Neither Accommodation nor Control

(By Sajan Mannali, Advocate, Ernakulam)

Well, that was my first experience with the 'Accommodation Controller'. Naturally, deceived by the name, I expected atleast some control, and a little accommodation too. However at the end of my 'tryst' with the Accommodation Controller, to my dismay, I found none.

My client, a lady dentist, was residing in a rented house. She was also running a dental clinic, in the same. Her landlord, like any other 'lords' around demanded an increase in rent. She in turn requested for the long pending repair works and maintenance, before the increase of rent. Suddenly the drinking water stops, the switch to the motor removed, the gate at the outer entrance disappears arid to peak it all, her entry to the terrace brought to a stop, by locking up the gate leading to the terrace.

She walked into my office and narrated her grievances. With the assurances and promises showered by the "Kerala Buildings Lease and Rent Control Act "I confidently drafted a petition before the Accommodation Controller. There in starts my unending misery; and my client's too.

After a number of 'No Sittings', finally we - the Accommodation Controller and myself-face, face to face. I pray for an interim order, atleast in the case of drinking water. She flatly denies. I point out to the Section. She is unmoved. She tells me she is not in the habit of passing interim orders, whatever the section may say. I approach the High Court, and atleast atlast, the drinking water once again flows through the taps.

Now begins the second chapter of my unending misery. I foolishly pursue the other reliefs before the Controller of Accommodation. Once again, after a series of 'no sittings', at the end of which l am told that the Accommodation Controller is transferred. 'He' comes to take the place of 'She'. Hoping against hope, I hope for a change in attitude. But I find the boat still at Thirunakkara, as goes the old saying.

Evidence begins with great pomp and show. There, then once again interrupted by number of 'no sittings'. We are repeatedly told that the Accommodation Controller has again gone out to act out of his dual role as the Revenue Officer, in the field. Meanwhile two years pass by. I see the same suffering faces, with the same miserable cases, flitting in and out of the court.

Meanwhile, I witness bench clerks ordering Counsels. Counsels complaining to the Accommodation Controller. Accommodation Controller expressing his helplessness, indicating the 'Trade Union Mafia' and its (mal) practices. I listen to telephone calls attended amidst 'sittings' by the Controller, as well as the bench clerk, (for that matter even the peon), unbothered and unconcerned, right in front of the numbed clients and poor counsels. Evidence 'once upon a time' started continues, side by side, never to come to a close or finale.

Once again I am told that the Accommodation Controller is about to be transferred. Before I could think whether I should weep or mourn, I am told that there is an amendment in legislation, and that the churches, mosques etc. are brought outside the purview of the 'Kerala Building Lease and Rent Control Act'. Now for a change I decide to laugh, atleast to celebrate the end of the long pending - never ending tyranny. Amenities or not, my client beams and heaves a sigh of relief.

I am now told that six months have passed by; However orders are yet to be passed, dismissing the petition; based on the new amendments.

Well, it is high time that something is done in this regard, atleast by somebody. Why this waste of energy, time and money before a Controller, who never accommodates nor ever sits. And if at all 'sits* has neither learned, preaches nor practices LAW.

Inadequacy of Provision on Bouncing of Cheque

(P. Sreedharan, Dy. Director of Prosecution and Senior A.P.P., Kollam (Retd.))

It is fortunate to apprehend that the Legislature is pleaded to incorporate the new Section 138 of "The Negotiable Instruments Act, 1881" and the ancillary provisions in Chapter XVII of the Act. Prior to the commencement of this new section the only remedy on a post dated cheque was to approach Civil Courts and had no redressal of grievances through Criminal Courts. Really this section and this new chapter is a gift for the legal practitioners and to the public at large.

It is obvious that the ultimate object of this section and it's magnitude is averted with large omissions and anomalies which is hard to say as harmless or meagre. A legal practitioner who thinks about the pros and cons of this section can point out several precarious legal fictions, requests additional provisos to this section to fill the loopholes.

Points for consideration

Whether the second presentation of cheque is valid?

In a dictum of his Lordship Justice Balakrishnan reported in Sunil Kumar v. Bhadran (1991 (1) KLT 651 = 1991 (1) KLJ 335) it is enlightened that "The Payee or holder in due course can make a second presentation of the cheque and he can launch a complaint on this second presentation as the cheque would remain valid for a period of six months".

A Madras High Court decision reported in 1993 (1) KLT 1 (Sivasankar v. Santhakumari) came in support of the above decision which states as a cheque can be presented on different occasions constituting separate cause of actions and hence a complaint on second presentation of cheque if made within the period of its validity is maintainable.

This was negatived by a Division Bench of the Kerala High Court, reported in 1991 (1) KLT 893 (Kumaresan v. Ameerappa). The gist is that more than one cause of action on the same cheque is not contemplated. Cause of action arises on issue of notice after the first presentation of cheque. So a prosecution on second presentation and second notice is not tenable.

This question of law is now under the active consideration of the Supreme Court on an appeal pending. The section is ambiguous in this position.

Insufficient funds: It is offence if cheque is dishonoured on ground that the amount of money standing in that account is insufficient.

Stop Memo: When cheque is dishonoured on "Stop Memo" given to the Bank by the drawer while having sufficient funds in his credit to honour the cheque is not an offence as laid down by High Court of Punjab and Haryana reported in 1992 (1) KLT 765. (Rama Gupta v. Bakeman's Home Products).

Account Closed: In a case where the cheque is dishonoured on ground of "ACCOUNT CLOSED" is held no offence by Madras High Court reported in 1992 (2) KLT 417 (Prasanna v. Vijayalakshmi).

Refer to drawer: Cheque returned with an endorsement "REFER TO DRAWER" cannot be inferred that the cheque was returned on account of insufficiency of funds in account and hence no offence as per decision of High Court of Andhra Pradesh reported in 1992 (1) KLT 684 (Union Roadways (P) Ltd. v. Shah Ramanlal).

These are interpretations of courts came very late and because of absence of inhibition in clear terms in the section so many prosecutions are defeated in the initial stages. The above are single Bench decisions which may come otherwise later.

Date of drawal of cheque: There are inconsistent decisions regarding the date on which it is drawn to calculate six months. In a decision of Punjab and Haryana High Court reported in 1992 (1) KLT 686 (Gulshan Rai v. Anil Kumar) it is held that the actual day on which the cheque was drawn and delivered is the date of draw and not the date shown in a post dated cheque.

But in a Kerala High Court Division Bench decision reported in 1991 (2) KLT 65 (Manoj K. Seth v. Fernandez), it is decided that "Post dated cheques for the purpose of Clause (a) of the proviso has to be considered to have been drawn on the date it bears and not on the date it is delivered."

This is repugnant to the first decision. The section is silent in this issue also.

Give notice in writing.

S.27 of "The General Clauses Act" gives the benefit of an assumption to the sender of a registered post as it is delivered to the addressee in the ordinary course if it is properly addressed and pre-paid. But this section is silent about the DATE of service of such letter to calculate the period of fifteen days next to.

No date of receipt in acknowledgment

From which date the payee should calculate the fifteen days from a postal acknowledgment received back without entry of date of delivery of notice?

Letter or acknowledgement not come back

In a case where neither notice nor the postal acknowledgement come back and in such an incident what is the basis for calculation of fifteen days from the date of service?

If these uncertainties and anomalies are left uninterfered and if S.138 is not made exhaustive with more provisos these inconsistencies will continue till it gets final verdicts from Supreme Court and to that extent of time it will facilitate to refute the section negatively while carrying out in the practical field.

Boycott of Court by Lawyers

(P.K. Jose, Advocate, Ernakulam)

1. I am of opinion that boycotting a court of law by lawyers cannot be justified legally and morally. I believe that boycotting the court, will amount to an illegal act, even contempt of court.

2. For the said reason, I believe that in no circumstances shall lawyers boycott the court.

3. Let us first analyse what is meant by boycott. Boycott means "abstention from buying, abstention from using, avoidance, ban, banning, black-listing, debarring, embargo, exclusion, ostracism, proscription, refusal to do business, rejection, shunning, strike, with holding of patronage".

4. We have adopted a constitution under which the institution of court or judiciary is independent and impartial. All disputes are ultimately decided by court, and nobody can disobey or violate a decree or decision of a court of law. If one does so, one is guilty of an offence.

5. Lawyers are part of this institution and our profession is noble and learned. We have joined this profession because we have faith in rule of law.

6. If we believe in rule of law and accept judiciary as the final arbiter of all disputes, what is the justification for boycotting the court.

7. When we boycott the court, we are breaking the promise with our client, and more important, expressing our lack of faith in court and rule of law.

8. Lawyers should not behave like industrial labourers or employees, or businessmen. When industrial employees boycott or strike work, observing the rules, they are doing an act which is permitted by Industrial Law. When public resort to strike or boycott they are protected under Art.19 of the constitution. The above said actions are not directed against an institution, nor can it be said that there is breach of contract in such cases. But in the case of lawyers, for the reasons mentioned above, boycotting the court will amount to an illegal act and even contempt of court.

9. Lawyers are not a weaker section in society. Lawyers are a powerful section of the society because they know law and they have learning and knowledge which are the source of their power. For this reason citizens seek advice and guidance from lawyers.

10. By boycotting the court, we are tarnishing the good image of judiciary and profession of law.

11. We have other methods and means to express our protest and make the concerned authorities act according to law. Lawyers know how to set law in motion and bring violators of law to justice.

12. It is time that we lawyers think about the issue of boycotting the court by lawyers, its legality and justification. What else, short of boycotting the court, can be done by Lawyers' Association to express their protest against injustice done to lawyers themselves or others in our society.

13. It is advisable to have a debate on this issue, to have an in-depth study in its legal, professional and social aspects. Bar Association can call for a meeting of lawyers for a debate on this issue, as has been done by Kerala High Court Bar Association in other cases.

Experience in judicial work and

Appointment of High Court Judges

(Dr. K.N. Chandrasekharan Pillai, B.Sc. (Ker.), LL.M. (Del.), LL.M., S.J.D. (Michigan), Professor, CUSAT, Cochin-682022)

The Constitution of India seems to prefer, generally speaking, three categories of persons for selection as judges in the Supreme Court and High Courts. They are: advocates having ten years' experience, officers working in judicial office belonging to a judicial service and distinguished jurists. While the third category is mentioned as entitled for selection as supreme court judge, the former categories are common for both Supreme Court and High Court Judges.*

Though Explanation II under Art.124(2), Art.217(2)(a) and explanations (a) and (aa) under it refer to judicial office in connection with the qualifications for appointment to the office of judges the constitution has not provided for the definition of this term. However, the expression "judicial service" has been explained in Art.236(b) which lays down:--

"the expression" judicial service means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge".

With reference to the question whether a person belonging to other services under the state could be appointed as a district judge (to be included in judicial service) the Supreme Court in Chandra Mohan v. State of U.P. (AIR 1966 SC 1987) observed:--

"The expressions 'exclusively' and 'intended' emphasize the fact that the judicial service consists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined 'judicial service' in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge". (AIR 1966 SC 1987 at 1994 quoted in Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428 at 445.

This ruling has come to be emphasized recently in Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428). The court's observations are explicit:-

"We are of the view that holder of "judicial office" under Art.217(2)(a) means the person who exercises only judicial functions, determines causes interprets and rendering decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary" (1992) 2 SCC 425).

The court has further explained that 'judicial service' in a state is distinct and separate from the other services under the executive. According to it the members of the judicial service pc-form exclusively judicial functions and are responsible for the administration of justice in the state (1992) 2 SCC 428 at 442).

At this juncture it is worthwhile to examine what exactly is involved in judicial function. The term has to be understood in the context of a judicial service as the apex-court rightly insists that the person should hold a judicial officer in a judicial service to be considered for appointment to the office of High Court Judge (1992) 2 SCC 445). It has hastened to add that temporary entrustment of judicial power may not qualify a person under this Article ((1992) 2 SCC 445).

What is actually involved in judicial functioning is essentially the lawyer function of resolving disputes, either by the application of law if one exists or by way of a process of reasoning spelt out in a discourse. In deciding the question the judge may have to go for certain policy choices and if he elects to make any choice he has to justify his act in the light of the existing law or principles underlying the law. And in this process he is assisted by the arguments of members of his own fraternity who share most of the values which he tries to uphold.

In carrying out this function he is like a politician. He never surrenders an existing principle completely while accepting a portion of the new principle. By a slow process of reception of the new principle in installments he prepares the society gradually for the total acceptance of the principle. The impact of the new principle on the legal system is thus cushioned and social change brought out with ease.

The person holding a judicial office has to have another characteristic which the members of his fraternity share with him. It is what is called sympathetic detachment in resolving the conflicts. This is developed by the peculiarities of the lawyer - profession. As is well known a lawyer is quite often constrained to handle cases involving issues which he as an individual may not like to support. But when he accepts the brief it becomes his duty to command to his aid what all is available in favour of the issues. He may have to support them if he has to win the case for his client. This situation helps him to have a detached view of things keeping apart his convictions, likes and dislikes. A continuous handling of such cases may thus develop in him as an affective characteristic the quality of sympathetic detachment. This is perhaps the reason why the apex court insists that temporary conferment of judicial powers may not quality a person. If he belongs to the service which calls for such roles to be played quite often he may acquire this ability essential for a judicial officer.

These qualities seem to be shared by advocates, judicial officers and jurists. Perhaps that is the reason why the constitution favours these categories only.

However, our practice does not seem to be based on such rationale. As has already been mentioned our legal system is yet to appoint a distinguished jurist in the Supreme Court. If the above qualities are the essential requirements to be a Judge, it is felt that a distinguished jurist can also be a Judge of the High Court as the jurists definitely develop the quality of sympathetic detachment in the pursuit of legal knowledge. **

Some States like Kerala seem to follow the practice of posting District Judges as Law Secretaries and Legislative Secretaries. It is not known how these posts could be described as judicial. If they are not judicial but executive, is it not against the spirit of Art.50 of the Constitution which lays down that the Stale shall take steps to separate the judiciary from the executive in the public services of the State? It is understood that these officers could be reposted district judges again on reversion from these posts, thereby treating these offices as interchangeable. In this connection it is to be noted that these secretary’s posts do not seem to be independent. Nor do they have any judicial functions.

The Supreme Court has had an opportunity to deal with the nature of this office in Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428). The court rejected the claim made therein on the plea that the secretary's post was a judicial post. The Court's observations are instructive:--

"It is not disputed that Srivastava never held any of these offices. He, however, claims that since he has been holding the office of Legal Remembrancer-cum-Secretary Law & Judicial, he is a member of the Mizoram Judicial Service. That may be so but unless he has held a judicial office in a judicial service he does not come within the purview of Art.217(2)(a) of the Constitution. The office of Legal Remembrancer-cum-Secretary Law & Judicial is a non-judicial office under the control of the executive". (1992) 2 SCC 428 at 449).

In the instant case the court indeed pointed out that even if full benefit of this service was given to Shri Srivastava he had no length of service required in that cadre. But the court is categorical that this post is not a judicial office as it is not independent of the executive. Nor is it under the control of the High Court. It also does not call for any judicial function.

The practice of elevating District Judges who hold the post of Law Secretary may also require re-examination as their stint in the executive post may deprive them of their status as District Judges. ***

The recent decision of the Supreme Court in Srikumar Padma Prasad v. Union of India has emphasized the need for more vigilance in this vital area of appointment of judges. The court has administered timely caution. It is time for the legal system to take stock of the situation and to remedy the malady.

___________________________________________________________________

Foot Notes:

*    See Art.124(2), 217(2)(a) with explanations under them in the Constitution. It is pertinent to point out at this juncture that till today the Indian Legal System has not thought it proper to appoint a distinguished jurist to the Supreme Court Bench. It is, however, interesting to note that the system was recently in difficulties in the matter of appointment of a High Court Judge and the apex court had to come out with a judgment to the effect that the person appointed by the President in consultation with none other than the Chief Justice of India did not possess the required qualifications. See Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428.

**   In fact there is no specific reason why a distinguished jurist cannot be considered for the office of High Court Judge especially when he has been included in Art.124(2) to be considered for the office of Supreme Court Judge. It was on the suggestion of Shri H.V. Kamath who was supported by none other than Shri. Ananthasayaram Ayyangar that this category was included under Art.124(2). When a similar amendment was proposed for the then Art.193 (now 217) by Prof. Shibbanlal Saksena supported by Naziruddin Ahmed, it was rejected without giving any reason (See Constituent Assembly Debates, Vol.8 at pp.241, 254, 257, 661 and 672). Later though a provision was included in the Constitution (by the 42nd Amendment) it was deleted subsequently (by the 44th Amendment) apparently for no reason.

***  See Art.236(a) and (b). This practice calls for review even on another aspect of possible influence that can be brought on the Executive. The following comment included in B. Shiva Rao "Constitutional Documents, Vol. IV at 202" though made in the context of politicians may be pertinent in the case of officers of the level of Secretaries also. The comment runs thus:-

"It seems to us desirable to insert a provision in these Articles to the effect that no person should be appointed a Judge of the Supreme Court or of a High Court who has at any time accepted the post of a Minister in the Govt. of India or in a State. This is intended to prevent a person who has accepted office of a minister from exercising his influence in order to become a Judge at any time."

About Jurisdiction and Compensation in

Cheque Cases — the Need for Amendment

(A comment, on- Jaya Baby v. Vijayan, 1993 (2) KLT 679 )

(Joseph Thattacherry, Advocate, Changanacherry)

In Jaya Baby v. Vijayan reported in 1993 (2) KLT 769, the only contention raised was whether the offence under S.138 of the Negotiable Instruments Act (for short "the Act") can be tried only by a Chief Judicial Magistrate or a Chief Metropolitan Magistrate, when the cheque amount exceeds Rs.2500/- It being a long agiatated question of law, an authentic judicial pronouncement on that question was long awaited. But in all humility and with utmost respect to His Lordship it is submitted that it is doubtful whether the question of law involved, is properly considered in the decision. The contention was repelled for various reasons, which seem not sustainable.

The first reason advanced was that "if the above argument gains acceptance the Chief Judicial Magistrate Courts would be Inundated with spate of complaints, since most of the cheques would be for amounts far in excess of half the figure upto which a Judicial Magistrate of First Class can impose the fine sentence. The Parliament would not have intended to create such a situation when it provided S.142 of the Act that no Court inferior to that of a Judicial' Magistrate of First Class shall try such offence". Such a situation (inundation with spate of complaints) is not a creation of the Parliament but a creation of unscrupulous persons who issue cheques that bounce. The intention of the Parliament in passing the new Act was with a view to enhance (lie acceptability and credibility of the cheques by punishing the guilty and also by compensating the loss of the complainant out of the fine realised. After the coming into force of the Act, people will think twice before they draw a cheque and the number of cases of dishonour of cheques would naturally diminish. Whatever it be,' the feat about ^inundation' may not be a ground for interpreting the provision in such a way as to confer jurisdiction to First Class Magistrate to try offences regarding cheques the amount of which exceed Rs.2500/-. Instead the Court should have considered at depth the legal aspects involved in the question. Such hardship or difficulty could very easily be overcome by the High Court invoking S. J 2(2) Cr. P.C. Under that provision the High Court could very well appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or any oilier laws for the time being in force as the High Court may direct. Thus by appointing sufficient number of Additional Chief Judicial Magistrates the problem of "inundation" could be solved.

Again if the First Class Magistrate are by the 'Act' invested with enhanced powers to impose sentence of fine, the problem 'inundation' could be solved much easily and the complainants could be adequately compensated. Such investment of enhanced powers we find in several Central Acts. For example, S.21 of Prevention of Food Adulteration Act, 1954, enjoins that "notwithstanding anything containedinS.29 of the Code of Criminal Procedure 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 section". Almost identifiable provision is contained in S. 36 of the Drugs and Cosmetics Act 1940 by which First Class Magistrates are empowered to impose any sentence authorised by that Act in excess of his powers under S. 29 of the Criminal Procedure Code. Similar provisions enhancing the powers of the Court are provided in oilier Acts also. If such a provision is inserted in the 'Act' enhancing the powers of imposition of fine by First Class Magistrates, they could have imposed fine which may extend to twice the amount of cheque and out of the fine realised adequate payment could have been made to the complainant.

But when the Parliament which inserted the above provisions for imposing enhanced penalties in other Acts, has consciously and deliberately omitted to insert similar provision in the 'Act', it has to be construed as a conscious and purposeful omission. We cannot attribute carelessness or forgetfullness to the Parliament. It has to be remembered that S.142(c) of the Act does not say that all cases under the Act shall be tried by a First Class Magistrate or Metropolitan Magistrate. But instead it only mentions that the lowest Court that could try any offence punishable under S.138 is a Metropolitan Magistrate or a Judicial Magistrate of the First Class. It means that superior courts are also empowered to try cases under the 'Act' and that the Second Class Magistrates have no such powers. Then the question arises, which court has to try, which offences under the 'Act'. It has to be decided by the Parliament which of the respective courts are empowered to award each case. Since the Court of a Magistrate of the First Class may pass a sentence, not exceeding Rs.5000/- and the superior Court, the Chief Judicial Magistrate has unlimited powers of imposition of fine under S. 29(l) & (2) of Cr. P.C. The intention of the Parliament is clear that only those cases involving cheques the amount of which does not exceed Rs.2500/- only shall be tried by a Judicial First Class Magistrate of Metropolitan Magistrate. Had the intention of the Parliament be otherwise, it would have made adequate provision, similar to that contained in 'The Prevention of Food Adulteration Act, Drugs and Cosmetics Act' etc. S. 16(1 A) and (IB) of the Prevention of Food Adulteration Act prescribes imprisonment which may extend to term of life and S. 27(a) of the Drugs and Cosmetics Act prescribes imprisonment for a term winch may extend to ten years. S.138 of the 'Act' provides punishment with imprisonment for a term which may extend to one year and with fine which may extend to twice the amount of cheque. Nowhere in the Indian Penal Code or in any other law, the quantum of fine that may be imposed is tagged to the loss sustained by the party aggrieved. So it can reasonably be inferred that one of the main objects of the ' Act' is to provide recompense for the loss sustained to the complainant, because it is well known that the principle of penal legislation never postulates that, penalty is the sole aim of legislation. In order to pay compensation the Court has to resort to S. 357(1) of the Code of Criminal Procedure, as observed by His Lordship. But if the First Class Magistrate is not that empowered the complainant is daminified. So the intention of the Parliament is that Chief Judicial Magistrate or Additional Chief Judicial Magistrate alone should try cases u/s. 138 of the Act, cheque amount of which exceeds Rs.2500/- It has to be remembered that identical provisions as we find in S. 142(c) viz. "no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under S. 138" are-contained in S.20(2) of the Prevention of Food Adulteration Act and S.32(2) of the Drugs and Cosmetics Act and other Acts as well. Then the omission to give powers to impose enhanced penalty as we find inserted in those Acts becomes more conspicuous and significant. Hence it is submitted that First Class Magistrate and Metropolitan Magistrate have no jurisdiction to try offence u/s. 138 of the Act where the cheque amount exceeds Rs.2500/-.

Relying on the decision of the Calcutta High Court reported in 1977 Crl. L.J. 1503 the Allahabad High Court in 'Ravindraprakash v. Union of India' (1984 Crl. L.J. 1321) held in a case involving an offence u/s. 27(a) of the Drugs and Cosmetics Act, 1940, for winch the maximum punishment prescribed is imprisonment for a term often years, that the case should have been tried by a Court of Sessions and not be tried by a First Class Magistrate. Those rulings were distinguished and held not applicable by His Lordship on two grounds. Firstly that "No particular Court is mentioned in the Drugs and Cosmetics Act for trial of offences under that Act". That is not a correct statement because S.32(2) of that Act provides thus "No Court inferior to that of a Presidency Magistrate or of a Magistrate of the First Class shall try an offence punishable under tins chapter". S.27 falls under the very same chapter. So the very substractum of the reasoning stumble to the ground and the reasoning fails. In 'Prem Pal Varsheny v. Union of India' reported in 1990 Crl. L.J. 989 the Allahabad High Court held that where it was crystal clear that the quantum of sentence sought to be imposed was beyond the power of the Magistrate u/s.29 of the Code, he shall commit the case to the court of Session. The second ground is that "under the second division of the First Schedule to the Procedure Code such offences can be tried by a Magistrate of the First Class". That also is not correct because S.26(b) of the Procedure Code says that any offence under -any other law shall, when any Court is mentioned in tins behalf in such law, be tried by such court and only when no court is mentioned it may be tried by any other court by winch such offence is shown in the first schedule to be triable. So, as the court to try such offences is specified in that Act, second Division of First Schedule to the Procedure Code has no application. Similarly in para.5 of the order His Lordship after discussing the applicability of S.26 of the Procedure Code, observes that even if S. 142 of the Act has not mentioned specifically as to the Court which can try the offence, any Judicial Magistrate of the First Class would have got jurisdiction to try the offence under S. 138 of the Act. Since S. 142(c) of the Act specifically mentions the Court which is to try the offence under the Act, .the said observation has no relevancy and applicability.

Two remedies are suggested by His Lordship to alleviate the grievance of the complainant in para.6 of the order. One is that the Magistrate could resort to the steps envisaged in S.325 of the Procedure Code. If so, since most the cheques are for amounts far in excess of Rs.2500/- the Magistrate of the First Class may have to submit his proceedings in all such cases and forward the accused to the Chief Judicial Magistrate after evidence is taken and arguments heard and formation of necessary opinion, as contemplated in the section. The Magistrate in such circumstances may not be able to differentiate and select some cases and forward them and at the same time refuse to forward some others. As the nature of such cases is the same, if he so does, he may be accused of partisanship which may mar the impartiality of the Judiciary. Naturally all the complainants are eager to recover full compensation. If the Magistrate took steps under S.325 of the Code, would not the Chief Judicial Magistrate Courts be inundated with spate of complaints? Not only that, the Chief Judicial Magistrate may have to try those cases denovo, which would cause much harassment and hardship to the accused as well as the complainant. So the first remedy suggested by His Lordship is not feasible.

The second remedy suggested by His Lordship is that a Magistrate can alleviate a complainant's grievance by resort to S.357(1) of the Procedure Code. That also is not feasible as the First Class Magistrate could not impose fine exceeding Rs.5000/- and he could compensate the complainant only out the fine recovered, which under no circumstances will exceed Rs.5000/-; In most of the cases the cheque amount will be much higher. So payment of compensation by a First Class Magistrate with limited powers of imposition of fine will not alleviate a complainant's grievance. So both the remedies recommended by His Lordship are not practicable. Thus the malady continues and the remedy eludes. It is not fair and proper to push the complainant to a civil court for realisation of the cheque amount as the intention of the legislature is otherwise.

Now considering the various aspects involved in the question, it is most respectfully submitted that the Hon'ble High Court be pleased to appoint sufficient number of Judicial Magistrates of the First Class to be Additional Chief Judicial Magistrates, u/S.12(2) of the Procedure Code or to recommend to the Central Government to invest First Class Magistrates and Metropolitan Magistrates with enhanced powers of imposition of fine under the Act, notwithstanding anything contained in the Code of Criminal Procedure. Hence it is submitted that the decision in Jaya Baby's case requires reconsideration.