Impounding of Documents in Criminal Cases- Section 33(2) (a) of Stamp Act

Andhra High Court
Preetesh Kumar vs Counsel For The on 19 January, 2017
THE HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY
CRIMINAL PETITION No.10057 OF 2016
19-01-2017
Preetesh Kumar.petitioner
The State of Telangana and another. respondents
Counsel for the petitioner : M/s.Sri Pratap Narayan Sanghi
Counsel for the Respondents: Sri B.Chandrasen Reddy

1. This petition is filed under Section 482 Cr.P.C. to quash the proceedings dated 24.06.2016 in Crl.R.P.No.111 of 2016 passed by the IV Additional Metropolitan Sessions Judge, Hyderabad, whereby 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.

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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.

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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) 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 under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898.

(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument, under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt--

(a) the State Government may determine what offices shall be deemed to be public offices; and                   (b) the State Government may determine who shall be deemed to be persons in charge of public

offices.

35. Instruments not duly stamped inadmissible in evidence 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) of Section 3 with a duty of forty paise or a bill of exchange or promissory note, shall subject to all just exceptions,be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, 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 Section 32 or any other provision of this Act.

18 In all the above referred judgments, the dispute is with regard to civil rights and interpretation ofvarious 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 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 present facts and 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, I 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. I am 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, while exercising power under Section 482 Cr.P.C. Hence, petition is devoid of merits and liable to be dismissed.

19. In the result, the Criminal Petition is dismissed at the stage of admission.