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Preetesh Kumar Versus The State of Telangana and another

2017 (2) TMI 177 - ANDHRA PRADESH HIGH COURT

Offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - Held that:- 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 .....

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), such orders cannot be enquired, while exercising jurisdiction under Section 138 of the 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 un .....

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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 confirmed by the IV Additional Metropolitan Sessions Judge at Hyderabad, by exercising jurisdiction under Section 397 Cr.P.C., are free from any illegality and legal infirmity calling for interference of this Court, .....

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confirmed the order dated 18.04.2016 in Crl.M.P.No.1704 of 2015 in C.C.No.33 of 2014 of the IX Special Magistrate Court, Hyderabad. 2. The petitioner is the accused in C.C.No.33 of 2014 on the file of the IX Special Magistrate Court, Hyderabad, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act). The 2nd respondent is the complainant and filed a private complaint against the petitioner/accused for the offence punishable under Section 138 of t .....

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ed, 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 ₹ 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 th .....

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r 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 .....

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o mortgage. But, without looking into the contents of the document, the Special Magistrate dismissed the petition and the same was confirmed by the revisional Court. Section 33(i) of the Indian Stamp Act has to be read along with the proviso and it cannot be read in isolation. Even if Sections 35(d) and 33 of the Indian Stamp Act are read conscientiously, the document is liable to be impounded, otherwise it cannot be admitted in evidence. But the Special Magistrate and Revisional Court did not c .....

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t is designated to try the cases under the Negotiable Instruments Act, more particularly, the offence punishable under Section 138 of the Act and virtually the criminal Court is competent to exercise its discretion to impound the 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 .....

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s 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 Indian Stamp Act. 33. Examination and impounding of instruments :- (1) Ever .....

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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 under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1 .....

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ce etc :- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that- (a) any such instrument not being an instrument chargeable with a duty of twenty paise or a mortgage of crop (Article 36(a) of Schedule I-A) chargeable under clause (aa) or (bb .....

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ortion; (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 agr .....

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tion 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 t .....

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he power conferred on the Court under the proviso to sub-section (2) of 33 is purely a discretionary and such discretion has to be exercised judiciously. 10. Sub-section (d) of Section 35 is also an exception to receipt of instrument not duly stamped in evidence. Section 35 mandates that no instrument chargeable with duty shall be admitted in evidence for any purpose of any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticat .....

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ng 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(Chapters 9 and 10 of Cr.P.C., 1973); Proviso (d) to Section 35 permits the Magistrate to receive any document and admit any instrument in evidence in any proceedings in criminal Court but create an interdict on the power of the Magistrate to receive such insufficiently stamped docume .....

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te 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 .....

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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 .....

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irect the Magistrate to impound the document to levy stamp duty and penalty. 13. As discussed above, Section 33(2) proviso (a) and Section 35(d) of the Indian Stamp Act are made clear only for limited purpose of deciding the matters under Chapters IX and X of Cr.P.C. In other matters, the Court need not exercise discretion to impound the document and a Magistrate or a Judge of a criminal Court is not required to examine any instrument produced before him or come before him for the purpose of asc .....

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sly. 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 em .....

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e 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 .....

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g 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 incorporating Section 138 of the Act and the power conferred under Section 33(2) proviso (a), 35 proviso (d) of the Stamp Act. Therefore, exercising discretion not to impound the document under Section 33 is purely based on the facts of case so as to uphold the intention of the legislature in incorporating the provisions referred to ab .....

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d 14.02.2014 partakes the character of the mortgage and such an unregistered, un-stamped document cannot be received in evidence and placed reliance on several judgments of the different Courts. In support of his contention, he has drawn the attention of this Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra AIR 2009 SC 1489(1) and the Apex Court highlighted the words for any purpose whatsoever and concluded that the unregistered deed of sale was an instrument and it requires payment of sta .....

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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 in .....

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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 th .....

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statutes and functions of the Court held that a proviso laid down certain guidelines to interpret said legislations and held as follows: The next question that arises for consideration is as to what is the scope of a proviso and what is the ambit of an explanation either to a proviso or to any other statutory provision. We shall take up the question of the nature, scope and extent of a proviso. The well established rule of interpretation of a proviso is that a proviso may have three separate fun .....

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Reorganization Act, 2014 have to be harmoniously considered. Similarly, in Casio India Company Pvt. Ltd., v. State of Haryana 2016(6)SCC 209, while interpreting the provisions 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 a .....

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(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 insisting for impound of a document as required under Section 33(i) and (2) and bar under Section 35 of the Indian Stamp Act .....

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