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TMI Blog2022 (3) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... to be deposited - Because not directing any amount to be deposited would be tantamount to depositing 0% of the fine amount and the same being less than 20% of the fine amount is impermissible as per the mandate of section 148 of the Act. Had the legislature intended to make the exercise of power under section 148 discretionary, it would not have imposed the duty upon the Court to direct deposit of a minimum 20% of fine amount. In the opinion of this Court, if modal auxiliary verbs or imperative words such as may , should etc. are followed by the provision/expression prescribing lower bar/limit such as minimum , not below , etc. then, these words ( may , should , etc.) are required to be read as shall . Similarly, if the word shall is followed by provision/words providing upper cap/upper limit by usage of words maximum or not above , etc. then, the expression may or shall confer the discretion upon the Court/Authorities and hence, the words may or shall would be read as may . A purposive interpretation of section 148 of the Act is necessary and the same would warrant that the expression may as contained in section 148 of the Act be read as shall . Read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate to advert to the relevant statutory provisions involved in the present case, namely, section 148 of the Act and section 374(3) of the Code. Section 148 of the Act reads thus: 148. Power of Appellate Court to order payment pending appeal against conviction.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub-section (1) shall be deposited 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 appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to impose or not to impose the condition of depositing minimum 20% of the fine amount, is required to be dilated upon at some length. 11. It is a settled position of law that a statute does not take a mandatory or directory character merely by virtue of the words shall or may . For determining whether the provision is directory or mandatory it must first be ascertained whether by contriving it discretionary or mandatory, the object which the statute wanted to achieve as envisaged by the legislature in the statement of objects and reasons is achieved or not. 12. Dealing with the issue of may versus shall , Hon ble the Supreme Court in the case of Bachahan Devi Ors. Vs. Nagar Nigam, Gorakhpur Ors reported in AIR 2008 SC 1282 has held thus : 31. It is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e use of the word 'may' that power must be construed as a statutory duty. Conversely, the use of the term 'shall' may indicate the use in optional or permissive sense. Although in general sense 'may' is enabling or discretional and `shall' is obligatory, the connotation is not inelastic and inviolate. Where to interpret the word `may' as directory would render the very object of the Act as nugatory, the word 'may' must mean 'shall'. 33. The ultimate rule in construing auxiliary verbs like `may' and `shall' is to discover the legislative intent; and the use of words `may' and 'shall' is not decisive of its discretion or mandates. The use of the words `may' and `shall' may help the courts in ascertaining the legislative intent without giving to either a controlling 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. 13. In another judgment (The Official Liquidator vs. Dharti Dhan (P) Ltd. reported in AIR 1977 SC 740), Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obligation are intended to be conferred and imposed. 15. The expression may used in section 148 of the Act at first glance gives an impression that it gives a leeway/discretion to the Appellate Court to direct/not direct the appellant to deposit part of the amount of fine during pendency of appeal. Had the intention of the legislature been to give the discretion to not ask the convict to deposit any sum then, there was no reason to prescribe a minimum limit of 20% of fine amount. 16. Both the words may and shall are modal auxiliary verbs according to English grammar. May generally indicates discretion whereas shall used in a statute generally makes the provision mandatory. If the provisions of section 148 of the Act are carefully examined, it transpires that the expression may is followed by sum which shall be minimum of twenty percent of the fine amount. If the word may used in section 148 of the Act is construed to be conferring discretion then, the latter part of the provision (sum which shall be minimum of twenty percent of the fine amount) will become redundant. 17. In other words, if section 148 is regarded to be discretionary, to the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the Act and resultantly, the plight of the drawee would be eased (as intended by the legislature while enacting section 148 of the Act) which otherwise would have been aggravated due to prolonged judicial proceedings. 21. Most importantly, in Surinder Singh Deswal vs. Virender Gandhi reported in (2019) 11 SCC 341 , Hon ble the Supreme Court while dealing with the interpretation of the word may in section 148(1) of the Act has held thus: 9. 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 amended Section 148 of the N.I. Act as a whole to be read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered in the case of Dilip Singh (supra) is concerned, in the said case while deciding the validity of the Court s decision to compel the applicant to deposit ₹ 41 lacs for grant of pre-arrest bail, Hon ble the Supreme Court held that ex-facie the dispute in the case is civil in nature involving a consideration of ₹ 41 lacs paid in relation to an agreement to sell. Hence, By imposing the condition of deposit of ₹ 41 lakhs, the High Court has, in an application for pre-arrest bail under Section 438 of the Criminal Procedure Code, virtually issued directions in the nature of recovery in a civil suit. 23. Per contra, in the present case the dispute is civil in nature with criminal overtones and unlike section 438 of the Code, there exists a specific statutory requirement under section 148 of the Act for a deposit of minimum 20% of the fine amount during pendency of an appeal against conviction under section 138 of the Act. Petitioner s reliance on the case of Dilip Singh (supra) is therefore, absolutely misconceived. 24. As a result of the discussion foregoing, this Court does not find any error or infirmity in the impugned order dated 08.11.2021. 25. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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