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2001 DIGILAW 1688 (AP)

Karuchola Satyanarayana v. State Of A. P.

2001-12-24

B.SUDERSHAN REDDY

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B. SUDERSHAN REDDY, J. ( 1 ) THIS batch of criminal petitions may be disposed of by a common order, since common questions arise for consideration. ( 2 ) THE petitioners are the accused in the complaint filed against them for the offence punishable under Section 138 of the negotiable Instruments Act. The complaints were filed on the file of the Sub-Divisional magistrate, Mobile Court, Bhadrachalam, khammam District. The Sub-Divisional magistrate having taken the complaints on file set the law in motion against the petitioners. ( 3 ) IN these applications, Sri P. Prabhakar Rao, learned Counsel for the petitioners submits that the Sub-Divisional magistrate has no jurisdiction to take the complaint on file for the offence punishable under Section 138 of the Negotiable instruments Act, 1881. Learned Counsel submits that the Sub-Divisional Magistrate cannot be equated to that of a Metropolitan magistrate or a Judicial Magistrate of First class. Reliance is placed upon Section 142 of the Negotiable Instruments Act, which reads as follows: 142. Cognizance of offences:notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), (a) No Court shall take coginzance 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 ) IT is true as contended by the learned Counsel for the petitioners that no court shall take cognizance of any offence punishable under Section 138 of the negotiable Instruments Act except upon a complaint, in writing, made by the payee or, the holder in due course of the cheque. Section 142 of the Act further mandates 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 of the Act. ( 5 ) ADMITTEDLY the complaints in the instant cases are filed by the respondents before the Sub-Divisional Magistrate (Mobile court), Government of A. P. , Bhadrachalam, khammam District. ( 5 ) ADMITTEDLY the complaints in the instant cases are filed by the respondents before the Sub-Divisional Magistrate (Mobile court), Government of A. P. , Bhadrachalam, khammam District. ( 6 ) THE question that falls for consideration is as to whether the Sub- divisional Magistrate (Mobile Court), bhadrachalam, Khammam District is equal to that of a Judicial Magistrate of First Class so as to enable him to take the complaint filed under Section 138 of the Negotiable instruments Act on file and try the offence. ( 7 ) IT is brought to the notice of the court that the Government of A. P. , through a notification vide G. O. Ms. No. 406, dated 27-6-1990 accorded sanction for establishment of one Mobile Court, in the first instance, in each of the districts of warangal, Karimnagar, Medak, Nizamabad, mahaboobnagar. Adilabad, Visakhapatnam, east Godavari and Khammam with headquarters indicated against each thereof. One such Mobile Court in respect of which sanction has been accorded in khammam District with its headquarters at bhadrachalam. ( 8 ) THE Governor of Andhra Pradesh in exercise of the power conferred under sub-section (1) of Section 12 of the Code of Criminal Procedure, 1898 (Central Act V of 1989) appointed the Sub-Divisional magistrate of the Mobile Courts at chintapally in Visakhapatnam District, the sub-Divisional Magistrate of the Mobile court at Rampachodavaram in East Godavari district and the Sub-Divisional Magistrate of the Mobile Court at Bhadrachalam in khammam District sanctioned in G. O. Ms. No. 406, Home (Courts-A) Department, dated 27th June, 1990 to be Magistrates of the first Class and under Section 37 of the said code and invested in them with all the powers specified in the Fourth Schedule to the said Code as powers with which a magistrate of the First Class may be invested by the State Government with effect on and from the date on which assume charge as presiding officers of the said Mobile Courts, in the entire agency areas of the Districts of visakhapatnam, East Godavari and khammam respectively. ( 9 ) SECTION 12 of the Code of Criminal procedure, 1898 enables the State government to appoint as many persons as it thinks fit, besides the District Magistrate to be Magistrates of the First, Second or third Class in any district outside the presidency-towns; and the State Government or the District Magistrate, subject to the control of the State Government, may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested with such power. It is also necessary to notice Section 37 of the Code which empowers the State Government to invest upon the Sub-Divisional Magistrate or any Magistrate of the First, Second and third Class with any power specified in the fourth schedule in addition to the ordinary powers. ( 10 ) THE Fourth Schedule in its turn provides the details of the additional powers of which a Magistrate may be invested and those powers includes the power to issue process for person within local jurisdiction, who has committed an offence outside the local jurisdiction; Section 186, power to entertain complaints; Section 190; power to receive police-reports, Section 190; power to entertain cases without complaint, Section 190; and power to try summarily. ( 11 ) WE have already noticed the notification issued by the Governor appointing the Sub-Divisional Magistrates of the Mobile Courts to be the Magistrate of first Class under Section 37 of the Code investing them with all powers specified in the Fourth Schedule. It is thus clear that the sub-Divisional Magistrate of the Mobile court at Rampachodavaram in East Godavari district and the Sub-Divisional Magistrate at Bhadrachalam in Khammam District are conferred with all the powers of the magistrates of First Class. It is no doubt true, as contended by the learned Counsel for the petitioners that the notification does not expressly speak about the conferment of powers of a Judicial Magistrate of First class. That expression is missing in the notification. But the question that falls for consideration is as to whether the powers specified in the Fourth Schedule of the code of Criminal Procedure, 1898 can be exercised by any Magistrate other than a judicial Magistrate of First Class. Taking cognizance of criminal cases and entertainment of the complaint has to be done only by the Judicial Magistrate of first Class. Taking cognizance of criminal cases and entertainment of the complaint has to be done only by the Judicial Magistrate of first Class. The additional powers with which a Magistrate of the First Class may be invested in Schedule IV includes the power to pass sentence on proceedings recorded by a Magistrate of the Second and Third class and power to hear appeals from conviction by Magistrate of the Second and third Class, Section 407. Obviously such powers could be exercised only by the judicial Magistrate of First Class and not by any First Class Magistrate as such. In the circumstances, it is clear that all the powers to be exercised by a Judicial first Class Magistnate are conferred upon the Sub-Divisional lagistrate of Mobile courts at Rampachodavaram of East godavari District and Bhadrachalam of khammam District. ( 12 ) THUS the Sub-Divisional Magistrate of Mobile Courts are empowered to take the complaint for the offence punishable under section 138 of the Negotiable Instruments act, since they are conferred with the jurisdiction to exercise the powers of Judicial magistrate of First Class. The reference to section 29 of the Code of Criminal procedure, 1898 would further clarify the position. Section 29 of the Code deals with offences punishable under other law (other than offences punishable under the Indian penal Code. It says that subject to the other provisions of the Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. In Section 142 of the negotiable Instruments Act it is mentioned that only a Metropolitan Magistrate or the judicial Magistrate of First Class alone can entertain the complaint for the offence punishable under Section 138 of the negotiable Instruments Act. Therefore, all the First Class Magistrates so appointed under the Code of 1898 are entitled to entertain the complaints for the offence punishable under Section 138 of the negotiable Instruments Act. It is not as if the Magistrates of First Class appointed under the Code are entitled to try only the offences punishable under the Indian Penal code. A combined reading of Stations 28 and 29 of the Old Code would make this position ex facie clear. It is not as if the Magistrates of First Class appointed under the Code are entitled to try only the offences punishable under the Indian Penal code. A combined reading of Stations 28 and 29 of the Old Code would make this position ex facie clear. ( 13 ) IN the circumstances, there is no difficulty whatsoever to hold that all the sub-Divisional Magistrates of Mobile Courts in Rampachodavaram of East Godavari district and Bhadrachalam of Khammam district can exercise all the powers of the judicial Magistrate of First Class including the power to entertain the complaints and try the offence punishable under Section 138 of the Negotiable Instruments Act. ( 14 ) FOR the aforesaid reasons, I do not find any merit in these applications to quash the very proceedings. The criminal petitions are accordingly dismissed. ( 15 ) IT is needless to observe that this Court has not expressed any opinion whatsoever on the merits of the case. The Sub-Divisional Magistrate shall proceed with the enquiry and trial in accordance with law.