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5. During the examination-in-chief, the plaintiff who was examined as PW-1 sought to mark the said agreement of sale, dated 18-11-1988. Then the Counsel appearing for the defendants took objection with regard to admissibility of the said document in evidence. At that stage, the plaintiff filed I.A.No. 26 of 1998, under Section 40 of the Indian Stamp Act read with Section 151 of the Code of Civil Procedure, to send the said document to the District Registrar-cum-Collector for the purpose of imposing necessary penalty as per the Indian Stamp Act (hereinafter referred as 'the Act'). The lower Court by order, dated 14-8-1998, held that the document in question has to be sent to the District Registrar. Aggrieved by the said order, respondent 1 to 6 filed Civil Revision Petition No. 4264 of 1998 before this Court and the said revision was dismissed holding that the order of the Trial Court cannot be interfered with. In spite of the dismissal of the said revision, the District Registrar-cum-Collector who is vested with powers under Sections 30 and 31 read with Section 38 of the Act, and so he failed to discharge his duties and therefore, the Trial Court in I.A.No. 26 of 1998 directed the office to send the agreement of sale dated 18-11-1988 to the District Registrar-cum-Collector for collection of stamp duty and penalty. The respondents 1 to 6 filed I.A.No. 530 of 1998 requesting the Court below to defer sending of the document as per the said order dated 14-8-1998 made in I.A.No. 20 of 1998, but the said objection, raised by the respondents, was dismissed and accordingly, the Court below made the reference to the District Registrar-cum-Collector sending the document for impounding, but, the District Registrar returned the said document. Thereupon, the petitioner filed an application in I.A.No. 95 of 2000 in O.S.No. 44 of 2000, requesting the Court to refer the document, dated 18-11-1988, under Section-38(2) of the Act to the District Registrar for collecting the stamp duty and penalty as per the provisions of the Act. Accordingly, the Court below by order, dated 7-4-2000, referred the document in question for impounding and for collection of necessary stamp duty and penalty, to the District Registrar, Stamps and Registration and for return of the document on complying the statutory requirements. The District Registrar was directed to complete the enquiry and collect the stamp duty within 15 days from the date of the said order. The 7th respondent did not comply with the said order of the Trial Court, but on the other hand addressed a letter bearing No. 974/Gl/2000, dated 16-4-2000, to the Senior Civil Judge, Gajuwaka, Visakhapatnam, with reference to the order passed by the Trial Court for impounding the document and stated that deficit stamp duty of Rs. 22,488/- and penalty as decided by the Court thereunder may be collected from the party and the same may be remitted to the relevant account of the Government and the office may be provided with the details of payment and stamp papers in original. The stamp papers would then be resubmitted to the Court after duly impounded. On the said letter, refusing to collect the stamp duty and penally by the District Registrar, the Court below passed an order dated 28-4-2000 stating that the District Registrar-cum-Collector, Stamps and Registration, strangely refused to exercise his statutory duty in impounding the document and collecting the stamp duty and penalty and therefore, the Court became helpless in compelling the plaintiff to pay the penalty of Rs. 2,47,368/-, which is ten times more than the actual stamp duty for impounding the document by the Court. Questioning the said order, dated 28-11-2000, the present Civil Revision Petition is filed.

9. In the instant case, there is no dispute with regard to the stamp duty payable by the plaintiff and the deficit stamp duty payable thereon is Rs. 22,488/-. Admittedly, the instrument was not duly stamped and therefore, the stamp duty was determined. Chapter-IV of the Act deals with the instruments not duly stamped. Therefore, the said instrument was not admissible as it was improperly stamped. Unless the said document is impounded, it cannot be received in evidence. Therefore, the plaintiff filed an application under Section 38(2) of the Act to impound the said document. On an application filed by the plaintiff, the Court shall sent the document to the District Collector for impounding the instrument and on such requisition made under Section 38(2) of the Act, the District Collector shall impound the same after following necessary procedure and if he is of the opinion that such instrument is chargeable with the duty and the said instrument is not duly stamped, he shall require the payment of the proper duty by way of amount required to make up the same together with a penalty not exceeding ten times of the amount of proper duty or of the deficient portion thereof. After impounding the document, he shall issue a certificate, which will be conclusive evidence of fact that the document is duly stamped. When an instrument has been sent to the District Collector under Section 38(2) of the Act, the District Collector shall deal with collection of proper stamp duty and penalty as provided under Section 40 of the Act and return it to the impounding officer. Section 40 of the Act makes it clear that if the District Collector is of the opinion that the instrument is duly stamped, or is npt chargeable with duty, he shall certify the game by an endorsement thereon after collecting the necessary stamp duty and penalty thereon. If the District Collector comes to the conclusion that such instrument is chargeable with duty and is not duly stamped, then he shall require the payment of proper duty and penalty decided by him and after collecting the duty and penalty, he shall certify the same by an endorsement and the instrument shall thereupon be admissible in evidence.

13. In a later judgment in case of Y. Peda Venkayya, v. R.D.O. Gunlur and Anr., , this Court held that once the original document is sent to the District Collector under Section 38(2) of the Act, the District Collector has to follow the procedure prescribed under Section 40 of the Act, and the District Collector shall decide the duty payable for the instrument and also the quantum of penalty leviable thereon. It is further held by this Court that where a document is sent to the District Collector under Section 38(2) of the Act, the District Collector has a final say with regard to the adjudication of payment of proper deficit stamp duty and penalty under Section 40 of the Act. Once the document is sent to the District Collector under Section 38(2) of the Act, the District Collector has to deal with it under Section 40 of the Act and after collecting the necessary deficit stamp duty and penalty, he shall send back the document under Sub-section (3) of Section 40 of the Act, to the Court.

17. For the aforesaid reasons, I am of the opinion that the order of the 7th respondent, dated 16-4-2000, and the consequential impugned order of the Court below, dated 28-4-2000, are liable to be set aside.

18. Accordingly, order of the 7th respondent made in his letter bearing No. 974/ G1/2000, dated 16-4-2000, and the consequential impugned order of the Court below, dated 28-4-2000, made in I.A.No. 95 of 2000 in O.S.No. 44 of 2000, are set aside and the Court below is directed to send the original document to the 7th respondent for impounding the same. On such sending of the document, the 7th respondent-District Registrar and District Collector, Visakhapatnam, shall adapt the procedure contemplated under Section 40 of the Act and after collecting the necessary deficit stamp duty and penalty imposed thereon, shall make necessary certification on the document impounding the same, which has been sent to him under Section 38(2) of the Act and shall return the same to the Court below within two months from the date of receipt of a copy of this order.