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M/s Radhika Steel Enterprises Vs Raj Buildcon Construction Ltd. CC No.6480/A/1, 6481/1, 6483/A/1 & 6490/A/1 1 3.2. With the change of counsel, accused persons chosen to become more wise in their game of playing with the law and informed their desire of contesting the case. (see order dated 01.07.2013 in these cases). However, the court found it appropriate to ask both the sides to advance arguments on the nature and effect of mediation. Ultimately, this court vide a detailed order dated 17.12.2013 held that mediation settlement was binding on the parties and that accused persons could not defy or nullify the mediation and could not claim trial.

"145(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."

M/s Radhika Steel Enterprises Vs Raj Buildcon Construction Ltd. CC No.6480/A/1, 6481/1, 6483/A/1 & 6490/A/1 2 Contention based upon interpretation of provision:

5. It is the use of expressions "may" and "shall" in the same provision which gives an opportunity to the legal fraternity to argue that while the expression "may" denotes a discretionary power in the court, the expression "shall" does not leave any discretion with the court and makes it mandatory for the court to exercise the power available therein to recall the complainant/witnesses. The arguments proceed like this: in the absence of anything but if the court so consider fit, it may recall the complainant/witnesses to depose in the court about the contents of affidavit and if the court does not deem it required to recall such person, it may treat the affidavit of such person as evidence. On the other hand, however, if any application is moved, the expression "shall" will play its role and the court will not have any discretion in the matter but to recall such person. The prime basis of such contention is very simple i.e. when the Parliament has used both the expressions in one provision, the same clearly shows the legislative "may" is discretionary but "shall" is mandatory.

"The delicate question that remains to be examined is what is the position in law when both the expression "shall" and "may" are used in the same provision.
M/s Radhika Steel Enterprises Vs Raj Buildcon Construction Ltd. CC No.6480/A/1, 6481/1, 6483/A/1 & 6490/A/1 3 Mere use of word 'may' or 'shall' is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue."

M/s Radhika Steel Enterprises Vs Raj Buildcon Construction Ltd. CC No.6480/A/1, 6481/1, 6483/A/1 & 6490/A/1 4 5.4. Clearly, the court has still the duty to ascertain the real intention of the legislature despite the use of both the expressions "may" and "shall" in the same provision. Therefore, the contention based upon this situation is liable to be rejected. We will ascertain the real legislative intent in later part of this order.

Contention based upon judicial observation:

6. Then, reliance is always placed upon a judgment of Hon'ble Supreme Court in M/s Mandvi Co-op Bank Ltd vs Nimesh B thakore (2010) 3 SCC 83 to contend that once application is moved under Section-145(2) NI Act, the court is duty bound to allow the same without having any discretion in the matter.