P L D 1963 (W (PLP)

(d) which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person."

4. It will be seen that, in all the clauses of the definition, the essential ingredient of a receipt is the acknowledgment of money or bill of exchange, cheque or promissory note, or movable property etc., having been received. Clause (d) given above is in general terms and leaves no doubt that the essence of a receipt is the acknowledgment of the receiving of the article in question. In the present case, the two documents in dispute go beyond acknowledgment, namely, they also contain an obligation on the part of the executant to pay the amount to the petitioner Haji Hamzo on demand.

5. The question, therefore, is whether the documents are promissory notes or bonds. The term "bond" is defined in clause (5) of section 2 of the Stamp Act as follows :‑‑ "(5) `bond' includes‑ (a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable to order or bearer. whereby a person obliges himself to pay money to another; and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another."

6. The term "promissory note" is defined in clause (22) as follows : ‑‑‑ "(22) `promissory note' means a promissory note as defined by the Negotiable Instruments Act, 1881 ; it also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen."

7. As the definition of the promissory note given in clause (22) mentioned above has also reference to the definition contained in the Negotiable Instruments Act, 1881, that definition may also be reproduced here for facility of reference. In section 4 of the Negotiable Instruments Act it is laid down: "A `promissory note' is an instrument in writing (not being a bank‑note or a currency‑note) containing an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument."

8. It will be seen that there is a common element between a promissory note and a bond referred to in clauses (a) and (b) of the definition of that term in the Stamp Act, namely, that there is a promise or an obligation to pay a certain sum of money, but there are other elements which distinguish a bond from a promissory note. In the present case, the clause relevant for our purpose in the definition of the term "bond" is clause (b) which lays down that any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another is a bond.

9. Now, in the present case the instruments in question are attested by witnesses, they are not payable to order or bearer, and they contain an obligation on the part of the executant to pay money to another, namely, the present petitioner. It appears, therefore, that all the three conditions mentioned in clause (b) of the definition of the term "bond" exist in the case of both these documents. In this view of the matter, they would have to be treated as bonds and not promissory notes.

10. There is no lack of authorities on this point. One may refer only to Khetra Mohan Saha v. Jamini Kanta Dewan (54 I L R Cal. 445), Queen‑Empress v. Ramayya and others (13 I L R Mad. 147), D. Rozario v. Hariballabh Onkarjee Trivedi (A I R 1927 Nag. 195) and Venku Ramchandrashet v. Sitaram Pandurang (29 I L R Dom. 82).

11. Mr. Sher Ali drew my attention to some cases which appear to him to lay down a contrary view. These may be briefly noticed. In Sheikh Pudai v. Mst. Bilasi and another (A I R 1939 Oudh 107), it was laid down that "where a document which was attested by witnesses contained the words whereas a certain sum has been borrowed with a promise to pay the same on demand', the words in the document showed that it was intended to be treated as a pro‑note in spite of the fact that it was attested by witnesses." The learned Judges distinguished the decision in 54 I L R Cal. 445 and A I R 1927 Nag. 195, but did not dissent therefrom. They observed that those two decisions were under the Stamp Act, whereas they were dealing with a case under the Negotiable Instruments Act. If the reasoning adopted by the learned Judges is accepted, then on that very reasoning their decision has no application to a case under the Stamp Act, for all their observations would be relevant only to the definitions as contained in the Negotiable Instruments Act. I consider, therefore, that this decision is of no assistance to the petitioner.

12. The next case relied upon by Mr. Sher Ali is Hira Lal Sircar and others v. Queen‑Empress (22 I L R Cal. 757), in which it was held that : "documents which are in form acknowledgments only are not converted into bonds, as defined in section 3, clause 4(b) of the Stamp Act (I of 1897) merely because they contain memoranda as to the rate of interest at which the loan is made and are attested by witnesses. No document can be a bond within the above section, unless it is one which by itself creates an obligation to pay the money." The documents in question are reproduced in the body of the judgment and they are acknowledgments of loans taken by the executant, with a further stipulation that he shall pay interest on the loans at the rate of Rs. 1 per cent per mensem. The learned Judges rightly observed "The important word in this definition is the word `obliges', and no document can be a bond within it unless it is one which itself creates an obligation to pay money, as is the case with those documents which are known as bonds according to the common use of the word, but is not the case with acknowledgments of advances, or of the purchase and receipt of goods, the obligation to pay for which is not created by the instrument, but arises from the promises to repay advances and to pay for goods, which the law always implies when money is borrowed or goods are purchased." This dictum has, however, no application to the present case, for the reason that here the obligation undertaken by the executant is embodied in the documents themselves, and does not arise independently of them. In other words, the two documents before me are something more than mere acknowledgements inasmuch as they contain a clear obligation to pay the sum in question on demand by the petitioner.

13. The last case relied upon by the learned counsel for the petitioner is Benoy Bhusan Saha v. Muhammad Abdul Samad alias Ladimiah (P L D 1956 Dacca 14), in which the learned Judges observe as follows :‑ "An instrument which contains merely a bare promise to pay money is a promissory note. A statement of the con sideration for the promise is not detrimental to the character of an instrument as a promissory note. Such a statement does not affect its essential character as the vehicle of a simple promise to pay. But whether what is stated is only the consideration or something more and whether it is such as to affect the essential character of the instrument must be determined on the language of each instrument and the facts and circumstances of the case. The test in each case is to see what is the dominant substantial effect of the instrument." After referring to the contents of the documents before them, the learned Judges made the further observations that "An unconditional acknowledgment of debt is not a feature foreign to the structure of a promissory note, for such acknow ledgment implies a promise to pay." I am in respectful agreement with the observations of their Lordships to the effect that the test in each case is to see what is the dominant substantial effect of the instrument. That test has to be applied keeping in view the elements prescribed in the definitions of the various types of instruments as contained in the Stamp Act. The decision of their Lordships does not bring out the distinction between a promissory note and a bond, the question with which we are concerned in the present case.

14. After a consideration of the language employed in the respective definitions of the terms "bond", "promissory note" and "receipt", as well as the dicta of the judicial authorities noted above, I am of the view that the documents in the present case fall within the definition of the term "bond". They contain an obligation on the part of the executant to pay a specified sum of money to the petitioner, they are attested by witnesses and they are not payable to order or to bearer. In other words, all the essential conditions which go to make a bond as defined in sub‑clause (b) of clause (5) of section 2 of the Stamp Act are present in the case of these documents.

15. The last point which remains to be considered is the contention put forward by Mr. Sher Ali that after impounding the documents under section 33 of the Stamp Act, the learned Sub‑Judge could only act under subsection (2) of section 38 of the Stamp Act, namely, to forward the documents to the Collector, and he had no jurisdiction to impose the penalty himself, as the documents had not yet been admitted in evidence. This contention does not appear to me to have any force. A similar question arose in Nathu Gangaram v. Hansraj Morarji (9 BLR 122). The insufficiently stamped document had been impounded by a learned Judge of the High Court before whom it had come, and a request was made that the learned Judge should act under clause (2) of section 38 of the Stamp Act, and send the document in question in original to the Collector. The following extract from the judgment of Mr. Justice Russell will not be out of place, as it contains an effective reply to the contention raised before me by Mr. Sher Ali :‑ "Mr. Jardine asks me now, under clause (2) of section 38 of the Stamp Act, to send this document in question in original to the Collector. Clause (2) of section 38 of the Stamp Act says : `In every other case', the person so impounding an instrument shall send it in original to the Collector'. In order to find out what `in every other case' means, it is necessary to see what section 38 enacts. That section says : `When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certi ficate in writing, stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Collector, or to such person as he may appoint in this behalf "Now, in the present instance, this document has been impounded by the Court, as it was obliged to do ; but no penalty has been paid, consequently this clause (2) of section 38 as to `every other case' does not apply. It comes under clause (1) of section

38. It appears to me, however, that if I were to accede to Mr. Jardine's argument, it would be practically submitting the opinion of this Court to that of the Collector, and that, I think, is obviously so, because under section 40 he has power. to deal with any instrument sent to him under section 38, subsection (2)." After citing section 35 of the Stamp Act, the learned Judge proceeded to say "The effect of that, it appears to me, 'is perfectly clear and that is, when any instrument not being one of the excepted instruments in subsection (a) of section 35 is tendered in Court, the Court is to accept it and shall admit it as evidence on payment of the duty ; and the person tendering it is entitled to compel the Court to accept the instrument if the duty and penalty are paid . . . . .".

16. I am in respectful agreement with the argument contained in the quotations cited above. Once an insufficiently stamped document comes before a Court or an officer entitled to take evidence under the law or by consent of the parties, it has to be impounded under section 33 of the Stamp Act, and under section 35 of the same Act it shall be admitted in evidence on the payment of the deficiency and the penalty. After that, the procedure prescribed in subsection (1) of section 38 of the Ic Stamp Act comes into play. The procedure outlined in sub section (2) of section 38 would apply in other cases. The fact that the stage at which the insufficiently stamped document comes to the notice of the Court is not one of recording evidence makes no difference to the procedure to be observed with regard to the impounding of the document and the levying of the deficiency of duty and the penalty thereon. The reason seems to me to be clear, namely, that the document is obviously tendered in Court or presented otherwise for the purpose of being read in evidence. In the present case, the two documents were filed with the plaint with the obvious purpose of being ultimately relied upon as material pieces of evidence. It is clear, therefore, that once the Court has impounded them under section 33 of the Stamp Act, the procedure prescribed in section 35 of the same Act comes p into play, and if that happens, then subsequently action has to be taken under subsection (1) of section 38 and not subsection (2) thereof.

17. For the reasons given above, I find that the two documents fall within the definition of the term "bond", and that they were rightly impounded and further that deficiency of duty as well as penalty has been rightly levied thereon by the learned Sub‑Judge and no interference is called for in revision by this Court. The revision application, therefore, fails and is hereby dismissed. As the respondents to the present petition have not appeared to contest the same, there will be no order as to costs. K.B. A. Petition dismissed.