TaxTMI 
TaxTMI 
2022 (3) TMI 684
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....as not justified in requiring the petitioner to deposit 20% of the fine amount, because, putting such a condition has taken away petitioner's right of liberty. 4. In support of his contention aforesaid, learned counsel for the petitioner relied upon the judgment of Hon'ble the Supreme Court dated 19.01.2021 in the case of Dilip Singh vs. State of Madhya Pradesh & Anr. (Cr. Appeal No. 53 of 2021 arising out of SLP (Crl) No. 10484/2019). 5. It was also argued by learned counsel for the petitioner that Section 148 of the Act uses the expression "may" and, therefore, the learned Appellate Court was not justified in imposing such an onerous condition particularly when the amount of fine was exorbitant and there was a discretion with the Appellate Court to not direct the petitioner to deposit such amount. 6. Heard. 7. Before delving upon the merits of the case, it would be 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) Notwithstand....
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....per cent of the fine or compensation awarded by the trial court." 9. It is pertinent to note that the provision giving a remedy of appeal, being section 374(3) of the Code, does not envisage any such condition as that contained in section 148 of the Act for an appeal. When a person prefers an appeal against a conviction under section 138 of the Act, section 148 of the Act enjoins upon the Court, to order deposition of minimum 20% of the amount of fine awarded due to the non-obstante clause in section 148, which gives it an overriding effect over the provisions of the Code in so far as they are inconsistent with section 148 of the Act. Hence, though section 374(3) of the Code does not provide any condition of payment of the fine or compensation, but by virtue of section 148 of the Act it would have to be deposited. 10. The core question whether the usage of word 'may' in section 148 provides a discretion to the Court 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 wor....
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....#39; does not always mean may. 'May' is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes his duty to exercise that power. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. 32. If it appears to be the settled intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the word 'may' will not prevent the court from giving it the effect of Compulsion or obligation. Where the statute was passed purely in public interest and that rights of private citizens have been considerably modified and curtailed in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas. Though the power is conferred upon the statutory body by the 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 a....
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....overnment servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word "may" in rule 4(1) which confers the discretion on the Governor, the word "may" in sub-rule (2) confers discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must" ? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and 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 de....
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....his 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'. 20. In light of the discussion foregoing, 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 this way, the provision would mean that the Court 'shall' order the convict to pay minimum of 20% amount of fine in an appeal against conviction under section 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....
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....e Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonoured of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Section 138 of the N.I. Act." 22. Hence, the issue is no more res-integra. In so far as petitioner's reliance on the judgment rendered 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 Rs. 41 lacs for grant of pre-arrest bail, Hon'ble the Supreme Court held that ex-facie the di....