V.S.SIRPURKAR, R.THANGAVEL, J. - (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: "Whether the Metropolitan Magistrate or the Judicial Magistrate of First Class will have the power to impose a higher punishment of fine than the limit spelt out from the the relevant provision regarding the pcwersof such Magistrate under the Criminal Procedure Code, 1973 in respect of the offence under Section 138 of the Negotiable In­struments Act, 1881?"
(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 Cr. 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 corr plainant was dishonoured by the Bank, b his judg­ment dated 31-5-1996 in C.C. ?-Jo. 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, Tiruchirappalli 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.YPrabhakarv. 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 (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 referringordernoies: "Though I could have proceeded further to dispose of this revision in accordance wiih my conclusions on the basis of the said decision of the Supreme Court by remitting the matter to the J.M.F.C. to comply with Section 325(i) 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. 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 Magistral.: (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, l£Si (hereinafter called as "the Act") and also the Criminal Procedure Code (hereinafter called as "the Code").
(3.) SECTIONS 138 and Section 142 of the Act were brought on the legal anvils by resorting to the Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988). Section 138, thus introduced runs as under: "138. Dishonour of cheque for insufficien­cy, etc. of funds in the accounts.-Where any cheque drawn by a person on an account main­tained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it ex­ceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both'. (Emphasis supplied). (Proviso and explanation are not relevant for our purpose) Section 142 of the Act runs as under: "142. Cognizance of offences.-(1) Not­withstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no Court shall take cognizance of any offence punishable under Section 138, except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; (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." The emphasised portion of Section 138 of the Act suggests that an offence under Section 138 of the Act is punishable both with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both.;