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2019 (12) TMI 101

..... or suspension of sentence, is necessarily required to issue direction to the person in appeal for depositing amount of compensation - HELD THAT:- True, it is that bare perusal of Section 389 of Cr.P.C, which is reproduced hereinabove, nowhere suggests that Appellate Court while considering the application for suspension of sentence cannot order for suspension of sentence awarded by the learned trial Court without calling upon the person seeking suspension of sentence to deposit amount of compensation, if any, awarded by the learned court below. Solely with a view to mitigate the hardship of complainant, especially in proceedings under Section 138 of the Negotiable Instruments Act, Section 143 of the Act has been incorporated, whereby Courts can order accused to pay 20% of the cheque amount during the pendency of proceedings under Section 138 of the Act - Aforesaid provision of law has been incorporated with a view to provide interim relief to the complainant, who is unnecessarily compelled to approach the Court of law for realization of his/her own money. Similarly, the appeal is statutory right of a person and such right cannot be allowed to be defeated merely on account of nondep .....

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..... ection 482 of Cr.P.C, praying therein to setaside the aforesaid impugned order. 3. In nutshell, grouse of the petitioner-accused is that bare perusal of Section 389 Cr.P.C, nowhere suggests that Appellate Court while considering the application for suspension of sentence, is necessarily required to issue direction to the person in appeal for depositing amount of compensation, if any, awarded by the learned trial Court. 4. At this stage, it would be profitable to reproduce Section 389 Cr.P.C, herein:: 389. Suspension of sentence pending the appeal; release of appellant on bail-(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: .....

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..... plainant, who is unnecessarily compelled to approach the Court of law for realization of his/her own money. Similarly, the appeal is statutory right of a person and such right cannot be allowed to be defeated merely on account of nondeposit of compensation amount, if any, awarded by the learned trial Court. 7. Hon ble Apex Court in case titled Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. and another, (2007) 6 Supreme Court Cases 528, has categorically held that power of Court to suspend the sentence with regard to realization of compensation is totally different from its power to issue direction for realization of fine. Though, in the aforesaid judgment Hon ble Apex Court has categorically held that Appellate Court while suspending the sentence, is entitled to put appellant on terms, but an order may not be passed which the appellant cannot comply with, resulting him being sent to the prison. It would be relevant to reproduce following paras of the judgment herein: 51. Section 389 does not deal with exactly a similar situation. Section 389 of the Code is to be read with Section 387 thereof. Suspension of a sentence and enlarging an appellant on bail, who is convicted and realizat .....

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..... eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.' 45. The passage from Bennion continues: 'Lord Diplock's third point is, with respect, erroneous. The argument that in Jones v. Wrotham Park Settled Estates Lord Diplock was mistaken in saying that for a rectifying construction to be effected it must be possible to state with certainty what the missing words are, has been endorsed by the House of Lords.Lord Nicholls of Birkenhead said that the court must be sure of "the substance of the provision Parliament would have used" [See Inco Europe Ltd. v. First Choice Distribution (a firm) [2000] 2 All ER 109, [2000] 2 All ER 109, [2000] 1 WLR 586].'&quo .....

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..... n accused. 59. While the Court shall give due weight to the need of the victim, it cannot ignore the right of an accused. In a case of conflict, construction which favours the accused shall prevail. 60. In a case of this nature, the Court must invoke the doctrine of purposive construction. Sub-Section (2) of Section 357 was enacted for a definite purpose. It must be given its full effect. 61. Reliance has been placed on a judgment of a learned Single Judge of the Andhra Pradesh High Court in V. Prasada Rao vs. The State of A.P. & Anr. [2002 Crl. Law Journal 395]. The learned Judge opined that the purpose of stay in Sub-Section (2) of Section 357 would cover a case both under Sub-Section (1) as also under Sub-Section (3) stating:( Cri. LJ p.397, para 8) "8. The fine amount imposed by the Court as a sentence shall have to be recovered in the first instance so that the whole of the said amount or part of it can be applied towards expenses and towards compensation. The Code clearly envisages recovery of fine amount. The execution, suspension, remission and commutation of sentences passed by a criminal Court is envisaged under Chapter XXXII of the Code. It is in four parts. Par .....

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..... of the complainant by making resort to Section 357(3) of the Code. It is well to remember that this Court has emphasised the need for making liberal use of that provision (Hari Singh v. Sukhbir Singh). No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the First Class in respect of a cheque which covers an amount exceeding ₹ 5000 the Court has power to award compensation to be paid to the complainant." {See also Suganthi Suresh Kumar vs. Jagdeeshan [(2002) 2 SCC 420].} 63. Recently, in National Insurance Co. Ltd. vs. Laxmi Narain Dhut [2007 (4) SCALE 36], a Division Bench of this Court laid down the law in the following terms:(SCC pp 71718, paras 3233) "32. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the court is to act upo .....

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..... ation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the Courts should keep in mind the objectives or purpose for which statute has been enacted. Justice Frankfurter of U.S. Supreme Court in an article titled as Some Reflections on the Reading of Statutes (47 Columbia Law Reports 527), observed that, "legislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statutes, as read in the light of other external manifestations of purpose"." 64. We, generally, agree with the observations made by the learned Judge, the same shall, however, be subject to any observations made hereinbefore. 65. The matter has to be considered from another angle. An accused for commission of an offence under Section 138 of the Negotiable Instruments Act would ordinarily be granted bail; in view of the fact that the offence is a bailable one. 66. The right to appeal from a judgment of conviction vis vis the provisions of Section 357 of t .....

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..... discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution." 68. It is also of some significance to note that whereas under Section 357(1) of the Code of Criminal Procedure a fine of ₹ 5000/can be imposed; fine in terms of Section 357(2) thereof can be twice the amount of cheque whereas there is no upper limit for award of a compensation. But the same would be subject to other provisions of the Code of Criminal Procedure which mandates that the amount of fine imposed on an accused cannot be more than ₹ 5000/. The very fact that the Parliament did not think it fit to put a ceiling limit in reg .....

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