The claim concerned the recovery of a sum of $3,907.37 being principal and interest on an overdraft facility through a letter of guarantee (P2). At the conclusion of the trial before the learned magistrate, the magistrate had what he called "a real doubt" as to when P2 was actually signed. PW1, the bank officer testified that from his file record it would seem that P2 was executed by the second defendant before it was posted to the Segamat Branch of the bank. According to third defendant (DW1) some time in November 1973 he was called by the manager of the bank in Segamat and he then signed P2 on November 16, 1973. He also said that when he signed P2 on November 16, 1973 the signature of the second defendant and the witness were already there and he was positive about this — pages 18–19 of the appeal record. If however P2 was executed on April 17, 1974 and stamped on April 18, 1974 the question of any penalty under section 47 of the Stamp Ordinance, 1949 does not arise. If, however, P2 was executed as borne out by the evidence on November 16, 1973 but stamped only on April 18, 1974 then it would be subject to payment of a penalty of $25 under that section of the Ordinance. PW1 admitted (at page 14) that P2 was executed before November 16, 1973 by the second defendant. He said "From my file record it seems that P2 was executed by Hardiah Singh (2nd defendant) before it was posted to our Segamat branch office." The testimony of DW1 would seem to corroborate this — pages 17–18. DW1 said "Sometime in November 1973 I was called by the manager of Malayan Banking at Segamat." … "I signed document on 16.11.73 in the presence of Mr. Chew." … "When I signed P2 on 16.11.73 the signatures of Hardiah Singh Sekhon and witness were already there." Therefore, a reasonable conclusion one could arrive at is that the material date of execution of P2 was November 16, 1973 and not April 17, 1974 as appearing on the face of the document. Section 52 of the Stamp Ordinance, 1949 directs that no instrument chargeable with duty shall be admitted in evidence or shall be acted upon unless such instrument is duly stamped. The words "duly stamped" is defined in section 2 of the Ordinance as meaning "an instrument bearing adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the Federation." The words "duly stamped" was also explained in Chop Tiang Kok Hang v Hock Cheong & Co [1934] MLJ 74 referred to by Ong F.J. in Navaradnam v Suppiah Chettiar [1973] 1 MLJ 173. Huggard C.J. said:

"According to this definition, an instrument, in order to be duly stamped, must be stamped in accordance with the law for the time being in force in the Colony and I interpret this to mean that the instrument must bear a stamp of the proper value, it must be stamped in the proper manner with the proper description of stamp, and it must have been stamped at or within the time prescribed by law."

It was contended on behalf of the appellant that a ridiculous situation has arisen because even if at this stage the document (P2) is presented to the Stamp Office it would have been returned as properly and adequately stamped as stated by DW2, the Deputy Collector of Stamp Duty, Selangor. In my view what DW2 says is only valid for the purpose of looking at the document (P2) at face value. Since evidence has been adduced as to the probable date of execution of the document (P2) the learned magistrate had to make a finding as to the date of execution of the document. The magistrate did not however make a definite finding although he admitted having "real doubt". If the evidence had been examined properly and evaluation made the finding would be that the date of execution of P2 was November 16, 1973.

It follows that the document (P2) was not adequately stamped within the meaning of "duly stamped" as there was sufficient evidence to show that the document was pre