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Report No. 67

7.33. Recommendation to exclude attested instruments.-

Accordingly, we recommend that attested documents should be excluded from the definition of "promissory note" in the Stamp Act, so as to avoid controversy. The controversy is illustrated by the case law cited above. Without such an amendment, the citizen's difficulty would continue, since it is not easy to determine whether a particular document is a bond or pronote.

7.34. Section 2(22A)-Definition of "public officer" (New).-

We shall now deal with one expression not defined in the Act-"public officer". It would, in our view, be desirable to define the expression "public officer" as having the same meaning as in the Code of Civil Procedure. The want of a definition of this expression in the Stamp Act renders section 73 of the Act incomplete. It also renders section 35 incomplete.

7.35. Recommendation.-

We, therefore, recommend that a new sub-section (22A) should be inserted in section 2, on the following lines:-

"(22A) 'public officer' means a public officer as defined in sub-section (17) of section 2 of the Code of Civil Procedure, 1908."

We may note that the suggested amendment has been generally favoured in the replies to the Questionnaire issued by us.1

1. Question 15-Public Officer.

7.36. Section 2(23)-'Receipt'.- Section 2(23) may now be considered. It says-

"(23) 'Receipt' includes any note, memorandum or writing:-

(a) whereby any money, or any bill of exchange, cheque or promissory note is acknowledged to have been received, or

(b) whereby any other movable property is acknowledged to have been received in satisfaction of a debt, or

(c) whereby any debt or demand, or any part of a debt or demand, is acknowledged to have been satisfied or discharged, or

(d) which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person."

7.37. Cash Memo.-

The principal question to be considered relates to cash memos. It has been held1 that ordinary cash memo, issued by a shop-keeper to a purchaser of goods is not a receipt unless it contains an acknowledgment of receipt of the money. Such a memo does not become chargeable by virtue of initials of the seller subscribed to a warranty written at the foot of it. Even if the initials are taken as amounting to "execution", the memo would not be a "receipt" within section 2(23), as it is not addressed to any particular person and the name of the customer to whom it is given is not mentioned in it.

1. Financial Commissioner v. Indo Burma Watch Co., ILR 12 Rang 174: AIR 1934 Rang 49.

7.38. In an Australian case,1 the court ruled against liability on a cash memo where the memo contained no statement that the purchase price had been paid, though the practice was to give such a document only against payment.

The same view prevails officially in Great Britain.2

In 1949, Mr. A. Evans asked the Chancellor of the Exchequer whether his regulations still prescribed stamp duty on receipts of £ 2 and upwards and how far it is applicable to retail cash sales. Sir S. Gripps replied: "The stamp duty of two pence upon receipts for sums of £2 or more is still in force. The form of voucher commonly given by retail shops in cash transactions where the whole of the goods purchased are taken away by the customer on payment of the price, being primarily a document used for internal book-keeping purposes, does not constitute a receipt, and is not liable to stamp duty even though it relates to a payment of £ 2 or more, provided that it contains no words stating or implying receipt or payment of money. The customer is, however, entitled to demand a receipt, and the Stamp Act imposes a penalty for issuing a receipt liable to duty but not duly stamped, or for refusing to give a duly stamped receipt."

1. Commissioner of Stamp Duties (N.S.W.) v. Swan & Co. Pty., 1960 S.R.N.S.W. 141 and 182 [sub. nom. Woods v. Small & Co. Pty., 1960 Australian Law Reports 333] referred to in Monroe Stamp Duties, (1964), p. 38, f.n. 15.

2. See the statement of the Chancellor of the Exchequer (made in 1949), H.C. Debates, Vol. 466 (Written Answers) cols. 136-137.

7.39. Nature of Cash Memo.-

Generally speaking, buying and selling is not complete with the cash memo but with the payment. Payment is usually subsequent to the cash memo; but, even if it is antecedent, what a "cash memo" indicates is that the goods had not been delivered on credit.

7.40. Recommendation.-

It may be useful to codify the position laid down judicially, by inserting a suitable Explanation, say, on the following lines:-

"Explanation.-A cash memorandum, that is to say, a memorandum which records particulars of goods sold or services rendered is not a receipt, if it does not acknowledge that any money or any bill of exchange, cheque or promissory note has been received, notwithstanding that it mentions the consideration for the sale or for rendering the services."

We recommend the above amendment.

We may note that the suggested amendment has been generally favoured in the replies to the Questionnaire issued by us.1

1. Q. 16-Receipt-Cash Memo.

7.41. The next clause deals with "settlement". We shall consider at length the definition of "settlement" and the charging provision in Article 64 relating to declaration of trust1.

1. Article 64.

Indian Stamp Act, 1899 Back

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