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2014 DIGILAW 448 (MP)

Ramesh Giri v. Dheeraj Gobhuj

2014-04-23

S.R.WAGHMARE

body2014
ORDER 1. By this application under section 482 of the CrPC Ramesh Giri has challenged the order dated 9.1.2013 passed by the Additional Sessions Judge, Ujjain in Criminal Revision No.11/2013 upholding the order of the trial Court and dismissing the objection raised by the accused petitioner regarding insufficiently stamped document. 2. Brief facts of the prosecution case are that the respondent complainant had filed a complaint for offence under section 138 of the Negotiable Instrument Act (hereinafter referred as ‘the Act’) against the petitioner accused for settling a loan account with a Cooperative Society. The accused petitioner resisted the complaint by taking up a defence that a blank cheque was fraudulently obtained by respondent complainant and later on misused to file the present complaint. It came about that, while recording of the evidence of the complainant, he wanted a document dated 25.3.2011 to be marked as Exhibit P-1. The present petitioner accused objected to the document being first called a “receipt” since language in the document clearly indicated that it was a bond which was not properly stamped and on this ground it was inadmissible in evidence. This document was filed by the complainant as Annexure P-4. The trial Court has however, by order dated 11.12.2012 dismissed the objection of the accused petitioner that the proceedings under section 138 of the Act are quasi civil in nature and that the provisions of section 35 of the Stamp Act would be attracted. 3. Being aggrieved accused petitioner preferred a criminal revision before the revisional Court and the revisional Court had dismissed the same, vide order dated 9.1.2013. And hence, the present petition under section 482 of the CrPC. 4. Counsel for the petitioner has vehemently urged the fact that both the Courts below had failed to consider that the documents were required to be properly stamped under section 35 of the Stamp Act if it is to be accepted in evidence. Otherwise it has to be impounded and only after payment of stamp duty fees and penalty as imposed by the stamp collector, the documents could have been exhibited. Otherwise it has to be impounded and only after payment of stamp duty fees and penalty as imposed by the stamp collector, the documents could have been exhibited. Counsel relied on Kaushalya Devi Massand v. Roopkishore [ (2011)4 SCC 593 ], to state that the apex Court had while considering the gravity of the Indian Penal Code or other criminal offences vis-a-vis the Negotiable Instrument Act held that an offence under section 138 of the Negotiable Instrument Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones. Counsel submitted that the offence was a quasi civil in nature and section 35 of the Stamp Act would therefore, be naturally attracted. Placing reliance on P.K.M. Caps and Polymers Pvt. Ltd v. Sri K. Vishnu; Prasad s/o K..... [2008(2) Kar. LJ 276], whereby the High Court of Karnataka has considered the case that an agreement of sale, which was written on a white paper which ought to have been written on a stamped paper and the documents namely, the agreement and the cancellation deed were not duly stamped and Court held that the said document is inadmissible in evidence and although in the said case the Court had held that the objection was raised by the accused petitioner after the document has been exhibited. Counsel submitted that in the instant case the objection was properly raised at the initial stage itself by the applicant. Hence, Counsel submitted that the impugned order be set aside. 5. Counsel for the respondent, per contra has vehemently opposed the submissions put forth by the counsel for the applicant and has fully supported the orders passed by both the Courts below. Counsel submitted that the provisions of Civil Procedure Code were not applicable in a criminal case; similarly section 35 of the Stamp Act also cannot be taken into consideration. Even considering the cases Kaushalya Devi Massand and PKN Caps and Polymers Pvt. Ltd. (supra). Counsel urged that the Revisional Court had categorically given a finding that both the authorities did not hold that an insufficiently stamped document should be impounded in a criminal case and cannot be taken into consideration under section 33 of the Stamp Act. Even considering the cases Kaushalya Devi Massand and PKN Caps and Polymers Pvt. Ltd. (supra). Counsel urged that the Revisional Court had categorically given a finding that both the authorities did not hold that an insufficiently stamped document should be impounded in a criminal case and cannot be taken into consideration under section 33 of the Stamp Act. Considering the section 36 of the Stamp Act counsel submitted that the stage in which the objection can be raised as already passed and it was to the discretion of the Court under section 61 to take a decision regarding insufficiency of stamp fees. 6. Considering the above submissions, I find that the sole question that arises in this petition is whether the impugned document Annexure P-4 can be taken into evidence in a criminal case without its being stamped at all, accordance with section 35 of the Stamp Act? 7. On considering Annexure P-4, I find that it is a receipt dated 25.3.2011 on white paper signed by accused Ramesh Giri. Whereas counsel for the petitioner has vehemently urged the fact that it is a bond. Considering the receipt which is on a blank piece of paper handwritten and indicates as per language used; that the accused had availed of Rs.5,00,000/- from the respondent complainant and it is a receipt. Whereas counsel for the petitioner urged that as per provisions of Negotiable Instruments Act, it is a bond which is not properly stamped in accordance with the provisions of Stamp Act. And hence Counsel for the petitioner submitted that the objection was properly raised at the initial stage itself by the applicant, but the same had been wrongly dismissed by the Courts below. On considering to section 33 (2)(a) of the Stamp Act, I find that the proviso (2)(a) reads as under : “Provided 2( a). Nothing herein contained shall deemed to require any Magistrate or Judge of a criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898” And hence, the trial Court had rightly relied on the proviso to discard the objection raised by the accused petitioner. Besides I also find that the proceedings under section 138 of the Act are summary in nature and in this regard also the revisional Court as well as the trial Court had properly held that the document Annexure P-4 does not require impounding and has been produced as a receipt by the complainant. In these circumstances, I find that the proceedings under section 138 of the Act are criminal in nature although the offence may be in the nature of civil wrong. The apex Court was in the case of Kaushalya Devi (supra), in fact; considering the case whether a jail sentence awarded to the accused appellant was really necessary to meet the ends of justice; since the appellant was a lady and only fine has been imposed. I find that the submissions as put forth by the counsel for the petitioner are off at a tangent. There is no doubt that the proceedings for offence under section 138 of the Act are criminal in nature and provisions of Stamp Act would not be attracted especially under section 35 of the Stamp Act. So also the proviso under section 33(2)(a) of the Stamp Act itself gives wide discretion to the Judicial Magistrate to examine or impound an instrument filed before him. And in the present case the learned Judge of the lower Court has already accepted the receipt as evidence. In this light also, I find that the petition is without merit and it is, therefore, dismissed as such. .............