SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.

Page 1 Monday, July 07, 2025

Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

2002 SCC OnLine Cal 283 : (2002) 3 CHN 151 : (2003) 1 ICC 601 (Cal) : (2002)
2 Cal LJ 449 : (2003) 107 CWN 39

Calcutta High Court

BEFORE SUBHRO KAMAL MUKHERJEE, J.

Biswajit Chakraborty
Versus
Mira Sen Ray
Civil Order No. 664 of 2002
Decided on May 10, 2002
SUBHRO KAMAL MUKHERJEE, J.:— This is to consider an application under section
115 of the Code of Civil Procedure against the order No. 74 dated August 14, 2001
passed by Shri Amjad Ali, learned Civil Judge (Senior Division), Third Court at Alipore,
District : South 24 Parganas in Title Suit No. 25 of 1998 whereby the learned trial
Judge directed the plaintiff to produce the document-in-question, failing which, it was
directed that, the suit would stand dismissed.
2. The brief facts leading to filing of the present revisional application before this
court may be summarised as under:
(a) The plaintiff/petitioner instituted Title Suit No. 25 of 1998 in the said court
seeking to enforce an agreement being joint venture agreement dated December
27, 1995 concerning premises No. 12, H.L. Sarkar Road, Police Station : Regent
Park, Calcutta-700070, District : South 24 Parganas.
(b) An application for temporary injunction under Order 39, Rules 1 and 2 read with
section 151 of the Code of Civil Procedure was filed in the said suit annexing a
photocopy of the said agreement dated December 27, 1995. On the said
application the learned trial Judge on March 26, 1998 passed an ad interim order
of injunction, as prayed for in the said application, and, subsequently, the said
application for temporary injunction was allowed and the interim order of
injunction passed on March 26, 1998 was made absolute.
(c) On June 21, 2001 peremptory hearing of the suit was fixed and parties filed
haziras. The plaintiffs witness No. 1, Biswajit Chakraborty, namely, the plaintiff
himself, was ready for adducing evidence. On that date even before the said
witness could step into the witness box, the defendant/opposite party raised an
objection as to whether photocopy of the said agreement could be exhibited
inasmuch as the same was impoundable, as proper stamp duty was not paid. It
is contended that the defendant/opposite party had the occasion to raise the said
objection as the learned advocate for the plaintiff wanted to produce a photocopy
of the said agreement.
(d) The learned trial Judge fixed another date for hearing on the question of the
stamp duty. The learned Judge, ultimately, by the order impugned directed the
plaintiff to produce the document-in-question and for taking necessary steps,
failing which, it was directed that, the suit would stand dismissed on the date
fixed.
3. The learned Judge in the order impugned held as under:
i) That the disputed agreement between the parties for the development of the
property was prepared on a ten rupees stamp paper and, therefore, the

Page: 155
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 2 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

said agreement was not properly stamped and as such it was necessary to impound
the said document before it has to be taken into evidence and marked as exhibit.

ii) The agreement was for development with a promoter and as per Schedule 1A,
Item No. 5(d), it was necessary to pay stamp duty as a conveyance for the
market value of the property.
iii) Therefore, on the basis of the said agreement the suit filed by the plaintiff was
not maintainable unless he expressed his readiness to pay the duty as required
as per Item No. 5(d) of Schedule 1A.
iv) The plaintiff has not filed the original document and, therefore, if he wanted to
proceed with the suit, he must file the said agreement expressing his willingness
to pay the stamp duty and penalty, as document was required to be impounded.
v) Without complying with the requirements of sections 33 and 35 of the Indian
Stamp Act, 1899, the suit would not be proceeded with as there was no original
document before the court and in the absence of the original document the suit
was liable to be dismissed with costs.
4. Being aggrieved the plaintiff has came up with this revisional application.
Shri Asish Chandra Bagchi, learned advocate, appearing in support of the revisional
application, argued that the learned trial Judge acted without jurisdiction in directing
the plaintiff to produce the document-in-question in orginal and in directing, in default
thereof, the suit should stand dismissed. Shri Bagchi argued till the original document
is produced before the court for receiving the same as evidence in the suit, a court has
no jurisdiction to direct impounding of the document. Shri Bagchi, further, argued that
the learned trial Judge was wrong in assessing the classification of the document and
the findings that the document was insufficiently stamped and covered under Item
No. 5(d) of Schedule 1A of the Indian Stamp Act, 1899, as applicable in West Bengal,
was without jurisdiction. Shri Bagchi finally argued that the learned trial Judge failed
to appreciate the scope of the relevant sections of the Indian Stamp Act, 1899, that is,
sections 33, 35, 38, 39, 40 & 61 and passed the order impugned without jurisdiction.
5. Shri Jiban Ratan Chatterjee, learned advocate, appearing for the opposite party,
however, supported the order of the learned trial Judge. However, I must put it on
record that Shri Chatterjee, in his usual fairness, submitted that the order directing
dismissal of the suit in default of filing of the original document was not proper.
Nevertheless, Shri Chatterjee argued that along with the applications for temporary
injunction a photocopy of the document was annexed as anriexure-A to the said
application and, therefore, the said document was before the court and as such the
court had jurisdiction to direct impounding the document as the plaintiff voluntarily
produced a photocopy of the document before the court. Shri Chatterjee argued that it
was the plaintiff who has to pay the stamp duty and penalty as he has instituted the
suit for enforcement

Page: 156

of such agreement. Shri Chatterjee argued that the plaintiff/petitioner has not come to
the court with clean hands; the learned trial Judge fixed a date for hearing on the
question of stamp duty and, after giving fullest opportunity of the hearing to the
parties, the order impugned has been passed. At no stage the plaintiff took any
objection regarding the procedure adopted by the court, but only when the order went
against the plaintiff, the plaintiff approaches this court with this revisional application.
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 3 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Shri Chatterjee cited the decision in the case of Chandrama Singh v. Awadh Bihari
Singh, reported in AIR 1959 Patna 353, in support of his contentions that the court
has power to direct a party to produce a document if it is relevant for the enquiry in
the suit and to order impounding of the same. Shri Chatterjee cited the decision in the
case of Prithi Chand v. State of Himachal Pradesh, reported in AIR 1989 SC 702 and
argued that copy made by one uniform process of the original document is admissible
being primary evidence within the explanation 2 of section 62 of the Indian Evidence
Act, 1872. As the photocopy of the document was already on the record and is primary
evidence, the learned trial Judge was justified in passing an order directing
impounding of the document.

6. In order to appreciate the rival contentions advanced before me, I am to consider

the relevant provisions of the Indian Stamp Act, 1899 as amended in its application to
West Bengal. The relevant provisions, that is, sections 33, 35, 38, 39, 40 and 61 run
as under:
33. Examination and impounding of instruments.—(1)(a) Every persons 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.
(b) Notwithstanding anything contained in section 31, but without prejudice to the
provisions of clause (a) of this sub-section, the Collector, before whom any
instrument is brought under section 31 for determining the duty with which the
instrument is chargeable, shall, if it appears to him that such instrument is not duly
stamped, impound the same:
Provided that nothing contained in this clause shall be deemed to authorise the
Collector to impound any instrument, which has not been executed but is brought
to him under section 31 for determining the duty with which the instrument is
chargeable or any instrument, which he is authorised to endorse under section 32.
(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
India 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

Page: 157

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 (5 of 1898);

(b) in the case of a Judge of 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 purpose of this section, in cases of doubt,—
(a) the State Government may determine what offices shall be deemed to be
public offices; and
(b) the State Government may determine who shall be deemed to be persons in
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 4 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

charge of public offices.

(4) Where deficiency in stamp duty is noticed from the copy of any instrument, the
Collector may, suo motu or on a reference from any Court or from the
Commissioners of Divisions or from any officer authorised by the Board of Revenue
in that behalf, call for the original instrument for the purpose of satisfying himself
as to the adequacy of the duty paid thereon, and the instrument so produced before
the Collector shall be deemed to have been produced or come before him in the
performance of his functions.
(5) In case the instrument is not produced within the period specified by the
Collector, he may require payment of deficit stamp duty, if any, together with
penalty under section 40 on the copy of the instrument:
Provided that no action under this sub-section shall be taken after a period of four
years from the date of execution of the instrument.
35. Instruments not duly stamped inadmissible in evidence, 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 ten naya paise only, or a bill or 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 often
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;

Page: 158

(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 (5 of
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.
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 revive evidence and admits such instruments in evidence upon
payment of a penalty as provided by section 35 or of duty as provided by section
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 5 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

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
levided 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
orginal 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, Collector may refused 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 in instrument chargeable
with a duty not exceeding ten naya paise 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 of falls short
of five rupees:

Page: 159

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 purpose 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.
61. Revision of certain decisions of Courts regarding the sufficiency of
stamps.—(1) When any Court in the exercise of its civil or revenue jurisdiction or
any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the
Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any
instrument in evidence as duly stamped or as not requiring a stamp, or upon
payment of duty and a penalty under section 35, the Court to which appeals lie
from, or references are made by, such first-mentioned Court may, of its own motion
or on the application of the Collector, take such order into consideration.
(2) If such Court, after such consideration, is of opinion that such instrument
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 6 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

should not have been admitted in evidence without the payment of duty and
penalty under section 35, or without the payment of a higher duty and penalty than
those paid, it may record a declaration to that effect, and determine the amount of
duty with which such instrument is chargeable, and may require any person in
whose possession or power such instrument then is, to produce the same, and may
impound the same when produced.
(3) When any declaration has been recorded under sub-section (2), the court
recording the same shall send a copy thereof to the Collector, and, where the
instrument to which it relates has been impounded or is otherwise in the possession
of such Court, shall also send him such instrument.
(4) The Collector may thereupon, notwithstanding anything contained in the order
admitting such instrument in evidence, or in any certificate granted under section
42, or in section 43, prosecute any person for any offence against the Stamp-law,
which the Collector considers him to have committed in respect of such instrument:
Provided that—
(a) no such prosecution shall be instituted where the amount (including duty and
penalty) which, according to the determination of such Court, was payable in
respect of the instrument under section 35, is paid to the Collector, unless he
thinks that the offence was committed with an intention of evading payment
of the proper duty;
(b) except for the purpose of such prosecution, no declaration made under this
section shall affect the validity of any order admitting any instrument in
evidence, or of any certificate granted under section 42.

Page: 160

7. In the case of Sashi Mohan Saha v. Kumud Kumar Biswas, reported in 21 CWN
246, Sir Asutosh Mookherjee, speaking for the Division Bench, observed that before
action could be taken under sub-section (1) of section 33, it must be established that
the instrument-in-question was produced or came before the officer mentioned therein
in the performance of his functions.
8. The aforesaid observations have been made in connection with a suit for recovery
of money on a hatchitta. The plaintiff filed along with the plaint the hatchitta, which
was in a bound volume, which contained a large number of hatchittas executed by
other persons in favour of the plaintiff. The hatchitta on which the suit was brought
being found to be insufficiently stamped, the learned Munsif examined the other
hatchittas and impounded them under section 33 finding them to be insufficiently
stamped.
9. In the case of Thakar Das v. The Crown, reported in AIR 1932 Lahore 495, a
Special Bench of the said High Court held that it was not sufficient for the purpose of
section 33 that the document should somehow be produced or come before the officer
mentioned in the said section. It was essential that it should be produced or come
before him in the performance of his functions and a mere production in compliance
with an illegal demand would not confer authority on him to take action under section
33.
10. A learned single Judge of the said High Court in the case of Ujjal Singh-Sunder
Singh v. Ahmad Yar Khan, reported in AIR 1936 Lahore 985, held that mere
production of a copy of a document or its transliteration without an attempt to prove it
or without an attempt to tender it formally in evidence did not amount to the
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 7 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

production of the document before a person concerned nor did the document under
such circumstances came before the person concerned in the performances of his
functions so as to attract the provisions of section 33.
11. Another learned single Judge of the said High Court in the case of Lala Uttam
Chand v. Perman Nand reported in AIR 1942 Lahore 265, held that no court has any
right to compel any party to produce a document against his wishes. If the document
was material, the party not producing it would suffer the consequences. The word
‘produced’ as used in section 33 means produced in the ordinary course of law and not
produced under the compulsion. If this were not so, a court would be competent to
conduct a search in the house of a party and seize all documents insufficiently
stamped for the purpose of impounding them. It was highly improper for a court to
compel a party to produce original document with a view to impound the document,
because the court has been informed that it was not sufficiently stamped. Such action
could not but be deprecated in most unambiguous terms. It was open to the party's
counsel to refuse to obey the order of the court in this respect. Where the court
illegally impounded a document it could not be sent to the Collector at all and,
therefore, the Collector to whom the document has been sent could not impound it of
his own accord.
12. Now, I propose to deal with the case cited by Shri Chatterjee reported in AIR
1959 Patna 353. In the said case one Sheo Shankar Pandey obtained two

Page: 161

money decrees against the judgment-debtors and for realisation of the decrees he
levied two execution cases. Subsequently, however, he assigned the said two decrees
to Chandrama Singh under a registered deed of assignment describing the same as
transfernama. On the strength of the said assignment the said Chandrama filed an
application for execution of one of the decrees. The executing court directed
Chandrama to produce the registered deed of assignment and the same was filed in
court. The execution case proceeded and notices under Rule 16 of Order 21 of the
Code of Civil Procedure were issued. The opposite party appeared and raised an
objection that the deed of assignment was insufficiently stamped whereupon the
executing court directed the sheristedar to examine the document and to submit a
report as to whether the stamp duty and penalty were liveable. The sheristedar
submitted his report assessing stamp duty and penalty and the court directed the
decree-holder to deposit the duty and penalty as indicated in the report of the
sheristedar. Being aggrieved the decree-holder moved the High Court in revision. The
Division Bench of the Patna High Court observed that section 33 did not specify how
the document is to be produced. There was no doubt that the production of a
document under compulsion was not a production as envisaged in sub-section (1) of
section 33. At the same time it would be wrong to restrict the operation of section 33
(1) to voluntary production only. When the expression was produced was considered in
juxtaposition with the expression ‘comes in the performance of his functions’ along
with the object of this Act, production of a document in obedience to the order of the
Court was, also, a production within the meaning of section 33(1).

13. The Division Bench of the Patna High Court heavily relied upon the decision of
the Division Bench of a Madras High Court in the case of King Emperor v. Balu
Kuppayyan, reported in ILR 25 Madras 525. In that case a complaint having been
made against a person for having committed offences under sections 64(c) and 68(c)
of the Stamp Act of 1899, the Magistrate issued a search warrant, under which certain
documents were seized and impounded under section 33(2) of the Act. In was
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 8 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

contended that the action of the Magistrate in impounding them was illegal, because
the documents did not come before him in the performance of his functions within the
meaning of section 33(1). The Madras High Court held that the word ‘comes’ is
sufficiently wide to include the production of documents under a search warrant issued
by the Magistrate.
14. The decision of the Patna High Court (supra) is distinguishable on facts
inasmuch as when the court passed an order directing payment of duty and penalty,
the original document was already before the court and relied upon by the party in
support of his contentions that he was the assignee of the decrees and as such was
entitled to proceed with the matter and in so far as the Madras case is concerned, it
does not fit in with the facts of the case in hand as the said case can easily be
distinguished from the present case inasmuch as there the Magistrate had legal
authority to issue a search warrant and could compel the party to produce the
document.

Page: 162

15. In the case of Varghese v. State of Kerala, reported in AIR 1989 Kerala 248, it
was observed the word impound has not been defined in the Stamp Act. If the
document was merely presented along with the plaint, it could not be said that the
document was produced as contemplated under section 33. If the plaintiff intended to
use the document as an item of evidence, then only the court could consider that it
was a document produced and the court could impound the same. The court has to
judicially detmine the matter as soon as the document is tendered in evidence and
before it is marked as an exhinbit in the case.
16. My reading of the provisions of sections 33, 35, 38, 39, 40 & 61 of the Indian
Stamp Act, 1899 is that when a document is tendered in evidence by a party and an
objection is raised by the other side that the document is insufficiently stamped, at
that stage, the court assumes the jurisdiction to impound the document as it was
obligatory to apply the mind of the court in accordance with the relevant provisions of
the said Act. The object of section 33 is to protect the revenue and as such the court
or such person, as referred to in the said section, must, however, exercise the powers
as envisaged under the said section, if necessary, suo motu, irrespective of the raising
of objection by any of the party.
17. Section 33 speaks that 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. However, in view of the
provisions of section 35, court or such person can admit an insufficiently stamped
document in evidence on payment of the sufficient duty with which the same is
chargeable together, with a penalty. Therefore, it was the duty of the court or such
person to assess the duty with which the document is chargeable and the penalty to
be paid by the person, who produces the said document before the court or such
person. Once the said document is admitted in evidence, under sub-section (1) of
section 38, it is obligatory to 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, also, the amount levied to the Collector or to
such person as he may appoint in his behalf. In the event, the Collector is dissatisfied
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 9 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

with the assessment of the amount of stamp duty and penalty imposed thereon by the
court or such person, the Collector may resort to the provision of section 61 of the said
Act and approach the appeal court for redress of his grievance. However, under section
39 the Collector has power to refund any portion of the penalty in excess of five
rupees, which has been paid under sub-section (1) of section 38 in respect of such
document. If the party, who produces such document for being admitted in evidence,
is aggrieved by the order, as regards the classification of the document or the amount
of duty and penalty assessed, such party may pray to the court or to such person to
send the document in original to the Collector under sub-section (2) of section 38 of
the said Act. When a document is sent to the Collector under sub-section (2) of
section 38,

Page: 163

the Collector receives such instrument send to him and he shall adopt procedures as
specified in section 40. Every certificate issued under clause (a)of sub-section (1) of
section 40 by the Collector shall, however, for the purposes of the Indian Stamp Act,
1899 be conclusive evidence of the matters stated therein. However, because of
sending of the document to the Collector, be it under sub-section (1) or sub-section
(2) of section 38 of the Indian Stamp Act, 1899, it will not be obligatory for the court
to stay the suit pending the decision of the Collector.

18. In the case of Sri Om Prakash Gupta v. Shrimati Saraswati Shaw, reported in
2002 (1) CLJ 452, Bhattacharya, J. held as under:
“It is therefore clear that a court cannot force a party, producing a document, to
pay the duty and penalty assessed by it and to have the document admitted in
evidence. It is for the party to elect whether it will accept the assessment of the
Court and will get the document admitted in evidence or to apply to the Court to
send the original document under section 38; but if a party decides to apply for
sending the document in terms of section 38(2) of the Act, it cannot, at the same
time, ask the Court to stay the suit pending the decision by the Collector under
section 40.
The scheme provided in the Stamp Act is ex stive and does not approve such
course.”
19. A Division Bench of this Court in The Empress v. Soddanund Mahanty, reported
in I.L.R. 8 Calcutta 259, held that it appeared from the reading of the provisions of the
said Act that it was the intention of the legislature, in the first place, to compel the
payment of stamp duty with penalty. By the payment of stamp duty and penalty, the
revenue would be protected from loss; an exaction of a small money by way of penalty
would be a sufficient punishment in the large majority of the case in which the
omission to stamp at all, or stamp duty, arose from negligence, inadvertence or
ignorance of the provisions of the stamp law.
20. Now, I deal with the last part of the submissions of Shri Chatterjee that
xerox/photo copy of a document is primary evidence and as a xerox copy of the
agreement has been filed before the court, the court had jurisdiction to impound the
same. Shri Chatterjee relied upon the Supreme Court decision reported in AIR 1989
SC 702 where the Supreme Court held that the carbon copy prepared by one uniform
process was admissible being primary evidence within explanation 2 of section 62 of
the Indian Evidence Act, 1872.
21. In order to appreciate such contentions of Shri Chatterjee it is necessary to
consider the provisions of sections 62 and 63 of the Indian Evidence Act, 1872. The
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 10 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

said provisions run as under:

“62. Primary Evidence.— Primary evidence means the document itself produced
for the inspection of the Court.
Explanation 1.—Where a document is executed in several parts, each part is
primary evidence of the document.

Page: 164

Where a document is executed in counterpart, being executed by one or some of

the parties only, each counterpart is primary evidence as against the parties
executing it.
Explanation 2.— Where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is primary
evidence of the contents of the rest; but, where they are all copies of a common
original, they are not primary evidence of the contents of the orginal.
63. Secondary evidence.—Secondary evidence means and includes—
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has
himself seen it.”
22. It is settled law that the carbon copies produced by type-writers may, for all
practical purposes, be regarded as equivalent, though the impressions on the lower
sheets are likely to be imperfect. They are prepared by same stroke, which makes the
surface impression. In the aforesaid background the Supreme Court held that the
carbon copy could be admitted as primary evidence.
23. I am unable to accept the contention of Shri Chatterjee that photocopy/xerox
copy of a document can be admitted in evidence as primary evidence and I hold that
photocopy is not admissible as primary evidence under any provision. In view of the
clear language of sub-section (2) of section 63 of the Indian Evidence Act, 1872,
photocopy/xerox copy is secondary evidence and can never be regarded as primary
evidence. In this regard I draw my inspirations from the decisions in the case of
Ramesh Verma v. Shrimati Lajesh Saxena, reported in AIR 1998 Madhya Pradesh 46
and Arulmigu Visweswara Swami and Veeraraghaua Perumal Temples v. R.V.E.
Venkatachala Gounder, reported in 1996 (4) Current Civil Cases 347 (Mad.).
24. I, therefore, hold that the learned trial Judge acted without jurisdiction in
directing the plaintiff to produce the original document for the purpose of impounding
the same. Mere production of the photocopy of the document along with the
application for temporary injunction or otherwise was not enough to attract the
provisions of section 33(1) of the said Act. In this case the document has been
illegally impounded and has been sent to the Collector and, therefore, the Collector to
whom the document has been sent cannot impound it of his own accord.
25. Accordingly, I set aside the order impugned in the revisional application and
allow the revisional application without any order as to costs.
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 11 Monday, July 07, 2025
Printed For: Mr. Saumendra Mohan Rakshit
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Page: 165

26. Since the peremptory hearing of the suit has commenced, I direct the learned
trial Judge to expedite the hearing of the suit as far as possible and he should make all
endeavours to see that the suit is disposed of before the commencement of the annual
vacation of the civil courts.
27. Let xerox plain copy of this order duly countersigned by the Assistant Registrar
(Court), be supplied to the parties on usual undertaking.
Revisional application allowed.
S.K.P.
———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.