Impounding of a document and imposition of penalty under the Kerala Stamp Act, 1959 is the matter dealt with in this case. Two questions arise; (1) what is the procedure to be adopted when an insufficiently stamped document is merely produced/brought to the notice of the court/public officer. (2) What is the procedure to be followed when an insufficiently stamped document is tendered in evidence before a court. Ext.P4 order passed by the M.A.C.T., Moovattupuzha in O.P. (MV) No.1744/95 is under challenge. As per the said order, the Tribunal invoked Section 33 read with Section 37 of the Kerala Stamp Act, 1959 and impounded a document. It is not in dispute that the document was not taken in evidence, it was only produced. It is an agreement regarding the sale of the vehicle; an agreement for sale of the vehicle according to the petitioner and an agreement of sale according to the Tribunal. Finding that it is an agreement of sale, the Tribunal took the view that the stamp duty has to be paid as provided under Article 21 of the Schedule to the Stamp Act for conveyance, for Rs.10,500/- and he has also to pay penalty at ten times the said amount. It is the contention of the petitioner that the document was only produced along with the list of documents and was never marked as evidence and therefore, the same cannot be impounded. Reliance is placed on two decisions of this Court, one in ThomaThomas v. Parameswaran Nair (1989 (1) KLJ 16) and the other in Uthuppan Abraham v. State of Kerala (1997 (2) KLT 475). There is also a contention that in any case, the Tribunal erred in imposing the penalty, that being a power only to the Collector.

2. In order to properly appreciate the contentions taken by the learned counsel for the petitioner, it is necessary to refer to the statutory provisions. Chapter IV of the Act deals with instruments not duly stamped. Section 33 provides for examination and impounding of instruments. The said section 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 to 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 the State 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 proceedings other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

(b) in the case of a Judge of the 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 purpose of this section, in cases of doubt, the Government may determine—

(a) what offices shall be deemed to be public offices; and

(b) who shall be deemed to be persons in charge of public offices.”

Section 34 provides that instruments not duly stamped are inadmissible in evidence; and if to be admitted, the procedure on penalty is also provided. The said section to the extent relevant reads as follows:-

34. Instrument 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