( 2025:HHC:22681 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 575 of 2025 Reserved on: 28.06.2025 Date of Decision: 14.07.2025 Chander Shekhar Jain ...Petitioner Versus Manjeet Singh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Petitioner : Mr. Jai Dev Thakur, Advocate. For the Respondents : Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of orders dated 02.04.2025 and 01.05.2025, passed by the learned Additional Sessions Judge-I, Solan, District Solan, H.P. (learned Appellate Court) in Cr. M.A Nos. 642 & 877 of 2025 in Criminal Appeal No. 51 of 2025 titled Chander Shekhar Jain vs. Manjeet Singh, vide which learned Appellate Court directed the petitioner (accused before the learned Trial Court) to deposit 20% of the compensation amount. (Parties shall hereinafter be 2 ( 2025:HHC:22681 ) referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated the facts giving rise to the present petition are that a complaint was filed before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act) The learned Trial court convicted the accused for the commission of aforesaid offence and sentenced him to undergo simple imprisonment for one year and pay compensation of ₹11,00,000/- and in default of payment of compensation to undergo further simple imprisonment for one month. 3. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused preferred an appeal along with an application seeking suspension of sentence subject to furnishing of personal bond in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of learned Chief Judicial Magistrate, Solan and deposit of 20% compensation amount within 30 days from the date of the order. 3 ( 2025:HHC:22681 ) 4. The petitioner applied for recalling the order, asserting that the order is not in consonance with the judgment of the Hon’ble Supreme Court in Jamboo Bhandari vs. M.P. State Industries Development Corporation Ltd. & ors. 2023(10) SCC 446 and Muskan Enterprises & another vs State of Punjab & another 2024 INSC 1046. The requirement of such a deposit would amount to pre-judging the appeal and is an unfair condition. The complainant filed a false complaint against the accused. The accused is the elder son of the family. He has the responsibility of an unmarried daughter, and his mother, who is suffering from UTI Systic shock, arthritic and heart problems. She is undergoing treatment at Sohana Hospital, Mohali, and Shalby Hospital, Mohali. The petitioner is jobless and not in a position to pay to 20% of compensation amount. 5. Learned Appellate Court held vide order dated 01.05.2025 that the petitioner had failed to assign any valid reason for recalling the order, and the cited judgments did not apply to the present case. Hence, the application for recall of the order was dismissed. 4 ( 2025:HHC:22681 ) 6 Being aggrieved by the order passed by the learned Appellate Court, the petitioner has filed the present petition asserting that the complainant had failed to prove his case beyond a reasonable doubt. The condition of depositing 20% of the compensation amount is harsh. The petitioner’s case falls within exceptional circumstances. The petitioner is the elder son of the family. He is responsible for an unmarried daughter, who is studying in college. He has the responsibility of his aged mother, who is suffering from various ailments. The petitioner is unable to deposit ₹2,20,000/-. Hence, it was prayed that the present petition be allowed and the order passed by the learned Appellate Court be set aside. 7. Mr. Jai Dev Thakur, learned counsel for the petitioner/accused, submitted that the learned Appellate Court erred in ordering the depositing of 20% of compensation amount. The petitioner has made out an exceptional case in his favour, and the condition of deposit of 20% of the compensation amount should have been waived off. Therefore, he prayed that the present petition be allowed and the order 5 ( 2025:HHC:22681 ) passed by the learned Appellate Court be set aside. He relied upon the following judgments in support of his submissions: i) Jamboo Bhandari vs. M.P. State Industrial Development Ltd., & Ors. 2023(10) SCC 446 ii) Muskan Enterprises & Anr. vs. State of Punjab and Anr. 2024 SCC Online SC4107 iii) C.R. Balasubramanian vs. P. Eswaramoorthi Cr. O.P. No. 947 of 2024 iv) Rakesh Chauhan vs. Sunil Chandel 2024:HHC:5675 8. I have given considerable thought to the submissions made by him at the bar and have gone through the records carefully. 9. It was laid down by Hon’ble Supreme Court in Jamboo Bhandari v. M.P. SIDC Ltd., (2023) 10 SCC 446: (2024) 1 SCC (Cri) 90: 2023 SCC OnLine SC 1144 that normally the Appellate Court would be justified in imposing the condition of deposit as provided in Section 148 of the NI Act, but the Court can also waive the condition when it would be unjust. It was observed at page 449: 6 ( 2025:HHC:22681 ) “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, an exception can be made for the reasons specifically recorded. 7. Therefore, when the appellate court considers the prayer under Section 389CrPC of an accused who has been convicted for offence under Section 138 NI Act, it is always open for the appellate court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the appellate court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.” (Emphasis supplied) 10. This position was reiterated in Muskan Enterprises v. State of Punjab, 2024 SCC OnLine SC 4107, wherein it was observed: “26. Wearing the glasses of the statute-maker, we need to read the text as set in the context. What is most significant is that the legislature has used both the verbs ‘may’ and shall’ in sub-section (1) of Section 148, N.I. Act, but in different contexts. As we read and understand the sub-section, what we find is that the verb ‘may’, implies discretion; and, if intended to have its natural meaning, it would refer to the discretion left to the Appellate Court to determine as to whether such court should order any deposit to be made by the appellant or not pending hearing of the appeal against the conviction and sentence recorded by the trial court. What Jamboo 7 ( 2025:HHC:22681 ) Bhandari (supra) lays down is that a deposit may not be ordered if the Appellate Court finds a case to be exceptional, not calling for a deposit, and the reasons for not ordering a deposit are recorded in the order. On the contrary, the verb ‘shall’ used in the same sentence and distanced from the verb ‘may’ by 8 (eight) words, typically implies an obligation or duty that is referable to the quantum of deposit, that is, the deposit, in any case, must not be less than 20% of the fine or compensation awarded by the trial court. What follows is that once the Appellate Court is satisfied that a deposit is indeed called for, in an appropriate case, such court's power is in no way fettered to call upon the appellant to deposit more than 20% of the awarded compensation, but in no case can it be less than 20%. Interestingly, while the proviso to sub-section (1) and sub-section (2) of Section 148 uses ‘shall’ in the relevant context, sub-section (3) again reverts to ‘may’ and its proviso to ‘shall’. User of the verbs ‘may’ and ‘shall’ in different contexts in the same section is clearly suggestive of the legislative intent to mean what it said. 27. We may take the discussion a little forward to emphasize our point of view. There could arise a case before the Appellate Court where such court is capable of forming an opinion, even in course of considering as to what would be the appropriate quantum of fine or compensation to be kept in deposit, that the impugned conviction and the consequent sentence recorded/imposed by the trial court is so wholly incorrect and erroneous that it is only a matter of time for the same to be set aside and that ordering a deposit would be unnecessarily burdensome for the appellant. Such a firm opinion could be formed on a plain reading of the order, such as the conviction might have been recorded and sentence imposed without adherence to the mandatory procedural requirements of the N.I. Act prior to/at the time lodging of the complaint by the complainant rendering the proceedings vitiated, or the trial court 8 ( 2025:HHC:22681 ) might have rejected admissible evidence from being led and/or relied on inadmissible evidence which was permitted to be led, or the trial court might have recorded an order of conviction which is its ipse dixit, without any assessment/analysis of the evidence and/or totally misappreciating the evidence on record, or the trial court might have passed an order failing to disclose application of mind and/or sufficient reasons thereby establishing the link between the appellant and the offence, alleged and found to be proved, or that the compensation awarded is so excessive and outrageous that it fails to meet the proportionality test: all that, which would evince an order to be in defiance of the applicable law and, thus, liable to be labelled as perverse. These instances, which are merely illustrative and not exhaustive, may not arise too frequently, but its possibility cannot be completely ruled out. It would amount to a travesty of justice if exercise of discretion, which is permitted by the legislature and could indeed be called for in situations such as these pointed out above, or in any other appropriate situation, is not permitted to be exercised by the Appellate Court by a judicial interpretation of ‘may’ being read as ‘shall’ in sub- section (1) of Section 148 and the aggrieved appellant is compelled to make a deposit of minimum 20% of the fine or compensation awarded by the trial court, notwithstanding any opinion that the Appellate Court might have formed at the stage of ordering deposit as regards invalidity of the conviction and sentence under challenge on any valid ground. Reading ‘may’ as ‘may’ leads to the text matching the context and, therefore, it seems to be just and proper not to denude the Appellate Court of a limited discretion conferred by the legislature and that is, exercise of the power of not ordering deposit altogether albeit in a rare, fit and appropriate case which commends to the Appellate Court as exceptional. While there can be no gainsaying that normally the discretion of the Appellate Court should lean towards requiring a deposit to be made with the quantum of such deposit depending upon the 9 ( 2025:HHC:22681 ) factual situation in every individual case, more so because an order under challenge does not bear the mark of invalidity on its forehead, retention of the power of such court not to order any deposit in a given case (which in its view and for the recorded reasons is exceptional) and calling for exercise of the discretion to not order deposit, has to be conceded. 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 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.” (Emphasis supplied) 11. These judgments were followed in C.R. Balasubramanian (supra) and Rakesh Chauhan (supra). 12. The petitioner asserted that his case falls within exceptional circumstances as his daughter and mother are dependent upon him. He claimed that he is jobless and unable to deposit the amount. He has not provided the details of the expenses incurred by him towards the treatment of his mother and the education of his daughter; therefore, the application 10 ( 2025:HHC:22681 ) fails to make out any exceptional cases justifying the waiver of the condition. 13. It was submitted that the condition of the deposit amounts to prejudging the matter. This is not acceptable. The legislature has provided that the Appellate Court may order the deposit of such sum, which shall be a minimum of 20% of the fine or compensation awarded by the learned Trial Court. Thus, the deposit complies with the legislative mandate, and there is no question of prejudging the matter. 14. Therefore, no exceptional circumstance was made out by the petitioner, and his application was rightly dismissed by the learned Appellate Court. 15. Consequently, the present petition fails, and the same is dismissed. 16. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. ( Rakesh Kainthla ) 14th July 2025 Judge (ravinder)