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TMI Blog2019 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... orated 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. Hon ble Apex Court in case titled DILIP S DAHANUKAR VERSUS KOTAK MAHINDRA CO LTD ANR [ 2007 (4) TMI 667 - SUPREME COURT] 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. Careful perusal of aforesaid exposition of law laid down by the Hon ble Apex Court, suggests that Appellate Court while suspending the sentence, if any, imposed by the trial Court though is not totally barred or estopped from directing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Provided further that in cases where a convicted person is released on bail it shall be open to the pubic prosecutor to file an application for the cancellation of the bail] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 realization of fine has been dealt with by the Parliament under different provisions of the Code. The power of the Court, thus, to suspend a sentence in regard to realization of compensation may be different from that of a direction in realization of fine. 52.If realization of an amount of compensation payable to a victim as envisaged under Clause (d) of Sub-Section (1) of Section 357 is to be stayed under Sub-Section (2) thereof, there is no reason why the amount of compensation payable in terms of Sub-Section (3) shall not receive the same treatment. 53. Doctrine of Purposive Interpretation in a situation of this nature, in our opinion, shall be applied. 54. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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].' {See also K.L. Gupta vs. Bombay Municipal Corpn. [(1968) 1 SCR 274 : AIR 1968 SC 303]; Maruti Udyog Ltd. vs. Ram Lal [(2005) 2 SCC 638 : 2005 SCC (L S) 308]; Reserve Bank of India vs. Peerless General Finance Investment Co. Ltd. [(1987) 1 SCC 424]; Punjab Land Development and Reclamation Corpn. Ltd. vs. Presiding Officer, Labour Court [(1990) 3 SCC 682]; Balram Kumawat vs. Union of India [(2003) 7 SCC 628] and Pratap Singh vs. State of Jharkhand [(2005) 3 SCC 682].} 55. Unfortunately, the Legislature has not made any express provision in this behalf. In absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Part A deals with the death sentences, Part B deals with imprisonment, Part C with levy of fine and Part D deals with general provisions regarding execution. Coming in the realm of Part C.Section 421 envisages the procedure of recovery of fine. There has been no specific provision for recovery of compensation awarded by the criminal Court. If the compensation awarded is from out of the fine amount there is no difficulty. However, under the general provisions of Part D, Section 431 covers the field. It is a residua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, 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 the Code of Criminal Procedure and other provisions thereof, as mentioned hereinbefore, must be considered having regard to the fundamental right of an accused enshrined under Article 21 of the Constitution of India as also the international covenants operating in the field. 67. It is of some significance to notice that in Jolly George Varghese and Another vs. The Bank of Cochin[(1980) 2 SCC 360], this Court opined: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regard to the amount of compensation leviable upon an accused, the discretionary jurisdiction thereto must be exercised judiciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 69. We are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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