Jabed Ali Sarker Vs. Dr. Sultan Ahmed and another, 27 DLR (1975) (AD) 78

Case No: Civil Appeal No. 78 of 1974

Judge: Mahmud Husain,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Syed Ishtiaq Ahmed,,

Citation: 27 DLR (1975) (AD) 78

Case Year: 1975

Appellant: Jabed Ali Sarker

Respondent: Dr. Sultan Ahmed

Subject: Fraud,

Delivery Date: 1975-3-18

Supreme Court
Appellate Division
A. M. Sayem J
A.B. Mahmud Hussain J
Ahsanuddin Chowdhury J
Jabed Ali Sarker
………… Appellant
Dr. Sultan Ahmed and another
March 17 & 18, 1975.
Code of Civil Procedure (V of 1908)
Or. 6, r. 4
Fraud when alleged in a pleading— Particulars of fraud must be stated— One kind of fraud alleged, another kind can not proved.
Lawyers involved:
Syed lshtiaq Ahmed. Additional Attorney General, M. Nurullah, Advocate, instructed by S. M. Haq, Advocate-on-Record-For the Appellant.
Rufiq-ul-Huq, Advocate (T. Islam, Advocate with him) instructed by B. Hossain, Advocate-on- Record—(For the Respon­dent No. 1).
Ex-parte—Respondent No. 2.
Civil Appeal No.  78 of 1974.
(On appeal from the Judgment and Order dated 21-1-74 passed by the High Court Division in appeal No. 1 of 1973).

Mahmud Husain J.
1. This appeal by special leave is against a judgment of a Division Bench of the High Court Division affirming that of the learned single judge of that division who directed rectification of the Share Register of respondent No. 2 a Company incorporated under the Companies Act on an application filed by Respondent No. 1 under section 33 of the said Act.
2. The case of Respondent No. 1 is that on 18-9-69 he had purchased 520 shares of the Respondent company (Respondent No.2) from Kamala Kanta Chakraborty who executed an instrument in that behalf embossed on a plain paper affixed with share transfer adhesive stamps and that on the advise of his lawyer as a measure of precaution, he obtained on the same date a deed of transfer from she said Kamala Kanta Chakraborty embossed on non-judicial stamp The said transferor delivered the share Certified at the time of execution of the deed of transfer to the respondent No. 1 by giving a letter of authority in favour of his younger brother to the State Bank of Pakistan.
3. The appellant claimed to have purchased the said 520 shares in respondent No. 2 on 12-4-70 for Taka 4,600/00 by a deed of transfer executed on non judicial stamps wroth Taka 70/00 and applied to the Company for mutation of his name on 19-4-170 in the Share Regis­ter in place of the transferor. Kamala Kanta Chakraborty. The appellant alleged that the deeds of transfer of respondent No. 1 are not genuine. The non-judicial stamps which were used as the deed of transfer by the transferor were ante-date and fabricated and the said stamps were not sold to the transferor on the date as mentioned in the stumps. The infor­mation slip received from the Rajshahi Collectorate shows the last number to be 3656 of September, 1969). The appellant obtained the share certificate fraudulently and collusively and the Bank malafide and illegally handed over the share certificate to the respondent No. 1. The Board of Directors, of respondent No. 2 in a meeting held on 21-10-70, resolved that it would mutate the name of the person, who would be found by the Court to be genuine transferee.
4. Mr. Syed Ishtiaq Ahmed, learned Counsel for the appellant Contended that the lear­ned Judges of the High Court Division erred in law in deciding the question of forgery of the transfer deed executed on non-judicial stamps in favour of respondent No. 1, inasmuch, as they decided the matter by setting up a new case not raised by the pleading of the parties and also by erroneously presuming that in proving forgery in the instant ease it was incumbent on the appellant to prove when the document was forge and there by placed onus wrongly on the appellant which under the law the appellant is not inquired to discharge. The next contention was that the learned Judges of the High Court Division mis-interpreted the provision of section 12 of the Stamp Act and erred in holding that the adhesive stamp affixed on the instrument on plain paper have been duly cancelled.
5. While developing his first point, learned Counsel drew our attention to a portion of a passage of paragraph 5 of the affidavit-in-opposition filed by respondent No. 2 wherein it was stated:
"The petitioner, however, did not mention in his said letter either the number of shares he purchased or the consideration for which he purchased or the date of his purchase and he also did not produce any document in support of his alleged purchaser. He did not even mention that the instrument of his purchase was exe­cuted on a plain paper with share transfer stamp of Rs. 41/00. The petitioner never produced this instrument or any copy thereof to the Company. A Photostat copy of this instrument for the first time was given to the company by Mr. Tofazzul Islam, Barrister-at-Law along with his letter dated 18-11-70 as referred to in paragraph 22 of the petition."
6. The learned Counsel also drew our attention to a portion of paragraph No. 5 of the affidavit-in-opposition filed by the appellant which runs thus:—
"It is not a fact that two deeds were executed, one on share transfer stamp and the other on non-judicial stamp as a mat­ter of precaution and on the advice of the lawyer or that at the time of execution of the deeds of transfer the said transferor delivered the share certificate for the said share to the petitioner by giving a letter of authority in favour of his younger brother to the State Bank of Pakistan in whose custody the shares were then lying. It is stated that when this deponent atten­ded the meeting of the Board of Directorate of the Company on 8-9-70 he found that the petitioner produced only one deed purported to have been executed on non-judicial stamps worth Rs. 85/00 in support of his claim for mutation. The petitioner did not mention in that meeting about the existence of any other deed of transfer."
The learned Counsel then referred us to a por­tion of a judgment of the learned Single Judge of the High Court Division which runs thus:
"It has further been stated that the peti­tioner for the first time mentioned about the existence of the said instrument before this Hon'ble Court. The statement is ob­viously incorrect in view of the company's statement that a Photostat copy of the said instrument was given to the company along with annexure 'O' on 25-11-70."
Annexure 'O' is a legal notice written on behalf of the respondent No. 1 by his lawyer on 25-11-1970 and it was stated therein that the respon­dent No. 1 considered both the documents as of equal value and instead of submitting the copy of the instrument dated 1S-9-69, he sub­mitted the Photostat copy of the Deed of Trans­fer dated 18-9-69 on the assumption that the same would serve the purpose. Thereafter under the direction of respondent No. 2, the respon­dent No.1 met the Board of Directors on 8-9-70 at 8 P.M. and produced all the original docu­ments. So the grievance of the appellant that it was for the first time that he came to know of the existence of an instrument of transfer only on 25-11-1970 is not correct and the finding of the appellate Court in this behalf shows that the instrument of transfer and other papers were not produced before the respondent No. 2 as there was genuine apprehension in the mind of respondent No. 1 that the then Managing Director of the respondent No. 2 could destroy the papers and as such he wanted to produce the same personally at the meeting of the Board of Directors.
7. It is found from the affidavit-in-reply filed by respondent No.1 that the instrument of transfer and the deed of transfer were produced at the meeting of the Board of Directors by respondent No. 2 held on 8-9-70 and also before the Magistrate on 8-8-70. Taking all these into consideration the appellate Court concluded that the existence of the instrument was known to the appellant and respondent No. 2.
8. A great controversy was raised with regard to purchase of non-judicial stamp in Annexure 'B'. It appears that 3656 is the last number of the register of Stamps Vender, Khalilur Rahman for the month of September, 1969 whereas 4656, 4657, 4658, 4659 are the numbers in the non-judicial stamps in the sad Annexure 'B' dated 18-9-69. The courts below, on examination of the original Annexure 'B' filed in Court, found that the signature appearing on the back of the said stamp papers bears sig­nature of K. Rahman. No dispute was raised as to whether 'K’ stands for 'Khalil'. There is no assertion by the appellant that the Stamp Vendor had no other register to show the entry of numbers in Annexure 'B'. The respondent No. 1 on the other hand made an assertion that the Stamp Vender might have another register to show the entries of numbers of stamps in Annexure ‘B'. The Court below considering all aspects concluded that 'K' stands for Khalil.
9. Mr. Rafiqul Huq, learned Counsel for the res­pondent No. 1 contended that the points urged by the learned Counsel for the appellant are matters relating to facts which cannot be agitated before this Court as the appeal was under section 28 of the Companies Act which deals with the power of the Court to rectify register and it has been provided therein that the decision of the Court for rectification of the register may be challen­ged on appeal which shall lie in the manner as directed by the Code of Civil Procedure, 1908 on the ground mentioned in section 100 at the Code. So the decision of the learned Judges of the High Court Division on appeal should be treated as one on a second appeal.
10. Mr. Rafiqul Huq referring to some cases on a question of jurisdiction of the High Court in entertaining a second appeal submitted that the High Court Division was not to dis­turb findings of fact, vet it examined the find­ings and arrived at a conclusion and as such the point agitated before this Court needs no consideration.
11. The learned Counsel for the appellant assailed the impugned judgment on the footing that the learned Judges decided the question of forgery of the transfer deed Annexure 'B’ by-setting up altogether a new case not raised in the pleadings of the parties indicating thereby the discussion made therein as to when the docu­ment was forged, whether it is ante-dated or not as such consideration amounts to placing on us wrongly on the appellant who attributed  for in the execution of Annexure 'B'.  In concise dictionary fraud has been explained as an act or instance of deception, an artifice by which the right or interest of another is injured, a dis­honest trick or   stratagem'. Forgery means 'the fraudulent making or alteration of wri­ting to the prejudice of another man’s right. The rule of pleadings when fraud is charged requires the particulars of fraud to be speci­fically stated. The mere general allegations are insufficient and the charge of fraud must be substantially proved and when one kind of fraud is charged another cannot, on failure of proof, he established for it. In the instant case the charges on the ground of forgery have been, duly considered by the two courts below and the reasons assigned thereof might not be happy but the appellant having failed to challenge the statements made in affidavit sworn by the iv respondent No. 1 we find consideration as to whether the burden of proof on the charge of forgery have been duly dis­charged.
12. It has been held in the case of Abdul Majid and others Vs. Khaiil Ahmed, reported in P.L.D. 1955 F.C. 38 that "the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the pro­cedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits." in the instant case it has been argued that onus has been wrongly shifted on the appellant but it should be remembered that the party who alleges forgery must lead evidence in support thereof. In the present case the Courts below have given due consi­deration to the affidavits sworn by the parties and arrived at a conclusive finding on the point. In this view of the matter we find no substance in the contention of the learned Counsel.
13. The next contention of the learned Counsel is that the instrument on plain paper with adhesive stamps ought to have been deemed to have been unstamped within the meaning of section 12 of the Stamp Act which runs as fol­lows :—
"12.—(1) (a) Whoever affixes any, adhesive stamp to any instrument char­geable with duty which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again; and
(b) Whoever executes any instru­ment on any paper bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already can­celled in manner aforesaid, cancel the same so that it cannot be used again.
(2) Any instrument bearing an ad­hesive stamp which has not been can­celled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped.
(3) the person required by sub-­section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name and initials or the name or initials of the firm with the true dale of his so writing, or in any other effectual manner."
14. The intent of the Legislature, it app­ears from the above provision is clear that the cancellation of the adhesive stamps should be in a manner that it cannot be used again. The adhesive stamps affixed in the impugned deed have writing on it 'cancelled' on each of the stamp. Learned Counsel for the appellant contended that it does not fulfill the requirement as indicated in section 12(3) of the Stamp Act.
15. The question arises as to whether the effective cancellation of the stamps contemplated in section 12 of the Stamp Act is a question of fact. The object of effectively canceling stamps is to make it unfit for further use in the ordinary course of business. The effectiveness of cancel­lation has to be determined by reference to the question whether if it be removed from the document, it could be used again. This ques­tion must obviously be considered with refe­rence to facts of each particular case.
16. Now that the document has been pro­duced before the authority as an evidence of transfer and if the authority finds that the stamps do not show that these were used before and act upon it, the party get the   desired object. But if thereafter the stamps is stolen and used by any other person then it would only bring that person within the mischief of sub-clause (3) of section 12 of the Stamp Act. The words "so that it cannot be used again" occurring in sub-clause (1)(a) of section 12 of the Stamp Act means merely such cancellation as will pre­vent the stamp being lawfully or conscientiously used again. Section 63 of the Stamp Act runs thus:—
"63. An person required by section 12 to cancel an adhesive stamp, and failing to cancel such stamp in manner pres­cribed by that section, shall be punishable with fine which may extent to one hundred rupees."
There is no dispute as to the stamps used in the impugned document were used previously. The only question was as to whether it was cancelled as required under section 12(3) of the Stamp Act. All aspects have been duly considered by the courts below and this being a question of fact does not call for any interference by this Court. The mode of cancellation is also a question of fact and since this has been decided by the Courts below, we find no subs­tance in the contention of the learned Counsel.
This appeal is accordingly dismissed with costs.