Selvaraj, S/O Gnanadesihan vs P. Viswanathan on 22 July, 1999

ORDER

Judgement pronounced by V.S. Sirpurkar, J.

1. The issue which falls for consideration before the learned single Judge of this Court (K.P. Sivasubramanian, 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 relevant provision regarding the powers of 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 Crl.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 complainant was dishonoured by the Bank, by his judgment dated 31.5.1996 in C.C.No.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 has 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 5000 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 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 aid Magistrate was empowered to try any offence punishable under Section 138 of the Negotiable Instruments Act and, therefore, considering the non obstinate 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 5000 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 A.Y. Prabhakar v. Naresh Kumar N. Shan, 83 Com. Cases 191 which supported the contention of the complainant and also relied on four other rulings of other High Courts including the High Court 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 Court could not be said to be laying down the correct law as in all those judgments, the judgments of Supreme Court reported in A.R. Antualy, v. Ramdas Sriniwas Nayak and another, was not taken note of. The learned judge of this Court (K.P. Sivasubramaniam, J.) in the last para of his referring order notes.

“Though I could have proceeded further to dispose of this revision in accordance with 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(1) 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.

3. 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 Magistrate (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, 1881 (hereinafter called as “the Act”) and also the Criminal Procedure Code (hereinafter called as “the Code”).

4. Section 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 (Amended) 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 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: (Italics Supplied)

(proviso and explanation are not relevant for out purpose)

Section 142 of the Act runs as under:-

“142. Cognisance of offences

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) no court shall take cognisance 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.

5. On this backdrop, it will be proper to see Section 29 of the Code:

29. Sentences which Magistrates may pass:-

(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

(2) 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.

(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first Class,”

Sub-section (2) and (4) of Section 29 of the Code suggest that the powers of a Magistrate of the First Class and Metropolitan Magistrate regarding possible sentence are identical and limited to the fine of Rs.5000, while there are no such constraints regarding the fine on the powers of the Chief Judicial Magistrate or the Chief Metropolitan Magistrate.

6. On the backdrop of these provisions in the Negotiable Instruments Act and the Criminal Procedure Code, it is the contention of Mr. Packiaraj, learned Counsel for the petitioner/accused that the concerned Magistrate has erred in awarding fine of Rs.25,000 which was beyond his powers as defined in Section 29(2) of the Code, while Mr. Raghavachari, learned Counsel for the respondent contends that the limitation on the power of the Magistrate introduced by Section 29 of the Code world not apply particularly because of the non obstinate clause appearing at the opening of Section 142 of the Act. The learned counsel further contends that Sections 138 and 142 of the Act have a character of a special law in contradistinction with the Indian Penal Code and Criminal Procedure Code and as such if the Judicial Magistrate of First Class or the Metropolitan Magistrate, as the case may be, has jurisdiction to try any offence punishable under Section 138 of the Act, then because of the force of the non obstinate clause obliterating the relevant provisions in the Criminal Procedure Code, such Metropolitan Magistrate or the Judicial Magistrate would have the jurisdiction to award any sentence as prescribed in Section 138 of the Act which is also a Penal Section. The question that would boil down for the purposes of the present controversy would be the true and correct interpretation of Section 142(c) of the Act as also the effect of the non obstinate clause on that sub-section.

7. Mr. Packiaraj, learned counsel appearing for the petitioner, firstly contends that the plaint reading of Section 142 of the Act would suggest that the operation of the non obstante clause is limited and it is meant only for three eventualities as contemplated under Section 142 of the Act. According to the learned counsel, clause (a) of the Section 142 suggests that the cognisance can be taken only on the basis of the complaint in writing by the payee or the holder of the cheque. The learned Counsel points out that ordinarily as per Section 190 of the Criminal Procedure Code, cognisance can be taken by the Magistrate- (a) upon receiving a complaint of facts which constitute such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. The learned Counsel contends that non obstante clause has an effect of limiting this power of the Magistrate to Section 190(1)(a) of the Code alone, thereby prohibiting the Magistrate from taking cognisance in respect of an offence under Section 138 of the Act upon a Police report or upon information received from any person and limiting that power of taking cognisance to a complaint by a payee of the cheque or the holder thereof. Therefore, according to the learned Counsel, the non obstante clause would have the effect of wiping out Section 190(1)(b) and 190(1)(c) as also modifying Section 190(1)(a) to some extent by providing that the complaint should only be by a payee of the cheque or the holder thereof and not any other person.

8. Similarly, as regards Section 142(b) of the Act, the contention is that it provides a period of limitation of One month in contradistinction with Section 468(1)(b) of the Code which provides that the limitation for taking cognisance for an offence punishable with imprisonment for a term not exceeding one year would be one year only. According to the learned Counsel, this provision has been wiped out and modified by limiting the limitation to one month.

9. In the same way, the learned Counsel points out that clause (c) of Section 142 of the Act merely provides that a Court inferior to the Metropolitan Magistrate or the Judicial Magistrate of First Class shall have no power to try an offence under Section 138 of the Act. According to the learned Counsel, in that, this Section gives a safeguard that the Court, below a particular level would not be competent to try the offence punishable under Section 138 of the Act. The learned Counsel argues that in this also, Section 190 of the Code which suggests a power in the Chief Judicial Magistrate to empower any Magistrate of the Second Class to take cognisance under sub-section (1) of Section 190 of the Code has been set at naught by the non obstante clause. The learned Counsel, therefore, argues that while interpreting Section 142(c) of the Act, it will have to be first seen as to what is that which is prevented or modified by the non obstante clause and it is then that the due interpretation will have to be given to clause (c). The learned Counsel further argues that while seeing the effect of the non obstante clause, it will not be possible to read something in the controlled provision of the main enactment which is not there and thereby to increase the scope thereof. In short, the learned Counsel suggests that if the language of Section 142(c) of the Act only suggests the limitation on the power of inferior Courts (than the Metropolitan Magistrate or the Judicial Magistrate of First Class, then the said sub-clause (c) of Section 142 would have to be read only to that limited extent and to read something in that clause to create more power in the Magistrates in contradistinction with Section 29 of the Code would be doing violence to that language of the provision and would also among to incorrectly reading the non obstante clause.

10. Mr. Raghavachari, learned Counsel for the respondent, however, argues that it would not be a correct way to approach Section 142 of the Act
which opens with the non obstante clause. According to the learned Counsel,
ignoring the non obstante clause first, it will have to be decided as to the true
potential and meaning of main enactment and meaning of Section 142(a)(b) and

(c) and more particularly (c). Once the correct interpretation of sub-clause (c) is
done realising its full potential on the basis of its language, then because of the
force of the non-obstante clause and the unquestionable language thereof, all that
which is contrary to the correct interpretation of Section 142(c) will have to be
taken as wiped out or set aside by the non obstante clause. The learned Counsel
further strenuously contends that while interpreting Section 142(c), each word
therein would have to be given its due meaning with the further realisation that
subsequent provision of law has to be preferred to the earlier provision of law.

According to the learned Counsel, giving full scope to sub-clause (c) of Section
142 while interpreting the same and then reading the non obstante clause as
setting at naught every contrary provision thereto in the Code would clearly bring
out a position that a Magistrate, who would try an offence under Section 138 of
the Act, can have a power to award any sentence of find as provided in Section
138 of the Act irrespective of the limitation on such powers as spelt out in Section
29 of the Code.

11. It will have, therefore, to be considered as to whether Section 142(c) can be read to have been restricted by the non obstante clause or whether the non obstante clause is to be read as setting aside any contrary provision in the Code to Section 142(c) of the Act after correctly interpreting the same.

12. The correct interpretation of a provision which is prescribed by a non obstante clause and the true impact of the non obstante clause on such provision was considered by the Apex Court in Aswini Kumar v. Arabinda Base, .

That was a case where the Supreme Court was considering the true effect and interpretation of Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. The petitioner therein, a lawyer claimed a right to act and plead in Calcutta High Court and more particularly in the original side thereof on the basis of the said Section 2. The relevant part of the Section was as under:

“Notwithstanding anything contained in the Indian Bar Councils Act, 1926. or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practice in that High Court every Advocate of the Supreme Court shall be entitled as of right to practice in any High Court whether or not he is an Advocate of that High Court.”

The petitioner therein contended that an Advocate of the Supreme Court becomes entitled as of right to appear and plead as well as to act in all the High Courts including the High Court in which he is already enrolled, without any differentiation being made for this purpose between the various jurisdictions exercised by those Courts. It was contended that the word “Practice” used in the section included both the functions of acting of pleading and that there was nothing in Section 2 to warrant the cutting down of that statutory right and restricting it to pleading only on the original side of the Calcutta High Court. The respondents therein, however, pleaded that the non obstante clause in the first part of the Section furnished the key to the proper interpretation of its scope and since that clause superseded only those provisions of the Bar Councils Act and of any other law which excluded persons not entered in the roll of Advocates of a High Court from the right to practice in that Court, the enacting clause must be construed as conferring only a right co-extensive with the disability removed by the opening clause. It was their contention that the Section was designed only to enable Advocates of the Supreme Court, who were not enrolled as Advocates of any High Court to practice nevertheless in that High Court and that the petitioner, who was already an Advocate of the Calcutta High Court, could not derive any additional right from the section in relation to that Court, as he did not fall within the purview of the Section.

13. Firstly, the Apex Court interpreted the word ‘practice’ and held that it could not be read in a restricted manner and as such the word ‘practice’ included both pleading and acting. They also held that any Supreme Court Advocate could practice in the High Court as of right. They also further held that under Section 2 of the new Act, every Advocate of the Supreme Court was entitled as of right to practice in any High Court and that to power was reserved to Calcutta or Bombay High Court to cut down this statutory right and confine it to pleading alone on the original side of those High Courts. It was concluded by the Apex Court, therefore, that the legislature used the word ‘practice’ both in the Bar Councils Act and in the Supreme Court Advocates (Practice in High Courts) Act in its full sense of acting and pleading, but while in the case of Advocates of the Calcutta and Bombay High Courts, it had expressly preserved and continued the power of those Courts to restrict or exclude the right of practice on the original side, it has reserved no such overriding power under the new Act, with the result that any restrictive rule cutting down the statutory right would be repugnant to Section 2 and, therefore, void and inoperative. In short, the Apex Court gave a full meaning to the main enactment in Section 2 according to its potential. In paragraph 24 of the judgment, the Apex Court disapproved the reasoning of the High Court which was based on the non obstante clause in Section 2. It was observed,

“We find the learned Judges begin by inquiring what are the provisions which that clause seeks to supersede and then place upon the enacting clause such construction as would make the right conferred by it co-extensive with the disability imposed by the superseded provisions.”

The Apex Court took exception to the observations of the High Court to the effect:

“If we examine a little more closely what the section in fact supersedes or repeals …… The disability which the section removes and the right which it confers are co-extensive.”

The Apex Court observed:

“This is not, in our judgment, a correct approach to the construction of Section 2. It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is in consistent with the new enactment.

In paragraph 25 of the judgment, the Apex Court disapproved of the conclusions reached by the Calcutta High Court to the effect that section 2 conferred to new right on an Advocate of the Supreme Court in relation to the High Court in which he is already enrolled, but gives him the right to practice in the High Courts in the roll of which he was not entered as an Advocate and, therefore, the petitioner was not within the purview of the section in relation to the Calcutta High Court where he was already recorded as an advocate. The second conclusion disapproved by the Apex Court was that the only provisions superseded by the non obstante clause were sections 8(1) and 4(2) of the Bar Councils Act and Rule 38 of Chapter v of the Original Side Rules of the Calcutta High Court and a similar rule framed under Section 15 (b) of the Bar Councils Act by the Calcutta Bar Council prescribing the conditions subject to which Advocates of other High Courts were permitted to practice in the original and Appellate Sides of that Court and the corresponding rules then in force in the Bombay High Court. As regards the first conclusion, the Apex Court pointed out that the true scope of the enacting clause has to be determined on a fair reading of the words used in their natural and ordinary meaning and, therefore, the words used in the enactment “every Advocate” and “whether or not he is an Advocate of that High Court” made it plain that the section was designed to apply to the Advocates of the Supreme Court not only in relation to the High Court of which they were not Advocates but also in relation to those High Courts in which they had been already enrolled. The learned Judges also disapproved by the observations of the Calcutta High Court that the words “whether or not etc.,” were not very apposite as “no one who is an Advocate of a particular High Court requires to be an Advocate of the Supreme Court in order to practice in the Court.” At the end of this paragraph, the Apex Court went on to record:

“It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.”

In short, firstly, the Apex Court determined the true scope of the enacting clause on the fair reading of the words used in their natural and ordinary meaning. The Apex Court then observes in paragraph 27 which would truly bring out the treatment given by the Apex Court to the non obstante clause:

“Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils act and the Original Side Rules of the Calcutta and Bombay High Courts. If as we have pointed out, the enacting part of Section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding “anything contained” in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to conlrol the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriores leges priores contrarias abrogant (Broome’s Legal Maxims, Edn. 10 p. 347). Here, section 2 entitles every Advocate of the Supreme court as of right to practice in any High Court in India.

The phrase “entitled as of right” has evidently been adopted from the Bar Councils Act and we have already indicated our view that the word “practice” as applied to a legal practitioner in India includes, in the absence of any limiting or restrictive context, both the functions of acting and pleading. The phrase “entitled as of right to practice” is an emphatic affirmation of a right to plead and to act independently of the will or discretion of any other person. Could it be said that sections 9(4) and 14(3), Bar Councils Act, are consistent with the existence of such a right? As we have seen already, section 9 (4) preserves the powers of the High Courts at Calcutta and Bombay, among other things. “to grant or refuse, as they think fit” the applications of persons to practice in those High Courts in the exercise of their original jurisdiction. How could a person be said to be entitled as of right to practice in a High Court if that Court has unfettered power to reject his application to practice on an important side of its jurisdiction? Similarly, how could a person be said to be entitled as of right to plead in a High Court if that Court has the power to frame a rule which precludes him from pleading in the Original jurisdiction of that Court unless he is instructed by an Attorney? Obviously, sections 9(4) and 14(3), Bar Councils Act, and Section 2 of the new Act entitling an Advocate of the Supreme Court as of right to practice in any High Court cannot stand together.

“Whether by force of the non obstante clause liberally construed as indicated above of of the well established maxim of construction already referred to, the new Act must have the effect of abrogating the powers reserved and continued in the High Courts by the aforesaid provisions of the Bar Councils Act, We cannot, therefore, agree with the learned Judges below that the said two provisions have not been superseded or repealed by section 2. As we have already observed, if such reservations had also been inserted in the new Act, the analogy with section 14(1) (a), Bar Councils Act would have been complete, and the petitioner as an Advocate of the Supreme Court be prevented by rules made in appropriate terms from acting on the Original Side of the Calcutta and Bombay High Courts. But in the absence of such reservations in the new Act, his claim in these proceedings must succeed.”

We have deliberately quoted the whole paragraph 27 to highlight the approach of the Apex Court while interpreting the non obstante clause and determining its effects on the main enactment. The approach as suggested by the Apex Court is, therefore, clear that it will not be a proper approach firstly, to Judge as to what is all that, which is intended to be controlled by the non obstante clause and then to hold that the permissible part of the enactment being co-extensive with the non obstante clause. On the other hand, the Apex Court clearly holds that it would be the first endeavour to give a proper meaning to the words of the main enactment and then to treat as set at naught any contrary provision mentioned in the non obstante clause.

13.(a) The Apex Court has also held in this ruling that while interpreting the main enactment, every word therein should be given its due meaning without brushing aside some words as being inapposite and surplusage. Thirdly, the Apex Court has also upheld the principle that a later law abrogates earlier laws clearly inconsistent with it. This decision has stood the test of time and has hot been varied so far. It was followed, in A.V. Fernandez v. State of Kerala, , South India Corporation (P) Ltd v. Secretary, Board of Revenue, , Chandravarkar Sita Rama Rao v. Ashalata S. Guram, , V.C. Shukla v. State, , Union of India v. G.M. Kokil, , R.S. Raghunath v. State of Karnataka, , M. Venugopal v. Divisional Manager, L.I.C. Machilipatnam, . It is, therefore, clear from all these cases that while interpreting the concerned Section 142(c), the course suggested by the Apex Court in Ashwini Kumar’s case, , will have to be followed and in that it will have to be first ascertained what the enacting part of the Section provides on a fair construction of the words used according to the natural and ordinary meaning and then the non obstante clause would have to be understood as operating to set aside as no longer valid anything contained in the relevant existing laws which is inconsistent with the new enactment. The other statutory principles which we have already referred to above would also have to be borne in mind. We would have an occasion to refer to some of the cases in the later part of the judgment in a different context.

13(b). However, the learned Counsel for the petitioner Mr. Packiaraj, strenuously argued that the law laid down in Aswini Kumar’s case, , was not strictly followed by the Supreme Court in the latest decision reported in Union of India v. Thamisharasi, 1995 (3) Scale, 72. It was pointed out by the learned Counsel that there, the Supreme Court was considering the true interpretation of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1988 (in short ‘N.D.P.S. Act’) so as to assess its effect on the proviso to sub-section (2) of Section 167 of the Code. In short, the controversy before the Supreme Court was whether the aforementioned provision under Section 167 of the Code could be invoked by an accused arrested for commission of an offence under N.D.P.S. act to claim release on bail on the expiry of the total period specified if the complaint is not filed within that period. The learned Counsel points out that the question arose as the charge-sheet was not filed within the period specified in sub-section (2) of Section 167 of the Code in case of a person who was arrested for the offence under the N.D.P.S. Act, as Section 27 thereof specifically provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail or on his on own bond unless — (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned Counsel points out that ordinarily under the Code of Criminal Procedure, when the charge-sheet is not filed within the time stipulated in Section 167 of the Code, the accused is entitled to released on bail and the question came whether the accused of an offence under the N.D.P.S. Act could so be released on bail in the absence of a charge-sheet having been filed within the time as prescribed under Section 167 of the Code? It was pointed out by Mr. Packiaraj that in this case in spite of the specific non obstante clause, it was held by the Supreme Court that the non obstante clause did not affect the provisions of Section 167 of the Code. The learned Counsel, therefore, contends that similarly, in the case on hand, it has to be held that Section 29 of the Code does not stand abrogated because of Section 142(c) and more particularly the non obstante clause therein.

13 (c). It will be seen that the nature of Section 37 of the N.D.P.S. Act which fell for consideration in Thamisharasi’s case, cited supra, is entirely different from Section 142(c) of the Act which has fallen for consideration here. The Supreme Court, while considering the impact of the non obstante clause in Section 37 of the N.D.P.S. Act, has also taken into consideration Section 36-A of the Same Act and more particularly Section 36-A (1) (b) which clearly mentions Section 167, sub-section (2) and sub-section (2-A). In paragraph 8, the Supreme Court proceeds to hold as follows:

“Section 36-A makes it clear that a person accused of or suspected of the commission of an offence under the N.D.P.S. Act is to be forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 Cr.P.C.; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person so forwarded to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr.P.C. in relation to an

accused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 Cr.P.C., particularly sub-section (2) thereof, is an indication that no part of sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the N.D.P.S. Act.”

The Supreme Court also further relied on Section 36-C of the N.D.P.S. Act and held that the provisions in the Criminal Procedure Code relating to bail and bonds were applicable to the proceedings before a Special Court under the N.D.P.S. Act except as otherwise provided under that Act. The Supreme Court took a note on Section 51 of the N.D.P.S. Act which also made it clear that the Criminal Procedure Code is applicable to all warrants issued and arrests, searches and seizures made under the N.D.P.S. Act. Ultimately the Supreme Court posed a question,

“Whether Section 37 of the N.D.P.S. Act is an inconsistent provision of
this kind to exclude the applicability merely of the provision to sub-section (2)
of Section 167 Cr.P.C. when sub-section (2) of Section 167 is expressly made
applicable by the N.D.P.S. Act?”

Ultimately, the Supreme Court gave an answer in paragraph 10 that the limitation on granting the bail specified in clause (b) of sub-section (1) of Section 37 came in only when the question of granting bail arises on merits. It further pointed out that this provision was not attracted when the grant of bail was automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr.P.C. It further pointed out that the only fact material to attract the proviso to sub-section (2) of Section 167 was the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case.

14. Thus, the Supreme Court held in favour of the applicability of Section 167 particularly because even in the other part of the Act viz., Section 36 of the N.D.P.S. Act, the applicability was clearly indicated. The Supreme Court also pointed out with reference to the Terrorist and Disruptive Activities (Prevention) Act, 1987 that sub-sections (8) and (9) of the TADA Act were corresponding to sub-sections (1) and (2) of Section 37 of the N.D.P.S. Act. While there was a provision for modified application of Section 167 as provided by sub-section (4) of Section 20 by which the period specified under Section 167 was increased, there was no such provision in the N.D.P.S Act. According to the Apex Court, such absence of the provision like sub-section (4) of Section 20 was a telling factor. In this behalf, the Supreme Court went on to mention:

“It is also significant that notwithstanding the substitution of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act, there is nothing in Section 37 of the N.D.P.S. Act similar to sub-section (4) of Section 20 of the TADA Act even though there is striking similarity of the provision with sub-sections (8) and (9) of Section 20 of the TADA Act. In our opinion, the legislative intent of not excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. in cases of arrest made for commission of offences under the N.D.P.S. Act, is quote evident.”

15. For all these reasons, it is quite clear that the provision, which fell for consideration in Thamisharasi’s case though seemingly identical with the present provision under Section 142(c) of the Act, is in fact quite different because of a specific other provision in shape of Section 36-a and 36-C of the N.D.P.S. Act. This case cannot be resorted to by the accused to suggest that the law laid down in Aswini Kumar’s case , has been varied in any way in the aforementioned decision. The position that boils down, therefore, is that for interpreting Section 142(c) of the Act. While interpreting this provision as commenced by the Apex Court in Aswini Kumar’s case , and number of further cases, it will have to be borne in mind that there is no legislative surplusage in the Section and thus every word will have to be given its due meaning and then taking recourse to the non obstants clause, it will have to be held that anything contrary in the Code to the interpretation of Section 142(c) would cease to apply and would stand set aside.

16. On the backdrop of this discussion, we will now proceed to consider a fair interpretation of the abovementioned provision. We are also mindful of the caution given by the Apex Court in Ashwini Kumar’s case , which caution has been repeated thereafter in number of decisions that while interpreting the main enactment like sub-clause (c) of Section 142 of the Act, the clause cannot be cut down or inflated unnaturally. While considering the interpretation of Section 142(c) of the Act, we propose to go back to some of the abovementioned cases also.

17. According to the learned Counsel for the accused, Section 142(c) of the Act is limited to a negative command that any Court inferior to the Magistrate’s Court shall not try any offence under Section 138 of the Act. However, the learned Counsel for the complainant, contends that there is inherent positive content to this Section and that is regarding the jurisdiction of a Metropolitan Magistrate and or a judicial Magistrate of First Class to try an offence under Section 138 of the Act. The learned Counsel goes on to argue that once this clause recognises a jurisdiction of the Magistrate to try an offence under Section 138 of the Act, it has to be held that the Magistrate would have all the powers to award a punishment as per Section 138 of the Act. For this, the learned Counsel Mr. Raghavachari gives a great stress on the words “shall try any offence punishable” under Section 138 of the Act. This stress is on the words “try”, “any offence”, and “punishable” under Section 138 of the Act. According to the learned Counsel, once the Court has a power to try, it also has the power to punish because unless there is a discharge or as the case may be, a punishment awarded, the trial would not be complete. In support of his argument, the learned Counsel relies on a Privy Council decision reported in Basil Ranger Lawrence v. Emperor, A.I.R. 1933 PC 218. The learned counsel specifically relies on the observations to the following effect:

“It is an essential principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings including sentence.”

The learned Counsel, therefore, contends that wherever “trial” js contemplated, it includes the passing of the sentence also. The term “trial” or “tried” is defined in Stroud’s Judicial Dictionary (Fourth Edition at p. 2827) as follows:

“(1) A “trial” is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action “and all matters in difference” is not a trial…

(2) The trial (Criminal Justice Act 1948 (11 & 12 Geo. 6, c. 58), s. 23 (1) was not complete until sentence had been passed or the offender had been ordered to be discharged.”

The said interpretation at Serial No.2 seems to have been based on a ruling reported in Rex v. Grant, 1951 (1) K.B. 500. The Court in that case was considering the effect of non-service of the notice on the accused as required under Section 23 of the Criminal Justice Act, 1948 for the purposes of sentencing him. Those provisions required the service of notice three days before the trial. The Court held,

“In our opinion, these considerations show that it is open to the police or other appropriate authority to serve notice of previous convictions before the prisoner is brought before quarter sessions; and when that is done quarter sessions can pass any sentence as regards which it is requisite that the notice shall be served. If it is served three days before the prisoner is brought up for sentence, that is all that is required, and we cannot hold in this case that the “trial” was the incomplete trial which takes place before justices, for, in our opinion, for this purpose the trial is not complete until sentence has been passed or the prisoner has been ordered to be discharged.” (Italics supplied).

18. Thus, it is clear that the sentencing is an integral part of the trial. On this basis, the learned Counsel argues that if the Court recognises a power in the first Class Magistrate, though that provision is couched in the negative language, then it will have to be held that the Judicial Magistrate of First Class has the power to give sentence for an offence under Section 138 of the Act. It may be seen here that the accused has no quarrel with the proposition that the First class Magistrate can try and impose a sentence for an offence under Section 138 of the Act. What is being stated is that his power of sentencing has to be seen controlled by Section 29 of the Code. The learned counsel for the accused, therefore, says that even if the power to try includes the power to punish, there is nothing provided in the Section to suggest that this sentencing power would not be controlled by Section 29 of the Code. To overcome this argument, the learned Counsel for the complainant argues, in our opinion rightly, that there is nothing in clause (c) to suggest a limited power of inflicting a sentence of fine. If the Magistrate has a power to try “any” offence under Section 138, then, he must be deemed to have power of awarding any punishment prescribed therein. According to the learned Counsel, the reference in the clause (c) of Section 142 of the Act is not only to the offence under Section 138 of. the Act, but to “any” offence punishable under Section 138, meaning thereby an offence under Section 138 of “any” magnitude. If the First Class Magistrate has a power to try an offence of any magnitude punishable under Section 138, then giving the full impact to all the

words of the clause, it will have to be held that the Magistrate has the power to give any punishment prescribed by Section 138 of the Act. The user of the word “punishable” in this clause appears to be with a purpose to arm the Magistrate with the power to pass any punishment under Section 138 of the Act irrespective of his limitations under Section 29 of the Code. A conjoint reading of the term “shall try any offence punishable under Section 138 of the Acrwould undoubtedly justify a Magistrate of the First Class trying an offence under Section 138 of the Act and also awarding punishment under the same. The legislature could have avoided the words “any” and “punishable” and in that case, the clause would have been “no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try offence under Section 138”. However, the clause uses the word “any” before the word “offence” and qualifies the same. Similarly, the legislature has used the word “punishable” which has a direct reference to the offence under Section 138 of the Act. It will be seen that Section 138 contemplates only one offence and that is a cheque being returned by the bank unpaid either because of the insufficiency of the funds in the account or because the said cheque exceeds the amount arranged. In short, it is the offence of the cheque being dishonoured for insufficiency of funds in the account. If, thus, there is only one offence contemplated under Section 138, of the cheque being dishonoured on account of the insufficiency of the funds in the account, there was ordinarily no need to use the Word “any” qualifying the word “offence” in clause (c) of Section 142 of the Act. However, it does appear that the word “any” was introduced to qualify the word “offence” in the said provision with an idea to cloth the Magistrate of the First Class with an over all jurisdiction to try an offence of any magnitude under Section 138. Similarly, the user of the word “Punishable” qualifying the word “offence” under Section 138 appears to be deliberate with the purpose to clothe the Magistrate with the powers to award any sentence under Section 138 of the Act. If this is the fair interpretation of clause (c) of Section 142, then anything which is contrary to the same including Section 29 of the code limiting the sentencing power of the Magistrate of the first class or as the case may be, of the Metropolitan Magistrate would have to be held as set aside owing to the non obstante clauses which precedes clauses (a), (b) and (c) of Section 142 of the Act as per the law laid down in Aswini Kumar’s case, .

19. The learned Counsel for the accused, however, strenuously argues that the words “any” and “punishable” qualifying the word “offence” under Section 138 are mere legal surplusage. However, because of the clear-cut pronouncement of law in Aswini Kumar’s case, which has been followed throughout till 1994 and which even stands today, we cannot pursue ourselves to hold that these words are meaningless or to put it in the language of the learned Counsel “casually used”.

20. The import of the word “any” has been considered in V.C. Shukla’s case, . There, the Apex Court was considering the question of true interpretation of Section 11(1) of the Special Court Act. Though in minority, P.N. Shinghal, J. has held that since under that Section, the appeal was provided as of right from any sentence or order not being an interlocutory

order to the Supreme Court both on facts and on law, the said provision was clearly more liberal than the provisions of the Code such as Sections 372 to 379. In this behalf, the learned Judge says,

The words to which emphasis has been supplied are significant, or are, at
any rate, not without significance. They provide that if ‘any’ ‘order’ of the
Special Court is not of an interlocutory nature, it is the ‘right’ of the aggrieved
party to prefer an appeal against it to this Court.”

In the same way, in paragraph 77, the learned Judge relied on the decision repotted in The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, 1950 SCR 459 in which it was held by Fazal Ali, J. that the user of the words “any order” along with the other difference of language had “greatly widened” the scope of Article 136 of the constitution in regard to the appeal thereunder as compared to Articles 132, 133 and 134 which provided an appeal from a “final order”. Thus, the user of the word “any” by the legislature in clause 142(c) has to be significantly noted and it has to be held that the said clause empowers a First class Magistrate or a Metropolitan Magistrate to try an offence under Section 138 of the Act, of any dimension. If the interpretation put forward by the accused has to be accepted, then, a Magistrate may not be able to give a sentence of fine as provided in Section 138 for a returned cheque of more than Rs.25,000 thereby the whole conspectus of his power to try an offence under Section 138 would shrink to a great extent. If the legislature felt that a Magistrate of the First Class could try any offence punishable under Section 138, then, it would be cutting down the powers spelt under Section 142(c) by interpreting that the Magistrate’s powers of inflicting sentence of fine are limited and controlled by Section 29 of the Code in spite of a non obstante clause steering at that provision which would have the effect of ignoring all the provisions of the Code. Therefore, we are not in agreement with the learned Counsel for the accused when he submits that clause (c) of Section 142 of the Act is negative in tone or is a mere safeguard.

21. In his referring judgment, the learned single Judge, relying on the statement of objects and reasons held that clause (c) of Section 142 of the Act was a mere safeguard against the trial of those offence by the inferior Courts. The learned Judge also went on to hold that these clauses were introduced to provide a safeguard to genuine and honest bank customers that they are not harassed or put to inconvenience. On the basis, the learned Judge compared these provisions with the non obstante clause in Section 5-A of the Prevention of Corruption Act, 1947 whereunder it was provided that notwithstanding anything contained in the Code, no officer below a certain specified rank shall investigate an offence punishable under the Act and proceed further. The learned Judge then relied on the dictum of the Supreme Court in A.R. Anthulay v. Ramdas Sriniwas Nayak, 1984 SCC (Crl.) 277 where the Supreme Court held that to exclude the applicability of Sections 195 to 199, the Court would require unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication cannot be a substitute for an express statutory provision. A question and come up in this case, whether the non obstante clause in Section 5-A of the Prevention of Corruption Act brought an embargo on filing a private complaint being taken cognisance of

under Section 200 of the Code. The learned Judge has then quoted the observations of the Supreme Court holding that the Criminal Procedure Code is the parent statute which provides for an investigation, inquiring into and trial of cases by criminal Courts of various designations. On the basis of all these, the learned Judge infers that since Section 142(c) is a mere safeguard as Section 5-A of the Prevention of Corruption Act, it would be totally against the very object of the non obstante clause to confer more powers on the Metropolitan Magistrate and the Judicial Magistrate of First Class. According to the learned single Judge, the decision in A.R. Antulay’s case, 1984 SCC (Crl.) 277 is not only a decision on a provision in pari materia but also a direct decision on the scope of Section 4 of the Code. This decision was very heavily relied on by the learned Counsel for the accused Mr. Packiaraj and so also the referring order of the learned single Judge. With respect, we are unable to agree with the inference drawn by the learned Single Judge.

22. Firstly, in Aswini Kumar’s case, itself the Apex Court has cautioned against the use of statement of objects and reasons in interpreting a particular statute. According to the Apex Court, such statement seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. The Apex Court further holds but those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted by the members. The statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of a statute.

23. In a later case reported in State of West Bengal v. Subodh Gopal Base, , S.R. Das, J., who is a party to this decision, however, used the statement of objects and reasons, but not for the purposes of construction of the statute, but to test as to under what circumstances the Act was brought on statute. It has also been held in the decision reported in State of West Bengal v. Union of India, , Sinha, C.J. that it is well settled that the Statement of objects and reasons accompanying a Bill, when introduced in Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. It is, therefore, clear that the statement of objects and reasons could not be resorted to, to draw a conclusion that Section 142(c) was brought in, only to provide a safeguard to genuine and honest bank customers. Even if it is accepted for argument sake that these statements could be looked into, it will be seen that by reading that provision in its correct perspective and to read more powers in the Judicial Magistrate of First Class or the Metropolitan Magistrate in terms of Section 138 of the Act would, in any case, not bring any cloud On the so called safeguard. We are also unable to agree with the view expressed by the learned

Single Judge that A.R. Antulay’s case, 1984 SCC (Crl.) 277 concludes the matter in so far as the powers of the Magistrate under Section 142(c) is concerned. The decision, according to our considered opinion, is not apposite to the controversy in question. It merely considers the maintainability of a private complaint for an offence under the Prevention of Corruption Act in the absence of an investigation by the Police Officers. Even the expressions in paragraph 16 of the said decision which have been heavily relied upon by the learned Counsel here do not in any manner support the submissions of the learned Counsel.

24. In order to buttress his contention, the learned Counsel for the accused took us to some other enactments which are also the Special Acts where the additional or enhanced powers were conferred upon the Magistrates by inserting specific provision. The learned Counsel argues that though such provisions are to be found empowering the Magistrates to pass harsher sentences irrespective of the limitations of Section 29 of the Code, no such power has been specifically given in the Negotiable Instruments Act. According to the learned Counsel, the absence of such specific empowerment would suggest that it was never the intention of the legislature to permit the Magistrate of the First Class to award higher sentence than the one prescribed by Section 29 of the Code. Firstly, the learned Counsel invites our attention to Section 32(2) of Drugs and Cosmetics Act, 1940 which suggests that no Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the First Class shall try an offence punishable under this Chapter. The learned Counsel also invites our attention to Section 36 of the Drugs and Cosmetics Act, 1940 which specifically provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate First Class to pass any sentence authorised by this Act in excess of his powers under the said Code. In the same manner, the learned Counsel invites out attention to the provisions of Section 7 of the Dowry Prohibition Act, 1961. Section 7(1)(a) of the Dowry Prohibition Act suggests that notwithstanding anything contained in the Code of Criminal Procedure, 1973, (a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act. Clause (b) of this Section suggests that no Court shall take cognisance of an offence under this Act except upon — (i) its own knowledge or a police report of the facts which constitute such offence, or (ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation; Clause (c) suggests that it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act. The learned Counsel also invites our attention to Section 16 of the Prevention of Food Adulteration Act and points out that the penalties as suggested in Section 16 were much more than what the Magistrate could order and that there is a provision in Section 21 of the same Act specifically empowering the Magistrate to pass any sentence authorised by the Act.

25. Similarly, our attention was also invited to the provisions of the Foreign Exchange Regulation Act, 1973 and more particularly to Section 61 therein where a specific provision has been enacted empowering the

Magistrate of the First Class or the Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable under Section 56 of that Act. From all these examples, the learned Counsel suggests that wherever the legislature felt the need to enhance the power of the Magistrate to punish, there had been specific provisions made in different Acts and there being no such provision in the present Act, Section 142(c) of the Act cannot be read to provide such powers to the Magistrate. In fact, in his referring judgment, the learned single Judge has also relied on the aforementioned provisions to hold prima facie that the absence of such provisions in the present Act would speak against the Magistrate and his powers for enhanced punishments.

26. Before we take up to consider these empowering provisions separately, it will be better to see if there is any guidance to be found in the Negotiable Instruments Act itself. It can be seen that Chapter XVII came to be introduced by Act 66 of 1988 and introduced for the first time an element of crime and punishment therefor in this Act which otherwise dealt with only the civil rights. The Act otherwise provides the consequences of the dishonouring of the cheque, the liability arising therefrom which were essentially the civil liability. It is for the first time that a penalty was introduced for the dishonour of cheque, that too for the limited reasons of insufficiency of funds in the account of the drawer. For the purposes of interpreting Section 142(c) of the Act, it will be essential for us to go to Section 138 of the Act which Section not only defines the offence, but also provides the punishment therefor. Without taking recourse to Section 138 of the Act, it will not be possible to realise the real scope of Section 142(c) of the Act. It has already been pointed out that Section 138 of the Act creates this offence by a deeming clause. It
suggests that 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 is returned by the bank unpaid because of the amount in the account being insufficient or because of the fact that it exceeds the arrangement made with the bank, then, such person shall be deemed to have committed an offence. The opening clause of Section 138 of the Act defines such offence and then proceeds with the following terminology: ….deemed to have committed an offence and shall without prejudice to any other provisions of this Act by 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. (Italics supplied). We have deliberately provided an emphasis for the clause “without prejudice to any other provisions of this Act” as this clause
would throw a flood of light on Section 142(c) also including any other provisions elsewhere in the Act. It will be seen that the other provisions in the Act provide for the civil consequences which may ensue if the cheque is dishonoured and the words “without prejudice to any other provisions of this Act” suggest that it would be in addition to those civil consequences that this punishment can be awarded. However, we do not think that is the only import of the clause. This clause, which is in the newly introduced Chapter XVII, does not exclude from its operation, the other provisions of this Chapter and in addition it also applies to the provisions in the other Chapters (which is clear

from the language of the clause) which spell out the civil liabilities on account of the dishonouring of the cheque. It is for this reason, it can be said that a person, who is deemed to have committed an offence, shall, without prejudice to Section 142(c), be punished with imprisonment for a term which may extend to one year, or with fine which may extened to twice the amount of the cheque, or with both. It is already pointed out that Section 142(c) of the Act, though couched in the negative language, recognises the jurisdiction of the metropolitan Magistrate or the Judicial Magistrate or the First Class to try any offence punishable under Section 138 of the Act. According to us, therefore, when the punishment provided under Section 138 of theAct can be awarded without prejudice to any other provisiops of the Act including Section 142(c), the plaint meaning of the words would be that a Metropolitan Magistrate or a Judicial Magistrate of the First Class, who is the lowest Court for trying the offence, would also be able to award the sentence as provided in Section 138 of the Act. The prejudice, which is spelt out and avoided by the clause in Section 138 of the Act, would not only be applicable to the other consequences provided by the other provisions, but also engulf the limitations on the punitive powers of the Metropolitan Magistrate and Judicial Magistrate of the First Class. It has to be appreciated that the legislature was well aware of the limitations on the punitive powers of the Metropolitan Magistrate and the Judicial Magistrate of the First Class and once it provides those to be the Courts of the minimum level for trying an offence under Section 138 of the Act, the introduction of the clause “without prejudice to any other provisions of this Act” has to be viewed as clothing the Magistrates with the powers to award enhanced punishment of the fine as provided under Section 138 of the Act. Unfortunately, this clause has been lost sight of and has not been considered in the reference Order or even in the other similar judgments of this Court and some other Courts. All those cases which have ignored this important clause which appears just prior to the clause providing the punishment will have to be taken as judgments per incariam.

27. Let us now take into consideration the provisions of the other Acts which have been relied upon by Mr. Packiaraj, learned Counsel for the accused. A general comment can be offered as regards all the other enactments, viz., The Drugs and Cosmetics Act, 1940, Dowry Prohibition Act, 1961, Prevention of Food Adulteration Act, 1954; and Foreign Exchange Regulation Act, 1973 that such clause which is present in Section 138 of the Act, is absent in all the penal provisions therein.

(i) An examination of Sections 13, 27, 27-A, 28, 28-A, 28-B, 29 and 30 of the Drugs and Cosmetics Act, 1940 would invariably go to show that such clause is conspicuously absent therein. As regards Sections 32 and 36 of that Act on which great reliance was placed, it will be seen that there is no non obstante clause prior to Section 32(2) which provides for the minimum level of Courts to try an offence punishable under this Chapter. Sections 32 and 36 of the Drugs and Cosmetics Act, therefore, cannot be compared with the provisions of the present Act. This is apart from the fact that Sections 32 and 33-M of the Drugs and Cosemetics Act cover only the offences in their respective Chapters viz., Chapter IV and Chapter IV-A, while Section 36 of that Act is general in operation.

As regards Dowry Prohibition Act, 1961 also, the clause “without prejudice to any other provisions of this Act” is conspicuously absent in the penal provisions of Sections 3, 4 and 4-A of that Act. Again, the language of Section 7(1)(a) of that Act is different as compared to Section 142(c), as Section 7(1)(a) of the Act does not use the term “punishable”. We have already seen the significance of that term, while considering the language of Section 142(c). These provisions also cannot be pressed into service of the accused.

(iii) As regards the provisions of Prevention of Food Adulteration Act, 1954,
Section 20(2) of that Act, which provides the minimum level of the
Courts for trying the offence, does not have a non obstante clause as
available before Section 142(c) of the Act. Perhaps because of that, the
provision had to be made for a non obstante clause limiting its operation
to Section 29 of the Code. Again, in the penal clauses more particularly
under Section 16, there is no clause as used in Section 138 of the Act
before introduction of the punishment.

(iv)The learned Counsel for me accused invited our attention to the provisions of Foreign Exchange Regulation Act, 1973 and more particularly to Section 61 of that which suggests a power specifically created in Mag-istrates to pass an enhanced sentences notwithstanding Section 29 of the Code. The criticism that we have made earlier applies to these provisions also inasmuch as no penal provision in this Act including Sections 56, 18-A or Section 13 is armed with the clause which is to be found in Section 138 of the Act.

28. It can be generally said that the basic structure of Sections of various enactments, which are relied upon by the learned Counsel, differs with the structure of Sections 138 and 142(c) of the present Act. Therefore, the argument that since there is no specific provision creating the power to give enhanced punishment of fine, the Magistrate has no jurisdiction to give enhanced punishment of fine has to be felled.

29. Heavy reliance was placed by the learned Counsel for the accused on the decision of the single of this Court in T. Unnikrishnan v. Namala Kidav (Crl.R.C.No. 512 of 1993 dated 29.1.1998) where the learned single Judge of this Court has taken a view that Section 142(c) of the Act is limited in its operation and as such the Magistrate wilt have no jurisdiction to inflict a fine of more than Rs. 5,000. Unfortunately, the celebrated decision of the Apex Court in Aswini Kumar’s case, cited supra, and the subsequent cases which clarify as to how in general non obstante clause operates and its effect on the main enactment, were not brought to the notice of the learned single Judge. We have already discussed the law laid down by the Supreme Court on the subject of interpreting the non obstante clause and we have come to the conclusion that firstly a full scope has to be given to the main enactment and then with the aid of the non obstante clause all that which is contrary to the said main enactment as fully interpreted has to be set aside. We have already shown that in the light of the decisions of the Apex Court, Section 142(c) has to be given its full scope and we have also shown as to what is the precise scope of Section 142(c) of the present Act.

30. Secondly, though the examples of Drugs and Cosmetics Act, Foreign Exchange Regulation Act, Prevention of Food Adulteration Act, etc., were pressed into service before the teamed Judge, the effect of a specific language of Section 138 of the Act was not brought to the notice of the learned Judge. According to us, the clause “without prejudice to any other provisions of this Act” makes a very substantial differences and has a noticeable impact on the interpretation of Section 142(c). The learned Judges has also interpreted the words “authorised by law” which term is used only in respect of Chief Judicial Magistrate or the higher Courts, but not in case of a Judicial Magistrate of the First Class or a Metropolitan Magistrate. The learn Judge was of the opinion that on that basis when there is no specific authorisation by the Special Act. like Negotiable Instruments Act in favour of the Magistrate to impose a higher sentence than the one sanctioned by Section 29 of the Code, the Magistrate would be powerless to impose such a sentence. In our opinion, since the whole Section 29 of the Code would stand wiped out because of the force of the non obstante clause in Section 142, the terminology would not have any impact on the power of the Magistrate to impose a higher sentence of fine than the one prescribed in Section 29 of the Code.

31. For this reason, we are unable to agree with the reasons and the conclusions reached by the learned single Judge in that case.

32. On the other hand, it has been shown by the learned Counsel for the complainant that a view has been taken by this Court in accordance with what we have expressed above in the decision in A.Y. Prabhakar v. Naresh Kumar N. Shah, 1995 (83) C.C. 191, basing the interpretation completely on the non obstante clause and holding that the Magistrate had a jurisdiction to impose a heavier fine than the one sanctioned in Section 29(2) of the Code. By the very same learned Judge, Crl.O.P.Nos. 1856 and 1857 of 1991 dated 12.6.1991 Mani Thiagangdn v. M. Mohan have been decided in the similar manner.

33. The learned Counsel for the complainant also relied upon a Division Bench judgment of the Andhra Pradesh High Court in B. Mohan Krishna v. Union of India, 1996 Cri.L.J. 636 where while holding that this legislation is not ultra vires the powers of the Union Parliament, the Division Bench also interpreted the provisions of Sections 138 and 142 of the present Act. In paragraph 54, this precise clause 142(c) favours consideration of the Division Bench. The learned Judges have held as under.

“When Section 142 was enacted, the Union Parliament was aware of the fact that the jurisdiction of the Metropolitan Magistrate or a Judicial Magistrate of the First Class was limited to imposing a sentence of imprisonment for a term not exceeding three years and fine not exceeding Rs. 5,000. that is why, the section begins with a non-obstante clause. Further, under Section 4(2) of the Code of Criminal Procedure, offences under any law cither than the Indian Penal Code, although to be tried in accordance with the provisions of the Code, although to be tried in accordance with the provisions of the Code, the same shall be “subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences.”

Therefore, a Judicial First Class Magistrate or a Metropolitan Magistrate trying an offence under Section 138 has power to impose fine in excess of Rs. 5,000 if the fact situation so warrants.

We are in complete agreement with the conclusions reached. We have already shown in details as to how the said power can be read in the Magistrate considering

the over all language of the non obstante clause as also Sections 138 and 142(c) of the Act.

34. The two Kerala High Court cases have reiterated the same view relying upon the view expressed by this Court in A.Y.Prabhakar’s case, 1995 (83) C.C. 191. The two Kerala High Court Judgments are;

(1) K.P. Sahadevan v. T.K Sreedharan 1996 Cri.LJ.1223; (2) Jaya Baby v. Vijayan 1994 (81) C.C.572.

The second decision relied upon by the learned Counsel for the complainant is extremely interesting as the learned single Judge of the Kerala High Court K.T. Thomas, J. (as His Lordship then was) has chosen to take a view which can be termed as a “pragmatic view”. The argument raised there, was that where the cheque is for more than Rs. 2,500, then, the matter should be tried only by a Chief Judicial -Magistrate, as the Magistrate of the First Class or the Metropolitan Magistrate could not award a sentence of enhanced fine as contemplated under Section 138 because of Section 29 of the Code. The learned Judges observed:

“If the above argument gains acceptance the consequences is that alt Chief Judicial Magistrates Courts would be inundated with a spate of complaints since most of the cheques would be for amounts far in excess of half the figure up to which a Judicial Magistrate of first class can impose the fine sentence. Parliament would not have intended to create such a situation when it provided in section 142 of the Act that no Court inferior to that of a Judicial Magistrate of fust class (or Metropolitan Magistrate) shall try such offence.”

We are in respectful agreement with these expressions.

35. It was argued that even if no jurisdiction was found in Magistrate, the Magistrate can make a reference under Section 325 of the Code where he is of the opinion that the higher sentence is to be given. We may say only this much that merely because of that power in the Magistrate to refer under Section 325 of the Code, it cannot cut down the Magistrate’s own power as spelt out in Section 142(c) read with Section 138 of the Act. After all, we cannot ignore the fact that if that is the only alternative, then, as expressed in Jaya Babu’s case, cited supra, by K.T. Thomas, J. (as His Lordship then was), the Chief Judicial Magistrates’ Courts will be inundated with such reference alone. If these provisions’ were introduced only with an idea, to provide protection to the honest bank customers and with a view to provide credibility to the cheques and the other instruments, it cannot be brooked that the legislature would have intended so. Then, a practical view has to be taken providing an easy, quick and effective remedy to the complainants, who have already suffered on account of the cheque having been dishonoured and thereafter, in not receiving the amount covered under the cheque. In that view also, the view that we have taken would be more in keeping with the statement of objects and reasons for introduction of this Chapter to the Negotiable instruments Act.

36. In short, we are of the opinion that a Metropolitan Magistrate or a Judicial Magistrate of the first class trying an offence punishable under Section 138 would have the power to award punishment more than five thousand rupees which is a limit provided by Section 29 of the Code owing to the express language of Section 142(c) read with Section 138 of the Act. We answer the reference accordingly.

ORDER

Judgement pronounced by A. Raman, J. (Dissenting)

1. With respect to my learned Brother, I have to differ from him. The recapitulation of facts has become redundant in view of the same having been set out by my learned Brother. In my opinion, the short question that be falls for consideration is in the nature of an obligato.

2. Section 138 of the Negotiable Instruments Act (hereinafter referred to as Act) was inserted into Act, in the year 1988, by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment Act, 66 of 1988. To put it shortly, the Section has been introduced with an object of infusing credibility in commercial transactions. The modem commerce very much depends upon the medium of transactions ie., issuance, of cheques. Therefore, to bring about discipline in the matter of issuance of cheques, this amendment has been introduced. Thus, it is a special provision introduced and inserted into the Act, called Negotiable Instruments Act.

3. Section 138 of the Act is with the Heading: Dishonour of cheque for Insufficiency, etc., of funds in the Account. Section 139 of the Act provides a presumption in favour of holder and Section 140 of the Act sets out the defence which may not be allowed in any prosecution under Section 138 of the Act. Section 141 of the Act relates to offences by Companies, while Section 142 of the Act is the Section, with which we are now concerned.

Though the Section has been extracted in verbatim by my learned Brother, for the purpose of my discussion, I would set out the Section once again, so that a pointed discussion with reference to the same, can be effectively made.

4. Section 142 of the Act reads as follows:

“Cognizance of offences – 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.

5. We are concerned here only with sub-section (c). Now, it is pertinent to point out the very heading of the Section. The heading of a Section has its own significance. The headings are not to be treated as marginal notes of the Sections, but are descriptions of articles mentioned in that clause. Ofcourse, they cannot control the Section as such, but have to be looked into as a reference to the subject matter that it is sought to be dealt under the heading. The reference is “cognizance”. The Parliament, in its wisdom, while enacting and introducing these Sections into the Act, has provided necessary headings, the importance of which cannot be ignored or belittled. The fact that the heading refers to the subject of this Section as ‘cognizance of Offences’, would indicate that Section 142 of the Act is only relatable to cognizance of offences complained of under Section 138 of the Act.

6. For we find under the General Law, a complaint can be made by an individual, who is actually affected or by any other person, by reporting to the police, or the authorities concerned about the occurrence of any offence or under Section 200 of Cr.P.C. But here, a deviation is made in the Act by specifically stating that only the holder in due course or the payee is entitled to make the complaint and therefore, a complaint made by any other person, therefore, cannot be taken cognizance of by the Magistrate concerned. Therefore, to that extent, the provision made in Section 142 of the Act is different from General Law. Thus, it covers only these specific areas.

7. As regards limitation, a special provision is made under Section 142(b) of the Act. Section 138(a) of the Act provides that a cheque so issued has to be presented within six months from the date on which it is drawn or within the period of its validity, and if the cheque is returned unpaid or dishonoured, the holder of the cheque or payee is required to give notice to the drawer within fifteen days from the date of receipt of information by him from the Bank, regarding the return of the cheque. It further provides that if the drawer of such cheque fails to make the payment of the said amount of money to the payee or the holder in due course of the cheque within fifteen days of the receipt of the said notice, then a complaint has to be made to the court within one month from the date under Section 138 of the Act.

8. The Criminal Procedure Code provides its own period of limitation under Section 468 of Cr.P.C. There, it is specifically recited that courts shall not take cognizance of offence after the expiry of six months, if the offence is punishable with fine, after one year, if the offence is punishable with imprisonment for a term not exceeding one year after and three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Here, for an offence punishable with imprisonment for a term not exceeding one year, the period of limitation provided for taking cognizance is one month. The punishment provided under Section 138 of the Act is one year. But yet, the period of limitation has been specifically restricted to one month from the date when cause of action arises under clause (c) of Section 138 of the Act. Therefore, to that extent Section 142 of the Act makes a deviation and provides that any such complaint made beyond the period of one month, shall not be taken cognizance of by the Magistrate concerned.

9. The Section viz., 142(c) of the Act provides the class of courts that can try the offences. It provides that only a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138 of the Act. Therefore, Section 142 of the Act deals only with the cognizance of offence and has nothing to do with punishment. Thus, the non-obstante clause has only a limited sphere of operation. It has no wider implication. Nor general in its import. It is meant and intended to regulate the procedure of cognizance.

10. The Negotiable Instruments Act does not provide any procedure of its own for the trial of offence under Section 138 of the Act. A Magistrate has been empowered to try an offence, which is punishable under Section 138 of the Act. From that, it does not follow that he is empowered to impose a punishment when the law does not authorise him. It only empowers the Magistrate concerned viz., Metropolitan Magistrate or a Magistrate of First Class to try any offence under Section 138 of the Act. The conduct of the trial and the procedure to be adopted during the course of trial are thus governed only by the parental Act viz., the Criminal Procedure Code, which provides the procedure and invests the Magistrate with power to try cases.

11. Section 26 of the Criminal Procedure Code reads as follows:

“Subject to the other provisions of this Code —

(a) any offence under the Indian Penal Code may be tried by

(i) the High Court, or (ii) the Court of Session, or (iii) any other court by which such offence is shown in the First schedule to be triable;

(b) any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such Court and when no court is so mentioned, may be tried by —

(i) the High Court, or (ii) any other court by which such offence is shown in the First Schedule to be triable.

12. Then the relevant Section of the Criminal Procedure Code is Section 28. It relates to sentences which a High Court and Sessions Judge may pass. It runs as follows:

(1) A High Court may pass any sentence authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or imprisonment for life or imprisonment for a term exceeding ten years.

13. Then we come to Section 29 of Cr.P.C. It reads as follows:

(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years.

(2) 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.

(3) The Court of a Magistrate of the Second Class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.

14. Now, in that context, it will be also necessary to set out Section 325 of the Criminal Procedure Code, which reads as follows:

“(1) 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 the 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 whom he is subordinate.

(2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.

(3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and is according to law.

15. Therefore, Section 325 of Cr.P.C. indicates the procedure to be adopted by the Magistrate, who is of the opinion that the accused whom he has
found guilty ought to receive a punishment different in kind from, or more severe than, that which the Magistrate is empowered to inflict. I have already referred to Sections 28 and 29 of the Code of Criminal Procedure. Section 28 provides that High Court, Sessions Court and Assistant Sessions Court may pass any sentence authorised by law. While dealing with the powers of the Chief Judicial Magistrate under Section 29, as regards the punishment, the
Code provides that the Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or imprisonment for life or of imprisonment for a term exceeding seven years. But under Sub- section (2) while dealing with the powers of the Magistrate, we find the absence of the words authorised by law. On the other hand, the Section simply reads that the 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. Here, the Section does not read that the Magistrate can pass a sentence of imprisonment for a term exceeding three years or fine not exceeding five thousand rupees or such sentence as authorised by law. It would show clearly that the Magistrate is not authorised to levy a fine of more than Rs. 5,000 in case he finds the accused guilty. While empowering the Chief Judicial Magistrate, the Assistant Sessions Judge and the Sessions Judge to impose a punishment authorised by law, the Legislature thought it fit not to invest the Magistrate with such a power, with the result that such a provision is conspicuously absent and omitted. Therefore, as it is, the Magistrate acting under Section 29 of Cr.P.C. can at best only impose a fine of Rs. 5,000 and not more than that. Criminal Procedure Code which is the parental Act does not authorise the Magistrate to impose a fine of more than Rs. 5,000 and if he feels that it is a case where higher fine should be imposed, then the procedure shown under Section 325 of the Code has to be followed by him. Therefore, it is not as though the framers of the Code of Criminal Procedure did not contemplate such a situation. They were well aware of the situation of this kind and therefore, provided for such contingencies by way of Section 325 of Cr.P.C.

16. Now, it has to be seen whether a Magistrate who finds a person guilty under Section 138 of the Act can impose a punishment and a fine of more than Rs. 5,000 or whether it is necessary that he should resort to Section 325 of the Code. According to the learned counsel for the respondent, in view of Section 142(c) of the Act, the Magistrate can impose a fine exceeding Rs. 5,000. The non-obstante clause employed in Section 142 of the Act is relatable only to cognizance of offences and cannot be extended to area of punishment.

I have already set out as to how Section 142 of the Act deviates from the General Criminal law with regard to cognizance, and therefore, in that context, it became necessary for the Legislature to employ the non-obstante clause. Therefore, the employment of non-obstante clause under Section 142 of the Act does, not mean that it engulfs the area of punishment as well. Coming to penal provisions, it is necessary that a strict construction has to be followed. Till 1988, the Negotiable Instruments Act only regulated the commercial transactions made in the form of cheques, bills of exchange, Hundis etc. Finding spurt in the tendencies of persons to issue cheques without money in their account and with a view to curb such flippant issuance of cheques and to enforce discipline and imbibe honesty and credibility, Section 138 of the Act was incorporated in that special statute. It is intended to protect genuine customer. The police is excluded. If a cheque issued by a drawer is returned dishonoured for want of funds and if inspite of a notice by the holder demanding the payment, if no payment is made, the drawer of the cheque is liable to be punished for an offence under Section 138 of the Act and he shall be sentenced to undergo imprisonment for a period of one year and to pay a fine. Thus, for the first time, a penal provision has been inserted in the Act, which was not so otherwise. This provision thus is of such nature and that it is likely to affect not only the respectability of the individual but also his liberty. The liberty of an individual is thus sought to be taken away under Section 138 of the Act which was not an offence before, except under Section 417 of the Indian Penal Code. Therefore, when the Legislature made the issuance of the cheque without funds a specific offence punishable with imprisonment, then the courts must be careful in construing this provision. It is not to be construed in such a way as to place the accused in a disadvantageous position. For, if a person passes a cheque without money in his account and assuming that he is proceeded under Section 417 of I.P.C. before a Magistrate, and if the offence is held to be proved, then the Magistrate can impose only a fine of Rs. 5,000. On the other hand, if he is to be tried under Section 138, if the construction placed by the respondent’s counsel is accepted, then for the similar offence, the accused will be sentenced to pay a fine of more than Rs. 5,000. Therefore, if this argument is accepted, it would definitely place a person, who is proceeded under Section 138 of the Act in a disadvantageous position. It will expose him to greater punishment by way of fine by the same Magistrate. In my view, that cannot be the intention of the Legislature.

17. The fundamental rule of construction is that a provision in an enactment cannot be interpreted to nullify a provision in another statute. Negotiable Instruments Act is not a penal statute, but a penal provision has been introduced into that Act under Section 138. It empowers a Magistrate to sentence a person whom he has found guilty with imprisonment for a period of one year or fine. Whereas under Section 29 of the Code, if he finds guilty, the Magistrate can sentence him to pay a fine of Rs. 5,000 and not more. If the interpretation that is sought to be advanced by the learned counsel for the respondent is accepted, then the provision in Section 29 would become

nullified. Section 142(c) cannot be interpreted that it was the intention to defeat Section 29 of CrP.C. One has to read these provisions together so that both the provisions can be given effect to. That is the cardinal principle of interpretation of statutes. A harmonious construction is always a desirable thing. The interpretation has to be done in such a manner to bring harmony and reconcile the two provisions which appear to be conflicting. Therefore, if the contention of the learned counsel for the respondent is accepted, then Section 29 of Cr.P.C. would become meaningless.

18. It is in this connection necessary to refer to certain other statutes where while providing for a different punishment or higher punishment than ordinarily a Magistrate can impose, the framers of those statutes have taken care to say that inspite of anything contained in the Criminal Procedure Code. Under Section 29, the Magistrate shall have the power to punish the offender as provided under the Act. In this connection, I will refer to the following enactments.

19. Section 17 of the Dowry Prohibition Act provides that notwithstanding anything contained in the Code of Criminal Procedure.

(a) no court inferior to that of Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no court shall take cognizance of an offence under this Act except upon–

(i) its own knowledge or a police report of the facts which constitute such offence, or (ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation.

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act.

20. The Prevention of Food Adulteration Act provides under Section 21 that notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973, it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said Act.

21. Section 21 before its amendment by the Prevention of Food Adulteration (amendment) Act No.34 stood as follows:

“Notwithstanding anything contained in Section 32 of the Code of Criminal Procedure, it shall be lawful for any Presidency Magistrate or any Magistrate of the first class to pass any sentence authorised by this Act, in excess of his powers under Section 32 of the said Code.”

22. Similarly under the Essential Commodities Act, Proviso to Section 12(1) reads that provided that in the case any conviction in a summary trial

under this Section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years. The Drugs and Cosmetics Act, 1940, under Section 36 empowers the Magistrate to pass any sentence authorised by the Act, despite the limitation contained in Cr.P.C. The Immoral Traffic (Prevention) Act, 1956 while provides that cases shall be tried in a summary way and the provisions of Sections 262 to 265 of Cr.P.C. would apply, under Section 22-B specifically empowers the Magistrate to pass a sentence of imprisonment not exceeding one year.

23. Thus, in all the above enactments, we find that as regards cognizance, there are separate Sections as we find here. But, with regard to punishment, care has been taken to indicate in the Act that notwithstanding any provision contained in the Code under Section 29, it will be competent for a Magistrate to pass a sentence authorised by that Act. Therefore, the framers of the enactments were all familiar and aware of the necessity to incorporate such a Section. When that is not exhibited in this Act, it can only mean that the framers of the Act thought that Section 29 read with Section 325 of the Code would take care of the situation. Otherwise, they would have definitely indicated by employing suitable words that the Magistrate can impose such punishment authorised by Section 138 of the Act inspite of the limitation imposed upon him under Section 29 of the Code.

24. Learned counsel for the respondent very much relied upon the decision of the Supreme Court, to which my learned Brother has also referred to in his order. It is not to be taken that on the propositions set out by the Apex Court, a divergent view is attempted by me. But, we have to consider the background of that case and the circumstances in which the Apex Court had to decide so.

25. It is therefore, essential that the provisions incorporated in Section 138 of the Act should be construed accordingly. Considering the scope and object of this provision, I am unable to accept the contention put forward by the learned counsel for the respondent that if a different interpretation is given to Section 142, it will lead to delay in disposal of the complaints under Section 138 of the Act. Under section 325 of Cr.P.C, it is open to the Chief Judicial Magistrate to whom the proceeding or matter is referred to by the Magistrate to dispose of the matter on the basis of the materials forwarded to him by the Magistrate and only if he thinks it necessary, he can examine the parties recall any witness and take further evidence. Therefore, it is open to the Chief Judicial Magistrate to decide the matter on the basis of the materials placed before him and it is not incumbent upon the Magistrate to take further evidence in that regard. It is not with that object that there should be speedy trial and disposal of such cases, this Section has been introduced. For I do not find from a reading of the object and reasons behind enacting Section 4 of Banking, Public Financial Institutions and Negotiable Instruments Act that speedy trial is mentioned. The cardinal principle in the matter of interpretation of statutes cannot be lost sight of. The attempt of the Courts must be always to resort to a harmonious construction. A construction that

would make a provision in another enactment due should not be resorted to, unless the court has no other option.

26. The entire submission of the learned counsel for the respondent hinged upon the use of the expression ‘punishable’ in Section 142 of the Act. If that word is absent then there is no ambiguity at all. In Nokes v. Doncaster Amalgamated Collieries, 1940 AC 1014, it was held that Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words, the meaning of which is not entirely plain, there are adequate reasons for doubting whether the Legislature could have been indending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

27. Can we now say that the interpretation resorted to by the learned counsel for the respondent is a wider one and that would alone give effect to the object of legislation. As I have pointed out already, if that interpretation is to be accepted, then Section 29 of the Code which is the parental legislation on which there cannot be any doubt, would become meaningless. This position canvassed by the learned counsel for the respondent would in my view result in inconsistency and lead to repugnancy between two statutes. As I have pointed out already, the duty of the Courts is to harmonise the two conflicting provisions and to see that both are given effect to. If the construction placed by the learned counsel for the respondent is resorted to, then Section 29 of Cr.P.C. would become otiose. On the other hand, if we are to interpret Section 142 of the Act as only having effect upon cognizance and not on the question of sentence, then there will not be any difficulty in giving effect to the provisions in Section 29 of the Code as well as the penal contents of Section 138. In that, there cannot result any repugnancy.

28. In London County Council v. Aylesbury Dairy & Co. 1898 (1) QB, it was observed by Wright, J. as follows:

“Where an enactment may entail penal consequences no violence must be done to its language in order to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language.”

Another accepted canon of interpretation is that penal statute should be construed strictly and that in case of doubt, the benefit should go to the subject and penal statute should be construed accordingly.

29. In this connection, it is to be pointed out here that if the case is to be tried by the Magistrate, the Magistrate can impose only a fine of Rs. 5,000 ordinarily under Section 29 of Cr.P.C. If the interpretation that is now sought

to be given is accepted, then it would mean that the Magistrate can impose a fine in excess of Rs. 5,000 which interpretation is definitely detrimental to the accused. When the Section does not say so expressly or specifically authorise, if the effect of the construction sought to be placed upon it by the counsel for the respondent is accepted, then the positton will be that the accused would be placed in an unenviable position. When a Magistrate cannot normally impose a fine of more than Rs. 5,000, he will be singled out in such case for a different treatment at the hands of the same Magistrate. The legislature has got power to specify so, but it has not specified in so many terms. The mere employment of the word ‘punishable’ cannot be extended to hold that such a power has been given. It this connection, I have already pointed out that it is not as though the legislature was not aware of the incongruity while enacting certain other laws. The Legislature could have specified as done in the other enactment that inspite of anything contained in the Criminal Procedure Code, the Magistrate concerned will have power to impose a punishment as provided in the said Act. But, such a clause or Section has not been inserted in this statute. Therefore, we must state it that Legislature was conscious of it and yet did not choose to say so. Therefore, it is not possible in my opinion to read something into Section 142 of the Act, which is not there.

30. The word ‘punishable’ should be given only its ordinary meaning and not any strained meaning. For we find the word ‘punishable’ does not qualify or relate to the sentence to be imposed, but only indicates the criminality attached to the Act, which is to be tried. The act of issuance of cheque without funds and failure to make payment inspite of notice by the drawer of the cheque is an act punishable. Such an act is made punishable under Section 138 of the Act. Therefore, Section 142 of the Act only refers to the word punishable only with reference to the act which thus made punishable and not to the power of sentence. It is to be pointed out that inspite of the employment of the word “punishable” in Section 33(2) of the Drugs and Cosmetics Act of 1940 while referring to cognizance, the framers incorporated Section 36 to say that a Magistrate can impose any sentence authorised by the Act despite Section 29 of Cr.P.C. Thus, the word punishable holds no magic. The Legislature did not intend it to be read as having a bearing on punishment.

31. In this connection, my learned Brother has relied very strongly upon the decision of the Supreme Court reported in Ashwini Kumar v. Arbinda Bose, A.I.R. 1952 SC 269, to render his verdict. In my humble view, that was a case where the Supreme Court was considering the effect of Section 2 of the Supreme Court Advocates (Practice in High Court) Act, 1951. One of the petitioners therein claimed a right to plead and practice on the Original Side of the Calcutta High Court by claiming a right under Section 2 of the said Act. The Apex Court held that every Advocate of the Supreme Court is entitled to practice in any High Court whether or not he is Advocate of that High Court and that cannot be cut down. The Supreme Court went on to consider the expression practice and concluded that every word in the main enactment should be given its due meaning without brushing aside some words as being

inapposite and surplusage. In my view, the Apex Court had to consider an enactment which was not penal in nature. The interpretation made by the Apex Court in that decision was to extend a benefit and not to take away the benefit. A limitation has been fixed in substantial law viz., Criminal Procedure Code under Section 29 of the Code, where a limit is fixed with reference to sentence of fine that can be imposed by the Magistrate. The Section 325 of the Code provides the procedure to be adopted by the Magistrate, where he is of the opinion that a higher punishment should be imposed, I do not think that the decision of the Supreme Court can be interpreted to fit the facts of this case. Nor it can be held to have observed that law can be made meaningless even in the absence of specific provision in the later Act.

32. Now, if the interpretation sought to be given to Section 142 of the Act is to be accepted, then that benefit would be taken away and the accused will be exposed to an unenviable position. The legal position is clear that while interpreting the Penal provisions, the statute must be strictly construed, and such a construction must not be to the disadvantage of the accused. This construction would not only make Section 25 of Cr.P.C. meaningless, but would bring about a collision between two enactments. The attempt of the court should be to bring about a harmony between the two enactments or two provisions in two different enactments so that effect can be given to both the provisions. If the position that Section 142 of the Act does not override Section 29 of the Code is accepted, then it does not bring about any anomaly. Both Sections 29 and 138 can be given effect to. For in fit cases, where the Magistrate is of the opinion that the matter calls for a higher sentence or suppose he is of the opinion that the fine to be imposed must be more than Rs.5,000, he can always forward the papers to the Chief Judicial Magistrate under Section 325 of the Code. By doing so, the provisions of Section 138 of the Act will be given effect to. He will be also complying with Sections 325 and 29 of the Code as well. Thus, any conflict between two provisions would be avoided. But, if it is to be held that a Magistrate can impose a higher fine of more than Rs. 5,000 as contemplated under Section 29 of the Code, it would amount to importing something into the Section, which I am afraid, is not there. It has to be taken that the Legislature was aware of Section 29 of the Code and was aware of the fact that a Magistrate has to follow certain procedural aspects, if he wants to impose a higher fine or punishment that he can, under law. Therefore, it can be assumed that the Legislature was aware of Section 29 and also Section 325 of the Code. If really the Legislature wanted to empower the Magistrate with power to impose higher fine, definitely such a provision would have been made and specifically inserted in the Act as done in the enactments to which I have already referred to. The decision of the Supreme Court reported in Ashwini Kumar v. Arbinda Bose, cannot in my opinion regulate the case on hand in view of the circumstances of this case.

33. The decision of the Supreme Court reported in A.R. Antulay’s case, 1984 SCC (Cri) 277 provides some clue and is helpful to decide the

controversy, where it is held that in the absence of any clear and specific exclusionary provision in the statute, court should plainly treat it as a general provision instead of delving in search of any possible hidden or implied exclusion. There it was held that the Special Law viz., the Prevention of Corruption Act does not exclude the mode of taking cognizance of offence under private complaint. The Criminal Procedure Code is the parent Act which provides the procedure to be adopted by the Magistrate. Therefore, unless they are specifically excluded, the provisions of the parental Act would hold good. Section 4 of the Code provides that the offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, but subject to the provisions to be made in another enactment. Section 5 lays down that 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.

34. In A.R. Antulay’s case, 1984 SCC (Cri) 277, the Apex Court had observed that in absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and other words dealt with according to the Code. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations. Thus, this Code provides a particular procedure to be adopted by the Magistrate, when he is of the opinion that the accused should receive a higher sentence than that the Magistrate is empowered to impose. In the absence of specific provision in the Negotiable Instruments Act, setting out a different procedure and authorising him to impose a higher sentence, the Magistrate who tries the case must enquire into and deal with the case in only in accordance with the Criminal Procedure Code and has to necessarily follow the procedure prescribed in the Code, and will not be clothed with the power to impose higher punishment straight away. I have already referred to the fact that the Dowry Prohibition Act specifies that it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under the said Act. Similarly, Section 21 of the Prevention of Food Adulteration Act authorises the Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act. The Drugs and Cosmetics Act provides that notwithstanding anything contained in the criminal Procedure Code, it shall be lawful for any Metropolitan Magistrate or any Magistrate of the first class to pass any sentence authorised by the Act. When the Legislature was anxious to incorporate such provision and the necessity to exclude the applicability of Section 29 of Cr.P.C. while expressly conferring jurisdiction on the Magistrate, the fact that such a course has not been adopted by the Framers of this provision, is definitely an indication that cannot be

simply ignored. Further as held by the Supreme Court in State of U.P. v. Khushi Ram, , the provision in Section 142(c) is not a disabling provision. In that case, a Magistrate competent to award full sentence under Section 16 of the Prevention of Food Adulteration Act committed the case to the Sessions Judge and the Sessions Judge conducted trial and convicted the accused. The Supreme Court observed that all that it does is to authorise the Magistrate of the first class to award a sentence beyond the limits prescribed for him under Section 32 of the Code. It does not affect the provisions of Sections 207 and 347 of the old Cr.P.C. But, here there is no authorisation. Nor Section 29 and 375 of Cr.P.C. are in any manner dealt with.

35. The need for harmonious construction has been emphasised by all the Courts. It is not proper for a Court to interpret a provision in an enactment so as to make the another provision in this enactment a dead tetter. It was held in Antulay’s case, 1984 SCC (Cri) 277 that the court should read the provisions as it is and it cannot rewrite it.

36. The Supreme Court had laid down that while incorporating penal acts, the interpretation must be such that it will not restrict the right to any greater extent. Even in the decision reported in Ashwini Kumar v. Arbinda Bose, , it has been held that the enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for, even a part from such clause, a later law abrogates earlier laws clearly inconsistent with it. Here, I have pointed out that a harmonious construction is possible. The provisions incorporated in the Negotiable Instruments Act by way of Sections 138 and 142 can exist side by side with Section 29 of the Code. It is only where a harmonious construction is not possible, the position is that the later law abrogates the earlier law has to be followed.

37. In the decision reported in Ashwini Kumar Case, , the Supreme Court upheld right of an Advocate to practice. Therefore, what was considered by the Apex Court was the meaning of the word ‘practice’ and the right of a lawyer to appear. In that context, the Apex Court had to interpret certain provisions and thus interpretation consisted of a right of a lawyer to appear on the Original Side of the Calcutta High Court. But, that interpretation may not be quite helpful to consider a case of this nature, where the liberty of an individual is concerned. An accused cannot be sentenced to pay a fine of more than Rs. 5,000 ordinarily by a Magistrate under Section 29 of the Code. If we are to interpret Sections 138 read with 142 of the Act, we will be reading into it such a power of the Magistrate to do so. It being a penal Section, the Section has to be construed strictly. A power cannot be simply presumed or held to be provided under Section 142 of the Act. Section 142(c) reads as follows:

“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 Heading of the Section reads as ‘COGNIZANCE OF OFFENCE’. It does not read ‘Cognizance of offences and punishment. A Magistrate has no power to try and punish beyond his limit.

38. The learned counsel for the respondent would submit that the word ‘try’ would include also the power to punish and as the definition of the word try would encompass the stage inclusive of punishment. A Magistrate under Section 138 can impose an imprisonment of one year and can impose a fine of Rs. 5,000. Therefore, it is argued that the Magistrate trying an offence punishable under Section 138 is competent to impose a sentence of fine as well as sentence of imprisonment.

According to him, the use of the word ‘punishable’ is not a surplusage and it is so stated in the Section not to emphasise the nature of the offence indicated in Section 138 of the Act but the punishment to be imposed.

39. It is to be pointed out in this context that there will be only an offence committed under Section 138 of the Act. The moment a drawer issued a cheque without funds in his account and fails to comply with the demand for payment of the said amount, he commits the offence and what he commits is a single offence, But, yet in the Section 142 of the Act, we find that it is stated that the Magistrate of the first class shall try any offence punishable under Section 138 of the Act. But Section 138 speaks of only an offence. The word punishment has to be read in that background. Therefore, the Section has to be read to hold that the Metropolitan Magistrate or a Judicial Magistrate of a first class shall try an offence punishable under Section 138 of the Act. The word punishable has in my opinion no specific legal significance. I have already indicated a similar provision in Drugs and Cosmetics Act. The word ‘punishable’ has to be therefore read to hold that it does not emphasise punishment but only indicate the nature of act that is made punishable under Section 138 and which is to be tried by the Magistrate.

40. While considering the U.P. Panchayat Raj Act 26/47, the Supreme Court has held in the decision , as follows:

“The jurisdiction of the criminal courts under Section 5 of the Cr.P.C. is comprehensive. That Section enjoins that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained. To the extent that no valid machinery is set up under the U.P. Panchayat Raj Act for the trial of any particular case, the jurisdiction of the ordinary criminal court under Section 5 of Cr.P.C. cannot be held to have been excluded. Exclusion of jurisdiction of a Court of general jurisdiction, can be brought about by the setting up of a Court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative.

41. In the decision reported in Raj Kurshna v. Binod, , the Apex Court has held that whenever it is possible to do so, it is the duty of the Court to construe provisions which appear to conflict so that they harmonise.

42. The Supreme Court has held in the decision reported in Raghunath v. State of Karnataka, , as follows:

“There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear, the same cannot be cut down by resort to non obstante clause. …………. There is no doubt that a later statute may
repeal an earlier one either expressly or by implication. In the instant case, there is no express repeal of the Special Rule providing for promotion by selection. There is no patent inconsistency between the General and Special Rules but on the other hand, they coexist. Therefore, there is no scope whatsoever to infer the repeal by implication.”

43. Applying the principle enacted by Lord Philimore, in the decision reported in Maharaja Pratap Singh Bahadur v. Thakurmanmohan Dey, , the Apex Court had observed as follows:

“It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases, of which the particular law is but one. This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.”

44. In the decision reported in Chandavarkar Sit Rana Rao v. Ashalata S. Guram, , the Apex Court had observed as follows:

“A clause beginning with the expression ‘notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being inforce, or any contract’ is more often than not appended to a Section in the beginning with a view to giving the enacting part of the. Section in case of conflict on overriding effect over the provision of the Act of or the contract mentioned in the non- obstante clause. It is equivalent to saying that inspite of the provision of the Act or any other Act mentioned in the non- obstante clause or any contract or document mentioned, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment”

Pausing here, I have already referred to the Heading of the Section which specifically mentions about cognizance. Section 142 of the Act provides different type of cognizance. Thus, its scope is only limited to define that it is only the payee, who can initiate action. Thus in that manner, it is quite different from the ordinary law or the General law. It provides its own limitation, which is also different from that contained in Cr.P.C. Thirdly, it provides that the cases shall be tried only by a Metropolitan Magistrate or a Judicial Magistrate of first class, and in that manner provides it best the power to try at by particular class of Officers

and thus sets out a mode of cognizance that is definitely different from the General Law viz., the Criminal Procedure Code.

45. But, it has to be pointed out that when saying that Metropolitan Magistrate or a Judicial Magistrate of first class can try, the sub-section employs a word ‘try and punishable’ under Section 142(c). Therefore merely from the words try and punishable, we cannot run to any conclusion that it empowers or arms the Magistrate with a right to impose a higher fine or punishment than what he is competent to impose under Section 29 of Cr.P.C. As observed by the Supreme Court, the non-obstante clause need not necessarily and always be co-extensive with the operative part as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words, the non-obstante clause cannot cut down the construction and restrict the scope of its operation.

46. Sections 138 and 142 of the Act were introduced with a view to infuse some discipline into the commercial transactions, which are highly connected with the issuance of cheques. Previously, if one were to proceed in a case of dishonour of cheques, he has to necessarily resort to Section 417 of the Indian Penal Code. That created some difficulties and problems. Therefore apparently the Government thought it necessary to introduce some special provision and in that view, Section 138 was brought out into the statute Rules. The issuance of cheque without funds and failure to make payment inspite of demand/notice was held to be an offence punishable under the said Section. But, while providing procedure for cognizance of such an offence, Section 142 of the Act has been brought into the statute. Section 142 of the Act definitely provides a different mode of cognizance than that is normally seen under the parenal Act viz., the Code of Criminal Procedure. Therefore, the object of Section 142 of the Act is only to provide the procedure for taking cognizance and the Legislature specified that such offence shall be taken cognizance of inspite of anything contained in the Cr.P.C. and provided certain specified conditions are to be satisfied. If this construction as indicated by me is placed, then the interpretation will match the context. The Apex Court has repeatedly held that there should be a clear inconsistency between the two enactments before giving an overriding effect to the non-obstante clause but when the scope of provisions of an earlier enactment is clear, the same cannot be cut down by resort to non-obstante clause. I have already pointed out that there is no inconsistency. A harmonious construction if placed, would only show that a non-obstante clause was not intended to apply to the question of punishment. Otherwise, if it was the intention of the Legislature, to do away with Section 29 of the Code so far as it related to an offence under Section 138 of the Act, and to arm the Magistrate with sufficient power to impose punishment as indicated under Section 138 and as is done by the Legislature in the parallel enactments, the Legislature would not have hesitated to provide that inspite of anything contained in Section 29 of the Code, the Magistrate will be authorised to impose a punishment as indicated in Section 138.

Therefore, there is no express repeal of Section 29. As observed by the Apex Court in the decision reported in Municipal Council Palai v. T.J. Joseph, , there is a presumption against a repeal by implication, and the reason of this Rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act, that the two cannot stand together. I have already pointed out that there is no patent inconsistency between the General Law viz., the Criminal Procedure Code and the Special Law viz., the Negotiable Instruments Act. Therefore, there is no scope to infer repeal of Section 29 of the Code by implication as contended by the learned counsel for the respondent.

47. It is to be pointed out that the general principles of interpretation for the court is to suppose that Parliament could not have intended to contradict itself. The statute or provision in a statute has to be construed so that and in such a manner as to avoid the rule “Legis Posteriores Priores Contrarias Abrogant”. According to Maxwell, construction must be to avoid collision between two enactments or between provisions in two enactments. Here the non-obstante clause is neither wider in its application nor amplitude. It has only a limited area of operation. It does not purport to abrogate, cut down or set aside Section 29 of Cr.P.C. This is, in my opinion, is the correct and fair interpretation of Section 142 of the Act.

48. I do not accept the contention of the learned counsel for the respondent that there is any such hidden meaning. What a non-obstante clause regulates and covers is only the field of cognizance which is limited to three areas only. It does not purport to go beyond the same. Merely from the word punishable, one cannot conclude that it qualifies the power to punish. The word punishable here, only qualifies the trial of the offence under Section 138 of the Act. It does not relate to the aspect of punishment as well. If it is so, the Legislature would have stated in the Heading as “Cognizance and Punishments”. In this connection, learned counsel for the respondent stated that the word ‘try’ employed in the Section would extend to the stage of punishment. The word ‘try’ has to be construed with regard to the context in which it is used, the scheme and purpose of the enactment For the word trial is normally considered as the examination before a competent court according to law of the facts or law put in issue in a cause. According to TOMLINS LAW DICTIONARY, trial means the examination of a cause civil or criminal before a Judge who has jurisdiction over it, according to the laws of the land. The Supreme Court considered the meaning of the word trial in the decision and has observed that it is susceptible of both narrow and wider sense, though it held in that case on construing the provisions of Representation of People Act to hold that the trial there enclosed the entire

proceeding till the passing of award. But, considering the context in which it is used, the scheme and purport of the Act, I am of the opinion that it has no wider application as to include the stage of punishment. For in the other enactment referred to above, the Legislature while empowering the Magistrate to ‘try’ also authorises him separately to impose higher punishment. Therefore, the word ‘try’ found in Section 142 of the Act has no special or concealed meaning. One cannot load the word by putting something into, which is not specifically mentioned or set out by the Legislature. Similarly, the word ‘punishable’, in my opinion, has no special significance. If a person issues cheque without funds and fails to pay the amount inspite of notice, and if such a case is proved, then he stands guilty of an offence punishable under Section 138 of the Act. Therefore, the word punishable occurs in Section 142 can only refer to that act. But, punishment is something different.

49. A person may commit an act punishable under Section 138 of the Act. But, when it comes to the question of punishment for the said offence, the Magistrate can impose a sentence of imprisonment, till the raising of the Court though the Section provides for imprisonment upto one year. The Magistrate can in fit cases if he is satisfied, impose a fine amount of Re.1 after trial. If he does so, he will be definitely complying with the provisions of Section 138 of the Act and 29 of the Code. In both instances, he has “tried” the offence punishable under Section 138 of the Act. The Magistrate of the first class or Metropolitan Magistrate can pass a sentence of imprisonment for one year. This will not run counter to Section 29 of Cr.P.C. But, if the Magistrate wants to impose a fine of more than Rs. 5,000, after trying the case and finding the accused guilty of an act punishable under Section 138, he has to necessarily forward the case to the Chief Judicial Magistrate, and if he is so satisfied from the records, he can impose a fine of more than Rs. 5,000. The” Chief Judicial Magistrate being a First Class Magistrate can very well impose that fine of more than Rs.5000. Thus, there will be no inconsistency or conflict in the matter. Therefore, from the word “try” and “punishable” employed in Section 138 of the Act, no argument can be built up to contend that the words would empower the Magistrate to impose a higher punishment of fine.

50. Therefore, I am of the firm opinion that the Magistrate has no power to impose a fine of more than Rs. 5,000. In case where the offence under Section 138 of the Act has been made out, it is his duty to follow the procedure under Section 325 of the Code, when he feels that a case is made out for imposing a higher fine than Rs. 5,000. Therefore, I am unable to agree with my learned Brother for the reasons indicated in the course of my Judgment. Therefore, I will answer the reference accordingly, holding that a Magistrate has no power to impose a higher fine than the limits set out in Section 29 of the Criminal Procedure Code in respect of offences committed under Section 138 of the Act, and in cases where the Magistrate is of the opinion that a higher fine has to be

imposed, he has to necessarily resort to Section 325 of the Code of Criminal Procedure.

51. This is my answer to the reference made to the Judgment.

ORDER

P. Thangavel, J.

1. An interesting issue referred for the consideration of this Full Bench is as to 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 relevant provision regarding the powers of such Magistrate under the Criminal Procedure Code, 1973 in respect of the offence under Section 138 of the Negotiable Instruments Act, 1881.

2. My learned brothers V.S. Sirpurkar, J and A. Raman, J. have considered the issue under reference in-depth, but rendered divergent views and I have the benefit of going through the in- depth views expressed by my learned brother Judges referred to above.

3. The relevant sections that have to be considered under the Negotiable Instruments Act,1881 (hereinafter called as “the act”) are sections 138 and 142, which are extracted hereunder:-

“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:

(proviso and explanation are omitted)

142. Cognisance of offences

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) No court shall take cognisance 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.”

4. But for the non obstante clause enshrined in section 142 of the Act, how an offence under section 138 of the Act has to be dealt with and disposed of by a Judicial Magistrate of the first class or a Metropolitan Magistrate, has to be considered at the initial stage under the code of Criminal Procedure, 1973 (hereinafter referred to as :the code”). Section 26 of the code reads as follows:-

“26. courts by which offences are triable:-Subject to the other provisions of this Code :-

(a) any offence under the Indian Penal Code may be tried by –

(i) the High Court, or (ii) the Court of Session, or (iii) any other Court by which such offence is shown in the first Schedule to be triable;

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by –

(i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable.”

It is evident from a perusal of the abovesaid Section that any offence under Section 138 of the Act, which has to be taken cognizance of under Section 142 of the Act, has to be tried and disposed of by the Court as mentioned in the provisions of the Act.

5. Section 29 of the Code, which confers powers on Judicial Magistrates or Metropolitan Magistrates reads as follows:-

29. Sentences which Magistrates may pass. – The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or or imprisonment for life or of imprisonment for a term exceeding seven years.

(2) 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.

(3) The court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the court of a Magistrate of the first class.”

It is evident from the Section mentioned above that a Magistrate of the first class or a Metropolitan Magistrate may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding five thousand rupees, or of both. The Court of a Chief Judicial Magistrate is authorised to impose sentence upto seven years, but no limitation has been prescribed in connection with the imposing of fine.

6. It is evident from Section 325 of the Code that if a Magistrate of the first class is of the opinion that the accused ought to receive higher punishment than

the one which the said Magistrate is empowered to inflict on finding the accused guilty, he may record his opinion and submit his proceedings and forward the accused to the Court of the Chief Judicial Magistrate to whom he is subordinate for inflicting appropriate sentence. The Court of the Chief Judicial Magistrate, to whom the proceedings are submitted, may examine the parties and recall and examine any witness, if he thinks fit, even if he has already given evidence in that case and may also call for and take any further evidence and shall pass a judgment, sentence or order in the case as he thinks fit and according to law. Thus it is seen that the Code prescribes specific procedures to be followed by a Judicial Magistrate of first class or a Metropolitan Magistrate when more severe punishment is to be inflicted on an accused than the one empowered to be inflicted, on finding him guilty. Even according to the Code, such procedures have to be followed in trying and disposing of a case, subject to the condition mentioned in Section 26(b) of the Code, wherein it is provided that an offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.

7. Section 138 of the Act has admittedly been introduced in 1988 by the Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) with the object of infusing credibility in commercial transactions since issuance of cheques in such transactions is prevalent in day-to- day business transactions. As per Section 138 of the Act, if a cheque drawn by a person on an account maintained by him with a bank for payment of the amount mentioned therein to any other person, is returned by the bank either because of the amount of money standing to the credit of the 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, the drawer of the cheque 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. It is evident from a perusal of the abovesaid Section that a particular punishment is prescribed to be inflicted on the drawer of the cheque, if the cheque presented for encashment is returned dishonoured for the reasons mentioned above. Section 142 of the Act under the heading “Cognisance of offence” prescribes as to how a Court shall take cognisance of an offence punishable under Section 138 under clause (a), the limitation under clause (b) and the Magistrate, who is competent to try such offences under clause (c). Clause (c) to Section 142 of the Act clearly spells out that 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. Therefore, it is evident that a Judicial Magistrate of first class or a Metropolitan Magistrate alone has jurisdiction to try an offence punishable under Section 138 of the Act. The term “trial” or “tried” is defined in Stroud’s Judicial Dictionary (Forth Edition at Page 2827) as follows:-

“(1) A “trial” is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action “and all matters in difference” is not a trial ……

(2) The trial (Criminal Justice Act 1948 (11 & 12 Geo. 6 c.58), Section 23(1) was not complete until sentence had been passed or the offender had been ordered to be discharged.”

In Basil Ranger Lawrence v. Emperor, AIR 1933 P.C. 218 it has been held that it is an essential Principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings including sentence offence. The Apex Court in Harish Chandara v. Triloki Singh, , while considering the meaning of the word “trial” has observed that is susceptible of both the narrow and the wider senses though it was held while construing the provisions of the Representation of the People Act that “trial” means entire proceedings till the passing of the award. Therefore, it is clear that the word “try” occurring in clause (c) to Section 142 of the Act will mean the proceedings upto the passing of the sentence. Such sentence can be inflicted by Magistrates referred to above under Section 142(c) of the Act, even though it comes under the heading “cognisance of offences”, in the light of the non obstante clause, viz., “notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), enshrined in the section.

8. The true impact of the non obstante clause has been considered by the Apex Court in Aswini Kumar v. Arabinda Bose, . In that case, the Apex Court had considered the true effect and interpretation of Section 2 of the Supreme Court Advocates (Practice in High courts) Act, 1951, while considering the right claimed by a lawyer to act and plead in Calcutta High Court and more particularly in the original side of the said High Court. The ratio laid down in the abovesaid decision, which holds good till date, has been considered in-depth by my learned brother V.S. Sirpurkar, J., in the judgment written by his Lordship, speaking on behalf of the Full Bench. The most relevant portions alone are extracted hereunder for the purpose of consideration :-

“This is not in our judgment, a correct approach to the construction of Section 2. It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in the relevant existing laws which is inconsistent with the new enactment……….It is not a sound principle of
construction to brush aside word in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.”

It is clear from the observations made by the Apex Court that it would be a paramount duty on the part of the Court to give a proper meaning to the words of the main enactment and then to treat as set at naught any contrary provision

mentioned in the non obstante clause. If such liberal meaning is given as mentioned in the case cited with regard to the non obstante clause contained in Section 142 of the Act, it will clearly go to show that the non obstante clause mentioned in the abovesaid Section will give power to the Judicial Magistrate of the first class or the Metropolitan Magistrate to inflict higher punishment than the one empowered under the Code for an. offence punishable under Section 138 of the Act.

9. My learned brother V.S. Sirpurkar, J. has considered in the judgment speaking on behalf of the Full Bench, various decisions wherein the decision in Aswini Kumar’s case, has been followed. That apart, my learned brother V.S. Sirpurkar, J. has given valid and cogent reasons as to why the provisions contained in the Narcotic Drugs and Psychotropic Substances Act, 1988, Drugs and Cosmetics Act 1943, Dowry Prohibition Act, 1961, Foreign Exchange Regulation Act, 1973 and Prevention of Food Adulteration Act, 1954, will not in any way affect the interpretation to be given for the non obstante clause under Section 142 of the Act. The view that a Judicial Magistrate of first class or a Metropolitan Magistrate can inflict higher punishment than the one prescribed under Section 29 of the Code finds support in the decision in A.Y. Prabhakar v. Naresh Kumar, N. Shah, 1955 83 C.C. 191, an unreported decision dated 12.6.1991 in Mani Thiagarajan v. M. Mohan Crl.O.P.Nos. 1856 and 1857 of 1991, a Division Bench Judgment of the Andhra Pradesh High Court in B. Mohan Krishna v. Union of india 1996 Cri.L.J. 636 and the Kerala High Court judgments in K.P. Sahadevan v. T.K. Sreedharan, 1996 Cri.L.J. 1223 and Jaya Baby v. Vijayan, 1994 (81) C.C. 572. In view of the said position, it has to be held that a Metropolitan Magistrate or a Judicial Magistrate of first class, trying the offence punishable under Section 138 of the Act, has power to award higher punishment than the one prescribed under Section 29(2) of the Code.

10. Therefore, with due respect, I concur with the opinion expressed by my learned brother V.S. Sirpurkar, J.

ORDER

V.S. Sirpurkar,J.

Three Separate opinions have been written by us. However, since there is agreement of views between the judgment of V.S. Sirpurkar J. and P. Thangavel, J., reference is answered according to the majority judgment holding that the Magistrate would have power to inflict a fine of more than Rs.

5,000. The reference is answered accordingly.