Page No.# 1/6 GAHC010092852023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./175/2023 BIBEKANANDA DAS S/O LATE KHANIN DAS VILL-GANDHI NAGAR, P.O., P.S. AND DIST. BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:DEEPJYOTI OJAH S/O LATE HAREN OJAH VILL- NARAYANPUR GAJIA ROAD WARD NO. 20 P.O. AND P.S. BARPETA DIST. BARPETA ASSA Advocate for the Petitioner : MR P K DAS, MR. M BARUAH Advocate for the Respondent : PP, ASSAM, MR. A BHATTACHARYYA (R-2),MR. S HUSSAIN (R- 2),MR. N BARMAN (R-2),MS. S DAS (R- 2),MR. R A CHOUDHURY (R- 2) Page No.# 2/6 :: PRESENT :: HON’BLEMR. JUSTICE PARTHIVJYOTISAIKIA For the Petitioner : Mr. M. Barua, Advocate. For the Respondent No.1 : Ms. H.S. Bora, Addl. P.P., Assam. For the Respondent No.2 : Mr. A. Bhattacharyya, Advocate. Date of Hearing : 03.04.2025. Date of Judgment : 08.04.2025. JUDGMENT AND ORDER (CAV) Heard Mr. M. Barua, learned counsel appearing for the petitioner. Also heard Ms. H.S. Bora, the learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. A. Bhattacharyya, the learned counsel representing Respondent No.2. 2. This is an application under Section 397 read with Section 401 of the Criminal Procedure Code challenging the order dated 01.03.2023 passed by the learned Sessions Judge, Barpeta in Criminal Appeal No.02/2023 directing the petitioner to deposit 20% of the compensation amount within a period of 60 days next. 3. The petitioner was convicted under Section 138 of the N.I. Act. He filed the appeal before the court of Sessions and the learned appellate court directed the petitioner to deposit 20% of the compensation amount within 60 days next. 4. This revision petition revolves around Section 148 of the Negotiable Instrument Act. Section 148 (1) says that 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…………. 5. The petitioner claims that the word ‘may’ appearing in Section 148 should be read as ‘may’, not as ‘shall’. Whereas the respondent has pleaded that the work ‘may’ appearing in Page No.# 3/6 Section 148 should be read as ‘shall’. 6. Appearing for the petitioner, the learned counsel Mr. Baruah has relied upon the decision of the Hon’ble Supreme Court that was delivered in Rakesh Ranjan Shrivastava v. State of Jharkhand, (2024) 4 SCC 419. Paragraphs 20, 21, 22, 23 and 24 of the said judgment are quoted as under: “20. Even sub-section (1) of Section 148 uses the word “may”. In Surinder Singh Deswal v. Virender Gandhi [Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 : (2019) 3 SCC (Civ) 765 : (2019) 3 SCC (Cri) 461] , this Court, after considering the provisions of Section 148, held that the word “may” used therein will have to be generally construed as “rule” or “shall”. It was further observed that when the appellate court decides not to direct the deposit by the accused, it must record the reasons. After considering the said decision in Surinder Singh Deswal [Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 : (2019) 3 SCC (Civ) 765 : (2019) 3 SCC (Cri) 461] , this Court in Jamboo Bhandari v. M.P. SIDC Ltd. [Jamboo Bhandari v. M.P. SIDC Ltd., (2023) 10 SCC 446 : (2024) 1 SCC (Cri) 90 : (2024) 1 SCC (Civ) 547] , in para 6, held thus : (SCC p. 449) “6. What is held by this Court is that a purposive interpretation should be made of Section 148 NI Act. Hence, normally, the appellate court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the appellate court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.” (emphasis supplied) 21. As held earlier, Section 143-A can be invoked before the conviction of the accused, and therefore, the word “may” used therein can never be construed as “shall”. The tests applicable for the exercise of jurisdiction under sub-section (1) of Section 148 can never apply to the exercise of jurisdiction under sub-section (1) of Section 143-A of the NI Act. In Rakesh Ranjan Shrivastava(supra) It was further held as under Factors to be considered while exercising discretion 22. When the court deals with an application under Section 143-A of the NI Act, the court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application under sub-section (1) of Section 143-A. The presumption under Section 139 of the NI Act, by itself, is no ground to direct the payment of interim compensation. The reason is that the presumption is rebuttable. The question of applying the Page No.# 4/6 presumption will arise at the trial. Only if the complainant makes out a prima facie case, a direction can be issued to pay interim compensation. At this stage, the fact that the accused is in financial distress can also be a consideration. 23. Even if the court concludes that a case is made out for grant of interim compensation, the court will have to apply its mind to the quantum of interim compensation to be granted. Even at this stage, the court will have to consider various factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant and the paying capacity of the accused. If the defence of the accused is found to be prima facie a plausible defence, the court may exercise discretion in refusing to grant interim compensation. 24. We may note that the factors required to be considered, which we have set out above, are not exhaustive. There could be several other factors in the facts of a given case, such as, the pendency of a civil suit, etc. While deciding the prayer made under Section 143-A, the Court must record brief reasons indicating consideration of all the relevant factors.” 7. Per contra, Mr. Bhattacharyya, appearing for the respondent, has relied upon another judgment of the Hon’ble Supreme Court that was rendered in Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341. In this judgment it was held that considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, though it is true that in the amended Section 148 of the NI Act, the word used is “may”, it is generally to be construed as a “rule” or “shall” and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section 148 of the NI Act confers power upon the appellate court to pass an order pending appeal to direct the appellant-accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the appellant- accused under Section 389 CrPC to suspend the sentence. 8. I have given my anxious considerations to the submissions made by the learned counsel of both sides. 9. Section 143(A) of the N.I. Act of 1881, applies to the trial court where the trial court may direct the accused to pay interim compensation, whereas Section 148 of the said Act is applicable to the appellate court hearing an appeal against conviction under Section 138 of the N.I. Act. Therefore, the judgments relied upon by Mr. Baruah is not applicable in the Page No.# 5/6 present case. 10. Explaining the meaning of word ‘may’ appearing in Section 148 of the NI Act, in Muskan Enterprises and Another Versus State of Punjab and Another, reported in 2024 SCC OnLine SC 4107, the Hon’ble Supreme Court has held in paragraph 27 as under: “27. If indeed the legislative intent were not to leave any discretion to the Appellate Court, there is little reason as to why the legislature did not also use ‘shall’ instead of ‘may’ in sub-section (1). Since the self-same section, read as a whole, reveals that ‘may’ has been used twice and ‘shall’ thrice, it must be presumed that the legislature was well and truly aware of the words used which form the skin of the language. Reading and understanding the words used by the legislature in the literal sense does not also result in manifest absurdity and hence tinkering with the same ought to be avoided at all costs. We would, therefore, read ‘may’ as ‘may’ and ‘shall’ as ‘shall’, wherever they are used in Section 148. This is because, the words mean what they say.” 11. The aforesaid view was taken by the Supreme Court after considering Surinder Singh Deswal (supra). Paragraphs 24 & 25 of Muskan Enterprises (supra) are also quoted as under: “24. Law is well-settled that user of the verbs ‘may’ and ‘shall’ in a statute is not a sure index for determining whether such statute is mandatory or directory in character. The legislative intent has to be gathered looking into other provisions of the enactment, which can throw light to guide one towards a proper determination. Although the legislature is often found to use ‘may’, ‘shall’ or ‘must’ interchangeably, ordinarily ‘may’, having an element of discretion, is directory whereas ‘shall’ and ‘must’ are used in the sense of a mandatory provision. Also, while the general impression is that ‘may’ and ‘shall’ are intended to have their natural meaning, it is the duty of the court to gather the real intention of the legislature by carefully analysing the entire statute, the section and the phrase/expression under consideration. A provision appearing to be directory in form could be mandatory in substance. The substance, rather than the form, being relevant, ultimately it is a matter of construction of the statute in question that is decisive. 25. It is also a well-accepted rule that interpretation must depend on the text and the context - the text representing the texture and the context giving it colour - and, that interpretation would be best, which makes the textual interpretation match the contextual. While wearing the glasses of the statute-maker, the enactment has to be looked at as a whole and it needs to be discovered what each section, each clause, each phrase and each word means and whether it is designed to fit into the scheme of the entire enactment. While no part of a statute and no word of a statute can be construed in isolation, statutes have to be construed so that every word has a place and everything is in its place. We draw inspiration for the above understanding of the manner of interpreting a statute from the decision of this Court Page No.# 6/6 in Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd..” 12. Reverting to the case in hand, Muskan Enterprises (supra) was passed after Surinder Singh Deswal (supra). Both the judgments were passed by two Judge Benches. Therefore, the latest judgment would prevail over the earlier one. In Muskan Enterprises (supra), the Supreme Court has held that the word ‘may’ appearing in Section 148 of the N.I. Act, shall be read as ‘may’, not as ‘shall’. Therefore, now the appellate court, before directing the appellant to deposit 20% of the compensation amount has to exercise judicial discretion. That means, the appellate court has to explain and to give reasons as to why it will be directing the appellant to deposit 20% of the compensation amount. 13. The impugned order, directing the appellant to pay 20% of the compensation amount, is without any reasoning. Therefore, the impugned order is bad in law. Accordingly, the prayer of the petitioner is allowed. 14. The direction passed by the learned Sessions Judge, Barpeta in Criminal Appeal No. 02/2023 directing the appellant to pay 20% of the compensation amount within 60 days next is set aside. 15. The matter is remanded to the appellate court for deciding that issue, in particular, after hearing both sides. With the aforesaid direction, the revision petition is allowed and disposed of. JUDGE Comparing Assistant