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Present: Ennis, Shaw, and De Sampayo JJ.
DE MEL v. JORONIS APPU et al.e 259—D. C. Colombo, 48,381.
Stamp—Cancellation—Data—Ordinance No. 22 of 1909, e. 9.
Where the makers of a note wrote across the stamp their namesbut did not write on it the date—
Held, that the stamp was properly cancelled.
'J’HE facts appear from the judgment.
A. St. V. Jayawardene, for appellants.—Sub-section (1) of section 9of the Stamp Ordinance, No. 22 of 1909, is imperative as regardsthe cancelling of the stamp. The words used are “ shall . . . .cancel the same so that it cannot be used again.’’ But sub-section (3),which indicates one of the methods of cancelling, is not imperative,but merely directory. It merely indicates one of the many methodsof effectually cancelling a stamp. Otherwise an illiterate person cannever cancel a stamp if he is required to write his name and put thetrue date.
The Indian Act is very clear on this point. The English Act, 54and 55 Viet., c. 39 s. 8, states that a stamp is properly cancelledif the name or initial is put on it with the true date, or otherwiseeffectively cancelled or proved that the stamp was affixed at theproper time.
In Hettiarachy v. Wilfred 1 an undated stamp was dated by theCommissioner and the document admitted.
Counsel cited Kistnappa Chetty v. Silva; 2 28 Bom. 432.
Zoysa (with him Croos-Dabrera), for respondent.—The wording ofthe section in the Indian Act is different from ours. The IndianAct has, in addition^ the words “ or in any other effective manner. ”
In the case Ralli v. Caramalli Faz 'a3 it was held that where themark of cancellation on the stamp was a portion of the first letterof the signature the cancellation was bad, and that the documentwas unstamped. In the case of Bhawanji Harbhum v. Devji Punja *it was held that as the cancellation of a stamp wds a merely mecha-'nical operation, it will be sufficient if done by the directions, expressor implied, of the person affixing it. Therefore, no hardship would
1 (1918) 20 N. L. R. 183.31. L. R. 14 Bom. 102.
* (1911) Id N. L. R. 458.‘ 19 Bom. 635.
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De Melv. Joronia, Appti
arise in the case of illiterate persons if it is held that the provisionsof the section are imperative. Under the Ordinance people are boundto cancel stamps, but they are not under obligation to follow anyparticular method. But sub-section (3) gives one clear method ofcancelling a stamp, and a party using this method should do so inits entirety. He should put his initials and the true date. Theomission to put the date makes the cancellation defective, becauseit falls short of the method provided by the Ordinance.
Cut. adv. vult.
February 12, 1919. Ennis J.—
The only question for determination in this appeal is whether astamp on a promissory note has been duly cancelled. The stamp isan adhesive one for six cents, and has written across it the names ofthe two makers of the note. Section 9 of the Stamp Ordinance, No. 22of 1909, prescribes that (sub-section (1)) whoever affixes an adhesivestamp to any instrument chargeable with duty shall, when affixing thestamp, cancel the same so that it oannot be used again; sub-section(2) of that section says that an instrument bearing an adhesive stampwhich has not been so cancelled shall be deemed to be unstamped;and sub-section (3) says that a person affixing an adhesive stampmay cancel it by writing in ink, on or across the stamp, his name andthe true date, so as effectually to obliterate and cancel the stamp,and so as not to admit it being used again. It has been urged thatsub-section (3) is imperative, and that that is the only method bywhich a stamp can be cancelled. In support of this proposition thecase of Nakuran v. Ranhamy 1 has been cited. That case does notgo so far. It merely says that, in the absence of any judicialauthority sanctioning the proposition that a stamp can be cancelledwithout bearing on the face of it the date of its alleged cancellation,the Appeal Court was nojt prepared to differ from the decision ofthe learned Judge on the question. In Kistnappa Chetty v. Silva,2Lascelles C.J. held that the Stamp Ordinance prescribes no particularmethod of cancelling a stamp; and further held that the languageof sub-section (3) in section 9 was optional, and not imperative.Middleton J. expressed the same opinion. Inasmuch as the StampOrdinance in certain matters is a penal Ordinance, e.g., section 58penalizes the.execution of instruments which are not duly stamped,it would seem that sub-section (3) of section, 9 cannot be read asimperative, for to do so it would be necessary to construe the word“ may ” in that section as “ shall. ” I imagine the reason why 'great attention is paid to sub-section (3) is due the fact that it ispractically impossible to comply strictly with the sub-section (1) andcancel a stamp so that it cannot be used again. The matter woulddepend entirely upon the skill of the person desiring to use it again.If the cancellation prescribed imperatively in sub-section (1) is an
1 (1917) SO N. L. R. UO.
* (1911) 14 N. L. R. 458.
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impossibility, the only loophole in the section is the method ofcancellation made permissible by sub-section (8). But even so thereis some difficulty, because sub-section (3) also provides that thecancellation by writing the name and date on the stamp, is to besuch as not to admit of the stamp being used again, so that inconstruing these words some reasonable meaning must be given tothem. In the Indian case reported in 88 Bombay, at page 538, itwas said that there should be something on the stamp to show thatit had been used before. In that case it is to be observed that theCourt held that two parallel lines was not sufficient. It seems tome that some reasonable construction must be placed on sub-section
, and if the stamp is cancelled so that it cannot be used again,without the fact that it has been used before being easily liable todetection, there would have been a compliance with the section. Inthe present case there is no reasonable prospect of any normal personbeing misled into thinking that the stamp had not been used andusing it again. Some expert in fraud might so tamper with it thatthe fact that it had once been used might not be apparent, butno person of ordinary skill could do so. I would hold, therefore,that, for the purpose of section 9, the stamp now in question hasbeen duly cancelled. It must be remembered that illiterate persons,and even, literate persons who have lost the power of writing, mayhave to cancel stamps, and not be in a position to cancel them inthe optional way prescribed by sub-section (3). Whether the meansthey adopt were in fact effectual for the purpose would be a matterfor determination in each case, and where the possibility of afraudulent re-use is remote, I imagine the leaning of the Courtswould be towards admitting the document.
Db Melv. JoronieAppu
In the circumstances I would allow the appeal, set aside thedecree, and send the case back for further hearing, with a directionthat the document be admitted in evidence. The appellant to havethe costs of the appeal.
I agree. This point has already been distinctly decided by thisCourt in Kistnappa Chetty v. Silva 1 with which decision I am in entireaccord. It is apparent from the judgment in Nakuran v. Ranhamy 2that the decision in that case would not have been what it washad the attention of the Court been called to the previous casethat I have mentioned. For the purpose of reading the direction insub-section (3) of section 9 as imperative, it is necessary to changeffie word “ may ” contained in that section into the word “ shall. ”As my brother Ennis has mentioned, the Stamp Ordinance is, tosome extent, a penal statute, and renders persons liable to heavypenalties if they do not carry out the terms of the Ordinance. It
1 (7911) 14 N. L. B. 458.
2 (1917) 20 N. L. B. 135.
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De Mel*>• JoronieAppu
is impossible in legislation of this character to change the wordingin such a manner as to render something an offence when thewording of the Ordinance, as it stands, does not render the actpenal. It has been argued that sub-section (1) of section 9 maymean that the stamp should be so cancelled that it is physicallyimpossible to use it again. But it is impossible to place such aninterpretation on that sub-section. It is possible for any one to usea stamp again, though it is cancelled, and ,it is possible for anyexpert criminal to alter almost any ordinary commercial cancellationof a stamp in such a way as to prevent an ordinary observer noticingthat the stamp has been cancelled. It cannot mean that a personusing such a stamp should be liable to pay some penalty. In myopinion the sub-section means that the stamp shall be cancelledin such a way that to an ordinary observer looking at it it shouldbe apparent that it has been previously used. Whether the Indiandecision referred to goes too far I need not express my opinion atthe present time. But in my view any cancellation, either bywriting the name and date or other word across the stamp, or bymaking lines or crosses to signify to an ordinary observer that thestamp had been previously used, is sufficient to comply with therequirements of section 9; and the provision of sub-section (3)of that section is merely a direction as to the most convenientmethod for effecting the cancellation, and one which should befollowed by persons 'who do not desire that the cancellation of thestamp shall be questioned at some later period.
De Sampayo J.—
I am of the same opinion. I took part in the decision of Nakuranv. Ranhamy, 1 but now that the same point has been more fullyargued, I agree that the insertion of the date on the stamp is notalways necessary, provided the stamp is cancelled in such a marineras effectually to obliterate the same, and so as not to admit of itbeing used again, within the meaning of section 8 of the StampOrdinance.
1 (1917) 20 N. L. R. 135.
DE MEL v. JORONIS APPU et al