1. This Rule is directed against the order of the Deputy Magistrate of Rangpur convicting the petitioner of an offence under Section 62(6) of the Stamp Act II of 1899 and sentencing him to pay a fine of Rs. 20.
2. It appears that on the 11th Agrahyan 1319, one Arajulla Sheikh applied to an institution, known as the Gaibandha Bank, Limited, for a loan of Rs. 50. The application was made on a prescribed form, which contains columns intended to show the signature of the person recommending the loan or undertaking any responsibility on behalf of the applicant. In that form one Sadat Ali stated that the applicant was a middle class man and gave certain other particulars with regard to him and recommended that he should be granted the loan on a bond. He then added the words in Bengali, 'ami adai karia diba', that is to say, I will make the payment or see that the payment is made, in other words, be said 'I guarantee the payment.' The present petitioner was at that time, and we are informed that he is still, the Manager of the Bank, and in the last column of this form he approves the proposal made by Arajulla and says that this application for a loan of Rs. 50 to carry interest at the rate of Rs. 2-11-0 monthly should be granted, and to this approval he appends his signature. The Magistrate in convicting the petitioner has taken the view that the words. 'I guarantee the payment' signed by Sadat Ali represents a completely executed security bond, and that the signature of the Manager found in the last column of the proposal is to be taken as the signature to that security bond appended by way of acceptance thereof.
3. We are unable to take this view, and we are also unable to take the view which has been put forward before us by the learned Counsel for the Crown. That view is to the effect that the proposal and the approval of the proposal to be found in column 9 represent a completely executed agreement between the principal borrower and the Manager and that it should, therefore, have borne 8-annas stamp. We are unable to take that view for this reason, that the statements in the proposal made by applicant himself and by the Manager do not represent a completed agreement, more particularly with regard to the rate of interest. Neither the proposed surety nor the applicant said anything regarding interest and there is nothing in the form itself to show that the borrower or the surety agreed to the proposed rate. Thus at most the proposal with the statements made in its various columns represent merely negotiations which were intended to lead up to the execution of a bond and the payment thereon of the sum of Rs. 50.
4. In that view the conviction cannot be supported and we accordingly set aside the order complained of and direct that the fine, if paid, be refunded.
5. This Rule is directed against the order of the Deputy Magistrate of Rungpur convicting the petitioner tinder Section 68(c) of the Stamp Act II of 1899 and sentencing him to pay a fine of Rs. 15.
6. It appears that on the 11th Agrahayan 1319, one Arajulla applied to an institution called the Gaibanda Bank Limited for a loan of Rs. 50. Applications or proposals for loan made to that Bank have apparently to be made on a certain form prescribed by the institution, and one of the columns of this form requires the signature of the person recommending the loan or taking upon himself responsibility in connection therewith. In this particular case after a recommendation to the effect that the loan applied for should be granted on a bond, a person of the name of Sadat Ali writes certain words translated as follows: 'I guarantee payment.' It next appears that on this application the Manager or the Managing Committee of the Bank, a person of the name of Rajeswar Bagchi, approved the application and decided that a loan of Rs. 50, carrying interest at the rate of Rs. 2-11-0 monthly, should be granted to the applicant. The bond was thereupon, it appears, executed by the applicant Arajulla and on the execution of this bond the present petitioner who was the Secretary of the Bank made to him a loan of Rs. 50. The surety did not, in fact, sign the bond. Arajulla having failed to make the payment a suit was brought by the Bank against the borrower Arajulla on his bond and apparently on the strength of the entry already referred to in the proposal form against Sadat also as his surety. The matter thus came to the notice of the authorities and a prosecution having been instituted, the petitioner who was at the time the Secretary of the Bank has been prosecuted and convicted, as already stated, on the ground that Sadat Ali's offer to make the payment, accepted by the Manager of the Bank with a qualification as to interest, is to be looked upon either as a security bond or as an agreement or at least as a device intended to avoid the necessity of a property executed security bond or agreement, and thus implying on the part of all concerned in it an intention to defraud the Government of duty. Whether, as it stands, having regard more particularly to the added qualification as to interest, there is on this proposal a complete agreement or security bond we need not in fact decide. The essential question is whether it is a device intended to defraud the Government of duty, and if so, whether the present petitioner who was at the time the Secretary of the Bank shared in that intention. On this point it is to be observed that the Secretary was in fact not the person who accepted the proposal, His duties in connection with the transaction were, it may be said, purely ministerial. Apart from that it is to be pointed out that the proposal and the recommendation of Sadat Ali contemplated throughout that bound was, in fact, executed by the borrower Arajulla, and it is certainly a point very material to this question of intention to note that had the surety also signed it, no additional stamp duty woukd have been required.
7. Having regard to these considerations we are of opinion that it cannot be said that the present petitioner shared or took any part in this transaction with intent to defraud the Government. We, therefore, set aside the conviction and sentence and direct that the fine, if paid be refunded.