IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL REVISION PETITION No.760/2014 BETWEEN:
Sri.K.Narayanaswamy, S/o Krishnappa, Aged about 35 years, R/at Aramakanahalli Village, Srinivasapur Taluk, Now NO.144, Kengeri Upanagar, Bus Stand Road, Bangalore – 560 060.
(By Sri.Subash Reddy V., Advocate) AND:
Sri.G.M. Nataraj, S/o G.V.Munivenkatagowda, Aged about 45 years, R/at Gadadasanahalli Village, Myladahalli Post, Kasaba Hobli, Chintamani Taluk, Chickballapur Distict – 563 125.
(By Sri.K.Akram Pasha, Advocate - Absent) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 and 401 of Cr.P.C. praying to set aside the order dated 24.07.2014 passed by the Adhoc District an S.J., FTC –II, Chintamani in Crl.A.No.45/2012 and allow the petition and acquit the petitioner/accused For the offence P/U/S 138 of N.I. Act.
This Criminal Revision Petition coming on for Admission this day, the Court made the following:
O R D E R The present Revision Petition is filed against the judgment of conviction passed by the Fast Track Court-II, Chintamani in Crl.A.No.45/2012 dated 24.07.2014.
2. Before adverting to the legal points involved in this case, the brief facts of the case has to be elucidated. The complainant by name G.M.Nataraj, has lodged a complaint under Section 200 of Cr.P.C against the present petitioner (accused before the trial Court) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. The accused contested the said proceedings. Ultimately, the case ended in conviction and accused was sentenced to undergo simple imprisonment for a period of six months for the above offence and to pay fine Rs.10,000/, in default of payment of fine amount, the accused shall undergo simple imprisonment for the period of two months.
3. The trial Court exercising power under Section 357 of Cr.P.C., has awarded compensation of Rs.2,25,000/- in favour of the complainant. The said judgment of conviction and sentence was called in question before the Fast Track Court-II, Chintamani in Crl.A.No.45/2012. The first appellate Court after hearing both the parties, confirmed the judgment of conviction and sentence passed by the trial Court. Further, it modified the sentence and awarded compensation amount of Rs.2,25,000/- and out the said amount, a sum of Rs.2,20,000/- is ordered to be paid in favour of the complainant and Rs.5,000/- to be payable to the State as fine. Except that, the accused did not succeed before the first Appellate Court. Challenging the above said two judgments of the trial Court and the first Appellate Court, the revision petitioner/accused has preferred this revision petition.
4. Without going into the merits or demerits of the case, the learned counsel for the revision petitioner strenuously contended before the Court that the judgments of the trial Court and the First Appellate Court deserve to be set aside, on the ground that no proper reasoning has been given refusing to the accused for the purpose of marking of documents, which is absolutely necessary for appropriate adjudication of the rights of the parties. The trial Court in fact, has not even marked the documents produced by the accused which are termed signed agreement between the parties and a “Rent Kararu” (Rent Agreement).
5. The learned counsel contended that the trial Court has not even given any finding on the documents and not even referred to the Stamp Act or any other relevant provisions so as to come to the conclusion that the said document cannot be marked.
6. The learned counsel also contended that the relevant documents which are produced before the Court and the Court has to take into consideration for the proper adjudication of the parties, are not considered properly.
7. The case of the complainant is that the accused (Revision Petitioner) has issued a cheque for discharge of his liability as the accused had taken a hand loan of Rs.2,00,000-/- on 25.05.2008 for the purpose of his family and legal necessities. While receiving the said amount, he has assured to repay the same within three months. Thereafter, the accused had issued a cheque bearing No.786114 for a sum of Rs.2,00,000/- in favour of the complainant dated 18.12.2008 drawn on State Bank of India, Chintamani Branch. When the said cheque was presented to the Bank, it came to be dishonored with an endorsement “Funds Insufficient” and after compliance with the legal requirements with reference to issuance of notice, a complaint was filed.
8. The defense taken up by the accused is that there was no legally enforceable debt as he has not at all received any amount from the complainant. The contention of the accused is that on the basis of ‘rent kararu’, which is sought to be marked before the Court, the cheques were issued by the accused as security even without any loan or without any debt on the part of the accused. The said cheque number, particularly, the cheque involved in this case is also mentioned in the said document alleged to have been entered into between the parties and it is also stated in the document that after lapse of 12 years, the accused will take back those documents i.e., from a person by name Ramakrishna Gowda. The accused has also taken up a contention that the notice issued to him under section 138 of N.I. Act was not served upon him, therefore, to show that he was not actually residing in the address mentioned in the notice and on the postal cover containing the notice issued by the complainant. He has produced a ‘rent khararu’ between himself and one Gaalappa, S/o Appayappa. These documents were not allowed to be marked and considered by the trial Court. Therefore, learned counsel contended that no sufficient opportunity was granted to the accused to prove his defence before the trial Court. The appellate Court also did not take into consideration this particular aspect, but simply swayed away with the observation made by the trial Court and confirmed the judgment of the trial Court. Therefore, learned counsel for the revision petitioner contended that both the judgments should be set-aside and the matter should be remitted to the trial Court for fresh disposal after providing sufficient opportunity to the accused to establish his defence.
9. Now the question that arises for consideration is “Whether the trial court is right in refusing to mark those documents without giving any reasons?”.
10. The evidence of the accused examined as DW-1 discloses that he has actually produced above said two documents. At page two of the evidence of DW-1, the learned Judge has recorded that the accused has produced an agreement and another a rent khararu. In one sentence, the trial Court has stated that the two documents were not stamped properly by the accused, therefore they were not allowed to be marked before the Court. Therefore, it goes without saying that the trial Court has not given opportunity to the accused to adduce evidence and argue on that particular point as to whether the stamp fee is absolutely necessary so far as those documents are concerned and whether the Court has jurisdiction to pass such an order. But without examining all those things, the trial Court has refused to mark the said documents and also not provided an opportunity to the accused to rely upon those documents. As rightly contended by the learned counsel, document No.1 contains the cheque number which is involved in this particular case. How that document could have been used by the accused should not have been imagined by the Court. An opportunity should have been given to the accused. In this particular background, the Court has to examine whether these two documents requires to be stamped for the purpose of marking particularly in a criminal case.
11. In this context, learned counsel has relied upon a decision of this Court passed in Crl.P.No.5589/2010 connected with Crl.P.No.4813/2010, wherein this Court has made an observation that “under sections 33 and 34 of the Stamp Act, if they are read meticulously, stamping of the said documents and payment of deficit stamp fee or like is unnecessary, in a criminal case, the Court has to give a finding whether it is necessary that those documents to be marked. Ultimately, the Court has decided that, with regard to merits pertaining to the said documents and came to the conclusion that the documents need not be stamped, deficit stamp fee also need not be paid”.
12. Therefore, in this background, the court has to examine the provisions of Sections 33 and 34 of the Indian Stamp Act, 1899( for short ‘Stamp Act’). Section 33 of the Stamp Act reads as follows:-
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 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 (5 of 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”.
13. The proviso to section 33 of Stamp Act, clearly discloses that whatever contained in the provision under sections 33(1) and (2) require any Magistrate or a 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. Sub-clause(b) says 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. So proviso (a) is only applicable. Said Chapters are pertaining to Code of Criminal Procedure, 1898. The corresponding Chapters are under Chapter IX and X of Crl.P.C. 1973. So therefore the above said provisions are only applicable so far as Chapter IX and X of Cr.P.C. are concerned. Even if the Magistrate thinks it fit and necessary that those documents are to be stamped and if the deficit stamp fee has to be paid, it should be considered only with reference to Chapter IX and X of Cr.P.C., 1973.
14. Section 35 of the Act reads as under:-
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 [shall], 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 five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five 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, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee 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 (5 of 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 [the7 [Government]] or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
15. A plain reading of the said provision clearly discloses that sub-clause (d) of the said provision also imposes responsibility on the Court only with reference to Chapter IX and X to give a finding whether the stamp or deficit stamp fee has to be paid on those documents. Therefore, said provision will be preventing payment of any instrument in evidence in any criminal proceeding in a criminal Court or other than under Chapter IX and X of Cr.P.C. Therefore, it goes without saying that in criminal case except under Chapter IX and X of Cr.P.C., so far as other chapters are concerned, the documents which are produced before the Court which are not stamped or which are deficitly stamped, the court cannot insist upon the payment of stamp fee or deficit stamp fee for the purpose of marking and relying upon the said document.
16. Further added to the above, for what purpose, said document is produced is also to be taken note of by the Court whether it is a document on which right, title and interest is claimed over the property. Section 138 of N.I. Act is only referable to dishonour of cheques. The contention of the complainant herein is that the accused has issued the cheque for discharge of his liability and the same was dishonoured and thereafter the complaint was lodged. Therefore, the onus is on the accused to prove that, such existence of liability is not there. In order to establish his case, by preponderance of probability, he wanted to rely upon those two documents. Therefore, he is not claiming any right, title or interest over any property on the basis of said documents in order to draw an inference that those documents also require to be stamped or deficit court fee has to be paid. Therefore, relevancy of the documents are only to be taken into consideration by the Court in order to find out whether by means of preponderance of probability, the accused is entitled to rely upon such documents. The accused wanted to rely upon those documents for collateral purpose for establishing his defence before the Court that the cheque was not in possession of the complainant, but it was given to some other person by virtue of an agreement. Secondly, the notice issued by the Court has not been served upon him because he was residing in some other place. Therefore, it clearly goes to show that the accused did not want to rely upon those documents for the purpose of claiming any right, title or interest over that particular subject matter.
17. In the above said circumstances, in my opinion, both the trial Court and the Appellate Court have committed serious error in not even taking into consideration the legal aspects whether the documents require any stamp fee particularly whether criminal court can insist upon the payment of stamp fee and refuse to mark those documents because they are not stamped. The appellate Court has also not bestowed its attention so far as this particular legal aspect is concerned.
18. Under the above said facts and circumstances, in my opinion, both the judgments i.e., the first Appellate Court and trial Court deserve to be set-aside and the matter has to be remitted to the trial Court for fresh disposal to give an opportunity to the accused to mark those documents and rely upon those documents and thereafter the trial Court to proceed with the matter in accordance with law and dispose of the matter on merits.
19. Hence, the following:-
ORDER R 1. The criminal Revision Petition is allowed.
2. Consequently, the judgment of conviction in C.C.No.470/2009 dated 26.06.2012 passed by learned Prl. Civil Judge & J.M.F.C, Chintamani which is confirmed in Crl.A.No.45/2012 by Fast Track Court-II, Chintamani dated 24.07.2014 are set- aside.
3. C.C.No.470/2009 is restored on to the file of the trial Court and the trial Court shall provide an opportunity to the accused to mark the said documents which are now produced before this Court and to lead evidence on those documents and cross-examine the complainant on those documents and after providing opportunity to the complainant to cross-examine the accused and to lead any further evidence on his side and after hearing the arguments on merits, the trial Court shall dispose of the case in accordance with law.
4. In view of the disposal of the revision petition, I.A.No.1/19 is also hereby allowed. The documents are taken on record and Registry is directed to transmit the said documents to the trial Court.
5. Whatever the amount the accused has deposited before the trial Court, the same shall not be released till the disposal of the case on merits.
Registry is hereby directed to send back the records along with two documents to the trial Court.
Sd/- JUDGE SB/mn/-