Richard Garth, C.J.
1. On the first question raised in this reference, we are of opinion that the instrument on which this prosecution is founded is an instrument of transfer within the meaning of Article 38, Schedule II of Act XVIII of 1869.
2. On the second question we hold that a Magistrate is bound, for the purpose of ascertaining whether any and what penalty should be imposed, to consider the question whether a person prosecuted under Section 29 of the Stamp Act had an intention to defraud the Government by using a stamp of less value than that required by law.
3. A Collector has power to prosecute in every case coming within the provisions of Section 24, but lie is not to do so unless he shall have reason to think that there has been an intent to evade payment of stamp duty. If he does prosecute, the Magistrate is bound, under the terms of Section 29, to record a conviction, provided that it is proved that there has been a making, Ac, of an unstamped or insufficiently stamped instrument; but the amount of fine to he imposed is loft altogether to the discretion of the Magistrate, a maximum limit only being fixed by the law. It is impossible for the Magistrate to exercise any discretion in fixing the fine, or to say what fine ought in any particular case to be imposed, unless he is at liberty to determine whether the person prosecuted has used no stamp or an insufficient one from a, bond fide mistake, or from carelessness, or with intent to evade payment of the stamp duty.
4. It may be true that the Collector is not bound to offer any evidence of intention, or even to state the reasons which induced him to prosecute; but the question of intention is, nevertheless, one which the Magistrate is bound to consider, and ho must hear the statement of the accused and any evidence which ho may offer in reference to it.
5. A Collector may have formed his conclusion on insufficient grounds, or have ordered a prosecution without due consideration; and the Magistrate is not bound to be guided so far as the question of penalty is concerned by the mere fact of the prosecution having been instituted. The present case shows that a person who enquires as to the proper stamp to be affixed to an instrument may be misled, and so become liable to prosecution even if he makes his enquiry at a place where he may confidently expect correct information: for the registering officer who sent this document to the Collector has himself made a mistake as to the proper stamp to be used. He certified it as liable to a 4-rupee stamp, whereas the stamp proscribed by Article 38, Schedule II, is Rs. 16. Had the accused enquired at the Registry Office, and used a 4-rupee stamp, he would still have been liable to conviction on prosecution; but if a Collector were so unreasonable as to prosecute in such a case, a Magistrate would clearly be bound to consider the facts put forward by the defendant, and to give effect to the defence of bond fides by discharging the accused with a nominal fine.
6. A bond fide mistake may not be a complete defence, even if proved beyond a doubt; but it cannot be said that it is no defence.
7. As it appears that the judgment of the Deputy Magistrate was arrived at without duly considering the merits of the case before him, so much of that order as imposes a fine must be quashed. The Legal Remembrancer has stated that the Government has determined that the fine realised from Dwarkanath Chowdhry shall be refunded, whatever the merits of this case; it is, therefore unnecessary to direct the Deputy Magistrate to reconsider his order.
8. The sentience passed upon Dwarkanath Chowdhry on the 4th July 1876, by the Deputy Magistrate of Darbhangah is set aside, and it is ordered that the fine of Rs. 20 imposed on him, if realised, be refunded.