In The trial of a suit commences with the framing of issues. The
trial of the suit commences at the stage of the first witness of the
plaintiff adducing evidence and concludes with the argument of the
parties. In the case of Samar Singh v. Kedar Nath & Ors. reported in
AIR 1987 SC 1926 the Supreme Court held that Order VII Rule 11 of the
Code does not ,either expressly or by necessary implication, provide
that the power under the said provision should be exercised at a
particular stage only and in the absence of any restriction placed by
the statutory provision, it is open to the Court to exercise that power
at any stage. Even in the subsequent decision in the case of Saleem Bhai
and Ors. (supra) relied upon by the defendant petitioner the Supreme
Court held that the trial Court can exercise power under Order VII Rule
11 of the Code, at any stage of the suit and at any time before the
conclusion of the trial.
In OP(Crl.).No.348 OF 2019, T.K.SAJEEVAN vs FRANCIS T.CHACKO, the appeal was filed against the order of the lower court to deposit 25% of the fine before filling of appeal. The appellant argued that the deposit introduced through the Section 148 of the NI Act after amendment was directory in nature as it used the term 'may' while mentioning the issue of deposit. The Kerala High Court however disagreeing held that in view of the object of the Legislature while incorporating Section 148 into N.I. Act, the word 'may' will have to be read as 'shall'. The imposition of payment contemplated under Section 148 N.I. Act cannot be restricted to some prosecutions and evaded in other prosecutions. Since the amount directed to be deposited being compensation, undoubtedly, it is liable to be ordered to be deposited irrespective of the nature of the prosecution. Therefore, the word 'may' can only be taken to have the colour and meaning of 'shall' and there
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