court in the case of Pankajbhai Najibhai Patel v. State of Gujarat and another1 submitted that the Judgment and Order of conviction and sentence passed by the Trial Court is without jurisdiction, inasmuch as, the Magistrate cannot impose fine in excess of Rs. 5,000/-. Secondly she submitted that the Appellate Court could not have imposed the aforesaid condition requiring the appellant-petitioner herein to deposit 25% of the cheque amount, as the Order of the Trial Court does not fall under Section 357(3) of Cr. P.C.

4. In support of her first contention learned Senior Advocate has drawn the Court’s attention to Section 29(2) of the Code of Criminal Procedure (‘Code’ for short) for the proposition that the Judicial Magistrate First Class has no jurisdiction to impose a sentence of fine exceeding Rs.

5,000/-. It is submitted that if the Judicial Magistrate First Class wants to impose a more severe sentence of fine then he shall follow the procedure prescribed under Section 325(1) of the ‘Code’. In this regard, the Judgment of the Apex Court referred supra is pressed into service.

5. In the case on hand, the Judgment and Order of conviction and sentence is passed by the Additional Chief Metropolitan Magistrate, Bangalore and not by the Judicial Magistrate of First Class. At this stage, it is beneficial to look into the provision of Section 143(1) of the Negotiable Instruments Act, 1881, which reads thus:

“143.Power of Court to try cases summarily: (1) Notwith-standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magis-trate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceedi