G SHANMUKHA CHARY Vs. KALAKOTLA VIJAY MOHAN

JUDGEMENT

(1.) The petitioner is facing prosecution for the offence under Sec. 138 of the Negotiable Instruments Act filed by the 1st respondent/complainant. During the course of trial, complainant marked Ex.P10 which is a document in the shape of a bond according to accused. An application was filed by accused, since Ex.P10 was unstamped. Further its contents should be treated as bond as defined under Sec. 2(5) of the Stamp Act, which requires Stamp Duty and 10 times penalty as per Sec. 35 of the Indian Stamp Act. The said application was dismissed by the learned Special Magistrate vide Crl.M.P.No.1755 of 2018 in C.C.No.331 of 2013 dtd. 20/12/2018, holding that the provisions of Stamp Act cannot be applied to the proceedings in a criminal case in view of exemption clauses contained in proviso (a) to sub Sec. 2 of Sec. 33 and Proviso (d) of Sec. 35 of the Stamp Act. Relying on the judgment of this Court in Crl.P.No.10057 of 2016 dtd. 19/7/2017, the learned Magistrate found that the document can neither be impounded nor collect stamp duty and penalty.

(2.) Learned counsel appearing for the petitioner/accused would submit that the proceedings under Sec. 138 of the Negotiable Instruments Act are considered to be civil proceedings since the Hon'ble Supreme Court in the case of Kaushalya Devi Massand v. Roopkishore Khore,(2011) 4 Supreme Court Cases 593 held that the offence under Sec. 138 of the Negotiable Instruments Act is almost civil wrong giving a criminal overtones. In the said judgment, it is held as follows:

(3.) For the said reason, when the Hon'ble Supreme Court had found that proceedings under Sec. 138 of the Negotiable Instruments Act is a civil wrong, it cannot be said that the provisions of Stamp Act would not apply.