TMI Blog2017 (2) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. When the Special Magistrate and the Revisional Courts have exercised their discretion under Sections 33(2) proviso (a) and 35 proviso (d), this Court cannot interfere with such orders while exercising inherent power under Section 482 Cr.P.C. Section 482 Cr.P.C. confers inherent power on the High Court being the highest Court of the State only for limited purpose of enforcing the orders passed under the Code, to prevent abuse of process of the Court and to meet the ends of justice in view of the limited power conferred on it, unless the order passed by the trial Court and confirmed by the revisional Court is prima-facie erroneous and the court cannot interfere by exercising inherent power under Section 482 Cr.P.C. Therefore, find no illegality in the order passed by the trial Court in exercising discretion that conferred on the Courts below to set aside the same, consequently, persuaded by the law laid down by Calcutta High Court in as early as in 1950 and in the latter judgment of the Karnataka and Madhya Pradesh High Courts and interpreting the provisions under Sections 33 and 35 of the Stamp Act. It is of the view that the orders passed by the Special Magistrate confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding (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 unregistered. Since the claim of the 2nd respondent/complainant is based on Memorandum of Understanding, the petitioner/accused filed a petition before the Special Magistrate under Section 33 of the Indian Stamp Act, to impound the Memorandum of Understanding dated 14.02.2014. The 2nd respondent/complainant filed counter contending that the petition is not maintainable, besides raising several other contentions. Upon hearing argument of both the counsel, the Special Magistrate held that the document cannot be impounded and negated the relief. 3. Aggrieved by the order passed by the Special Magistrate, the petitioner preferred the Criminal Revision Petition No.111 of 2016 before the IV Additional Metropolitan Sessions Judge, Hyderabad, and by order dated 24.06.2016 the learned Judge confirmed the order passed by the Special Magistrate, dismissing the revision petition. 4. The order passed by the Sessions Judge is challenged before this Court on several grounds mainly contending that the Memorandum of Understanding, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Stamp Act. 33. Examination and impounding of instruments :-- (1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of a police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed : Provided that-- (a) nothing herein contained shall be 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Section 32 or any other provision of this Act. 8. Section 33(i) deals with duty of the public officer to impound the document but the proviso annexed to sub-clause(2) is clear that the above provision will have no application to the proceedings under Chapter-XII or Chapter-XXXIV of Code that Code of Criminal Procedure (old), 1898 and now Chapters IX and X of Code of Criminal Procedure, 1975. Thus, it is clear from proviso under Section 33(2), the Magistrate can examine and impound the document in the course of any proceedings only for limited purpose of deciding any questions under Chapters IX and X of Cr.P.C. not otherwise. 9. Section 33 provides for impounding of instruments not duly stamped but the proviso thereto makes exception in case of Magistrate or Judge of a criminal Court in the course of any criminal proceeding the Magistrate or Judge of a Criminal Court need not be impound any document produced before him in criminal proceedings if he does not think fit to do so. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting 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 Section 35 that no instrument chargeable with duty shall be admitted in evidence for any purpose or acted upon unless it be duly stamped, does not apply to proceedings in a Criminal Court. 12. In identical question regarding admissibility of a document, when an appeal for the offence punishable under Section 138 of the Act came up before Madhya Pradesh High Court in Ramesh Giri v. Dheeraj Gobhuj 2014(2) JLJ 408, the Single Judge of the Court had an occasion to deal with a similar petition and while deciding an application under Section 482 Cr.P.C. challenging the order passed by the Magistrate and confirmed by the revisional Court, based on Section 33 of the Indian Stamp Act and sub-section (2)(a) proviso held that proceedings under Section 138 of the Act are summary in nature and the Magistrate declined to impound the document. The same was confirmed by the revisional Court since Section 33(2) proviso (a) does not require impounding the document which has been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 under Section 138 of the Act. A similar question came before Karnataka High Court in Smt.Ravikala v.K.V.Rama Murthy (MANU/KA/0163/2011) in Crl.P.No.5589 of 2010 C/W Crl.P.No.4813 of 2010 decided on 18.03.2011, persuaded by the principles laid down in the judgments of Bangalore, Madhya Pradesh and Calcutta High Courts, where it is abundantly clear that the power vested on the Magistrate or a Judge presiding criminal Court under Sections 33 and 35 is purely discretionary and the Magistrate has to exercise its power judiciously based on the facts of each case. The offence allegedly committed by the petitioner is punishable under Section 138 of the Act, as discussed above, on the ground that the document i.e., Memorandum of Understanding is inadmissible and reject the claim of the complainant while holding that there is no legally enforceable debt and issue of cheques were not towards discharge of legally enforceable debt. It would frustrate the very object of the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 invalidate such law. Greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the Court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialization when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the Court to encroach into the domain of the executive or legislative and try to enforce its own views and perceptions. The Apex Court also adverted to Section 33(i) and concluded that in view of the language used in Section 33(i) of the Stamp Act there is no discretion in the authority mentioned in Section 33(i) of the Stamp Act to impound the document or not to do so. Thus, the Court is bound to. In M/s. SMS Tea Estates Pvt. Ltd. v. M/s.Chandmari Tea Co.Pvt.Ltd 2011 AIR SCW 4484(1), the Apex Court held that when an unregistered sale deed is inadmissible in evidence, but com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 insisting for impound of a document as required under Section 33(i) and (2) and bar under Section 35 of the Indian Stamp Act is to see that no criminal proceedings shall be frustrated on account of such interdict contained in the Act and not to allow any criminal to escape from the criminal laws, un-punished. If the interpretation given by the Courts in civil proceedings is applied to the proceedings in a criminal case, it would frustrate the very object of the legislatures in incorporating true exemptions referred supra. Therefore, the interpretation to the provisions of the Stamp Act, as laid down by the Apex Court in the judgments referred supra, cannot be applied to the proceedings in a criminal case, in view of exemption clauses contained in proviso (a) to sub-section (2) of 33 and proviso (d) of Section 35 of the Stamp Act. Therefore, the principles laid down in the judgments relied on by the learned counsel for the petitioner have no relevance to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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