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TMI Blog2021 (7) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner had given a cheque dated 26.11.2018 amounting to Rs. 6,50,000/- to the complainant. The complainant has deposited the cheque on 28.11.2018 in the account maintained by him in Central Bank of India, Branch- Chhattisgarh College, Raipur. The said cheque was dishonoured and returned due to insufficient fund on 14.12.2018, therefore, the offence under Section 138 of the Act, 1881 has been committed by the petitioner. 3. The complainant has sent a legal notice to the petitioner on 17.12.2018 as petitioner has not paid the amount of cheque, therefore, the complainant has filed a Complaint Case No. 1777/2019 before Judicial Magistrate First Class, Raipur, The learned Judicial Magistrate First Class taking cognizance on the complaint, issued summon to the petitioner. On 04.05.2019, the complainant has filed an application under Section 143A of the Act, 1881 contending that the charges have already been framed wherein he has denied the charges levelled against him. Further contention of the complainant is that as per the provisions of Section 143A of the Act, 1881, if charges have been framed against the accused, the interim compensation can be ordered by the Court to the extent of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant. (5) The interim compensation payable under this section may be recovered as if it were a find under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974)." 7. Learned counsel for the petitioner would rely upon the judgment of Madras High Court in L.G.R. Enterprises & another Vs. P. Anbazhagan AIR Online 2019 Mad 801, and drew attention of this Court towards para 18 of the judgment, which reads as under:- "18. A careful reading of the order passed by the Court below shows that the Court below has focussed more on the issue of the prospective / retrospective operation of the amendment. The Court has not gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy." 10. From perusal of the Act, 1881 as well as amended Section 143A of the Act, 1881, it is clear that the Act, 1881 has played a substantial role in the Indian commercial landscape and has given rightful sanction against defaulters of the due process of trade who engage in disingenuous activities that causes unlawful losses to rightful recipients through cheque dishonour. Thereafter, the legislature has amended Act, 1881, which came into force on 01.09.2018 with the aim to secure the interest of the complainant along with increasing the efficacy and expediency of proceedings under Section 138 of the Act, 1881. Section 143A of the Act, 1881 stipulates that under certain stages of proceedings under Section 138 of the Act, 1881, the Court may order for the drawer to make payment upto 20% of the cheque amount during the pendency of the matter. The order under Section 143A of the Act, 1881 can be passed only in summary trial or a summons ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well-settled that the use of word "may" in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word 'may' as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word "may", the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word 'may' should be interpreted to convey a mandatory force. As a general rule, the word "may" is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word "shall", which ordinarily is im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rolling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed." 14. The Supreme Court in Surinder Singh Deswal alias Colonel S.S. Deswal & others Vs. Virender Gandhi (2019) 11 SCC 341, has examined provision of Section 148 of the Act, 1881 and held that it is mandatory provision. The relevant para of the judgment is reproduced below:- "8. Now so far as the submission on behalf of the Appellants that even considering the language used in Section 148 of the N.I. Act as amended, the appellate Court "may" order the Appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not "shall" and therefore the discretion is vested with the first appellate court to direct the Appellant - Accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the Appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Tejraj Surana (2019) 19 SCC 469, has examined the amended Section 143A of the Act, 1881 and held that it is prospective effect and not retrospective effect. The relevant para of the judgment is reproduced below:- "19. It must be stated that prior to the insertion of Section 143-A in the Act there was no provision on the statute book whereunder even before the pronouncement of the guilt of an accused, or even before his conviction for the offence in question, he could be made to pay or deposit interim compensation. The imposition and consequential recovery of fine or compensation either through the modality of Section 421 of the Code or Section 357 of the code could also arise only after the person was found guilty of an offence. That was the status of law which was sought to be changed by the introduction of Section 143A in the Act. It now imposes a liability that even before the pronouncement of his guilt or order of conviction, the accused may, with the aid of State machinery for recovery of the money as arrears of land revenue, be forced to pay interim compensation. The person would, therefore, be subjected to a new disability or obligation. The situation is thus completely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction under Section 143A(1) of the Act, by directing the accused person to pay the interim compensation of 20% to the complainant. 9. The other reason why the order of the trial Court under Section 143A(1) of the Act, should contain reasons, is because it will always be subjected to challenge before this Court. This Court while considering the petition will only look for the reasons given by the Court below while passing the order under Section 143A(1) of the Act. An order that is subjected to appeal or revision, should always be supported by reasons. A discretionary order without reasons is, on the face of it, illegal and it will be setaside on that ground alone." 18. The judgment cited by learned counsel for the petitioner also indicates that the Judicial Magistrate First Class has to pass a reasoned order for determining quantum of compensation, which is payable to the victim looking to the facts and circumstances each case, but does not suggest any iota that grant of compensation as per Section 143A of the Act, 1881 is of discretionary in nature. 19. From perusal of provisions of the Act, 1881 considering the aims behind object of the Act, 1881 and the law laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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