Case Law Details
G.k. Construction Company Vs Balaji Makan Samagri Stores (Rajasthan High Court)
The core question whether the usage of word ‘may’ in section 148 of Negotiable Instruments Act, 1881 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.
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.
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.
In other words, if section 148 is regarded to be discretionary, to the effect that the Court may do away with the deposit, then, the Court would render defunct the very requirement of deposit pendente lite appeal. Because as per section 148 of the Act, such amount cannot be less than 20% of the fine amount and any other percentage of amount (being less than 20%) would be in direct contravention of the express provision which postulates that minimum of 20% of fine amount has to be deposited. If at all any discretion exists, then, the same is for directing the deposit to be between 20% to 100% of the fine amount and not between 0%20% or not issuing any direction to deposit at all. 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.
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