1. This is an application in revision against a conviction under Section 62, Stamp Act, read with Section 109, I.P.C.
2. The accused Raghubar Dayal is a saraf engaged in the business of buying gold and silver or ornaments of precious metals. His account book was filed in a certain criminal case and the officer in charge of the record room reported to the Collector that the account book contained over 300 entries which purported to be conveyances of inoveable property and had not been stamped. The Collector ordered the prosecution of the accused and he was charged in respect of three alleged offences. It appears that when the accused made a purchase of gold or ornaments from a client, he got the client to make an entry in the account book giving the client's name and a description of the goods purchased and of the price paid, and got this entry signed by the client. The first entry which forms the subject-matter of the charge runs as follows:
3. Two gold Beejas mounted with precious stones; one pair of karan phuls set with diamonds; 2 Bendas, 2 Sees Phul, 1 Bendia, 2 jhumkas; all sold for Rs. 710 cash of the current coin. ' This entry was made and signed by the seller Shiam Lal.
4. The other entries are similar except that they also expressly oontained acknowledgments that the purchase money has been received by the seller. The trial Court found that these entries amounted to 'conveyances' of moveable property within the meaning of Section 2(10), Stamp Act, and that the aooused had intentionally defrauded Government by taking these conveyances although they had not been stamped and therefore convicted the accused under Section 64(c), Stamp Act, and sentenced him to a fine of Rs. 250.
5. The accused appealed to the learned Sessions Judge who agreed with the trial Court that the entrie in the account book of the accused amounted to 'conveyances' within the meaning of the Stamp Act and should have been stamped as conveyances. He found however in the appellant's favour that ha did not realize that the entries required to be stamped and therefore there was no intention of defrauding Government. He further found that although the primary liability of paying the stamp duty was upon the sellers who had executed the conveyances, it was proved that the accused had abetted the execution of unstamped conveyances and therefore was guiity of offences under Section 62(b), Stamp Act. read with Section 109, I.P.C. The fine of Rs. 250 was reduced to Rs. 150.
6. It has been argued before us that the documents in question are not 'conveyances' within the meaning of the Stamp Act but are merely memoranda of sales of goods already completed. The term 'conveyance' is defined in tihe Stamp Aot as including a conveyance on sale and every instrument by which property whether moveable or immoveable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1. It is argued that the transaction of sale was completed by delivery of the goods and payment of the purchase money, quite apart from the entry in the account book signed by the seller and that such entry did not transfer any property as the transfer had already been completed. It is argued therefore that these entries are merely memoranda of completed sales and it is urged that as memoranda of the sale of goods they are exempted from liability to stamp doty under Article 5. Exemp. (a). Article 5 provides a stamp duty upon an agreecbent or memorandum' of an agreements but exempt from liability an agreement or memorandum of agreement for or relating to the sale of goods or merchandise exclusively. In the present case we think that the documents in question are memoranda of completed sales and that they do relate to the sale of goods exclusively. An agreement would include a complete agreement or contract of sale and we think that the iapplicant's contention is well founded. He is supported by the authority of a ruling of the Madras High Court in Kyd v. Mahomed (1892) 15 Mad. 150 This was a case of an agreement in which it was recited by the parties fchat one party had purchased certain goods from the other party at a specified price. The agreement also mentioned certain collateral or subsidiary incidents relating to the sale of the goods but t was held that the document primarily evidenced merely a transaction of sale and that the intention of the Legislature was to exempt bona fide sales and purchases of merchandise from stamp duty. In the present case it is clear that the documents merely recite the terms of the contract of sale, describing the articles sold and the price given. In so far therefore as the documents are merely memoranda of the sale of goods, they are exempt from stamp duty. A further point has also to be considsred:
7. Two of the documents, viz., Exs. C and D recite not merely the articles which have been sold and the price for which they have been sold, but contain a dear acknowledgment that the price has bean received by the seller. They are therefore receipts as well as memoranda of the sale of goods. In our opinion, being receipts, ithey should have been stamped as receipts with stamp duty of 1 anna each.
8. It has been argued that the duty of stamping the receipt is laid upon the person executing the receipt, that is, upon the seller and not upon the person who accapts the receipt, that is, the accused who was the purchaser. This is true but on the facts of the present case we think it is olear that the accused instigated or conspired with the sellers to execute unstamped receipts for hie benefit. It was not merely a case of having an unstamped reoeipt sent to him and raising no objection. The accused according to his own admission got the sellers to make these entries in the account books and to sign them. He used the word 'likhwai.' On these facts we think that the Court below was right in holding that the accused abetted the execution of unstamped documents, and we hold that they should have been stamped as receipts. These receipts were executed entirely for his own benefit and protection. It has been further urged on the applicant's behalf that there was no intention of defrauding Government as he did not know that the dooumentfl required to be stamped. This point has been found in his favour by the Court below and we accept the finding that the accused did not know that the documents required to be stamped. Section 62(b) however does not require any criminal intention or intention of defraud, ing Government and the ignorance of law on the part of the accused does not render him immune from conviction under Section 62 (b), although it can undoubtedly be taken into account in passing sentence. In the circumstances of this case we think that as the stamptluty on two of thedocuments which form the subjects of the charges amounted to only two annas, only light fines will be necessary.
9. We hold therfore that the documents Exs. C and D are receipts and that the conviotion of the accused under Section 62 (b), Stamp Act, read with Section 109, I.P.C., in respect of these documents must be upheld. We consider that a sentence of Rs. 5 fine in respect of each of these two documents will be sufficient. We therefore set aside the conviction and sentence in respect of the document Ex. B and uphold the convictions in respect of thedoouments Exs. C and D but reduce the fine to Rs. 8 in respect of each document. The balance of the fine imposed by the Court below if paid shall be refunded.