JAYA BABY Vs. K K VIJAYAN
HIGH COURT OF KERALA
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(1.)The contention raised in this petition requires some consideration although it appeared at first as bereft of any substance. The contention is that the offence under S.138 of the Negotiable Instruments Act (for short 'the Act') can be tried only by a chief judicial magistrate or a chief metropolitan magistrate when the cheque amount exceeds Rs.2,500/-. The reason advanced by the counsel in support thereof is that since the fine amount impossible for the offence can go upto twice the cheque amount, no magistrate other than a Chief Judicial Magistrate (or chief metropolitan magistrate) has the power to impose a fine exceeding rupees five thousand. Counsel conveyed the grievance of the petitioner that in such cases court would be precluded from awarding compensation to the complainant from the fine amount realised commensurate with his loss.
(2.)Petitioner filed a complaint before a chief judicial magistrate alleging that first respondent has committed the offence under S.138 of the Act. The cheque involved in the case was for Rs.2,25,000/-. The chief judicial magistrate took cognizance of the offence on the complaint, but later made over the case to the court of a judicial magistrate of first class situate in the same district, as the chief judicial magistrate was told that a connected case was pending in that court.
(3.)According to the petitioner, if the case is to be disposed of by the magistrate to whose court the case stands transferred, petitioner would be put to handicap for the following reasons: The sentence prescribed for the offence under S.138 of the Act is imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of cheque or with both. Under S.357(1) of the Code of Criminal Procedure (for short the Procedure Code) the court is empowered to order the whole or any part of the fine realised to be paid as compensation. No upper limit is fixed for the quantum of fine if the chief judicial magistrate has to pass the sentence. But a magistrate of first class, other than a chief judicial magistrate or metropolitan magistrate, cannot impose a fine exceeding Rupees five thousand. Hence, even if a magistrate of first class is considerate and desirous of providing recompense for the loss of the complainant, he cannot help the complainant by imposing a fine more than the said limit. Therefore, learned counsel pleads that the case should have been tried only by the chief judicial magistrate.
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