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TMI Blog2017 (2) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... able debt, which was dishonoured on presentation. Thereafter, he issued notice in compliance of Section 138 of the Act demanding the petitioner/accused to pay the amount covered by cheque. But, the accused failed to pay the same. Thereby, he filed the complaint before the trial Court. The allegation in the complaint is that one Dwaraka Prasad Agarwal, father of the accused, who is no other than maternal uncle of the complainant requested for financial assistance for his business needs and he promised to repay the amount within six months to the complainant. Accordingly, the complainant advanced an amount of Rs. 74,50,000/-between March and June, 2013 i.e. within a span of four months to the accused. But, the accused failed to repay the same even after expiry of six months as agreed. Despite demands by the complainant, the petitioner/accused did not repay the same and issued post dated cheques bearing Nos.221805, 221806, 221820, 221821 dated 10.08.2014 towards part payment to clear debt due and Memorandum of Understanding (MoU) was also executed by the father of the accused on 14.02.2014. Thus, the basis for the claim is Memorandum of Understanding, which is unstamped and unregister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents under Section 33 r/w Section 35 of the Stamp Act, but without construing the document in proper perspective, the relief claimed by the petitioner is rejected erroneously, and the Court ought to have impounded the document and collect the stamp duty and penalty on the document, as per the provisions of the Stamp Act. When question of collecting stamp duty before the Court arises, the Court has to consider the provisions strictly, since it is a loss to Government exchequer and on strict construing of the document, the Court has to collect stamp duty and penalty payable and failure to exercise such discretion would amount to denial to collect the amount due to the Government. Therefore, such approach cannot be permitted and prayed to set aside the orders of Special Magistrate and Revisional Court. 6. Whereas, Sri B.Chandrasen Reddy, the learned counsel for the 2nd respondent/complainant, argued totally in support of the order under challenge and requested to dismiss the petition. 7. In view of the specific contention raised by the learned counsel for the petitioner/accused, it is relevant to advert to the provisions of Section 33(2) proviso (a) and Section 35(d) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together with a penalty of * [fifteen rupees], or, when ten times the amount of the proper duty or deficient portion thereof exceeds * [fifteen rupees] of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of * [three rupees] by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt but create an interdict on the power of the Magistrate to receive such insufficiently stamped document in any proceedings under Chapters IX and X of the Code of Criminal Procedure, 1973 (for short Cr.P.C.). Chapter-IX of Cr.P.C. deals with order for maintenance of the wife, children and parents. Chapter X of Cr.P.C. deals with maintenance of public order and tranquility covering Sections 125 to 128 and 129 to 148 Cr.P.C. respectively. Therefore, in the proceedings covered by these Chapters, the Magistrate is incompetent to receive insufficiently stamped document but in other cases the Magistrate is entitled to admit insufficient stamp or unstamped documents in evidence in any criminal case pending before it. 11. A similar issue came up before the High Court of Calcutta in Jagannath Rahatgir (supra), their Lordships, Charles William Chitty and Beachcroft, JJ held that when an instrument insufficiently stamped is produced before a criminal Court and tendered for admitting the document in evidence, it is optional to the Magistrate under Section 33 to impound or examine the document, if it is appeared to be insufficiently stamped. But the prohibition contained in the first part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diciously. 14. Having regard to the facts and circumstances of the case on hand, the exception under proviso (a) to sub-section (2) of Section 33 of the Stamp Act is required to be applicable or not is the question. 15. In the present facts of the case, the offence allegedly committed by the petitioner/accused is punishable under Section 138 of the Act and in Section 33 sub-section (2), proviso (a) is an exception to impound such document since the proceedings are criminal trial, where the Court is empowered to impose sentence against the accused. In those circumstances, the Magistrate is bound to exercise his discretion to hold that the mandate of sub- sections 1 and 2 of Section 33 are required to be applied in respect of any instrument in question insufficiently stamped instrument in question and non-exercise of discretion so vested in the Magistrate would result in great hardship and prejudice to the complainant and therefore when the Magistrate exercised his discretion not to impound the document by exercising the discretionary power vested on it by virtue of Section 33 (2) proviso and Section 35 proviso (d), such orders cannot be enquired, while exercising jurisdiction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the Court is empowered to pass an order in terms of Section 35 of the Indian Stamp Act since the document was inadmissible in evidence and even for the collateral purpose and observed that the Parliament has, in Section 35 of the Act, advisedly used the words for any purpose whatsoever. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions and therefore such document cannot be admitted in evidence and further drawn attention of this Court to another judgment reported in Government of Andhra Pradesh v. Smt.P.Laxmi Devi AIR 2008 SC 1640 , wherein the Supreme Court had an occasion to decide the interpretation of taxing statute and held that all decisions in the economic and social spheres are essentially ad hoc and experimental. Since economic matters are extremely complicated, this inevitably entails special treatment for special situations. The State must therefore be left with wide latitude in devising ways and means of fiscal or regulatory measures, and the Court should not, unless compelled by the statute or by the Constitution, encroach into this field, or invalida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sales tax and VAT the Apex Court reiterated the same principle that the proper manner of interpreting proviso and main provision was highlighted and held that except for instances dealt with in the proviso, it should not be used for interpreting main provision/enactment so as to exclude something by implication. 18 In all the above referred judgments, the dispute is with regard to civil rights and interpretation of various provisions, but the petition before the Special Magistrate is filed in a proceedings in criminal trial i.e. for the offence punishable under Section 138 of the Act. In the judgments referred supra, fiscal enactments and economic legislations must be construed directly and they have no application to the criminal proceedings. The Indian Stamp Act itself contains exemption to Section 33(1) and (2) and Section 35 of the Stamp Act. When such exemption is granted by the Act itself, there is no other scope for interpreting the provisions and the intention of the legislature in incorporating proviso (a) to sub- section (2) Section 33 and proviso (d) to Section 35 is only to enable the Courts to receive un-stamped or insufficient stamped documents in evidence without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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