1. This is a Government appeal against a judgment of acquittal passed in favour of the accused by the learned Additional Sessions Judge of Agra sitting at Muttra.
2. The facts involved are very simple and are these. The respondent, Panna Lal, executed a document on the 27th of January 1925 in more or less the following language. He recited that a certain parson named in the deed had executed in his favour on the 24th of August 1915 a simple mortgage bond for Rs. 300 hypothecating certain properties which he mentioned. Then ha received that he had received from Durga Prasad (evidently the successor-in-title of the mortgagor) a certain sum of money and that after giving credit for the money paid only a sum of Rs. 100 was due to him. Panna Lal then went on to say in the deed that he was going to receive that sum of Rs. 100 from Durga Prasad before the Sub-Registrar and that accordingly he executed the document of release (datbardari) and thereby renounced all rights that had accrued to him on account of the document of 1915. The document, on being presented before the Sub-Registrar, was impounded by him and sent to the Collector. The Collector was of opinion that as the deed of release was of the value of Rs. 300, it ought to have borne a stamp duty of Rs. 1-12 0. As the stamp duty of 8 annas only bad been paid be realized a sum of Rs. 1-4-0, the deficiency in stamp duty, and Rs. 12-8-0 penalty, being the tan times of the deficiency in stamp duty. After all this the Collector was of opinion that the document had been insufficiently stamped in order to evade payment of stamp duty and he ordered the prosecution of the respondent. Panna Lal was accordingly prosecuted before a learned Magistrate and was fined Rs, 62-8-0. Out of Rs. 62-8-0 a sum of Rs. 12-8-0, the amount of the penalty, was to be deducted and Panna Lal was to pay a sum of Rs. 50 as a fine.
3. Panna Lal appealed to the learned Sessions Judge. The learned Judge was of opinion that the chief element of the offence was 'intention and there being no proof of any intention to defraud the Government of its stamp duty, he acquitted Patina Lal.
4. In appeal it has been contended on behalf of the Government that intention was not an ingredient of the offence. The learned Government Advocate has drawn our attention to the language of Sections 62, 64, 65(b) and 68 of the Indian Stamp Act. He points out that while in Sections 64, 65(b) and 68 the law expressly mentions intention to defraud, no such mention is to be found in Section 62. He also draws our attention to the language of Section 43 which has been enacted to guard against frivolous prosecution. Under Section 43 the mere realization of deficiency in stamp duty and penalty does not exempt the payer of the money from prosecution. But it is laid down that before ordering a prosecution the Collector should satisfy himself that there was an intention of evading payment of proper duty.
5. In this Court it has been urged on behalf of the respondent, and we think rightly, that the document itself does not show that there was any concealment of facts on the part of Panna Lal in order to evade payment of proper duty. The learned Judge was of opinion that the document did not show that any fact had been concealed. We are all of the same opinion. We give credit to Panna Lal for having stated in the deed the true facts of the case. But it is clear, as already stated, that the original mortgage was for Rs. 300, that Panna Lal had been paid all but a sum of Rs. 100, and that this sum of Rs. 100 was going to be paid to him before the Sub-Registrar. We accordingly exonerate Panna Lal from all alleged intention of evading payment of proper duty.
6. The question, however, remains whether Panna Lal, in spite of his good intentions, committed an offence under Section 62 of the Stamp Act or not. We are clearly of opinion that he did commit an offence under Section 62. The mere signing, otherwise as a witness, of an instrument chargeable with duty without the same being duly stamped is an offence. No question of intention arises. This opinion of ours is supported by at least three cases: The Queen-Empress v. Palani (1884) 7 Mad 537; The Empress v. Dwarkanath Chowdhry (1877) 2 Cal 399(F B) and Empress v. Dungar Singh (1908) 31 All 36. It has been pointed out to us that a somewhat contrary opinion was expressed by one of the learned Judges of this Court in Kanhaiya Lal v. Emperor AIR 1919 All 40. The judgment in this case is very short and purports to accept the reasonings given by the learned Sessions Judge who made a reference to this Court, recommending the setting aside of a conviction. If the learned Judge meant to accept the entire argument of the learned Sessions Judge, we are unable to agree with him. The learned Sessions Judge, it appears, was of opinion that it was for the prosecution to prove an intention to evade stamp duty, and as in the particular case before him the Magistrate had held that there was no intention to evade stamp duty, the conviction was wrong. We have already held that the question of intention does not enter into Section 62 of the Indian Stamp Act. The mate execution of a document requiring stamp duty without the same being properly stamped is an offence whatever intention may have been entertained in respect of payment of stamp duty.
7. In passing sentence, however, we must bear the fact in our mind that there was no intention to evade the payment of stamp duty. The offence, however, being there, there must be a conviction, We allow the appeal, set aside the judgment of acquittal passed by the learned Sessions Judge and convict Panna Lal, son of Janki Prasad, of the offence under Section 62(b) of the Indian Stamp Act of 1899 and sentence him to a fine of Rs. 15. Out of this sum of Rs. 15 a sum of Rs. 12-8-0 paid as penalty will be deducted and Panna Lal will pay a sum of Rs. 2-8-0 only as the balance of the fine. In default of payment of fine Panna Lal will undergo one week's simple imprisonment.