VINOD K.SHARMA,J - (1.) THIS revision petition has been filed against the conviction order dated 18.9.2006 and order of sentence dated 21.9.2006 passed by the learned Sub Divisional Judicial Magistrate, Talwani Sabo (for short Magistrate) under section 138 of the Negotiable Instruments Act, (for short the Act).
(2.) LEARNED Magistrate found the accused guilty of an offence under section 138 of the Act and imposed the following sentence :- "15. Learned counsel for the convict has argued that convict is fist offender, sole breadwinner of the family and of young age. Even, during the pendency of the complaint he had offered to make the payment of the cheque even to the extent of double the amount. Thus, taking into note the said factum of lenient may be taken and convict be released on probation. 16. On the other hand, learned counsel for the complainant has argued that the complainant had been dragged to face the lis for several years at a stretch and the offer upon which much emphasis has been laid, but the same is being made at the stage of hearing the quantum of sentence, which altogether falsifies the arguments put forth by learned counsel for the convict be dealt severally so that it is a lesson to the like minded people. 17. After giving my thoughtful consideration to the rival submissions and taking into note the due assistant accorded coupled with the factum that it is a complaint case qua the bouncing of cheque for sum of Rs. 14,000/- and if the court is not mistaken, it is worth making mention that during the pendency of the present complaint, learned counsel for the convict has expressed in the open Court as to his client being ready to make the payment. Thus, would it be justifiable to send the convict behind bars, when he had otherwise expressed during the trial of the complaint, though the compromise could not be effected even in the Lok Adalat. The court is of the considered opinion that ends of justice shall be squarely met in case the convict is directed to pay double the amount of the cheque i.e. to the tune of Rs. 28,000/- and the said sum shall be paid to the complainant after the expiry of period of appeal or revision, if any and also to deposit Rs. 5000/- as costs in the state exchequer and in default the convict shall undergo simple imprisonment for one month. Amount of cost and sum of Rs. 28,000/- i.e. double the amount of the cheque has been deposited. File be consigned to the record room." Learned counsel for the petitioner contends that the order passed by the learned Magistrate cannot be sustained as it was not open to the learned Magistrate to award compensation to the tune of Rs. 28,000/- and fine of Rs. 5000/-. The contention of the learned counsel for the petitioner is that it was incumbent upon the Magistrate to have imposed a substantive sentence before granting compensation as provided under section 357 (3) of the Code of Criminal Procedure (for short the Code). In support of this contention learned counsel for the petitioner placed reliance on the judgment of K. Bhaskaran v. Sankaran Vaidhyan Balan and another, 1999(4) RCR(Criminal) 309 : JT 1999(7) SC 558, wherein Hon'ble Supreme Court was pleased to lay down that trial Magistrate of First Class cannot impose a fine exceeding Rs. 5000/- besides imprisonment but no limit is mentioned in sub-section (3) of Section 357 of the Code and therefore, the Magistrate can award any sum as compensation. While fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant.
(3.) LEARNED counsel for the petitioner thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Pankajbhai Nagibhai Patel v. State of Gujarat, 2001(1) RCR(Criminal) 343, wherein Hon'ble Supreme Court has been pleased to lay down as under :- "8. Thus, the non-obstante limb provided in Section 142 of the NI Act is not intended to expand the powers of a Magistrate of first class beyond what is fixed in Chapter III of the Code. Section 29, which falls within Chapter III of the Code, contains a limit for a Magistrate of first class in the matter of imposing a sentence as noticed above, i.e. if the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is part of the sentence) it shall not exceed Rs. 5000/-. 9. Two decisions holding a contrary view have been brought to our notice. The first is that of a Single Judge of the Madras High Court in A.Y. Prabhakar v. Naresh Kumar N. Shah, 1994 Madras Law Journal (Crl.) 91 : 1995 Company Cases (Vol.83) 191. The other is that a Single Judge of the Kerala High Court which simply followed the aforesaid decision of the Madras High Court K.P. Sahdevan v. T.K. Sreedharan, 1996(2) RCR(Crl.) 396 (Kerala) : 1996(2) Criminal Law Journal 1223 : 1996(1) Kerala Law Times 40. The learned Single Judge of the Kerala High Court (Balanarayana Marar, J.) dissented from a contrary view expressed in an earlier judgment of the same High Court and had chosen to agree with the view of the Madras High Court held in Prabhakar v. Naresh Kumar N. Shah (supra). What Marar, J. had adopted was not a healthy course in the comity of Judges in that he had sidelined the earlier decision of the same High Court even after the same was brought to his notice. If he could not agree with the earlier view of the same High Court he should have referred the question to be decided by a larger Bench. Learned Single Judge of the Madras High Court did not advance any reasoning except saying that Section 29 (2) of the Code is not applicable in view of the primary clause in Section 142 of NI Act. As pointed out by us earlier, the scope of the said primary clause cannot be stretched to any area beyond the three facets mentioned therein. Hence the two decisions cited above cannot afford any assistance in this appeal. 10. The second contention depends upon the construction of Section 5 of the Code. Before that Section is considered it is advantageous to have a look at the preceding section which is in a way cognate to the provision cited. Section 4(1) of the Code concerns only with offences under the Indian Penal Code but sub-section (2) says that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions of the Code unless any other enactment contains provisions regulating the manner or place of such investigation, inquiry or trial or how otherwise such offence should be dealt with. This means, if an other enactment does not regulate the manner or place of trial etc. of any particular offence the provisions of the Code will continue to control the investigation or inquiry or trial of such offence. Now Section 5 of the Code has to be seen. "5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 11. Non-application of the Code on "any special jurisdiction or power conferred by any other law for the time being in force" is thus limited to the area where such special jurisdiction or power is conferred. Section 142 of the NI Act has not conferred any "special jurisdiction or power" on a Judicial Magistrate of first class That section has only excluded the powers of other magistrates from trying the offence under Section 138 of the NI Act." ;