Point of Law: Exemption Clause in section itself and the same is still in force in the State of Assam and therefore, affixing the Court fee of Rs.2/-, in the two affidavits, suffers from no infirmity or illegality, requiring dismissal of the case and discharging of the petitioner.

JUDGMENT :

Heard Mr. A. Sheikh, learned counsel for the petitioner. Also heard Mr. N.C. Das, learned counsel for the respondent No.2. None appeared for the State/respondent No.1, which is a formal party.

2. In this Criminal Revision Petition, under Section 397/401, read with Section 482 of the CrPC, 1973, the petitioner, Biswanath Roy Choudhury has challenged the legality, propriety and correctness of the order dated 29.10.2018, passed by the learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati in C.R. Case No.3654C/2016, under Section 138 of the N.I. Act.

3. It is to be noted here that vide impugned order dated 29.10.2018, the learned Court below has dismissed the petition No.2424, filed by the petitioner for dismissal of the complaint and discharging of the accused.

4. The factual background leading to filing of the present petition is briefly stated as under:-

“The petitioner has taken a sum of Rs.10 lacs, from the respondent No.2 Sri Debashis Deb as financial help, for business purpose, with a promise to return the same within six months. Thereafter, on 28.07.2016, towards the repayment of the existing liability towards the respondent No.2, the petitioner has issued one cheque bearing No.168406, dated 28.07.2016, for an amount of Rs.10 lacs, drawn in the Indian Overseas Bank, Ballygunge Branch, Kolkata. Thereafter, the respondent No.2 has deposited the cheque for encashment through his banker -Syndicate Bank, Guwahati Branch on 28.08.2016 but the same returned unpaid with a cheque returning Memo, dated 07.09.2016, with the endorsement -‘insufficient fund’. Thereafter, the respondent No.2 has sent a legal notice to the petitioner through his counsel on 21.09.2016, demanding the cheque amount within 15 days on receipt of the legal notice. But, the petitioner had failed to make payment of the amount within the stipulated period. Thereafter, the respondent No.2 had filed one complaint before the court of learned CJM, Kamrup (M) at Guwahati. Then vide order dated 11.11.2016, the learned CJM, Kamrup (M) at Guwahati took cognizance upon the same and transferred the case to Mr. U. Bora, learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati”.

5. Thereafter, on 10.09.2018, the petitioner had file one petition No. 2424, challenging the maintainability of the proceeding on the ground that the respondent No.2 has filed two affidavits: one affidavit with the complaint and the other affidavit as evidence-in-affidavit and both the affidavits were sworn before Notary Public without the notarial stamp of Rs.15/-, as required under the Indian Stamp (Assam Amendment) Act, 2004 and as those affidavits were sworn before the Notary Public, those are notarial act and for such notarial act, stamp duty under Article 42 of the said Act is leviable. But, the respondent No.2 with his complaint has affixed court fee of Rs.2/-instead of notarial stamp of Rs.15/-and such use of court fee is improper, besides, in both the affidavits, there was no verification and as such those affidavits are inadmissible under Section 35 of the Indian Stamp Act, 1899.

6. Thereafter, hearing both the parties, the learned Court below has dismissed the petition. Being highly aggrieved, the petitioner preferred the present petition on the ground that:-

(i) That, the learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati has failed to peruse the contents of petition No.2424, dated 10.09.2018. That, as per the Indian Stamp (Assam Amendment) Act, 2004, under Article 43, a notarial stamp of Rs.15/-is necessary to be affixed in those affidavits and as such those affidavits could not be taken into consideration and are inadmissible, as per provision of Section 35 of the Indian Stamp Act, 1899 and the use of court fee in the said affidavits are improper and inadmissible in evidence;

(ii) That, there is no verification in the affidavit submitted by the respondent No.2, and as such, the affidavits are liable to be rejected;

(iii) That, the learned Court below has no po