HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD *****

Criminal Petition No.254 OF 2019 Between:

G.Shanmukha Chary … Petitioner And Dr.Kalakotla Vijay Mohan and another. ..Respondent/Complainant DATE OF JUDGMENT PRONOUNCED :16.11.2023 Submitted for approval.

THE HON’BLE SRI JUSTICE K.SURENDER

1 Whether Reporters of Local newspapers may be allowed to see the Yes/No Judgments?

2 Whether the copies of judgment may be marked to Law Reporters/Journals Yes/No

3 Whether Their Ladyship/Lordship Wish to see their fair copy of the Yes/No Judgment?

__________________

K.SURENDER, J * THE HON’BLE SRI JUSTICE K. SURENDER + CRL.P. No.254 of 2019 % Dated 16.11.2023 # G.Shanmukha Chary … Petitioner And $ Dr.Kalakotla Vijay Mohan and another. … Respondent/Complainant ! Counsel for the Petitioners: Sri Vivek Jain ^ Counsel for the Respondents: Sri M.Ram Mohan for R1 Public Prosecutor for R2 >HEAD NOTE:

? Cases referred

1 (2011) 4 Supreme Court Cases 593 THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NO.254 OF 2019

ORDER:

1. The petitioner is facing prosecution for the offence under Section 138 of the Negotiable Instruments Act filed by the 1st respondent/complainant. During the course of trial, complainant marked Ex.P10 which is a document in the shape of a bond according to accused. An application was filed by accused, since Ex.P10 was unstamped. Further its contents should be treated as bond as defined under Section 2(5) of the Stamp Act, which requires Stamp Duty and 10 times penalty as per Section 35 of the Indian Stamp Act. The said application was dismissed by the learned Special Magistrate vide Crl.M.P.No.1755 of 2018 in C.C.No.331 of 2013 dated 20.12.2018, holding that the provisions of Stamp Act cannot be applied to the proceedings in a criminal case in view of exemption clauses contained in proviso (a) to sub Section 2 of Section 33 and Proviso (d) of Section 35 of the Stamp Act. Relying on the judgment of this Court in Crl.P.No.10057 of 2016 dated 19.07.2017, the learned Magistrate found that the document can neither be impounded nor collect stamp duty and penalty.

2. Learned counsel appearing for the petitioner/accused would submit that the proceedings under Section 138 of the Negotiable Instruments Act are considered to be civil proceedings since the Hon’ble Supreme Court in the case of Kaushalya Devi Massand v. Roopkishore Khore1 held that the offence under Section 138 of the Negotiable Instruments Act is almost civil wrong giving a criminal overtones. In the said judgment, it is held as follows:

“11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.”

3. For the said reason, when the Hon’ble Supreme Court had found that proceedings under Section 138 of the Negotiable Instruments Act is a civil wrong, it cannot be said that the provisions of Stamp Act would not apply.

4. It is no doubt true that the offence under Section 138 of the Negotiable Instruments Act is quasi criminal in nature. However, both the sentence of imprisonment and fine is prescribed. In the said circumstances, it cannot be said that the proceedings under Section 138 of the Negotiable Instrument Act are purely civil in

1 (2011) 4 Supreme Court Cases 593

nature to attract the provisions under the Stamp Act. Admittedly, the provisions of the Stamp Act cannot be applied to criminal case.

5. The emphasis by the learned counsel that the proceedings under Section 138 of the Act should be treated as civil proceedings and document Ex.P10 has to be impounded has no legs to stand. Even the Hon’ble Supreme Court in the Kaushalya’s judgment held that the offence is almost a civil wrong which has been given a criminal overtone. Ho