A Y PRABHAKAR Vs. NARESH KUMAR N SHAH

JUDGEMENT

(1.) THE accused in C. C. No. 6392 of 1991 on the file of the fifth Metropolitan Magistrate, Egmore, Madras, has filed this petition under section 482 of the Criminal Procedure Code, 1973, for quashing further proceedings in C. C. No. 6392 of 1991. THE short facts are : THE respondent has filed a complaint against the petitioner under section 138 of the Negotiable Instruments Act, 1881 (I shall hereinafter refer to it as "the Act"), on the allegations that the petitioner had issued a cheque for Rs. 1, 00, 000 on April 10, 1991, drawn on Indian Bank, Egmore branch, towards the sale consideration and when presented for payment it was dishonoured by the bank of the accused, on the ground "insufficient funds". THE respondent issued legal notice on May 9, 1991 , calling upon the accused/petitioner to pay the said sum of rs. 1, 00, 000. THE same was acknowledged by the accused but he did not pay the amount. Hence, the complaint. Mr. S. J. Jagadev, learned counsel for the petitioner, would submit that the petitioner had instructed the respondent/complainant not to present the cheque for collection, in view of certain difficulties experienced by him in mobilising the amount and despite his specific instructions the respondent had presented the cheque for collection and so that would not constitute an offence. This version, viz. , that the petitioner gave such an instruction, is not available in the complaint. It is extraneous to the documents referred to in the complaint. Under section 482 of the Criminal procedure Code, this submission will not hold good. THE second submission was that the cheque amount was Rs. 1, 00, 000 and if the offence was found to have been committed, the Magistrate had to impose a fine of Rs. 2, 00, 000 and that the Magistrate has no power to impose so much fine as per section 29 (2) of the Criminal Procedure Code, and hence the cognizance of the complaint by the Metropolitan Magistrate is invalid. Section 29 (2) of the Criminal Procedure Code, reads as follows : "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. "* Normally, the Magistrate of the First Class cannot impose fine more than the aforesaid sum. This is a special Act. Section 142 (c) of the negotiable Instruments Act is relevant and it reads as follows : "cognizance of offence.--- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, -- -. . . (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. "*

(2.) THE above would show that notwithstanding any provision contained in the Code of Criminal Procedure, 1973, no court inferior to that of the Metropolitan Magistrate can try the offence punishable under section 142 (c ). Here, the Magistrate concerned is the Metropolitan Magistrate. Section 29 (2) of the Code of Criminal Procedure is not applicable in view of the primary clause in section 142, viz. , notwithstanding anything contained in the code of Criminal Procedure. Hence I am unable to accept either of his submissions. In the result, this petition does not deserve admission and shall stand dismissed. .