RAVIKALA H., D/O. H. BHASKAR SHANBHOG Vs. SRI. K.V. RAMA MURTHY, S/O LATE SRI. K.R.V. IYER AND STATE OF KARNATAKA, REPRESENTED BY PUBLIC PROSECUTOR

JUDGEMENT

(1.) AS these two petitions arise out of the same proceedings in C.C. No. 15587/08 on the file of the XVI Additional Chief Metropolitan Magistrate, Bangalore they were heard together and are being disposed of by this common order. The parties in these petitions are referred to their rankings before the learned Magistrate.

(2.) IN the criminal proceedings initiated on the private complaint filed by the Petitioner in Crl. P. No. 4813/10 alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "N.I. Act") against the Respondent - Smt. Ravikala, the complainant sought to mark in evidence an unregistered agreement of sale dated 4.7.2007 written on stamp paper of Rs. 200/ - said to have been executed by the accused in favour of the complainant, to substantiate his contention that the cheque in question was issued for discharge of the liability due by the accused to the complainant objected for admitting the said agreement in evidence inter alia contending that as per the recital of the said agreement, possession of the immovable property has been delivered to the complainant as such the said document was chargeable for the purpose of stamp duty as a conveyance as per Article 5(e) of the Karnataka Stamp Act, 1957 (for short the Act') and since the agreement has been written on a stamp paper of Rs. 200/ -, it is an instrument insufficiently stamped, therefore, the said document cannot be received in evidence by the court for any purpose as provided by Section 34 of the Act unless the duty and penalty as per law is paid by the complainant. It was also contended that since a document written on insufficient stamp paper has been brought before the Court for admitting the same in evidence, as provided under Section. 33 of the Act the court has to impound the said document. The said objection was sought to be countered by the complainant contending that the recital in the document regarding said delivery of possession is only recording of a past event of delivery of possession much prior to the date of the agreement as such the possession of the property was not delivered under the document therefore, the agreement was not chargeable for the purpose of stamp duty as conveyance as per Article 5(e) of the Act as such the said Article is not applicable and since the agreement is written on sufficient stamp paper, the same is admissible in evidence.

(3.) THE learned Magistrate though initially marked the document for the purpose of identification as Ex.S1, later after hearing the learned Counsel appearing on both sides, by order dated 25.8.2010, held that though in the agreement dated 4.7.2007 it is recited that the possession of the property has been delivered to the purchasers on 25.5.2007, it has to be construed that possession of the subject matter of the agreement of sale has been delivered on the strength of the agreement of sale. For this purpose, he relied on the decision of the Apex Court in the case of Mst. Kirpal Kaur Vs. Bachan Singh and Others, AIR 1958 SC 199 and decision of this Court in the case of C.K. Ravi Prasanna S/o late C.P. Krishnappa Gowda Vs. T.K. Gowramma W/o T. Krishana Kumar, ILR (2007) KAR 2807 . In this view of the matter, the learned Magistrate held that the said document is chargeable for the purpose of stamp duty as conveyance as per Article 5(e) of the Act and since the document in question has been written on stamp paper of Rs. 200/ -, the document is written on insufficient stamp. The learned Magistrate further proceeded to hold that conjoint reading of Sections 33 and 34 of the Act together makes it clear that if the Magistrate does not think fit so to do then only he is not impound such document in a criminal proceedings, Having regard to the facts and circumstances of the case, the learned Magistrate was of the opinion that this is not a case which could fall within exception provided under Sections 33 and 34 of the Act. The learned Magistrate was also of the opinion that since the two chapters contained in the Code of 1898 as mentioned in proviso (a) to Sub -section (2) of Section 33 and Clause (c) of Section 34 of the Act deals with the disputes as to the immovable properties and the maintenance of wife and children respectively and even to such proceedings pending before the criminal court the rigor of Sections 33 and 34 are applicable and since the proceedings for offence under Section 138 of the N.I. Act being a dispute between two private individuals, it has to be construed that the exceptions provided under Clause (c) of Section 34 and Section 33 proviso are not applicable to the proceedings under Section 138 of the N.I. Act. In that view of the matter, the learned Magistrate held that the document cannot be received in evidence unless duty and penalty is paid and for that purpose he ordered impounding of the document and directed the complainant to pay Rs. 46,50,800/ - as duty and penalty which includes the deficit stamp duty of Rs. 4,22,800/ -. It is to quash the said order passed by the learned Magistrate, the complainant has presented Criminal Petition No. 4813/10 under Section 482 of Code of Criminal Procedure.