Emperor Vs. Girdhardas Liladhar - Court Judgment

W. Baker, Acting C.J.

1. These two applications are both closely connected, and may be disposed of together. The applicant, who is a partner in a firm, has been convicted by the Presidency Magistrate, Third Court. Bombay, of two offences under the Indian Stamp Act, one under Section 62(1)(b), 'executing or signing otherwise than as a witness any other instrument chargeable with duty without the same being duly stamped', and the ether under Section 65, Clause (a), ' being required under Section 30 to give a receipt, refuses or neglects to give the same;'. He has been sentenced to a fine of Rs. 50 under each of the two sections in the two cases.

2. The facts are simple. The accused's firm were import and export merchants, and they ordered out goods from Europe and other countries for their constituents. In the course of their business a consignment of watch glasses were ordered out for the International Watch Company in July 1929, and in respect of that consignment a receipt, unstamped, was passed by the firm and signed by the present applicant on January 31, 1931, in favour of the International Watch Trading Company. As regards the other case there was another consignment of goods, also apparently for the International Watch Company, in respect of which a receipt dated July 4, 1929, was passed without being stamped for Rs. 78-6-0 in favour of one R.F. Davar. R.F. Davar was a clerk of the accused, and he is the person who received the money in the first case from the International Watch Company, and in the second case it is not quite clear in what capacity he acted-he was still a clerk of the firm, but he received the money and paid the money in respect of this consignment into the firm. There can be no doubt that this case would not have come before the Court were it not for the fact that subsequently the accused fell out with Davar, who was dismissed in February 1931, and a decree was obtained against him in the Small Cause Court on April 25, 1932. On the following day Davar went to the stamp authorities with these two unstamped receipts, and the present proceedings were instituted on his information. There can be no doubt, therefore, that the present cases are instituted in revenge for his having been dismissed by the applicant's firm. That, however, is a matter with which we are not concerned, inasmuch as the present matter has to be decided on a pure point of law.

3. It has been argued by the learned counsel for the applicant that there cannot be two convictions under two separate sections in respect of these two receipts. He argues that if there is a failure under Section 65 to give a stamped receipt on demand, Section 62 can have no application, inasmuch as that applies to executing a receipt, whereas Section 65 applies to failure to execute a receipt. But as a matter of fact both these sections will apply, and have been held to apply to matters of this character. A receipt is chargeable with a duty of one anna under Article 53 of the first schedule to the Indian Stamp Act. Under Section 62(1), Clause (b), any person executing or signing otherwise than as a witness 'any other instrument', i.e., any instrument other than a bill of exchange or promissory note, chargeable with duty without the same being duly stamped is punishable with fine. This section is drafted in extremely general terms, and is quite wide enough to cover the case of a receipt. As a matter of fact a letter acknowledging the receipt of money in satisfaction of a debt has been held to be chargeable with duty, and writers of such letters have been convicted under this section for omitting to stamp them : vide Reference under Stamp Act, Section 46 I.L.R. (1884) Mad. 11 and Queen-Empress v. Muttirulandi I.L.R. (1887) Mad. 329 Section 65 refers to any person who, being required under Section 30 to give a receipt, refuses or neglects to give the same, and Section 30 lays down that any person receiving any money exceeding twenty rupees in amount shall on demand by the person paying or delivering such money give a duly stamped receipt for the same. It would seem, therefore, that a person who gives an unstamped receipt to evade the payment of duty commits an offence under Section 62(1)(b) of the Indian Stamp Act, and also an offence under Section 65, Clause (a). The offence under Section 65 consists in not giving a properly stamped receipt when demanded ; the offence under Section 62(1)(b) consists in passing a receipt unstamped, whether one is demanded by the payer or not, and this view is supported by a ruling of the Calcutta High Court in Queen-Empress v. Khetter Mohun Chowdhry I.L.R. (1900) Cal. 324 in which the facts are very similar to the present case, and it was held that the members of the firm who were charged under Section 61 of the Indian Stamp Act of 1879 with having granted an unstamped receipt, and under Section 64 of that Act with having refused to grant a stamped receipt were liable to punishment under both sections, provided that in the latter case the requisition under Section 58 of the Act had been established by evidence Sections 61 and 64 correspond to the present Sections 62 and 65 respectively, and Section 58 corresponds to Section 30), Therefore, the argument of the learned counsel that there cannot be two offences under two sections in respect of the same transaction is not, in my opinion, correct.

4. Now, turning to the actual facts in the present case, so far as regards the first case, the payment was made by Davar, and the receipt is passed in his name. It does not make any difference as to the capacity in which Davar made this payment, because the receipt being passed to him, he must be taken to be the payer under Section 30, and Davar has given evidence that he asked for a receipt and it was refused. This is an application in revision, and we cannot go into the facts. We must accept the finding of the Magistrate that the accused refused to give him a stamped receipt, and, therefore, under Section 30 read with 65, Clause (a), an offence is constituted, and as already pointed out, the receipt in the name of Davar being unstamped, the offence under Section 62(1)(b) is also constituted. Therefore, the conviction in the first case is correct.

5. As regards the second case in which the receipt is in the name of the International Watch Company, Davar has admitted in his evidence that the International Watch Company did not ask for a receipt. It is also clear that the receipt came from the possession of Davar, and was never handed over to the Watch Company. Therefore, there has been no demand by the International Watch Company, who must be regarded as the payers under Section 30, and, therefore, there having been no demand under Section 30, there can be no refusal under Section 65, and the conviction under Section 65, Clause (a), is wrong, and must be quashed. But, as regards the conviction under Section 62(1)(b), the receipt in the name of the International Watch Company being unstamped, that conviction will stand. The order of the Magistrate will, therefore, be modified by quashing the conviction under Section 65(a) and the sentence of fine of Rs. 50 under that section in Criminal Revisional Application No. 141 of 1933, and that portion of the fine should be refunded. The rest of the order will be confirmed, and the rule discharged.

Divatia, J.

6. I agree. The principal argument of the learned counsel for the applicant is this, that the case of a receipt does not fall under Section 62 of the Indian Stamp Act because it has been separately and specifically provided for in Section 65. The argument proceeds upon the assumption that a receipt requires to be stamped only when it is demanded and not otherwise. But looking to the scheme of the Act, I do not find that the offence would occur only if the stamp is demanded and not otherwise. These are two different acts. The act of executing or signing a receipt without the same being duly stamped is one act, and the act or omission of refusing to give or not giving a stamped receipt when it is demanded by the person to whom the receipt is addressed is entirely a different act. The legislature has used general words in Section 62(1)(b) which would include the case of a receipt as well as any instrument which is chargeable with duty, and it is treated as a graver offence than the offence under Section 65. The offence under Section 62 is punishable with a fine which may extend to Rs. 500, and the offence under Section 65 is punishable with a fine which may extend to Rs. 100. The reasons for treating these two acts separately are to my mind these. The Indian Stamp Act requires that the execution of an instrument itself in certain cases requires a duty. The demand for the instrument or the use of that instrument for any particular purpose is not material so far as the duty to affix a stamp goes. It is the execution or the making of the instrument itself which is the principal act, and that being so, Section 62 refers to the act of making or executing an instrument, while Section 65 refers to the act or omission of refusing to give the receipt when it is demanded. Therefore, I think, apart from the authorities of the Madras and Calcutta High Courts, the sections themselves are clear that these two are different acts, and that in both cases the conviction under a, 62 is correct.

7. With regard to the conviction under Section 65 in the first revisional petition, it is clear that what is intended under Section 30 of the Act is demand by the person who pays it, in other words, from whose pocket the money comes and who has the right to demand the receipt, and it is not the demand of an intermediary who actually pays the money to the person. That being so, it is clear that it was the International Watch Company from whose pocket the money was paid who were entitled to the receipt. Clearly there has been no demand by that company, and therefore there is no offence under Section 65 of the Act. I, therefore, agree that in the first revision petition, the conviction under Section 65 should be set aside. In the second revision petition, I agree that the conviction under both the offences should be affirmed.