Dharmendra Bhura Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1053602
CourtMadhya Pradesh High Court
Decided OnMar-21-2013
AppellantDharmendra Bhura
RespondentThe State of Madhya Pradesh
Excerpt:
1 high court of madhya pradesh principal seat at jabalpur m.cr.c no.262 of 201.dharmendra bhura versus. state of m.p. and another for applicant/ : shri ishan soni, advocate. for respondent/ : shri r.p. tiwari, govt. advocate. no.1/state. for respondent no.2 : shri sunil jain, advocate. order (oral) (21.03.2013) per u. c. maheshwari j.1. the petitioner – complainant has filed this petition under section 482 of cr.p.c. being aggrieved by the order 30.11.2012 passed by the additional sessions judge, jabalpur in criminal revision no.297/12, affirming the order dated 11.9.2012 passed by the judicial magistrate, ist class, jabalpur in criminal case no.20325/08 whereby in a private complaint filed by him against the respondents for his prosecution of the offence punishable under section 420 of ipc, his documents i.e. the alleged partnership deed and the agreement for partnership in the lack of proper stamp duty, on the same were held to be inadmissible documents with some direction to impound and get validated the same.2. the applicant's counsel after taking me through the papers placed on record alongwith the impugned orders, so also the order of the trial court dated 27.9.2010, which has been filed alongwith the reply of the respondent no.2 as annexure r-1, argued that in the course of the trial of aforesaid his private complaint against the respondent no.2, in which the cognizance of section 420 of ipc was taken against him, on some 2 earlier occasion, the above mentioned agreement for partnership and deed of partnership both dated 20.8.1996 were placed in evidence, the same was objected by the other side on the ground that the same has not been prepared on requisite stamp duty as per provision of stamp act. so by virtue of section 35 of the stamp act, the same is inadmissible, on which vide aforesaid order dated 27.9.2010, the trial court had refused to treat the above mentioned both the documents to be the admissible documents accordingly such objection of the respondent no.2 was resolved. thereafter at subsequent stage again on behalf of the applicant herein an application dated 5.9.2012 was filed whereby the prayer to hold the aforesaid document as admissible in the matter was made. on consideration such application was dismissed, vide order dated 11.9.2012 by extending a liberty to the applicant to impound and get validated the same from the appropriate authority under the concerning provision of the stamp act. being dissatisfied by such order, the applicant herein challenged the same before the revisional court but on consideration by affirming such order of the trial court, the revision was dismissed, on which the applicant has come to this court. in continuation, he said that in view of the proviso (d) of section 35 of the stamp act even in the absence of the requisite stamp duty as per requirement of the stamp act and its schedule on the above mentioned documents, the same were admissible in the impugned criminal case. because such case is neither related with the dispute relating to public peace and tranquility with respect of any immovable property or to the proceedings for the sum of maintenance. but such provisions have not been considered by any of the courts below with proper approach while dismissing his application as 3 well as revision respectively and prayed to hold the above mentioned documents to be admissible by admitting and allowing this petition.3. on the other hand responding the aforesaid arguments, counsel of respondent no.2, shri sunil jain, after taking me through the averments of his reply as well as annexed documents with it, by referring the provision of proviso (a) of sub section 2 of section 33 of the stamp act justified the impugned order and said that same has been passed by the trial court in accordance with law under the vested discretionary jurisdiction of such court and the same was rightly affirmed by the revisional court. thus, the same does not require any interference at this stage. he also said that the impugned order being passed by the subordinate court under the vested jurisdiction, hence there is no scope to make any interference in the same under the inherent power of this court enumerated under section 482 of cr.p.c. he further argued that before passing the impugned order dated 11.9.2012 by the trial court on the same subject in the same case, an order dated 27.9.2010, (ann. r-1) was also passed in this regard, according to which it was held that the aforesaid agreement for partnership and deed of partnership, (annexure p-2) being not properly stamped in accordance with the stamp act, are not admissible documents and such order was never challenged by the applicant herein before any of the superior court and the same got finality between the parties. so at subsequent stage, the trial court as well as the revisional court in view of the provision of section 362 of cr.p.c. could not change or modify such earlier order, so also could not change the view contrary to such earlier order and prayed for dismissal of this petition”4. having heard the counsel at length, keeping in view their arguments, i have carefully gone through the petition alongwith the papers annexed with it as well as the reply of the respondent no.2 and its annexed documents, so also the impugned orders alongwith the order dated 27.9.2010.5. it is undisputed on record that the aforesaid agreement of partnership and deed of partnership, (annexure p-2, collectively) were not made and prepared on a requisite stamp duty as per requirement of stamp act and its schedule. i am of the considered view that in the civil matters or matters relating to the dispute of public peace and tranquility relating on account of any immoveable or of the dispute relating to the sum of maintenance to the wife, children and/or parents, if any document having the deficit stamp duty, the same could not be taken into consideration as admissible documents unless the same is impounded and validated by paying the requisite stamp duty and penalty in accordance with the provision of stamp act and its rules. but in the available circumstances since the applicant has filed a private complaint against the respondent no.2, in which the cognizance for the offence of section 420 of ipc has been taken against the respondent no.2, hence by virtue of section 35 (d) of the stamp act, the trial court did not have any authority to refuse to take such documents in evidence by holding the same to be inadmissible on the ground of lack of requisite stamp duty as per provisions of stamp act.6. before proceeding further, i would like to reproduce the concerning abstract of the proviso (a) of sub section (2) of section 33 as well as the 5 proviso (d) of section 35 of the stamp act as ready reference. the same are read as under:- 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; (b) ................ (3) ................ (a) ................ (b) ................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 6 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)………………….. (b)..................... (c)..................... (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, (5 of 1898). (e) .................7. on examining the case at hand, first in view of the aforesaid proviso (a) sub section (2) of section 33 of the stamp act, according to it, the magistrate or the judge of the criminal court is not bound to examine and impound such documents, if he does not think fit to so do, if the instrument came before him in the course of the proceedings other then the proceedings under chapter xii or chapter xxxvi of the code of criminal procedure 1898 (the corresponding chapter of the same in the new cr.p.c. of 1973 are chapter x and ix, such chapter are related to the dispute of immovable property and the proceeding relating to the sum of maintenance respectively. it is apparent fact in the case at hand that this matter is not relating to any of such dispute. so in such premises, under this proviso the magistrate was not having any authority to examine and direct to impound the above mentioned documents with a direction to the parties to get validate the same from the authority provided under the law in the impugned criminal case. in such premises, the approach of the 7 trial court and revisional court could not be deemed to be correct and in such premises also, the impugned order does not deserves to be sustained.8. on the other hand, on examining the case in view of the proviso (d) of section 35 of the stamp act, then it is apparent that the impugned case being related with the offence of cheating defined under section 415 and made punishable under section 420 of ipc is not covered under the aforesaid chapters of cr.p.c., mentioned in the aforesaid proviso (d) or its corresponding chapters of cr.p.c. 1973, stated above, as such the impugned dispute and case being not related to the immoveable property and/or the maintenance by virtue of aforesaid proviso (d) of section 35 of stamp act, the earlier main part of this section is not applicable to the case at hand. so in such premises, except to hold the above mentioned documents to be admissible, there was no any other option with the judicial magistrate either to direct the parties to get the documents validated in accordance with the procedure or holding such documents to be the inadmissible. because the aforesaid clause (d) specifically says “nothing herein contained shall prevent 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) (in the new criminal procedure code 1973, the corresponding chapters with certain modification have been made as chapters not x-d and ix)). so in such premises, i am of the considered view that the trial court has committed grave error in holding the aforesaid documents to be inadmissible by its earlier order dated 27.9.2010, (annexure r-1). at subsequent stage again the trial court has 8 committed such mistake in passing the order dated 11.9.2012, (annexure p-4), whereby the application of the applicant filed to hold the above mentioned documents to be admissible has been dismissed with the observation that the applicant, if wants to produce such documents, then may get validated by impounding the same.9. in the aforesaid premises the revisional court has also committed error in affirming such order of the trial court. therefore, the impugned orders of the courts below being contrary to mandatory provision of the law deserves to be set aside. 10.coming to consider the another objection of the counsel for respondent no.2 that the earlier order of the trial court dated 29.7.2010, (annexure r-1) passed on the same question had got finality between the parties long before, thus in view of section 362 of cr.p.c. at subsequent stage, the same could neither be modified not changed by the trial court by allowing the applicant's impugned application is concerned, it is suffice to say that this court while sitting for hearing the petition of section 482 of cr.p.c. may invoke the inherent power to rectify any mistake at any time, committed by the subordinate court, either by the trial court or/and by the revisional court or the appellate court and if any order has been passed by such court contrary to the mandatory provision of the law, then to give effect to any provision of criminal procedure code or any other law and to secure the ends of justice between the parties, this court may pass order for quashment of such illegal orders. mere on account of provision of section 362 of cr.p.c., this court cannot stop it’s hands to rectify the mistake of the sub ordinate court and permit the trial court to proceed contrary to the mandatory provision of law by affirming and 9 maintaining such illegal orders. in fact the present matter is fit case in which by invoking the inherent power of this court enumerated under section 482, the aforesaid orders should be set aside and quashed with the direction to the trial court to permit the applicant to produce and mark the aforesaid both the documents exhibits, as admissible documents. 11.in view of the aforesaid by allowing this petition, the impugned orders of the revisional court as well as the order dated 27.9.2010 and the order dated 11.9.2012 passed by the trial court are hereby set aside and by allowing the impugned application of the applicant, (the part of annexure p-2) the applicant is permitted to mark the exhibits on such documents as admissible document in the impugned criminal case even if the same are not prepared on the requisite stamp, as per requirement of the stamp act. 12.the petition is allowed, as indicated above. (u. c. maheshwari) judge bks
Judgment:

1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.CR.C No.262 OF 201.Dharmendra Bhura Versus. State of M.P. and another For applicant/ : Shri Ishan Soni, Advocate. For Respondent/ : Shri R.P. Tiwari, Govt. Advocate. No.1/State. For respondent No.2 : Shri Sunil Jain, Advocate. ORDER

(Oral) (21.03.2013) Per U. C. Maheshwari J.

1. The petitioner – complainant has filed this petition under Section 482 of Cr.P.C. being aggrieved by the order 30.11.2012 passed by the Additional Sessions Judge, Jabalpur in Criminal Revision No.297/12, affirming the order dated 11.9.2012 passed by the Judicial Magistrate, Ist Class, Jabalpur in Criminal Case No.20325/08 whereby in a private complaint filed by him against the respondents for his prosecution of the offence punishable under Section 420 of IPC, his documents i.e. the alleged partnership deed and the agreement for partnership in the lack of proper stamp duty, on the same were held to be inadmissible documents with some direction to impound and get validated the same.

2. The applicant's counsel after taking me through the papers placed on record alongwith the impugned orders, so also the order of the trial court dated 27.9.2010, which has been filed alongwith the reply of the respondent No.2 as Annexure R-1, argued that in the course of the trial of aforesaid his private complaint against the respondent No.2, in which the cognizance of Section 420 of IPC was taken against him, on some 2 earlier occasion, the above mentioned agreement for partnership and deed of partnership both dated 20.8.1996 were placed in evidence, the same was objected by the other side on the ground that the same has not been prepared on requisite stamp duty as per provision of Stamp Act. So by virtue of Section 35 of the Stamp Act, the same is inadmissible, on which vide aforesaid order dated 27.9.2010, the trial court had refused to treat the above mentioned both the documents to be the admissible documents accordingly such objection of the respondent No.2 was resolved. Thereafter at subsequent stage again on behalf of the applicant herein an application dated 5.9.2012 was filed whereby the prayer to hold the aforesaid document as admissible in the matter was made. On consideration such application was dismissed, vide order dated 11.9.2012 by extending a liberty to the applicant to impound and get validated the same from the appropriate authority under the concerning provision of the Stamp Act. Being dissatisfied by such order, the applicant herein challenged the same before the revisional court but on consideration by affirming such order of the trial court, the revision was dismissed, on which the applicant has come to this court. In continuation, he said that in view of the proviso (d) of Section 35 of the Stamp Act even in the absence of the requisite stamp duty as per requirement of the Stamp Act and its schedule on the above mentioned documents, the same were admissible in the impugned criminal case. Because such case is neither related with the dispute relating to public peace and tranquility with respect of any immovable property or to the proceedings for the sum of maintenance. But such provisions have not been considered by any of the Courts below with proper approach while dismissing his application as 3 well as revision respectively and prayed to hold the above mentioned documents to be admissible by admitting and allowing this petition.

3. On the other hand responding the aforesaid arguments, counsel of respondent No.2, Shri Sunil Jain, after taking me through the averments of his reply as well as annexed documents with it, by referring the provision of Proviso (a) of Sub Section 2 of Section 33 of the Stamp Act justified the impugned order and said that same has been passed by the Trial Court in accordance with law under the vested discretionary jurisdiction of such court and the same was rightly affirmed by the revisional court. Thus, the same does not require any interference at this stage. He also said that the impugned order being passed by the Subordinate Court under the vested jurisdiction, hence there is no scope to make any interference in the same under the inherent power of this court enumerated under Section 482 of Cr.P.C. He further argued that before passing the impugned order dated 11.9.2012 by the trial court on the same subject in the same case, an order dated 27.9.2010, (Ann. R-1) was also passed in this regard, according to which it was held that the aforesaid agreement for partnership and deed of partnership, (Annexure P-2) being not properly stamped in accordance with the Stamp Act, are not admissible documents and such order was never challenged by the applicant herein before any of the superior court and the same got finality between the parties. So at subsequent stage, the trial court as well as the Revisional Court in view of the provision of Section 362 of Cr.P.C. could not change or modify such earlier order, so also could not change the view contrary to such earlier order and prayed for dismissal of this petition”

4. Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the petition alongwith the papers annexed with it as well as the reply of the respondent No.2 and its annexed documents, so also the impugned orders alongwith the order dated 27.9.2010.

5. It is undisputed on record that the aforesaid agreement of partnership and deed of partnership, (Annexure P-2, collectively) were not made and prepared on a requisite Stamp duty as per requirement of Stamp Act and its Schedule. I am of the considered view that in the civil matters or matters relating to the dispute of public peace and tranquility relating on account of any immoveable or of the dispute relating to the sum of maintenance to the wife, children and/or parents, if any document having the deficit stamp duty, the same could not be taken into consideration as admissible documents unless the same is impounded and validated by paying the requisite stamp duty and penalty in accordance with the provision of Stamp Act and its Rules. But in the available circumstances since the applicant has filed a private complaint against the respondent No.2, in which the cognizance for the offence of Section 420 of IPC has been taken against the respondent No.2, hence by virtue of Section 35 (d) of the Stamp Act, the trial court did not have any authority to refuse to take such documents in evidence by holding the same to be inadmissible on the ground of lack of requisite stamp duty as per provisions of Stamp Act.

6. Before proceeding further, I would like to reproduce the concerning abstract of the Proviso (a) of Sub Section (2) of Section 33 as well as the 5 Proviso (d) of Section 35 of the Stamp Act as ready reference. The same are read as under:- 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; (b) ................ (3) ................ (a) ................ (b) ................

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 6 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)………………….. (b)..................... (c)..................... (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, (5 of 1898). (e) .................

7. On examining the case at hand, first in view of the aforesaid Proviso (a) Sub Section (2) of Section 33 of the Stamp Act, according to it, the Magistrate or the Judge of the Criminal Court is not bound to examine and impound such documents, if he does not think fit to so do, if the instrument came before him in the course of the proceedings other then the proceedings under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (the corresponding Chapter of the same in the new Cr.P.C. of 1973 are chapter X and IX, such chapter are related to the dispute of immovable property and the proceeding relating to the sum of maintenance respectively. It is apparent fact in the case at hand that this matter is not relating to any of such dispute. So in such premises, under this proviso the Magistrate was not having any authority to examine and direct to impound the above mentioned documents with a direction to the parties to get validate the same from the authority provided under the law in the impugned criminal case. In such premises, the approach of the 7 trial court and revisional court could not be deemed to be correct and in such premises also, the impugned order does not deserves to be sustained.

8. On the other hand, on examining the case in view of the Proviso (d) of Section 35 of the Stamp Act, then it is apparent that the impugned case being related with the offence of cheating defined under Section 415 and made punishable under Section 420 of IPC is not covered under the aforesaid Chapters of Cr.P.C., mentioned in the aforesaid Proviso (d) or its corresponding Chapters of Cr.P.C. 1973, stated above, as such the impugned dispute and case being not related to the immoveable property and/or the maintenance by virtue of aforesaid Proviso (d) of Section 35 of Stamp Act, the earlier main part of this Section is not applicable to the case at hand. So in such premises, except to hold the above mentioned documents to be admissible, there was no any other option with the Judicial Magistrate either to direct the parties to get the documents validated in accordance with the procedure or holding such documents to be the inadmissible. Because the aforesaid Clause (d) specifically says “nothing herein contained shall prevent 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) (in the new Criminal Procedure Code 1973, the corresponding Chapters with certain modification have been made as Chapters not X-D and IX)). So in such premises, I am of the considered view that the trial court has committed grave error in holding the aforesaid documents to be inadmissible by its earlier order dated 27.9.2010, (Annexure R-1). At subsequent stage again the trial court has 8 committed such mistake in passing the order dated 11.9.2012, (Annexure P-4), whereby the application of the applicant filed to hold the above mentioned documents to be admissible has been dismissed with the observation that the applicant, if wants to produce such documents, then may get validated by impounding the same.

9. In the aforesaid premises the revisional court has also committed error in affirming such order of the trial court. Therefore, the impugned orders of the Courts below being contrary to mandatory provision of the law deserves to be set aside. 10.Coming to consider the another objection of the counsel for respondent No.2 that the earlier order of the trial Court dated 29.7.2010, (Annexure R-1) passed on the same question had got finality between the parties long before, thus in view of Section 362 of Cr.P.C. at subsequent stage, the same could neither be modified not changed by the trial court by allowing the applicant's impugned application is concerned, it is suffice to say that this Court while sitting for hearing the petition of Section 482 of Cr.P.C. may invoke the inherent power to rectify any mistake at any time, committed by the subordinate court, either by the trial court or/and by the revisional court or the appellate court and if any order has been passed by such Court contrary to the mandatory provision of the law, then to give effect to any provision of Criminal Procedure Code or any other Law and to secure the ends of justice between the parties, this court may pass order for quashment of such illegal orders. Mere on account of provision of Section 362 of Cr.P.C., this Court cannot stop it’s hands to rectify the mistake of the sub ordinate court and permit the trial court to proceed contrary to the mandatory provision of Law by affirming and 9 maintaining such illegal orders. In fact the present matter is fit case in which by invoking the inherent power of this Court enumerated under Section 482, the aforesaid orders should be set aside and quashed with the direction to the trial court to permit the applicant to produce and mark the aforesaid both the documents exhibits, as admissible documents. 11.In view of the aforesaid by allowing this petition, the impugned orders of the revisional court as well as the order dated 27.9.2010 and the order dated 11.9.2012 passed by the trial court are hereby set aside and by allowing the impugned application of the applicant, (the part of Annexure P-2) the applicant is permitted to mark the exhibits on such documents as admissible document in the impugned criminal case even if the same are not prepared on the requisite stamp, as per requirement of the Stamp Act. 12.The petition is allowed, as indicated above. (U. C. Maheshwari) Judge bks