Examination and impounding of instruments.

SYNOPSIS

Instruments not duly stamped inadmissible in evidene

Examination and impounding of instruments

Object of Examination and impounding of instrument

Instruments Impounded how to be dealty with

Relevant Provisions.....33-35,38,40,41

PLD 1977 SC 109

PLD 1984 Lah. 407

PLD 1989 Kar. 371

1996 SCMR 575

PLD 1978 SC 279

PLD 1971 SC 516

PLD 1984 Lah.407

“Instrument.—“Instrument” includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded;”

Section 2(11) of this Act defines “duly stamped” as under:

“(11) Duly stamped.—“Duly stamped”, as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with law for time being in force in India;”

Meaning of Impounding.....To seize in order to retain in custody

Why Instruments impounded?

To impound an instrument which appears to be not dully stamped.

Object of Impounding.......To examine Whether intrument dully stamped or not, exempted one.

Procedure of Impounding.

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 so 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[Pakistan] 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 proceeding 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 a 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 purposes of this section, in cases of doubt,–

            (a)  [the Provincial Government] may determine what offices shall be deemed to be public offices; and

            (b)  [the Provincial Government] may determine who shall be deemed to be persons in charge of public offices.

34.    Special provision as to unstamped receipts.– Where any receipt chargeable with a duty [not exceeding twenty-five paisa] is tendered to or produced before any officer unstamped in the course of the audit of any public account, such officer may, in his discretion, instead of impounding the instrument, require a duly stamped receipt to be substituted therefor.

35.    Instruments not duly stamped inadmissible in evidene, 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 stamped.

      Provided that–

      (a)    any such instrument not being an instrument chargeable with a duty [not exceeding twenty-five paisa] only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five-rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

      (b)   where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

      (c)   where a contract or agreement of any kind is effected by correspondence consisting of two or more letters, and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

      (d)   nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

      (e)   nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of [the Government], or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

36.    Admission of instrument where not to be questioned.– Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

37.    Admission of improperly stamped instruments.– [The provincial Government] may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall than be deemed to have been duly stamped as from the date of its execution.

38.    Instruments impounded how dealt with.– (1) When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.

      (2)  In every other case, the person so impounding an instrument shall send it in original to the Collector.

39.    Collector’s power to refund penalty paid under section 38, sub-section (1).– (1) When a copy of an instrument is sent to the Collector under section 38, sub-section (1), he may, if he thinks fit,  * *] refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.

      (2)  When such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may refund the whole penalty so paid.

40.   Collector’s power to stamp instruments impounded.– (1) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), not being an instrument chargeable with a duty not exceeding twenty-five paisa] only or a bill of exchange or promissory note, he shall adopt the following procedure:-

      (a)  if he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;

      (b)  if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit,[an amount not exceeding] ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees:

      Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.

      (2)  Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.

      (3)  Where an instrument has been sent to the Collector under section 38, sub-section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.

41.  Instruments unduly stamped by accident.– If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable with a duty of [not exceeding twenty-five paisa] only or a bill of exchange or promissory note, is produced by any person of his own motion before the Collector within one year from the date of its execution or first execution, and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty, or the amount required to make up the same, and the Collector is satisfied that the omission to duly stamp such instrument has been occasioned by accident, mistake or urgent necessity, he may, instead of proceeding under section 33 and 40, receive such amount and proceed as next hereinafter prescribed.

42.    Endorsement of instruments on which duty has been paid under section 35, 40 or 41.– (1) When the duty and penalty (if any) leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them.

      (2)  Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:

      Provided that–

      (a)  no instrument which has been admitted in evidence upon payment of duty and a penalty under section 35, shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;

      (b)  nothing in this section shall affect the Code of Civil Procedure, section 144, clause 3.

43.    Prosecution for offence against Stamp-law.– The taking of proceedings or the payment of a penalty under this Chapter in respect of any instrument shall not bar the prosecution of any person who appears to have committed an offence against the Stamp-law in respect of such instrument:

      Provided that no such prosecution shall be instituted in the case of any instrument in respect of which such a penalty has been paid, unless it appears to the Collector that the offence was committed with an intention of evading payment of the proper duty.

44.    Persons paying duty or penalty may recover same in certain cases.– (1) When any duty or penalty has been paid under section 35, section 37, section 40 or section 41, by any person in respect of an instrument, and, by agreement or under the provisions of section 29 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expense of providing the proper stamp for such instrument, the first mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid.

      (2)  For the purpose of such recovery, any certificate granted in respect of such instrument under this Act shall be conclusive evidence of the matters therein certified.

      (3)  Such amount may, if the Court thinks fit, be included in any order as to costs in any suit or proceeding to which such persons are parties in which such instrument has been tendered in evidence. If the Court does not include the amount in such order, no further proceedings for the recovery of the amount shall be maintainable.

45.    Power of Revenue Authority to refund penalty or excess duty in certain cases.– (1) Where any penalty is paid under section 35 or section 40, the [Chief Revenue Authority] may, upon application in writing made within one year from the date of the payment, refund such penalty wholly or in part.

      (2)  Where, in the opinion of the Chief Revenue Authority], stamp-duty in excess of that which is legally chargeable has been charged and paid under section 35 or section 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess.

46.    Non-liability for loss of instruments sent under section 38.– (1) If any instrument sent to the Collector under section 38, sub-section (2), is lost, destroyed or damaged during transmission, the person sending the same shall not be liable for such loss, destruction or damage.

      (2)  When any instrument is about to be so sent, the person from whose possession it came into the hands of the person impounding the same, may require a copy thereof to be made at the expense of such first-mentioned person and authenticated by the person impounding such instrument.

[47. Power of payer to stamp bills and promissory notes received by him unstamped.– When any Bill of Exchange, chargeable with the duty of five paisa, or promissory note chargeable with the duty of fifteen paisa, is presented for payment unstamped, the person to whom it is so presented may affix thereto the necessary adhesive stamp, and upon cancelling the same in the manner hereinbefore provided, may pay the sum payable upon such bill or note and may charge the duty against the person who ought to have paid the same, or deduct it from the sum payable as aforesaid, and such bill or note shall, so far as respects the duty, be deemed good and valid:

      Provided that nothing herein contained shall relieve any person from any penalty or proceeding to which he may be liable in relation to such bill or note].

48.    Recovery of duties and penalties.– All duties, penalties and other sums required to be paid under this Chapter may be recover