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.
Similarly if the term ‘shall’ is followed by a provision/words providing for maximum limit/cap then, the Court/Authority can direct to not deposit any amount (0% of the fine amount), because, the leeway is between 0% to maximum percentage. Hence, in spite of the usage of word ‘shall’ it will be a discretion available with the Court/Authority to not require the appellant to deposit any 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’.
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.
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.
