JUDGMENT : Heard Mr. A. Sheikh, learned counsel for the petitioner. Also heard Mr. N.C. Das, learned counsel for the respondent No.2. None appeared for the State/respondent No.1, which is a formal party. 2. In this Criminal Revision Petition, under Section 397/401, read with Section 482 of the CrPC, 1973, the petitioner, Biswanath Roy Choudhury has challenged the legality, propriety and correctness of the order dated 29.10.2018, passed by the learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati in C.R. Case No.3654C/2016, under Section 138 of the N.I. Act. 3. It is to be noted here that vide impugned order dated 29.10.2018, the learned Court below has dismissed the petition No.2424, filed by the petitioner for dismissal of the complaint and discharging of the accused. 4. The factual background leading to filing of the present petition is briefly stated as under:- “The petitioner has taken a sum of Rs.10 lacs, from the respondent No.2 Sri Debashis Deb as financial help, for business purpose, with a promise to return the same within six months. Thereafter, on 28.07.2016, towards the repayment of the existing liability towards the respondent No.2, the petitioner has issued one cheque bearing No.168406, dated 28.07.2016, for an amount of Rs.10 lacs, drawn in the Indian Overseas Bank, Ballygunge Branch, Kolkata. Thereafter, the respondent No.2 has deposited the cheque for encashment through his banker -Syndicate Bank, Guwahati Branch on 28.08.2016 but the same returned unpaid with a cheque returning Memo, dated 07.09.2016, with the endorsement -‘insufficient fund’. Thereafter, the respondent No.2 has sent a legal notice to the petitioner through his counsel on 21.09.2016, demanding the cheque amount within 15 days on receipt of the legal notice. But, the petitioner had failed to make payment of the amount within the stipulated period. Thereafter, the respondent No.2 had filed one complaint before the court of learned CJM, Kamrup (M) at Guwahati. Then vide order dated 11.11.2016, the learned CJM, Kamrup (M) at Guwahati took cognizance upon the same and transferred the case to Mr. U. Bora, learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati”. 5. Thereafter, the respondent No.2 had filed one complaint before the court of learned CJM, Kamrup (M) at Guwahati. Then vide order dated 11.11.2016, the learned CJM, Kamrup (M) at Guwahati took cognizance upon the same and transferred the case to Mr. U. Bora, learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati”. 5. Thereafter, on 10.09.2018, the petitioner had file one petition No. 2424, challenging the maintainability of the proceeding on the ground that the respondent No.2 has filed two affidavits: one affidavit with the complaint and the other affidavit as evidence-in-affidavit and both the affidavits were sworn before Notary Public without the notarial stamp of Rs.15/-, as required under the Indian Stamp (Assam Amendment) Act, 2004 and as those affidavits were sworn before the Notary Public, those are notarial act and for such notarial act, stamp duty under Article 42 of the said Act is leviable. But, the respondent No.2 with his complaint has affixed court fee of Rs.2/-instead of notarial stamp of Rs.15/-and such use of court fee is improper, besides, in both the affidavits, there was no verification and as such those affidavits are inadmissible under Section 35 of the Indian Stamp Act, 1899. 6. Thereafter, hearing both the parties, the learned Court below has dismissed the petition. Being highly aggrieved, the petitioner preferred the present petition on the ground that:- (i) That, the learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati has failed to peruse the contents of petition No.2424, dated 10.09.2018. That, as per the Indian Stamp (Assam Amendment) Act, 2004, under Article 43, a notarial stamp of Rs.15/-is necessary to be affixed in those affidavits and as such those affidavits could not be taken into consideration and are inadmissible, as per provision of Section 35 of the Indian Stamp Act, 1899 and the use of court fee in the said affidavits are improper and inadmissible in evidence; (ii) That, there is no verification in the affidavit submitted by the respondent No.2, and as such, the affidavits are liable to be rejected; (iii) That, the learned Court below has no power to grant exemption of the use of stamp duty without any prayer of the opposite party and he cannot grant exemption on sou moto, and therefore, it is contended to set aside the impugned order, passed by the learned Court below. 7. Mr. 7. Mr. A. Sheikh, learned counsel for the petitioner submits that there is no verification in the affidavits submitted by the respondent No.2 and that the affidavits were not properly stamped and as such, the affidavits are not maintainable and the impugned order suffers from manifest illegality and impropriety and therefore, it is contended to allow the petition. 8. Mr. A. Sheikh, learned counsel for the petitioner has referred to the following case laws, in support of his submissions: i) Bipin Shantilal Panchal vs. State of Gujarat, 2001 Crl.L.J. 1254, ii) Md. Momin Molla and ors. vs. Abul Khair Molla and anr. (2012) 2 C. Cr.L.R. (Cal) 628, iii) Nani Gopal Dutta and Asharam Rampratap, (2012) 3 C. Cr.L.R. (Cal) 857, iv) Mangal Singh vs. State of Rajasthan and ors. AIR 1976 Rajasthan 123, v) D. Gobalousamy vs. Union Territory of Pondicherry, AIR 1968 Madras 298, vi) Avinash Kumar Chauhan vs. Vijay Krishna Mishra, AIR 2009 SC 1489 , vii) Hariom Agrawal vs. Prakash Chand Malviya, AIR 2008 SC 166 viii) Chandrakant Narayan Chavan vs. State of Maharashtra, 1989 Crl.L.J. 717, ix) AKK Nambiar vs. Union of Indian and anr., AIR 1970 SC 652 , x) (Priyanka Srivastava and anr. vs. State of U.P. and others), AIR 2015 SC 1758 , 9. On the other hand, Mr. N.C. Das, learned counsel for the respondent No.2, submits that the respondent No.2 has affixed court fees of Rs.2/-in both the affidavits and that the Indian Stamp Act is not attracted, instead only Court Fee Act is attracted and that the submission so advanced by the learned counsel for the petitioner is not tenable in the eye of law and that the verification in the affidavits have been made as per Rule 30 of Chapter 4 of the Gauhati High Court Rules, 2015 and as such, there is no impropriety or illegality in the order so passed by the learned Court below and therefore, it is contended to maintain the same. 10. Having heard the submission learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and perused the case laws referred by the learned counsel for the petitioner. I have also carefully gone through the impugned order dated 29.10.2018. 11. 10. Having heard the submission learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and perused the case laws referred by the learned counsel for the petitioner. I have also carefully gone through the impugned order dated 29.10.2018. 11. It appears from the impugned order that the learned Court below, while dismissing the petition No.2424, held that since the case is a summons procedure case, and as such, the question of discharge at the stage of hearing cannot be raised. The learned court below has also held that the evidence-in-affidavit, filed by the respondent No.2 reveals that he has solemnly affirmed and declared on oath his statement before the Notary and the learned court below has not found any grave omission in the affidavit filed by the respondent No.2. 12. It also appears from the two affidavits, submitted by the respondent No.2, that there is verification at the end of the affidavits, and the same appears to be in conformity with Rule 30 of Chapter 4 of the Gauhati High Court Rules, 2015. And as such, the learned Court below has rightly held that the respondent No. 2 has solemnly affirmed and declared on oath his statement before the Notary Public and that the contents is necessary, not the style of writing, and the skill of writing may differ from Advocate to Advocate, but, legal requirement must be there and if found no such grave omission so as to persuade him, not to accept the same. 13. The learned court below also held that the Court Fees of Rs. 2/-has been affixed in the affidavits, submitted by the respondent No.2, and as per the Indian Stamp (Assam Amendment) Act, 1989, proper stamp duty for an affidavit was only Rs.6/-and by the Indian Stamp (Assam Amendment) Act, 2004, proper stamp duty for an affidavit has been substituted for Rs. 15/-. 2/-has been affixed in the affidavits, submitted by the respondent No.2, and as per the Indian Stamp (Assam Amendment) Act, 1989, proper stamp duty for an affidavit was only Rs.6/-and by the Indian Stamp (Assam Amendment) Act, 2004, proper stamp duty for an affidavit has been substituted for Rs. 15/-. But, there is exemption of proper stamp duty of an affidavit, if the same is made for the immediate purpose of being filed or used in any Court or before the officer of any Court, as mentioned in Schedule-1 of the Principal Act, 1899, which is still operative in the State of Assam and since the affidavits have been made for the immediate purpose of being filed or used in any Court or before the officer of any Court, as such the stamp duty of Rs. 15/-is exempted and as such the objection, filed by the petitioner is not maintainable. 14. Chapter 6 of Gauhati High Court Criminal Rules and Orders provides for FEES FOR AFFIDAVITS: Rule 10(1) of the said chapter provides that :- “Subject to the exceptions, set out in Sub-rule (2), the charge for administering the oath to the deponent in the case of any affidavit made for the immediate purpose of being filed or used in any court, before the officer of any court, shall be as prescribed under the Court-Fee Act (VII of 1870), as amended in all the Criminal Courts, subject to appellate jurisdiction of the High Court. This charge shall be paid by means of Court-Fee stamp and will be credited to the Government. (2) ………..…….”. 15. As held by the learned court below the affidavit made for the immediate purpose of being filed or used in any court, before the officer of any court. This being the position the charge for the affidavits so filed by the respondent, shall be as prescribed under the Court Fee Act (VII of 1870), as amended in all the Criminal Courts. The learned counsel for the respondent has rightly pointed this out during hearing. There is substance in his submission and I record concurrence to the same. And it appears that proper court fee has been paid by the respondent herein this case as per the Court Fees Act. The learned counsel for the respondent has rightly pointed this out during hearing. There is substance in his submission and I record concurrence to the same. And it appears that proper court fee has been paid by the respondent herein this case as per the Court Fees Act. In the Note of the Rule, it is being clarified that affidavits not covered by clause (1) of this rule e.g. will be charged under Article IV of the Indian Stamp Act (II-1899) (as amended). 16. Even, for the sake of argument, if it is accepted that no proper court fees has been paid by the respondent, in respect of the said two affidavits, yet, section 33 of the Court Fees Act empowers the presiding judge to accept the same, if in his or her opinion, it is necessary to prevent a failure of justice. Nothing contained in section 4 or 6 of the Court Fees Act shall deemed to prohibit him or her in doing so. 17. On the other hand, for argument sake, if it is accepted that Indian Stamp Act is applicable and proper stamp duty has not been paid by the respondent, yet, as held by the learned court below, there is an Exemption Clause in the section itself and the same is still in force in the State of Assam and therefore, affixing the Court fee of Rs.2/-, in the two affidavits, filed by the respondent No.2, suffers from no infirmity or illegality, requiring dismissal of the case and discharging of the petitioner. 18. I have carefully gone through the case laws, so referred by the learned counsel for the petitioner, and in view of the discussions and findings recorded herein above, I am of the view that the ratios, laid down in the aforesaid cases, are not applicable in all force to the facts and circumstances here in this case, as the same have to be treated to be restricted to its own facts. Therefore, detail discussion of the same is skipped herein this case for the sake of brevity. 19. Thus, having considered the submissions of learned Advocates of both sides, and also the facts and circumstances on the record, this court is of the view that the impugned order, dated 29.10.2018, suffers from no infirmity or illegality, requiring any interference of this Court. Therefore, this petition stands dismissed. 19. Thus, having considered the submissions of learned Advocates of both sides, and also the facts and circumstances on the record, this court is of the view that the impugned order, dated 29.10.2018, suffers from no infirmity or illegality, requiring any interference of this Court. Therefore, this petition stands dismissed. Stay, if any granted earlier, stands vacated. The parties have to bear their own costs.