Important Point—Exercising discretion not to impound document is purely based on facts of case.

1. This petition is filed under Section 482 Cr.P.C. to quash the proceedings dated 24.06.2016 in Crl. R.P. No. 111 of 2016 passed by the IV Additional Metropolitan Sessions Judge, Hyderabad, whereby confirmed the order dated 18.04.2016 in Crl. M.P. No. 1704 of 2015 in C.C. No. 33 of 2014 of the IX Special Magistrate Court, Hyderabad.

2. The petitioner is the accused in C.C. No. 33 of 2014 on the file of the IX Special Magistrate Court, Hyderabad, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’). The 2nd respondent is the complainant and filed a private complaint against the petitioner/accused for the offence punishable under Section 138 of the Act, contending that there is a legally enforceable debt and that the cheque was issued towards discharge of legally enforceable debt, which was dishonoured on presentation. Thereafter, he issued notice in compliance of Section 138 of the Act demanding the petitioner/accused to pay the amount covered by cheque. But, the accused failed to pay the same. Thereby, he filed the complaint before the trial Court. The allegation in the complaint is that one Dwaraka Prasad Agarwal, father of the accused, who is no other than maternal uncle of the complainant requested for financial assistance for his business needs and he promised to repay the amount within six months to the complainant. Accordingly, the complainant advanced an amount of Rs.74,50,000/- between March and June, 2013 i.e. within a span of four months to the accused. But, the accused failed to repay the same even after expiry of six months as agreed. Despite demands by the complainant, the petitioner/accused did not repay the same and issued post dated cheques bearing Nos. 221805, 221806, 221820, 221821 dated 10.08.2014 towards part payment to clear debt due and Memorandum of Understanding (MoU) was also executed by the father of the accused on 14.02.2014. Thus, the basis for the claim is Memorandum of Understanding, which is unstamped and unregistered. Since the claim of the 2nd respondent/complainant is based on Memorandum of Understanding, the petitioner/accused filed a petition before the Special Magistrate under Section 33 of the Indian Stamp Act, to impound the Memorandum of Understanding dated 14.02.2014. The 2nd respondent/complainant filed counter contending that the petition is not maintainable, besides raising several other contentions. Upon hearing argument of both the counsel, the Special Magistrate held that the document cannot be impounded and negated the relief.

3. Aggrieved by the order passed by the Special Magistrate, the petitioner preferred the Criminal Revision Petition No. 111 of 2016 before the IV Additional Metropolitan Sessions Judge, Hyderabad, and by order dated 24.06.2016 the learned Judge confirmed the order passed by the Special Magistrate, dismissing the revision petition.

4. The order passed by the Sessions Judge is challenged before this Court on several grounds mainly contending that the Memorandum of Understanding, which is sought to be marked by the respondent, is inadmissible in evidence, since the terms and conditions of the document do not virtually amount to mortgage. But, without looking into the contents of the document, the Special Magistrate dismissed the petition and the same was confirmed by the revisional Court. Section 33(i) of the Indian Stamp Act has to be read along with the proviso and it cannot be read in isolation. Even if Sections 35(d) and 33 of the Indian Stamp Act are read conscientiously, the document is liable to be impounded, otherwise it cannot be admitted in evidence. But the Special Magistrate and Revisional Court did not consider the purport of Sections 35(d) and 33(i) of the Indian Stamp Act in proper perspective and committed an error in negating the relief claimed by the petitioner and prayed to set aside the same and allow Crl. M.P. No. 1704 of 2015 directing the Special Magistrate to impound the docu