IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD. WEDNESDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Revision Case No.73 of 2009 Between: Mohd.Rafiq …Petitioner/A-1 A n d Smt.Qumrunissa Begum and another …Respondents/Complainant HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL REVISION CASE No.73 of 2009 JUDGMENT: This criminal revision case is directed against the order dated 23.12.2008 in Crl.M.P.No.3439 of 2008 in STC No.255 of 2007 on the file of the I Additional Judicial Magistrate of I Class, Khammam, wherein the petition filed by the first respondent herein/complainant for receiving document i.e., lease agreement dated 31.05.2007 and to mark the same as an exhibit was allowed, permitting the document to receive subject to objection of the respondent/accused. 2. Heard both sides. Perused the record. 3. The first respondent herein filed a complaint against the petitioner for the offence under Section 138 of the Negotiable Instruments Act 1881 [for short ‘the Act’]. According to the complainant, A.1 is the Managing Partner and A.2 and A.3 are suppliers of raw granite blocks to the granite factories and A.1 proposed to give granite quarry situated in Sy.Nos.307/2 and 308/2 of Yerrabelligudem village of Nallikundur Mandal, for lease and applied for lease transfer before the Mines and Geology Department and pending transfer of the lease, the accused proposed to take the brand new Hydraulic Excavator Model No.ZX 330LC of the complainant on rent and accordingly, agreement was entered into between the complainant and the firm of A.1 on 31.05.2007. It is further averred that as per the agreement, the accused has to pay rent of Rs.2,000/- per hour for working machine with a condition to pay monthly rent of Rs.3,60,000/- for 180 hours. The agreement came into effect from 01.06.2007 for a period of six months up to 30.11.2007 or transfer of lease in favour of the complainant, whichever is earlier. In pursuance of the said agreement, A.1 issued post-dated cheque bearing No.377018 dated 10.08.2007 for Rs.7,20,000/- in favour of the complainant towards payment of minimum rent for two months i.e., June and July 2007. The cheque when presented for encashment was dishonoured. The complainant therefore seeks to produce the lease agreement, which is basis for the transaction. The accused/ petitioners herein filed counter opposing the application on the ground that as the lease agreement is not duly stamped and registered and the same is inadmissible in evidence and therefore, there was no legally enforceable debt and the said document cannot be admitted in evidence. The learned Magistrate by impugned order allowed the said application subject to objection raised by the accused regarding its admissibility in evidence. 4. The first respondent-complainant seeks to produce the lease agreement in order to discharge the burden cast on him initially to show that the cheque was taken in discharge of legally enforceable debt. The petitioners-accused opposed the same on the ground that there is no legally enforceable debt at all since the lease agreement is inadmissible in evidence, the same being not duly stamped or registered. The question of admissibility or otherwise of a particular document in evidence is altogether different and distinct from the question as to whether or not there is legally enforceable debt. The complainant can always adduce necessary evidence to show that the debt is legally enforceable. The inadmissibility if any of a document for any reason does not render the debt itself legally unenforceable. De hors the evidence also the complainant can seek to establish the claim that the debt is legally enforceable coupled with the presumption contained under the Negotiable Instruments Act 1881. The contention of the petitioners that because the document i.e., agreement of lease herein is inadmissible in evidence for want of stamp duty and registration, the debt itself becomes legally unenforceable, is untenable. 5. The other contention raised by the petitioner is that because the lease agreement is inadmissible in evidence for want of stamp duty and registration, the complaint itself is not maintainable for the offence under Section 138 of the Negotiable Instruments Act 1881 since there is no legally enforceable debt. 6. The Full Bench of this Court in Crl.A.No.540 of 2001 & Crl.P.No.3870 of 2003 [Dr.A.V.Ramanaiah vs. M.Sekhar] by common judgment dated 31.12.2007 answered the reference holding that the bar contained under Section 69 of the Partnership Act would not get attracted for initiating action against un-registered partnership firm for the offence under Section 138 of the Negotiable Instruments Act. Sub-section (2) of Section 69 of the Partnership Act 1932 creates a bar for institution of a suit by or on behalf of a firm against any third party unless the firm is registered. The contention of the accused in the above case was that because the complainant firm was not registered in view of the bar contained under Section 69 (2) of the Partnership Act, the complainant could not file any suit for recovery of the debt and, therefore, the liability is not legally enforceable and hence, there was no legally enforceable debt in respect of which the offence under Section 138 of the Act is attracted. The Full Bench of this Court after referring to various decisions of the Apex Court held as follows: “From a careful analysis of what has been set out supra, it emerges that the expression ‘suit’ envisaged under Section 69 of the Partnership Act cannot be stretched for securing immunity from criminal prosecutions. As was noticed supra, the bar contained under Section 69 of the Partnership Act is liable to be confined only to enforcement of contractual obligations, but not to any other proceeding initiated for securing or enforcing statutory protections or obligations. It must necessarily follow that the bar contained under Section 69 of the Partnership Act does not encompass immunity from penal liability and the criminal proceedings for the offence committed under section 138 of the Act. The expression “debt or other liability” contained in the explanation of Section 138 of the Act, as meaning a legally enforceable debt or liability, does not refer even remotely to the penal liabilities. Penal liability completely distinct from measures taken for enforcing a debt or any other liability. Penal consequences follow only from offences, and unless a particular act is recognized as an offence, the penal consequences could not have flown there from.” 7. Following the ratio laid down in the above decision by way of analogy, the inadmissibility if any of the agreement of lease in evidence for want of stamp duty and registration does not bar maintainability of the complaint itself for the offence under Section 138 of the Act. 8. Proviso (a) to Section 33(2) of the Stamp Act states that 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 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. The present proceedings do not arise under Chapter XII or Chapter XXXVI. Therefore, the bar contained in Section 35 that 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, is not applicable to the present case in view of the exemption contained in proviso (d) to Section 35. 9. Learned counsel for the petitioners relied upon a decision in ‘Vajrala Ramesh & another vs. Vajrala Narayana Setty & another[1]’ wherein, it was held that ‘trial of suit shall not be stopped on objections raised as to insufficiency of stamp duty on such document and non- registration. Deficit stamp duty be levied by following provisions of Stamp Act and the issue of registration be decided at the final disposal of the suit.’ 10. The above decision is not applicable to the present case for the simple reason that the above decision related to civil suit, whereas the document, namely, agreement of lease is sought to be introduced in criminal proceedings and the bar contained in Section 35 of the Stamp Act does not come in the way in view of Clause (3) of Section 35. In fact, in the above decision, it was also held that ‘in order to avoid duplicity and multiplicity of the proceedings, it is always expedient for the Courts to receive the document subject to objection (by recording such objection) and decide the said issue after the trial is completed, of course, after framing an appropriate issue regarding the objection and admissibility of any disputed document’. 11. In the present case also the learned Magistrate has allowed the said application and directed that the document be received subject to objection raised by the accused. There cannot be any tenable objection for the petitioner-A.1 for the above said course. The impugned order does not suffer from any illegality or material irregularity so as to warrant interference by this Court in exercise of revisional jurisdiction. 12. In the result, the criminal revision case is dismissed. _______________________ G.V.SEETHAPATHY, J Date: 05-08-2009. bss [1] 2005(3) ALT 1