SELVARAJ Vs. P VISWANATHAN

JUDGEMENT

(1.) The issue which falls for consideration before the learned single Judge of this Court (K. P. SIVASUBRAMANIAM, J.) and which has now been referred to us for decision is as under :-

(2.) The following factual matrix would be necessary to understand the controversy:- The accused Selvaraj, who was a petitioner before the learned single Judge of this Court in Crl. R.C.No. 247 of 1997, was convicted by the Judicial Magistrate, No. 1, Tiruchirappalli for offence under Section 138 of the Negotiable Instruments Act, 1881 on the ground that the cheque issued by him in favour of the complainant was dishonoured by the Bank, by his judgment dated 31-5-1996 in C.C.No. 593 of 1995. The trial Court imposed a fine of Rs. 25,000/- against the accused and in default he was directed to undergo simple imprisonment for a period of two months. He filed an appeal against the said judgment which was rejected by the Principal Sessions Judge, Tiruchirapalli in C.A.No. 126 of 1996 by his judgment dated 10-2-1997. It was canvassed before the learned single Judge in the aforementioned revision that the trial Court had exceeded its limits in awarding a fine of Rs. 25,000/- as the Judicial Magistrate of First Class was empowered under Section 29(2) of the Criminal Procedure Code to award a fine up to 5,000/- rupees only and, therefore, the trial Court had erred in awarding the sentence of fine beyond that limit. On behalf of the complainant, it was contended that the offence under Section 138 of the Negotiable Instruments Act provided a punishment of a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. It was also argued that under Section 142 of the said Act, the said Magistrate was empowered to try any offence punishable under Section 138 of the Negotiable Instruments Act and, therefore, considering the non obstante clause at the beginning of Section 142 of the Act, the Magistrate was perfectly justified in passing the sentence of fine which was more than 5,000/- rupees. In short, it was contended that as per the correct interpretation of Section 142(c) of the Act, a Judicial Magistrate of the First Class or as the case may be, a Metropolitan Magistrate, could inflict a higher punishment than the limits set up by Section 29(2) of the Criminal Procedure Code. The complainant relied on a decision of a single Judge of this Court reported in (1995) 83 Com Cas 191 (A. Y. Prabhakar v. Naresh Kumar N. Shah) which supported the contention of the complainant and also relied on four other rulings of other High Courts including the High Courts of Andhra Pradesh and Kerala. The learned single Judge, however, took a view that the said judgment as also the judgments of the other High Courts could not be said to be laying down the correct law as in all those judgments, the judgment of the Supreme Court reported in (1984) 2 SCC 500 : 1984 SCC (Cri) 277 : (1984 Cri LJ 647) (A. R. Antulay v. Ramdas Sriniwas Nayak) was not taken note of. The learned judge of this Court (K. P. Sivasubramaniam, J.) in the last para of his referring order notes,"Though I could have proceeded further to dispose of this revision in accordance with my conclusions on the basis of the said decision of the Supreme Court by remitting the matter to theJ.M.F.C. to comply with Section 325(1) of the Code, yet having regard to the fact that the issue pertains to the question of jurisdiction of the Magistrates before whom large number of similar complaints are now pending throughout the State and in order to avoid conflicting views, it is desirable to have a pronouncement by a larger Bench."It is in this view of the order that the matter has been referred to the Full Bench for its decision.

(3.) Before we take up the exercise of interpreting the powers of the Judicial Magistrate of First Class or as the case may be the Metropolitan Magistrate (hereinafter referred to as "the Magistrate" for the sake of brevity), it would be better to see the various relevant provisions on the subject both from the Negotiable Instruments Act, 1881 (hereinafter called as "the Act") and also the Criminal Procedure Code (hereinafter called as "the Code").