1989 PLP 3052 (MLD)

(3) Mobarak Ali Shah v. Muhammad Sadiq (P L D 1961 Kar. 265 and (4) Amin Jute Baling Co. Ltd. v. Aminpur Union Co. Op. Multi Purposes Society Ltd. (PLD 1961 Dacca 102).

3. The learned counsel for the respondents, on the other hand interpreted this order in the light of section 61 of the Stamp Act which is as follows: - "(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first mentioned Court, may of its own motion or on the application of the Collector, take order such into consideration. (2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument inchargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced. (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp Law which the Collector considers him to have committed in respect of such instrument: Provided that:-- (a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, w& payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty; (b) except for the purposes of such prosecution, no declaration made undo this section shall affect the validity of any order admitting any instrument, in evidence, or of any certificate granted under section 42." In view of the clear provisions of this section incorporated in proviso (b to subsection (4), he urged that the petitioners have no grievance since now her has the learned Additional District Judge given any finding that the document not admissible in evidence if the order of payment or deposit is not complied with. He stated that the order did not amount to a levy of stamp duty. The petitioners have only been given an opportunity to pay the stamp duty or penal, so that they may take advantage of proviso (a) to subsection (4) and thus escape the prosecution likely to be lodged against them by the Collector. He further argued that it is open to the petitioners not to pay the duty without any fear of exclusion of the said deed from consideration as evidence in the suit.

4. The learned counsel for the petitioners argued in reply that he had to file a revision petition because this particular point was not clear from the order of the learned Additional District Judge.

5. The relevant provisions in the Stamp Act are section 35, 36 and 61 Section 35 prohibits the admission of a document in evidence if it is not duly stamped without, except in certain cases, payment of the stamp duty and penalty at the rate of 10 times of the duty. Section 36 provides that "where an instrument, has been admitted in evidence, such admission shall not except as provided " I section 61, be called in question at any stage of the same suit or proceeding of the ground that .the instrument has not been duly stamped". Section 61 does not snake any departure from this principle. On the other hand it repeats it in proviso (b) to its subsection (4) and clarities that except for the purpose of such prosecution, no declaration made under, that section shall affect the validity of any order admitting any instrument in evidence. Clearly, therefore, it is not within the powers of the appellate Court while acting under section 61 to impose or levy the stamp duty or the penalty or again to exclude any document already admitted in evidence under section 35 or notwithstanding that section, from being considered as evidence. However, in subsection (2) of section 61, the Court must make a declaration of the duty payable by a party. On the other question whether the Court can declare the penalty also there is a difference of opinion. The Calcutta High Court in Bhupati Nath v. Basanta Kumar (AIR 1936 Cal. 556) has held, on the wording of proviso (a) to subsection (4) that the Court must determine not only the duty but also the penalty, and a declaration to that effect should be made. There are cases where no declaration about penalty was made. The Bombay High Court in Adarji Dorabji v. Rajaram Jhurakhanlal (`97) 1897 P.C. 382 (FB) had gone a step further and had held that the appellate Court can levy such duty. The Bombay authority is, however, not good law in view of the provisions of sections 36 and 61 of the Stamp Act. Under Section 35 of the Stamp Act the penalty is fixed but under section 40 of that Act the penalty can be from Rs. 5 to 10 times of the stamp duty as the Collector considers- fit. In section 61, however, it is made clear that no prosecution may be instituted where the amount determined by the Court as the amount of stamp duty along with the penalty payable under section 35 is paid to the Collector. Clearly, therefore, section 61 contemplates 10 times of penalty. In these circumstances, m my opinion, it as not necessary to determine it since that penalty is fixed according to law.

6. The Additional District Judge was empowered to ad under section 16 of the Stamp Act but he had no power to levy the stamp duty or to levy the stamp duty or to make its deposit a pre-condition for considering the document as admitted. He can only impound the document after the declaration and send it to the Collector for appropriate action under section

61. The learned counsel for the respondents interpreted this order in the same light. The order is, therefore, to be considered as being an order made for the benefit of the petitioners so that if they are able to make payment of the amount in Court it may not be necessary for the Collector to prosecute them.

7. The learned counsel for the petitioners contended that since it has been found that the document was a document of deed of exchange, both the parties are liable to pay. It is not for this Court or the Court of the learned Additional District Judge to give any finding on this particular question. As stated above the duty of the Court finishes as soon as a declaration is made and the document after being impounded is sent to the Collector. With this observation, the pin is disposed of. The parties shall, however, bear their own costs. H.B.T./S-449/L