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Sree Gokulam Chit and Finance Co. (P) Ltd. Versus Damodaran N. and Another

2013 (7) TMI 1098 - KERALA HIGH COURT

Crl.R.P. No. 1310 of 2013 - Dated:- 15-7-2013 - K. Harilal, J. For the Appellant: V.T. Raghunath and C.V. Rajalakshmi For the Respondent: Seena Ramakrishnan, Public Prosecutor ORDER K. Harilal, J. 1. The interesting question that arises for consideration in this Revision Petition is, whether an appeal against acquittal of the accused in a complaint instituted under Section 190(a) read with Section 200 of the Code of Criminal Procedure, alleging the offence punishable under Section 138 of the Neg .....

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before the Sessions Court under Section 372 of the Cr.P.C., in view of the amendment inserting Section 2(wa) and the proviso to Section 372 of the Cr.P.C. defining "victim" and granting right of appeal to him? The Revision Petitioner is the complainant in C.C. No. 79/2010 on the files of the Court of Judicial First Class Magistrate-II (Additional Munsiff), Kasaragod and the first respondent herein is the accused therein. The above complaint was filed under Sections 190 and 200 of the .....

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al under Section 372 was challenged by the 1st respondent/accused. After hearing both parties on the question of maintainability, the learned Sessions Judge dismissed the appeal on a finding that the appeal is not maintainable under Section 372 of the Cr.P.C. 2. While dismissing the appeal filed under Section 372 of the Cr.P.C., the learned Sessions Judge held that an appeal against acquittal of the accused in a complaint alleging the offence under Section 138 of the NI Act will not lie before t .....

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e Cr.P.C. the word used is 'victim' and in Section 378(4) the word used is 'complainant' and this section applies to the complaint case. This Revision Petition is filed challenging the said judgment dismissing the appeal on the question of maintainability. 3. Sri. V.T. Raghunath, the learned counsel for the Revision Petitioner submits that the findings regarding the maintainability in the judgment under challenge is illegal and unsustainable in view of the proviso to Section 372 .....

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as both 'Complainant' and 'Victim'. Even though, he is the complainant, he is a person who has suffered loss also. So, the right of appeal under Section 372 of the Cr.P.C. before the Sessions Court is available to the Complainant in a prosecution under Section 138 of the NI Act also. The learned counsel for the Revision Petitioner cited the unreported decision of the Kolkata High Court in Ors. v. State of West Bengal and the decision of the Jharkhand High Court at Ranchi in Mahes .....

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e above arguments may appear to be sound; but, the question is, can a section of a Statute be interpreted or construed in isolation, on the basis of a word alone? What are the basic principles of correct or true construction of a provision? Since Statute is an edict of the Legislature the conventional way of interpreting or construing a Statute is to seek the intention of the maker. According to "Salmond on Jurisprudence", the object of interpreting a Statute is to ascertain the intent .....

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sewhere for some other and more satisfactory evidence of the true intention of the Legislature. It is essential to determine with accuracy the relations which subsist between these two methods. In other words, we have to determine the relative claims of the letter and the spirit of enacted law. The traditional English view is the following. The duty of the judicature is to discover and to act upon the true intention of the Legislature-the mens or sententia legis. The essence of the law lies in i .....

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of conclusions, respecting subjects that lie beyond the direct expression of the text from elements known from and given in the text; conclusion which are in the spirit though not within the letter of law. In the decision in HMD Chamarbaugwala v. Union of India 1957 KHC 629 : AIR 1957 SC 628 : 1957 SCR 930 : 1957 (2) MLJ (SC) 76 : 59 Bom LR 973, the Supreme Court held that a Statute or section is to be construed according "to the intent of them that make it". In the decision in South A .....

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presents the true intention of the Legislature". In other words, true meaning or legal meaning of the provision. 6. In the decision in The Queen, on the Prosecution of the Bombay Government against Eduljee Byramjee and Seventeen Others 1846 (3) MIA 468, P. 483 PC, Privy Council held that to ascertain meaning of a clause, in a Statute the Court must look at the whole Statute at what precedes and at what succeeds and not merely at the clause itself. 7. One of the accepted methods to ascertain .....

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992 SC 81 : 1992 (1) SCC 335 : 1992 SCC (L & S) 286 : 1992 (19) ATC 507 and followed in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. 2001 KHC 1075 : AIR 2001 SC 724 : 2001 (4) SCC 139 : 2001 (105) Comp Cas 309. 8. In State of West Bengal v. Union of India 1963 KHC 616 : AIR 1963 SC 1241 : 1964 (1) SCR 371 : 1963 BLJR 675 at p. 1265, it is observed as under: "The Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to b .....

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s best which makes the textual interpretation match the contextual". In this case, Chinnapa Reddy, J. noting the importance of the context in which every word is used in the matter of interpretation of Statutes held thus (para 33 of AIR): "Interpretation must depend on the text and the context. There are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best whic .....

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te is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a Statute and no word of a Statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." 9. In Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi .....

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the occasion on which they are used, and the object to be attained. 10. In Anderton v. Ryan 1985 (2) All ER 355, p. 359, it is held that the rule which is known as 'purposive construction' or 'mischief rule' enables consideration of four matters in construing an Act: (i) What was the law before the making of the Act? (ii) What was the mischief or defect for which the law did not provide? (iii) What is the remedy that the Act has provided? and (iv) What is the reason of the remed .....

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306 : AIR 1953 SC 58 : 1953 SCR 302 : 1953 (1) LLJ 195. 12. First of all, keeping in view the above basic principles of interpretation, let us examine what is the legislative intent of the amendment inserting the proviso to Section 372 and definition of 'victim' under Section 2(wa) introduced in the Cr.P.C. by Act 5 of 2009 with effect from 31/12/2009. What is the correct construction of the proviso to Section 372? When applying the above principles to construe the proviso to Section 372 .....

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Cr.P.C. is the proper remedy provided for the complainant who suffered the acquittal in a complaint filed under Section 190(a) read with Section 200 of the Cr.P.C. Section 378(4) of the Cr.P.C. reads as follows: 378. Appeal in case of acquittal.- (1) xxxx xxxx xxxx (2) xxxx xxxx xxxx (3) xxxx xxxx xxxx (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants Special Leave to appea .....

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r an appeal as of right and can be filed only with the Special Leave of the High Court. Further, sub-section (6) says that if, in any case, the application under sub-section (4) for the grant of Special Leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or sub-section (2). 14. The counsel for the Revision Petitioner contends that in addition to the right of appeal before High Court under sub-section (4) of Section 378 of .....

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138 of the NI Act is a person who has suffered loss by the act committed by the accused. If that be so, such complainant would have a right of appeal under Section 372 of the Cr.P.C. also. 15. Keeping in view the principles referred above, I may examine the consequences thereof, if another right of appeal before the Sessions Court is also given to the complainant under Section 372 of the Cr.P.C. When a right of appeal subject to Special Leave has been provided under Section 378(4), before the Hi .....

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eous remedies with different jurisdiction and powers before different forums. If the complainant in a 138 proceedings is allowed to file an appeal as of right under Section 372 Cr.P.C., without Special Leave, normally, nobody would prefer an appeal with Special Leave before the High Court under Section 378(4) and such an option, if provided, would defeat the purpose of Section 378(4) of the Cr.P.C. An unsuccessful party seeking appellate remedy cannot be made to exercise option to choose forums, .....

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o defeat or destroy another section. To harmonise is not to destroy. In short, the proviso to Section 372 of the Cr.P.C. cannot be meant or interpreted to defeat or destroy Section 378(4) of the Cr.P.C. 17. It has already been seen that a Statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole Statute. Such a construction has the merit of avoiding inconsistency or repugna .....

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SC 1211 : 1967 (2) SCR 489 : 29 ELR 28 : 69 Punj LR 70, the Supreme Court further held that the provisions of one section of a Statute cannot be used to defeat those of another 'unless it is impossible to effect reconciliation between them'. In British Airways P/c. v. Union of India 2002 KHC 1123 : AIR 2002 SC 391 : 2002 (2) SCC 95 : 2002 (139) ELT 6, the Supreme Court further held that "the rule of construction is well settled that when there are, in an enactment; two provisions w .....

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nserting the proviso is intended for providing a right to the 'victims' in a prosecution launched on police report under Section 190(b) of the Cr.P.C., who were stood remedyless and had been left at the mercy of the State Government or Central Government as the case may be or the District Magistrate to prefer an appeal against the acquittal. To sum up, the intention of the amendment to Section 372 is to provide a right of appeal to 'victims' in cases in which the accused charge-s .....

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ne cannot be allowed to defeat or destroy the other. 19. The above construction gets support from the other aids of construction, the 154th Report of the Law Commission and the Statement of Objects and Reasons of Act 5 of 2009. 20. In Mithilesh Kumari v. Prem Bihari Khare 1989 KHC 264 : AIR 1989 SC 1247 : 1989 (1) KLT SN 46 : 1989 (1) KLJ 424 : 1989 (2) SCC 95 : 1989 (177) ITR 97 : 1989 Mah LJ 210, the Supreme Court observed that "where a particular enactment or amendment is the result of r .....

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as defined in Section 2(g) of the Code. 21. The above view regarding legislative intent of Section 372 of the Cr.P.C. is supported by the 154th Report of the Law Commission which recommended comprehensive amendments to the Code of Criminal Procedure relating to various provisions including the insertion of the proviso to Section 372, definition clause of 'victim' under Section 2(wa) and Section 357A, a comprehensive scheme of compensation. All these Sections were introduced in the Code .....

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dment of Section 378 by Act 25 of 2005. Now, with effect from 23/06/2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if Special Leave is granted by it on an application made to it by .....

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ect of a cognizable and non-bailable offence in cases filed on police report are being filed in the Sessions Court. The Law Commission further lamented that there is no provision enabling filing of appeal in complaint cases in the Sessions Court subject to the grant of Special Leave by it. Thus, I am of the opinion that the Law Commission has acknowledged and noted that there is no provision in the Code under which appeals against acquittal of the accused in a case instituted on private complain .....

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LLJ 719 : 1968 (17) FLR 218, the Apex Court held that the Statement of Objects and Reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the Statute, and the evil which the Statute was sought to remedy. This principle is seen followed in various decisions upto the decision in Bhaiji v. Sub Divisional Officer, Thandla 2003 KHC 790 : 2003 (1) SCC 692. 25. The above view regarding the legislative intent of the proviso .....

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ich and powerful. At present, the victims are the worst sufferers in a crime and they don't have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. 26. Going by the above paragraph, I am of the opinion that 'victims' referred to in the Statement of Objects and Reasons are victims who are the worst sufferers in a crime and do not have much role in the Court proceedings and need to be .....

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when the right of appeal under Section 378(4) has already been provided to him. The negative answer to these questions indicates that what is intended by employing the expression 'victim' in Statement of Reasons and Objects is not a complainant in a case instituted on a private complaint, who has already been provided with a remedy under Section 378(4) of the Cr.P.C., though he may claim to be a victim. 27. The learned counsel for the revision petitioner contended that the complainant in .....

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n for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. 28. Coming to 'victim', it is seen that inclusive clause is also appended to with the definition within the section to include guardian or legal heir of the person who sustain loss or injury. Legislature is presumed to be well aware of the entire provisions of the Statute while making an amendment Act. If that be so, had there been any legislative intent to pr .....

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ed in the interpretation clause, prima facie that definition governs whenever that word is used in the body of the Statute, but it is not absolute. A definition will not come into play automatically or mechanically or whenever the word defined is employed in the Statute, notwithstanding the context; if the interpretation clause itself begins with "unless the context otherwise require". So it is permissible to make a different interpretation, if the context otherwise require. In short, .....

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orted by the decision in Dhandhania Kedia & Co. v. CIT 1959 KHC 470 : AIR 1959 SC 219 : 1959 Supp (1) SCR 204 : 1959 (35) ITR 400 wherein the Apex Court held that: "But where the context makes the definition given in the interpretation clause inapplicable, a defined word when used in the body of the Statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are therefore normally enacted subject to .....

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expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in Statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the sub .....

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ant in the subject or context in view of this qualification, the Court, has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances". 31. At this juncture, we may have a look at Section 357A inserted in the Cr.P.C. by Act 5 of 2009 along with insertion of the proviso to Section 372 and definition of 'victim' und .....

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he amendments were made to provide a right of appeal and compensation to 'victims' who stood earlier at the mercy of the State. 33. For the reasons stated above, I respectfully disagree with the findings that the appeal against acquittal of the accused in a complaint filed under Section 190(a) read with Section 200 of the Cr.P.C. would lie before the Sessions Court under Section 372 of the Cr.P.C. also, in the unreported decision of the Kolkata High Court in Ors. v. State of West Bengal .....

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