Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (3) TMI 684 - HC - Indian LawsDishonor of cheque - quantum of deposit of fine - it is argued that 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 - 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? - HELD THAT:- 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 - 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 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. This Court does not find any error or infirmity in the impugned order - Petition dismissed.
|