Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1676 (RAJ)

Shanker Lal v. State of Rajasthan

2009-07-23

H.R.PANWAR

body2009
JUDGMENT 1. - By the instant criminal misc. petition under Section 482 CrPC, the order dated 24.06.2008 passed by Additional Sessions Judge No. 3, Udaipur (for short "the revisional Court" hereinafter) in criminal revision No. 14/2008 has been challenged whereby the revisional Court dismissed the revision petition filed by the petitioner against the order dated 11.03.2008 passed by Additional Chief Judicial Magistrate No. 3, Udaipur (for short "the trial Court" hereinafter) taking cognizance against the petitioner for the offences under Sections 420 and 120B IPC. 2. Heard learned Counsel for the parties. 3. On a FIR being lodged by complainant Bhagwat Singh before challan against the petitioner for the offences under Sections 420 and 120B IPC, upon which the trial Court took the cognizance of the offences vide order dated 11.03.2008 and issued process. That order came to be challenged by the petitioner before the revisional Court and the revisional Court did not interfere with the order passed by the trial Court. Hence this petition. 4. It is contended by learned Counsel for the petitioner that from the averments made in the complaint; no offence whatsoever is made out against the petitioner. The complainant lodged the FIR alleging therein that the land bearing Khasra No. 1616 situated at Village Savina was sold by one Tulsi Ram since died in favour of Smt. Kanta for valuable consideration, however, the document of sale could not be registered in favour of the purchaser Smt. Kanta for want of sufficient stamp on the document and thereafter said Tulsi Ram sold the land to one Shanker Lal for the same price and on same value of stamp paper. The petitioner was Sub-Registrar at the relevant time and being the Registering Authority registered the sale document and, therefore, according to the complainant, he has been cheated by the petitioner and the offence of entering into criminal conspiracy with the buyer has also been made out. According to learned Counsel for the petitioner, neither the offence of cheating as defined under Section 415 IPC, nor the offence of criminal conspiracy is made out. 5. According to learned Counsel for the petitioner, neither the offence of cheating as defined under Section 415 IPC, nor the offence of criminal conspiracy is made out. 5. The offence of cheating has been defined under Section 415 IPC, provides that whoever, by deceiving any person, fraudulently or dishonest induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". The Explanation provides that a dishonest concealment of facts is a deception within the meaning of this Section. 6. According to learned Counsel for the petitioner, there is no allegation in the FIR that the petitioner by deceiving the complainant, fraudulently or dishonestly induces the complainant to deliver any property to any person nor he consented to retain the property. So far as the petitioner is concerned, at the relevant time, he was Sub-Registrar and at the time of registration of any document presented before the petitioner, he was to see the market value of the property and the stamp, payable for that and he might have returned the documents to the executant for want of sufficient stamp duty though there is no evidence that the document was presented and then returned. According to learned Counsel for the petitioner, there is no evidence that the sale document was presented by the executant and then returned by the petitioner and it is only a bald statement of the complainant. According to learned Counsel for the petitioner there is nothing on record to suggest that any such document was presented before the petitioner for registration and was returned by the petitioner for want of sufficient stamp. Had the document been presented before the petitioner and returned for want of sufficient stamp, then there must have been some endorsement either on the document or in the record of the Sub-Registrar. It is alleged that subsequently the executant executed a document in favour of some other person other than the complainant and it was registered. Had the document been presented before the petitioner and returned for want of sufficient stamp, then there must have been some endorsement either on the document or in the record of the Sub-Registrar. It is alleged that subsequently the executant executed a document in favour of some other person other than the complainant and it was registered. Even if the document might have been registered subsequently on the same stamp value, it cannot be said that the petitioner has any intention to deceive the complainant either fraudulently or dishonestly. At any rate, the complainant has not been deceived in any manner. If the complainant was aggrieved of the calculation of the stamp duty, it was open for him to approach the higher authorities or to get the document registered for insufficient stamp duty making it liable to be impounded. 7. So far as entering into criminal conspiracy is concerned, there is absolutely no evidence. The criminal conspiracy has been defined under Section 120A IPC which provides that when two or more persons agree to do or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. 8. In the instant case, there is absolutely no evidence that the petitioner with some other person done any act which can be said to be illegal. Even if the allegation taken on its face value that subsequently after a period of four months, a document presented by some other executant in favour of some other person, was registered then the State could have been aggrieved party for not paying the adequate stamp duty and the document could have been impounded, but at any rate, it cannot be said that the registration of the document is illegal Act. The petitioner being Sub-Registrar while discharging his official duty, -registered the document and if the document is registered with insufficient stamp duty, then it is always impoundable. 9. In this view of the matter, from the perusal of the complaint and the material available on record, in my view, the very essential ingredients for the, offences of cheating and criminal conspiracy are not made out and there was no sufficient material for the trial Court to satisfy that there is ground to proceed against the petitioner. 9. In this view of the matter, from the perusal of the complaint and the material available on record, in my view, the very essential ingredients for the, offences of cheating and criminal conspiracy are not made out and there was no sufficient material for the trial Court to satisfy that there is ground to proceed against the petitioner. In the circumstances, therefore, the order taking cognizance cannot sustain and is liable to be set aside. Even otherwise, in the instant case, the act alleged to have been done by the petitioner is while discharging public duty as Sub-Registrar and, therefore, is protected by the provisions of Section 197 CrPC and without there being a sanction by the State Govt. to prosecute the petitioner, the cognizance taken is otherwise bad. In this view of the matter, on both counts, the order taking cognizance and the order passed by the revisional Court deserve to be set aside. 10. Consequently, the criminal misc. petition is allowed. The order dated 11.03.2008 passed by Additional Chief Judicial Magistrate No. 3, Udaipur in Criminal Regular Case No. 129/2008 and the order dated 24.06.2008 passed by revisional Court affirming the order of the trial Court, are hereby set aside. The proceeding against the petitioner in Criminal Case No. 129/08 pending before Additional Chief Judicial Magistrate No. 3, Udaipur is hereby quashed. Stay petition also stands disposed of.Petition allowed. *******