SHASHIDAR Vs. BHIMARAO

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned counsel for the respondent.

(2.) THE petitioner was the accused in an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act' for brevity). The complaint was contested by the petitioner herein and the court having held that the offence was established and having convicted the petitioner for the offences punishable under Section 138 of the NI Act, the Court imposed a punishment of payment of fine in a sum of Rs.2,00,000/-, though incorrectly indicated as compensation, as 138 of the NI Act does not contemplate the award of any such compensation and is only fine that could be imposed out of which the court has the power to grant compensation in terms of Section 357 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.' for brevity), in any event, that is irrelevant in view of the further circumstances of this case.

(3.) THE learned counsel for the respondent on the other hand would seek to justify the judgment of the Trial Court while pointing out that there is an amendment to Chapter XVII of the NI Act, whereby Sections 143 to Section 147 have been inserted by Act No.55/2002 with effect from 6.2.2003, and the procedure prescribed is a complete departure from the provisions of the Cr.P.C. In that, though it is stated that any offence punishable under Section 138 of the NI Act shall be summarily tried and that Sections 262 to 265 shall apply, as far as may be, to such trials. The further provision under Section 145 which provides for tendering evidence by way of affidavit is a complete departure from the procedure prescribed for such a summary trials and therefore, the procedure having been separately provided under the NI Act which is a special legislation, the contention that there is a violation of the cardinal principle under Section 326(3), with reference to the decision of the Apex Court, can certainly be distinguished, as the Apex Court did not address the effect of the subsequent amendments to the NI Act even though the judgment was rendered on 1.9.2011. He further contends that the petitioner is, for the first time, raising such an objection and it was never raised before the Trial Court or before the Appellate Court and is therefore, estopped from raising any such contention after having suffered concurrent judgments of both the Trial Court as well as the Appellate Court.