1 2024:CGHC:28637 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 1461 of 2024 Sharadchand Sharma S/o Ripudaman Sharma Aged About 33 Years R/o D-30, Wood I-Land Colony, Amleshwar, Tehsil-Patan, District-Durg, Chhattisgarh. (Accused/appellant). ... Applicant versus Shrimati Bakul Sharma W/o Sidhesh Sharma Aged About 33 Years R/o B-57, Walfort City, Bhatgaon, Raipur, District- Raipur, Chhattisgarh. (Complainant/respondent) ... Respondent ----------------------------------------------------------------------------------------------- For Applicant : Mr. Shobhit Kosta, Advocate. ---------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 06.01.2025 1. The present petition has been filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the order dated 19.11.2024 (Annexure A-4) passed by learned 2nd Additional Sessions Judge, Raipur, in ST No.409/2024, whereby learned Sessions Judge while granting bail to the applicant has imposed condition that the applicant is required to deposit 10% of the compensation amount of Rs.15,00,000/-. 2. The brief facts of the case are that the respondent has prosecuted the petitioner for the offence under Section 138 of Negotiable Instruments Act, 1881 (in short ‘NI Act’) with the allegation that applicant/accused has issued the cheque of Rs.12,50,000/- to complainant/respondent in 2 discharge of legal debt and when the complainant deposited the said cheque in his bank account for its clearance, the same was dishonoured by the payee bank for want of sufficient funds in the bank account of the accused. After due process of demand notice, the complaint case was filed by the complainant before the learned trial Court. 3. After trial of the complaint case, the learned Trial Court has convicted the petitioner for the offence under Section 138 of the NI Act and sentenced him to simple imprisonment for 01 year and imposed fine of Rs.15,00,000/-, in default of payment of fine, additional RI for 02 months. Being aggrieved by the conviction order of the trial court, the applicant preferred an appeal before the Session Court along with application for grant of bail and suspension of sentence. The learned Session Court vide order dated 19/11/24 while granting bail to the applicant direct the applicant to deposit 10% of the compensation amount of Rs.15, 00,000/-. 4. It is also pertinent to mention here that the applicant has already deposited the interim compensation amount u/s 143A of Negotiable Instrument Act of amount Rs 62, 500/- which is about 5% of the cheque amount which has not been considered by the learned appellate court. 5. Learned counsel for the applicant submits that the order impugned with to deposit 10% of the fine/compensation amount of Rs.15, 00,000/- is illegal and contrary to the law, because the deposition of 10% is not mandatory, yet the learned Appellate Court has directed to deposit 10% of the amount. The Learned Appellate Court is not empowered to impose condition to deposit 10% amount of the awarded compensation as the condition precedent for granting bail to the applicant. No reason 3 has been assigned by the Learned Appellate Court for directing to deposit 10% amount of the awarded compensation in the impugned order and direction could be made only in exceptional circumstances, which is lacking in the case and therefore, the impugned order is liable to be set aside. 6. Heard learned counsel for the applicant and perused the documents annexed with the petition. 7. Perusal of the impugned order shows the applicant was granted bail by the learned Appellate Court subject to condition of deposition of 10% of the compensation amount of Rs.15,00,000/-. 8. Section 148 of the NI Act empowered the Appellate Court to order payment during pendency of the appeal against conviction, which eads as under: “148. Power of Appellate Court to order payment pending appeal against conviction.- (1) 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 percent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be 4 directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.]” 9. The Hon'ble Supreme Court, while examining 'may' and 'shall in case of Bachahan Devi & another Vs. Nagar Nigam, Gorakhpur & another, (2008) 12 SCC 372, has held that:- "18. It is well-settled that the use of word "may" in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word 'may' as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word "may", the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word 'may should be 5 interpreted to convey a mandatory force. As a general rule, the word "may" is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word "shall", which ordinarily is imperative as it imposes a duty. Cases however, are not wanting where the words "may" "shall", and "must" are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. s “19. The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word 'shall' or 'may' depends on conferment of power. Depending upon the context, 'may' does not always mean may. 'May' is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes [his] duty to exercise [that power]. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty." 20. If it appears to be the settled intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the word "may" will not prevent the court from giving it the effect of Compulsion or obligation. Where the statute was passed purely in public interest and that rights of private citizens have been considerably modified and curtailed in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas. Though the power is conferred upon the statutory body by the use of the word "may" that power must be construed as a statutory duty. Conversely, the use of the term 'shall' may indicate the use in optional or permissive sense. Although in general sense 'may' is enabling or discretional and "shall is obligatory, the 6 connotation is not inelastic and inviolate. Where to interpret the word "may" as directory would render the very object of the Act as nugatory, the word "may must mean 'shall'. 21. The ultimate rule in construing auxiliary verbs like "may and "shall is to discover the legislative intent, and the use of words may' and 'shall' is not decisive of its discretion or mandates. The use of the words "may" and "shall' may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed." 10. In the present case, the order directing deposition of 10% amount of the awarded compensation is passed while considering the application for suspension of sentence and grant of bail to the applicant as the precondition of suspending his sentence and grant of bail. 11. From perusal of the impugned order, it appears that there is no subjective satisfaction or consideration that, it is an exceptional case, which warrants passing of such direction to deposit 10% of the amount. 12. No doubt the Court has a right to order or direct to deposit 10 utpo 20 percent award amount of compensation, but learned Appellate Court should have record its subjective satisfaction, whether the case falls in exception or not. 13. In the result, the petition succeeds and impugned order dated 19.11.2024 (Annexure A-4) to the extent of directing the applicant to deposit 10% of the compensation amount i.e. Rs.1,50,000/- is hereby set aside. However, the complainant is at liberty to avail his remedy provided under Section 148 of the NI Act, and in such eventuality, the 7 Learned Appellate Court shall decide the same in accordance with law on its own merits. 14. With this observation, the petition is allowed. CC as per rules. Sd/- (Arvind Kumar Verma) Judge J/-