PANKAJBHAI NAGJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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 vs. Sankaran Vaidhyan Balan, (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 N.I. Act. We, therefore, heard both counsel on that aspect.

(3.) Section 138 of the N. I. 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 (supra) thus :