TMI Blog2001 (1) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... e can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in Section 357 of the Code. In the result, while retaining the sentence of imprisonment of six months we delete the fine portion from the sentence and direct the appellant to pay compensation of Rs.83,000/- to the respondent-complainant. The said amount shall be deposited with the trial court within six months failing which the trial court shall resort to the steps permitted by law to realise it from the appellant. - Appeal (crl.) 66 of 2001 - - - Dated:- 12-1-2001 - R.P.Sethi and K.T.Thomas, JJ. JUDGMENT Leave granted. A Judicial Magistrate of first class, after convicting an accused of the offence under Section 138 of the Negotiable Instruments Act (for short the NI Act) sentenced him to imprisonment for six months and a fine of Rs.83,000/-. The conviction and sentence were confirmed by the Sessions Judge in appeal and the revision filed by the convicted person was dismissed by the High Court. When the special leave petition was moved, learned counsel confined his contention to the question whether a Judicial Magistrate of first class could have impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance 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. It is clear that the aforesaid non-obstante expression is intended to operate only in respect of three aspects, and nothing more. The first is this: Under the Code Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon receiving information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the NI Act says that in so far as the offence under Section 138 is concerned no court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque. The second is this: Under the Code a complaint could be made at any time subject to the provisions of Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 the 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 decision cited above cannot afford any assistance in this appeal. 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 offences 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 of the Code to be surmounted under special enactments. (Those instances are only illustrative, and not exhaustive.) In the absence of any such provision in the NI Act we cannot read any special power into it as having conferred on a magistrate of first class in the matter of imposition of sentence. In this context, we may also point out that if a Magistrate of first class thinks that the fact situation in a particular case warrants imposition of a sentence more severe than the limit fixed under Section 29 of the Code, the legislature has taken care of such a situation also. Section 325 of the Code is included for that purpose. Subsection (1) of that Section reads thus: Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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