A.Y. Prabhakar vs Naresh Kumar N. Shah

This Judgment has been overruled by : Pankajbhai Nagjibhai Patel Vs. The State of Gujarat and Another, AIR 2001 SC 567 : (2005)

3 BC 435 : (2001) 104 CompCas 418 : (2001) CriLJ 950 : (2001) 1 JT 523 : (2001) 1 SCALE 102 : (2001) 1 SCR 337 : (2001) 1 UJ

485 : (2001) AIRSCW 184 : (2001) 1 Supreme 124

Pratap Singh, J.—The accused in C.C. No. 6392 of 1991 on the file to the Fifth Metropolitan Magistrate, Egmore, Madras, has filed this

petition u/s 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 u/s 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. u/s 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 u/s 138.

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 u/s 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.