Kerala High Court
Sree Gokulam Chit And Finance Co. (P) Ltd vs Damodaran N on 7 March, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935
Crl.Rev.Pet.No. 1310 of 2013 ()
--------------------------------
AGAINST THE JUDGMENT IN CRL.A.NO. 298/2010 of ADDL. DIST.
& SESSIONS COURT (ADHOC-II), KASARAGODE DATED 07-03-2013
AGAINST THE JUDGMENT IN CC 79/2010 of J.M.F.C.-II,
KASARAGOD DATED 31-08-2010
REVISION PETITIONER/APPELLANT/COMPLAINANT:
------------------------------------------
SREE GOKULAM CHIT AND FINANCE CO. (P) LTD.,
GOKULAM TOWERS NO. 66, ARCOT ROAD, CHENNAI,
REPRESENTED BY SUJATHA,
LEGAL CLERK OF SREE GOKULAM CHIT AND FINANCE CO.,
KASARAGOD DISTRICT.
BY ADVS.SRI.V.T.RAGHUNATH
SMT.C.V.RAJALAKSHMI
RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
----------------------------------------------
1. DAMODARAN N., AGED 46 YEARS,
S/O. LATE KUNHANBU NAIR, AMBILADI HOUSE,
PERUMBALA P.O.
KASARAGOD.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
R2 BY PUBLIC PROSECUTOR STM. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 15-07-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
K. HARILAL, J.
= = = = = = = = = = = =
Crl.R.P.No.1310 of 2013
= = = = = = = = = = = =
Dated this the 15th July, 2013
O R D E R
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 Sec.200 of the Code of Criminal Procedure, alleging the offence punishable under Sec.138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') would lie before the Sessions Court under Sec.372 of the Cr.P.C., in view of the amendment inserting proviso granting the right of appeal to 'victims' in the above Section? In a larger perspective, the question is, whether an appeal against acquittal of the accused, by the complainant who has suffered loss or injury, in a case Crl.R.P.No.1310 of 2013 -: 2 :- instituted on complaint made under Sec.190(a) read with Sec.200 of the Cr.P.C. would lie before the Sessions Court under Sec.372 of the Cr.P.C., in view of the amendment inserting Sec.2(wa) and the proviso to Sec.372 of the Cr.P.C. defining "victim" and granting right of appeal to him?
2. The Revision Petitioner is the complainant in CC.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 Cr.PC read with Section 138 of the NI Act. After trial, the learned Magistrate found the first respondent not guilty of the offence punishable under Section 138 of the NI Act and acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the acquittal, the Revision Petitioner filed Crl. Appeal No.298/2010 before the Sessions Court, Kasaragod Division (Additional District and Sessions Court (Adhoc-II), Kasaragod) under Section 372 of the Cr.P.C. In that appeal, the maintainability of the appeal under Section 372 was Crl.R.P.No.1310 of 2013 -: 3 :- 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.
3. While dismissing the appeal filed under Sec.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 Sec.138 of the N.I. Act will not lie before the Sessions Court under Sec.372 of the Cr.P.C., as the proper remedy of appeal has already been provided under Sec.378 (4) of the Cr.P.C. before the High Court, with the special leave of the High Court. The learned Sessions Judge, further observed that on a bare reading of Sec.372 of the Cr.P.C., it is crystal clear that this section nowhere specifies that 'victim' also includes complainant in a complaint case instituted under Sec.190(a) of the Cr.P.C. In Sec.372 of the Cr.P.C. the word used is 'victim' and in Sec.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 Crl.R.P.No.1310 of 2013 -: 4 :- maintainability.
4. Sri. V.T. Reghunath, 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 and the definition of 'victim' under Section 2(wa) of the Cr.PC. According to the learned counsel, the court below did not correctly apply its mind on the meaning of the word 'victim' defined under Section 2(wa) of the Cr.P.C. "Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. The holder of the cheque who has suffered loss by the acquittal of the accused is to be determined as both 'Complainant' and 'Victim'. Eventhough, he is the complainant, he is a person who has suffered loss also. So, the right of appeal under Section 372 of the Cr.PC 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 Crl.R.P.No.1310 of 2013 -: 5 :- Ors v. State of West Bengal and the decision of the Jharkhand High Court at Ranchi in Mahesh Kumar Sinha v. The State of Jharkand to vindicate his arguments. The learned counsel fairly pointed out the unreported decision of the Bombay High Court in Top Notch Infotronix (I) Pvt. Ltd., v. Infosoft Systems - Criminal Application (APPA) No.708 of 2010 which stands against his argument also. The definition of 'victim' alone is the basis on which the argument built up. This is the reasoning for claiming such a right of appeal under Sec.372 of the Cr.P.C.
5. At the first blush, the 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 intention of the legislature enacting it and it is the process by which the Crl.R.P.No.1310 of 2013 -: 6 :- courts seek to ascertain the mind of the legislature through the medium of authoritative forms in which it is expressed:
"Interpretation is of two kinds, which may be distinguished as literal and functional. The former is that which regards exclusively the verbal expression of the law.
It does not look beyond the litera legis. Free interpretation, on the other hand, is that which departs from the letter of the law, and seeks elsewhere 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 its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it."
Crl.R.P.No.1310 of 2013 -: 7 :-
6. 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. In the decision In re Sea Customs Act (AIR 1963 SC 1760), the Supreme Court held that construction is the drawing 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 RMD Chamarbaugwala v. Union of India (AIR 1957 SC 628), 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 Asia Industries (Pvt) Ltd., v. S. Sarup Singh (AIR 1966 SC
346), the Supreme Court held that "the duty of judicature is to act upon the true intention of the Legislature - the mens or sententia legis". In Venkataswami Naidu, R. v. Narasram Naraindas (AIR 1966 SC 361), the Supreme Court held that "if a statutory provision is open to more than one interpretation, the Court has to choose that Crl.R.P.No.1310 of 2013 -: 8 :- interpretation which represents the true intention of the Legislature". In other words, true meaning or legal meaning of the provision.
7. 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.
8. One of the accepted methods to ascertain the intention of a Statute is that the Statute must be read as a whole in its context. When a doubt or question arises as to meaning of a provision in a statute it is not only legitimate but proper to read that provision in its context. The context here means previous state of the law, the general scope of the amendment and the mischief that it was intended to remedy. This method was fully accepted by the Supreme Court in the decision in R.S. Reghunath v. State of Karnataka (AIR 1992 SC 81) and followed in Union of Crl.R.P.No.1310 of 2013 -: 9 :- India v. Elphinstone Spinning and Weaving Co. Ltd., (AIR 2001 SC 724).
9. In State of West Bengal v. Union of India (AIR 1963 SC 1241) 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 be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (AIR 1981 SC 1023), it is observed that "that interpretation is 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, Crl.R.P.No.1310 of 2013 -: 10 :- context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute 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."
10. In Workmen of Dimakuchi Tea Estate v.
Management of Dimakuchi Tea Estate (AIR 1958 SC Crl.R.P.No.1310 of 2013 -: 11 :- 353, p.356), the Supreme Court held that:
"The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strict grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."
11. 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 remedy?
12. In Keates v. Lewis Merthyr Consolidated Collieries Ltd., [(1911-12) All ER 921), Lord Atkinson observed that "in the construction of statutes it is, of course, Crl.R.P.No.1310 of 2013 -: 12 :- at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed and to the evils, which, as appears from the provisions, it was designed to remedy." This principle was adopted by the Supreme Court in the decision in D.N. Banerjee v. P.R. Kukherjee (AIR 1953 SC 58).
13. 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 Sec.372 and definition of 'victim' under Sec.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, firstly, we have to ascertain what was the state of things existing in the statute at the time of making the amendment Act? Had there been any provision in the Cr.P.C. for filing an appeal by the complainant against acquittal of the accused in a case instituted on a complaint made under Sec.190(a) read with Sec.200 of the Cr.P.C. before the amendment inserting Crl.R.P.No.1310 of 2013 -: 13 :- proviso to Section 372 with effect from 31.12.2009. The learned Sessions Judge found that an appeal under Section 378 (4) of the Cr.PC is the proper remedy provided for the complainant who suffered the acquittal in a complaint filed under Sec.190(a) read with Sec.200 of the Cr.P.C. Section 378(4) of the Cr.P.C reads as follows:
"378. Appeal in case of acquittal.---
(1) x x x x x x
(2) x x x x x x
(3) x x x x x x
(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 appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
14. Indisputably, Section 378(4) had already been provided in the Cr.P.C. for filing an appeal against acquittal in a case instituted upon a complaint under Sec.190(a) read with Sec.200 of the Cr.P.C. More importantly, the sub Section (4) of Section 378 of the Cr.PC shows that such an Crl.R.P.No.1310 of 2013 -: 14 :- appeal against acquittal would lie before the High Court, but that appeal cannot be filed as a routine appeal or 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).
15. 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 the Cr.P.C, by the insertion of proviso under Section 372 of the Cr.P.C and the definition of 'victim' under Section 2(wa) of the Code with effect from 31.12.2009, by the Act 5 of 2009, a complainant who has suffered acquittal of the accused will get another right of appeal also before Sessions Court after the said amendment. The learned counsel drew my attention to the definition of 'victim' under Sec.2(wa) and contended that the complainant in a proceedings under Sec.138 of the N.I. Act is a person who has suffered loss by the act committed by Crl.R.P.No.1310 of 2013 -: 15 :- the accused. If that be so, such complainant would have a right of appeal under Sec.372 of the Cr.P.C. also.
16. 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 Sec.372 of the Cr.P.C. When a right of appeal subject to special leave has been provided under Sec.378(4), before the High Court, if an unsuccessful complainant in a prosecution under Sec.138 of the N.I. Act is allowed to file an appeal under Section 372 of the Cr.P.C. before the Court of Session as of right, without special leave, certainly that will defeat and distroy the purpose of Section 378(4) of the Cr.P.C., ie. the requirement to get special leave to file appeal to the High Court. There can be simultaneous remedies with equal power and jurisdiction before different forums. But, there cannot be simultaneous 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 Crl.R.P.No.1310 of 2013 -: 16 :- 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 Sec.378(4) of the Cr.P.C. An unsuccessful party seeking appellate remedy cannot be made to exercise option to choose forums, for the same remedy, on the basis of the variation of power and jurisdiction of those forums, as the same, if allowed, would distroy judicial consistency and discipline. I am of the opinion that the special leave of the High Court under sub Section (4) is provided as a check measure to discourage the continuance of meritless appeals, after the acquittal of the accused.
17. The above view is further supported by rule of interpretation that one section of a Statute cannot be used or interpreted to defeat or distroy another section. To harmonise is not to destroy. In short, the proviso to Sec.372 of the Cr.P.C. cannot be meant or interpreted to defeat or distroy Sec.378(4) of the Cr.P.C.
18. It has already been seen that a statute must be read as a whole and one provision of the Act should be Crl.R.P.No.1310 of 2013 -: 17 :- 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 repugnancy either within a section and other parts of the statute. In Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012), the Supreme Court further held that "it should not be lightly assumed that 'Parliament had given with one hand what it took away with the other'". Relying on the decision in Mohammad Sher Khan v. Raja Seth Swami Dayal (AIR 1922 PC 17) in Sanjeevayya D. v. Election Tribunal, Andhra Pradesh (AIR 1967 SC 1211), 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 Plc. v. Union of India (AIR 2002 SC 391), the Supreme Court further held that "the rule of construction is well settled that when there are, in an enactment, two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is Crl.R.P.No.1310 of 2013 -: 18 :- known as the rule of harmonious construction". Thus, a construction that reduces one of the provisions to a "useless lumber" or "dead letter" is not harmonious construction.
19. The Reasons and Objects of the proviso to Sec.372 and Sec.2(wa) of the Cr.P.C.
I am of the opinion that amendment of Section 372 of the Cr.P.C. by way of inserting the proviso is intended for providing a right to the 'victims' in a prosecution launched on police report under Sec.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 sheeted on police report under Sec.190(b) of the Cr.P.C., if the State Government or the Central Government, as the case may be or the District Magistrate does not prefer an appeal against the acquittal of the person who caused injuries or loss to them or convicting the accused for a lessor offence or imposing inadequate Crl.R.P.No.1310 of 2013 -: 19 :- compensation. The legislative intent of Secs.372 and 378 (4) of the Cr.P.C. are also entirely different and distinct. One cannot be allowed to conflict with the other or one cannot be allowed to defeat or distroy the other.
20. 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.
21. In Mithilesh Kumari v. Prem Bihari Khare (AIR 1989 SC 1247), the Supreme Court observed that "where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report". In Rajkishore Prasad v. State of Bihar (AIR 1996 SC 1931), Reference of Law Commission's 41st Report was made use for interpreting Section 209 of the Code of Criminal Procedure, 1973 and in reaching the conclusion that proceedings under that section are ministerial and do not amount to an inquiry as defined in Section 2(g) of the Code.
22. The above view regarding legislative intent of Crl.R.P.No.1310 of 2013 -: 20 :- Sec.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 Sec.372, definition clause of 'victim' under Sec.2(wa) and Sec.357A, a comprehensive scheme of compensation. All these Sections were introduced in the Code in the light of 'victimology', a new concept, which has been given due regard and recognition in the Indian Criminal Justice System.
23. What was recommended in the 154th Report and what has been brought into existence by introducing Act 5 of 2009, is further clarified by the Law Commission's 221st Report of 2009. The Law Commission stated as under in the above Report: "2.9 All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment 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 Crl.R.P.No.1310 of 2013 -: 21 :- 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 the complainant, vide sub-section (4) of the said section. Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it."
24. Going by the two Reports submitted before and after the commencement of Act 5 of 2009, it could be seen that the Law Commission noted the effect of the amendment to Sec.378(1)(a) that all appeals against an order of acquittal passed by the Magistrate in respect 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 Crl.R.P.No.1310 of 2013 -: 22 :- and noted that there is no provision in the Code under which appeals against acquittal of the accused in a case instituted on private complaint could be filed in the Sessions Court, even after the amendment inserting the proviso to Sec.372 and the definition of 'victim' under Sec.2(wa).
25. For the construction of a particular provision or amending Statute, we can seek the aid of the Statement of Objects and Reasons of the amendment also. In Sanghvi Jeevraj Ghewar Chand v. Secretary, Madras Chillies, Grains and Kirana Merchants Workers Union (AIR 1969 SC 530), 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) 1 SCC 692].
26. The above view regarding the legislative intent of the proviso to Sec.372 of the Cr.P.C. is further supported by the Statement of Objects and Reasons of Act 5 of 2009 Crl.R.P.No.1310 of 2013 -: 23 :- which brought the proviso to Sec.372 and the definition clause of 'victim' under Sec.2(wa) into existence. The second paragraph of the Statement of Objects and Reasons reads as follows:
"2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich 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."
27. 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 given certain rights and compensation. They are none other than the victims who earlier stood remedyless in a case instituted on a police report. Can any one say that 'victims' in a case instituted on private complaint under Crl.R.P.No.1310 of 2013 -: 24 :- Sec.190(a) are worst sufferers who do not have much role in the court proceedings. There, the complainant himself assumes the role of Prosecutor also. Similarly, can any one say such complainant in a private complaint even if he is a victim, stands, remedyless, when the right of appeal under Sec.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 Sec.378(4) of the Cr.P.C., though he may claim to be a victim.
28. The learned counsel for the revision petitioner contended that the complainant in a prosecution under Sec.138 of the the N.I. Act is a 'victim' defined under Sec.2 (wa) of the Cr.P.C. as he is a person who suffered a loss by the dishonour of the cheque caused by the accused. Let us have a look at Section 2(wa), which defines 'victim'.
"2. Definitions.-- In this Code unless the context otherwise requires,--
x x x x x x x Crl.R.P.No.1310 of 2013 -: 25 :- x x x x x x x x x x x x x x (wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."
29. 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 provide one more right of appeal under Section 372 of the Cr.P.C. to the complainant who claims to be a victim also in a case instituted on private complaint; in view of Section 378(4), the legislature would have specifically included complainants also in the inclusive clause of the definition of 'victim'. But nowhere it is specified that 'victim' includes complainant in a case instituted on complaint under Sec.190
(a) of the Cr.P.C.
Crl.R.P.No.1310 of 2013 -: 26 :-
30. Where a word or expression has been defined 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, definitions are subject to a contrary context. I am of the opinion that the definition 'victim' defined under Section 2(wa) requires a different interpretation, under Sec.372, when the complainant himself is a victim, in view of Sec.378 (4) of the Cr.P.C., for filing appeal against acquittal of the accused. It is so permissible as in the Cr.P.C. Section 2 "definitions" starts with "In this Code, unless the context otherwise requires".
31. The above view is supported by the decision in Dhandhania Kedia & Co. v. CIT (AIR 1959 SC 219) wherein the Apex Court held that: "But where the context Crl.R.P.No.1310 of 2013 -: 27 :- 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 the qualification 'unless there is anything repugnant in the subject or context' or 'unless the context otherwise requires'". Further, in the decision in Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser & Ross (AIR 1960 SC 971), speaking for the Bench, Wanchoo, J. held that: "It is well settled that all Statutory definitions or abbreviations must be read subject to the qualification variously 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 Crl.R.P.No.1310 of 2013 -: 28 :- case, namely, unless there is anything repugnant in the subject or context. Therefore, in finding out the meaning of the word "insurer" in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant 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".
32. At this juncture, we may have a look at Sec.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' under Section 2(wa).
33. Significantly, it has to be noted that injured or Crl.R.P.No.1310 of 2013 -: 29 :- looser in a case instituted upon police report is always considered as victim, whether the accused is convicted or acquitted where the prosecution ends in acquittal or discharge or when the offender is not traced or identified, under the victim compensation scheme, provided under Section 357 A Cr.P.C. When we read the proviso to Sec.372 and Sec.357A of the Cr.P.C. together in juxtaposition, it could be inferred that the amendments were made to provide a right of appeal and compensation to 'victims' who stood earlier at the mercy of the State.
34. For the reasons stated above, I respectfully disagree with the findings that the appeal against acquittal of the accused in a complaint filed under Sec.190(a) read with Sec.200 of the Cr.P.C. would lie before the Sessions Court under Sec.372 of the Cr.P.C. also, in 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 Mahesh Kumar Sinha v. The State of Jharkand, cited by the learned counsel for the revision petitioner. It is so held on the basis of the interpretation Crl.R.P.No.1310 of 2013 -: 30 :- given to 'victim'. I am unable to agree with the literal interpretation made without ascertaining the intention of the legislature, context and the spirit of law. It is to be remembered that the essence of law always lies in its spirit.
35. In the light of the aforesaid discussions, I find that the context under which the expression 'victim' employed under Sec.372 of the Cr.P.C. is that of 'victim' who has suffered injury or loss in a case instituted on a police report and who stood remedyless at the mercy of State Government or Central Government as the case may be or the District Magistrate alone, for preferring appeal against acquittal of the accused. The complainant in a case instituted on a private complaint under Sec. 190(a) read with Sec.200 of the Cr.P.C. though, can be claimed to be a 'victim', does not come under the proviso to Sec.372 of the Cr.P.C., since the context under Sec.378(4) of the Cr.P.C. requires to make a construction otherwise. Consequently, an appeal against acquittal of the accused, by the complainant, in a case instituted on a private complaint under Sec.190(a) read with Sec.200 of the Cr.P.C. will not Crl.R.P.No.1310 of 2013 -: 31 :- lie under Sec.372 of the Cr.P.C. before the Sessions Court; but lie before the High Court with special leave under Sec.378(4) of the Cr.P.C. only.
36. Thus, in the instant case, I find that the appeal against acquittal of the accused in a complaint filed under Sec.190(a) read with Sec.200 of the Cr.P.C. alleging an offence punishable under Sec.138 of the N.I. Act, would not lie before the Sessions Court under Sec.372 of the Cr.P.C. and the same will lie before this Court with the special leave under Sec.378(4) of the Cr.P.C. Thus, there is no illegality or impropriety in the impugned judgment dismissing the appeal by the learned Sessions Judge on the ground of the lack of jurisdiction. Needless to say, this order will not stand in the way of seeking proper remedy, before this Court.
In the result, the judgment under challenge is confirmed and this revision petition is dismissed.
Sd/-
(K. HARILAL, JUDGE)
Nan/ //true copy// P.S. to Judge