G Shanmukha Chary vs Kalakotla Vijay Mohan
2023 Latest Caselaw 4066 Tel

       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
                                            2


               * 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
                                 3


           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 Khore 1 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

(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. However, since the proceedings under Section

138 of the Act warrant both fine and imprisonment, this Court is of

the view that the provisions of Stamp Act would not apply.

6. Accordingly, the Criminal Petition is dismissed. Consequently,

miscellaneous applications, if any, shall stand dismissed.

_________________ K.SURENDER, J Date: 16.11.2023 Note: LR copy to be marked.

B/o.kvs