TaxTMI 
TaxTMI 
2019 (12) TMI 101
X X X X Extracts X X X X
X X X X Extracts X X X X
....16,000/in the trial Court towards part realization of the compensation, within a period of 30 days, accused has approached this Court in the instant proceedings filed under Section 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 pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 reprod....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an 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 poss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of the Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody. 57. The Parliament has dealt with the imposition of substantive sentence and a sentence of fine vis` vis payment of compensation differently. 58. A penal statute, in the event, the different meanings are possible to be given, must be construed liberally in favour of an 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 amoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2) which operates automatically. Imposing a condition in this regard has not been clearly envisaged by that Section. Oblivious of the legal position the learned Judge directed the petitioner to furnish third party security." 62. In K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. [(1999) 7 SCC 510], this Court held :(SCC p.521, para 31) "31. However, the Magistrate in such cases can alleviate the grievance 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 Rs. 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].} ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cted. (See District Mining Officer and Ors. v. Tata Iron & Steel Co. and Anr.JT 2001 (6) SC 183). 33. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside." It was also opined:(SCC pp 71819, para 35) "35 More often than not, literal interpretation 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 ob....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11(of the Covenant) and Article 21(of the Constitution) The simple default to 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 Secti....