Report No. 67
21.31. Section 61(2).-
The above scheme involves certain structural changes in section 61(2) also. Certain other points may be considered, with reference to sub-section (2). It has been suggested that if a party wants to pay penalty, he should be allowed to do so, and not be driven to the Collector, as at present. The present provition for mandatory impounding should, it was suggested, be modified, to provide as above. As against this, it has been stated that such amendment would create practical problem. In pursuance of the decision of the appellate Court, the Collector should be allowed to realise the penalty, as at present. If the above change proposed purely for convenience of the citizen, is carried out, the apprehension has been expressed that the judicial function of the appellate Court and the proposed administrative work of realising the amount, may get jumbled up. It is the stamp revenue in issue, having nothing to do with the appeal. We have, after careful consideration come to the conclusion that it may be worthwhile to carry out the suggestion. Replies to our Questionnaire1 also mostly favour the change. We recommend it. We also propose a slight restructuring of section 61(2), for the reasons already indicated.2
1. Question 66.
2. Para. 21.29, supra.
We, therefore, recommend that section 61(2) should be revised as follows:-
"(2) if such Court, after such consideration, is of opinion-
(a) in the case. referred to in clause (a) of sub-section (1), that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or
(b) in the case referred to in clause (b) of sub-section (2), that such instrument should not have been admitted in evidence 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:
Provided that where such person is prepared to pay the duty and penalty, the Court shall accept the same and shall not impound the instrument."
21.32A. Section 61(3).-
In section 61(3), it would be necessary to deal with the situation when, beside the declaration by the court, the penalty has also been recovered, in consequence of sub-section (2) as proposed to be amended. Accordingly, sub-section (3) should be revised, and new sub-sections added, as follows:-
"(3) When a declaration has been recorded under sub-section (2)
(a) the court recording the same shall send a copy thereof to the Collector, and
(b) where the instrument to which it relates has been impounded or is otherwise in the possession of that court, shall also send him the instrument, and
(c) where the amount of duty and penalty has been paid under the proviso to sub-section (2), shall 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 shall send such amount to the Collector, or to such person as he may appoint in this behalf.1
(3A) When the duty and penalty leviable in respect of any instrument have been paid under sub-section (3), the Court shall also certify by endorsement thereon that the proper duty or the proper duty and penalty stating 'the amount of each have been levied in respect thereof, and the name and residence of the person paying them.
(3B) Every instrument so endorsed shall thereupon be delivered on his application in this behalf to the person from whose possession it came into the hands of the Court, or as he may direct a person authorised by him.2"
1. Compare section 38(1).
2. Cf. section 38(1).
21.33. Section 61(4).-
Section 61(4), it would be noted, while empowering the Collector to prosecute any person in respect of whom an order has been passed by the appellate court by section 61(2), enacts, in proviso (a), that "no such prosecution shall be instituted where the amount (including duty and penalty which according to the determination of the court, 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". This will require modification in order to deal with cases where the duty and penalty have been already paid in court, under the new provision recommended by us to be inserted by way of proviso to sub section (2).
21.34. In section 61(4), and in proviso (b), the reference to section 42 will require to be changed into a reference to section 41, having regard to our recommendation1 to transpose sections 41-42.
1. See recommendation as to sections 41-42, supra.