Judgment : Aggrieved by the judgment dated 29.11.2005 in C.C.No.4 of 2000 passed by the learned Special Judge for S.P.E & A.C.B cases, Nellore convicting and sentencing the Accused Officer for the offences under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short “P.C. Act”) (two counts), Sections 468, 471, 477A of Indian Penal Code (I.P.C) and under Section 81 of Indian Registration Act, 1908 (two counts), the instant appeal is preferred. 2) The facts and circumstances which led to file the present appeal can be stated thus: a) Accused Officer (for short ‘A.O’) worked as Sub-Registrar, Ammanabrolu and Chirala in Prakasam District during the period from 18.06.1990 to 21.06.1993 and 16.07.1994 to 19.02.1996 respectively. During his stint in those two places, among other documents he registered two sale deeds which according to prosecution were grossly undervalued and thereby, Government Exchequer suffered loss. Hence, he was prosecuted for the offences of criminal misconduct and other allied offences. b) In detail, while working as Sub-Registrar, Ammanabrolu, the A.O registered Ex.P.1 – sale deed (vide document No.456 of 1990) relating to Ac.1-56 cents (7550.4 sq. yards) of agricultural land in S.No.61/2B2 on 13.07.1990. The A.O levied stamp duty and registration fee by adopting market value of the land at Rs.15,000/- per acre, against its rate of Rs.26/- per sq.yd fixed under the market value guidelines and thus caused loss to State Exchequer a sum of Rs.20,021/-. It is further alleged that A.O tampered with the market value guidelines register by rounding off the figure of Rs.26/- per sq.yd and incorporating Rs.15,000/- per acre against the land covered by S.No.61/2B2. c) Another misdeed attributed against A.O is that while working as Sub-Registrar, Chirala he registered Ex.P.4–sale deed dated 17.05.1995 vide document No.1339/1995 in respect of a vacant site at Naidupet, Chirala in an extent of 3038 sq.yards near Door No.17-9-12. The A.O levied stamp duty and registration fee by adopting market value of the site @ Rs.100/- per sq.yd against its book value of Rs.200/- per sq.yd. The value of the site is Rs.6,07,600/- (3038 sq.yds X 200). A.O ought to have levied stamp duty of Rs.66,860/- i.e., 11% on the site value and registration fee of Rs.3,290/- (1% on first Rs.50,000/- and half percent on the remaining value). The value of the site is Rs.6,07,600/- (3038 sq.yds X 200). A.O ought to have levied stamp duty of Rs.66,860/- i.e., 11% on the site value and registration fee of Rs.3,290/- (1% on first Rs.50,000/- and half percent on the remaining value). However, he levied stamp duty of Rs.33,430/- and registration fee of Rs.1,770/- by considering the market value of the site as Rs.3,03,800/- (@ 100/- per sq.yd). He thus caused loss to State Exchequer a sum of Rs.34,950/-. d) It is thus alleged that he committed the acts of criminal misconduct and caused monetary loss of Rs.54,971/- to the State. PW.7 registered a case in Crime No.21/ACB-NPK/98, investigated and filed charge-sheet against A.O. e) The trial Court has framed charges against A.O under Sections 13(2) r/w 13(1)(d) of P.C. Act (two counts) and Sections 468, 471, 477A of I.P.C and under Section 81 of Indian Registration Act (two counts). f) During trial PWs.1 to 7 were examined and Exs.P.1 to P.18 were marked on behalf of prosecution. A.O did not adduce any evidence. g) The A.O did not deny the factum of his registering the two disputed sale deeds. His defence was in the line of justifying his acts. Regarding Ex.P.1 – sale deed of Sub-Registrar Office, Ammanabrolu, his explanation is that the parties presented the sale deed mentioning the property as an agricultural land admeasuring Ac.1-56 cents. They valued the property @ Rs.15,000/- per acre. Whereas in Ex.P.3- basic value register maintained by his office, the value is shown as Rs.26/- per sq.yd treating the Sy.No.61/2B2 as a house site. In view of the difference in the nature of property, he personally inspected the property on 10.07.1990 along with Village Administrative Officer (V.A.O) and Mandal Revenue Officer (M.R.O) and found it as an agricultural land as there were standing crops of Gingili and Jowar and obtained Ex.P.2 – certificate issued by V.A.O and countersigned by M.R.O. Thereafter he made an endorsement in Exs.P.2 and P.3 that the subject property is an agricultural land and registered the document treating the property as an agricultural land. He admitted that he rounded off the market value of Rs.26/- per sq.yd and noted Rs.15,000/- per acre in Ex.P.3. His submission was that he did not commit any act of misconduct much less criminal misconduct. He admitted that he rounded off the market value of Rs.26/- per sq.yd and noted Rs.15,000/- per acre in Ex.P.3. His submission was that he did not commit any act of misconduct much less criminal misconduct. h) Nextly, regarding the sale deed bearing document No.1339/1995 of Sub-Registrar Office, Chirala, his explanation was that Chirala Sub-Registrar Office was having huge jurisdiction and so a separate Senior Assistant used to deal with market value guidelines register and when Ex.P.4- sale deed was presented by the parties, he forwarded the document to concerned Senior Assistant for intimating the market value of the property and the said Senior Assistant quoted the market value as Rs.100/- per sq.yd and so he collected the stamp duty and registration fee basing on the said value. It was contended by A.O that it was practically impossible for him to verify the market value register personally due to heavy work. He pleaded that he acted bonafidely in registering the two sale deeds and there was no criminal misconduct on his part. i) A perusal of the judgment would show that so far as explanation relating to undervaluation of Ex.P.1- sale deed is concerned, the trial Court observed that Ex.P.3- market value guidelines register is a sacrosanct document and A.O was bound to follow the same and he has no power or authority to conduct enquiry to determine the market value of the subject property. Agreeing with the prosecution, the trial Court observed that when the parties failed to truly set forth the value of the instrument as per the market value guidelines register, the A.O was bound to keep such document pending registration and refer the matter to District Collector for determination of the market value of the property under Section 47A of Indian Stamp Act, 1899 and that he had no authority to personally visit the property and conduct enquiry relating to its value. The trial Court observed that the acts of A.O cannot be treated as bona fide acts and hence his explanation cannot be accepted. j) Regarding the explanation of A.O on Ex.P.4, the trial Court observed that the A.O has not got summoned the market value transmission register which was said to contain the market value of the subject property as Rs.100/- per sq.yd and which was said to be orally informed by the Senior Assistant. j) Regarding the explanation of A.O on Ex.P.4, the trial Court observed that the A.O has not got summoned the market value transmission register which was said to contain the market value of the subject property as Rs.100/- per sq.yd and which was said to be orally informed by the Senior Assistant. It observed that no evidence was placed by the A.O to show that he was misled by the Senior Assistant. Thus, the trial Court held that the A.O wantonly undervalued the sale deed by quoting its market value as Rs.100/- per sq.yd and thereby caused pecuniary loss to the State and enriched himself dishonestly. Accordingly, the trial Court convicted and sentenced the A.O for the offences mentioned supra. Hence the appeal. 3) Heard arguments of Sri M. Venkata Narayana, learned counsel for appellant and Sri Ghani A Moosa, learned Special Public Prosecutor for A.C.B (for short “Spl.P.P.”). 4) Learned counsel for appellant fulminated the judgment of trial Court on two main grounds. 5) Firstly, he argued that though the A.O submitted a cogent explanation for registering the two documents by accepting the values less than the book values, the trial Court failed to accept the same without any proper reason. He submitted that the explanation offered by the A.O would clearly show that in registering the two documents he had no dishonest intention and mens rea either to cause wrongful loss to State exchequer or to cause pecuniary advantage to any third parties. a) Learned counsel emphasised that Ex.P.1 is concerned, in view of the difference in the nature of the property projected in the sale deed as well as in the book value register of Sub-Registrar’s office, the A.O personally visited the property along with Village Administrative Officer (V.A.O) and Mandal Revenue Officer (M.R.O) following the guidelines under Section 27 of Stamp Act and ascertained its nature as an agricultural property. During his visit, he found Gingili and Jowar crop standing on the land and thus confirmed that it was an agricultural land but not a house site. Not satisfied with it, learned counsel argued, he obtained Ex.P.2- certificate issued by V.A.O and countersigned by M.R.O to the effect that the subject property was an agricultural land. Upon the said personal visit only, the A.O accepted its market value as Rs.15,000/- per acre and incorporated the same in Ex.P.3- Basic Value Register. Not satisfied with it, learned counsel argued, he obtained Ex.P.2- certificate issued by V.A.O and countersigned by M.R.O to the effect that the subject property was an agricultural land. Upon the said personal visit only, the A.O accepted its market value as Rs.15,000/- per acre and incorporated the same in Ex.P.3- Basic Value Register. His act was purely a bona fide one without any mala fide intention. Learned counsel submitted that had the parties to the document only disputed about the rate mentioned in basic value register, the A.O would certainly have kept the registration pending and referred the document to the District Collector under Section 47A of Stamp Act for enquiry and determination of market value. However, since the issue was relating to the nature of the property i.e., whether it was an agricultural land or a house site, the A.O bonafidely thought it fit to visit the property personally to ascertain its nature. Therefore, no malafides can be attributed to him. He submitted that in view of his action in good faith no charge of criminal misconduct or other charges under Sections 468, 471, 477A of I.P.C and charge under Section 81 of Registration Act will be attracted against A.O. b) Regarding Ex.P.4, learned counsel argued that in that case also, the A.O bonafidely accepted the market value informed by Senior Assistant and quoted @ Rs.100/- per sq. yard. He submitted that due to heavy work load in Chirala Sub-Registrar Office, it was not practicable for the A.O to personally verify the basic value register (Ex.P.4) which was being maintained by the Senior Assistant. Therefore, no malafides can be attributed against A.O in that case also. Learned counsel further argued that in none of the above two transactions, the prosecution could establish that the A.O had either accepted bribe from any of the concerned parties or caused undue pecuniary advantage to them. When the A.O performed the acts bonafidely and when there is no evidence to the effect that he either received pecuniary advantage or caused such advantage to others, none of the charges will be maintainable against him and so he is entitled to acquittal. In support of his contention he relied upon the following unreported judgments of the A.P High Court: c) Common Judgment dated 31.07.2012 in Crl.A.No.1251 and 1294 of 2005 (B.V. Ratnam vs. State of A.P, rep. by Spl. In support of his contention he relied upon the following unreported judgments of the A.P High Court: c) Common Judgment dated 31.07.2012 in Crl.A.No.1251 and 1294 of 2005 (B.V. Ratnam vs. State of A.P, rep. by Spl. Public Prosecutor for A.C.B cases, High Court of A.P and K. Ram Mohan Rao vs. State of A.P, rep. by Spl. Public Prosecutor for A.C.B cases, High Court of A.P). d) Judgment dated 03.07.2012 in Crl.A.No.1270 of 2005 (B.Yanadaiah vs. State, rep. by Range Inspector-II, A.C.B, Vijayawada Range, Guntur). e) Judgment dated 15.12.2008 in Crl.A.No.1292 of 2005 (N.Devanand vs. State of A.P, rep. by its Public Prosecutor for SPE & A.C.B cases, High Court of A.P) f) Learned counsel further submitted that in the entire process there was no loss to the Government because, under Section 41A of Indian Stamp Act, the Collector has the power to issue notice and collect the deficit stamp duty with penalty from the concerned party and in the instant case though no steps were initiated by the subsequent Sub-Registrars and District Registrars who worked after A.O, nevertheless the parties concerned have paid the deficit stamp duty. This would show that the A.O did not cause any wrongful gain to the parties but the trial Court failed to consider the said fact. 6) Secondly, learned counsel argued that the two registrations which gave raise to different charges were effected at two different places and at two different intervals of time and one has nothing to do with the other. Therefore, those charges cannot be tried together. Hence the trial is vitiated by misjoinder of charges. He thus prayed for acquittal of A.O by allowing the appeal. 7) Per contra, while supporting the judgment of trial Court, learned Spl.P.P argued that while registering Exs.P.1 and P.4, the A.O has wilfully scorned the basic value register and adopted his own procedure unknown to Stamp Act and Registration Act and thereby caused wrongful loss to the State exchequer. Therefore, from his acts the required mens rea can be presumed which need not be established separately. The trial Court rightly rejected his explanation and convicted him. Therefore, from his acts the required mens rea can be presumed which need not be established separately. The trial Court rightly rejected his explanation and convicted him. Regarding the misjoinder of charges alleged by the appellant, learned Spl.P.P argued that all the series of acts committed by the A.O were connected together so as to form the same transaction and hence there was no irregularity in charging the A.O and trying him in one trial. He argued that the trial Court considered this aspect and negatived his contention. He thus prayed for dismissal of the appeal. 8) In the light of above divergent arguments, the points that arise for determination in this appeal are: i) Whether the A.O is guilty of criminal misconduct within the purview of Section 13 (1)(d) of P.C. Act ? ii) Whether the A.O is guilty of the offences under Sections 468, 471, 477A of I.P.C and Section 81 of the Registration Act? iii) Whether the conviction and sentences passed by the learned Special Judge are legally sustainable? 9) POINT Nos.1 and 2: The prime charge in this case is criminal misconduct under Section 13(1)(d) of P.C. Act. In order to establish the said charge, the prosecution shall prove the following ingredients: i) That the A.O is a public servant at the relevant time. ii) He by corrupt or illegal means or by abusing his position as a public servant, obtained for himself or for any other person, any valuable thing or pecuniary advantage. iii) Such obtaining of valuable thing or pecuniary advantage is without any public interest. Hence, it has now to be seen whether prosecution could able to establish the above ingredients or not. Most of the facts and evidence which are not in dispute would show that the A.O acted as Sub-Registrar, Ammanabrolu and Chirala during the relevant period and thus he was a public servant. The admitted facts would further show that A.O as Sub-Registrar, Ammanabrolu registered Ex.P.1- sale deed and as Sub-Registrar, Chirala registered Ex.P.4- sale deed. It is also a further admitted fact that while registering Ex.P.1, he accepted the value of subject property covered by Ex.P.1 at Rs.15,000/- per acre instead of Rs.26 per sq.yd as mentioned in Ex.P.3 and P.3(a)- basic value register. The explanation offered by A.O for not accepting the book value is already stated supra. It is also a further admitted fact that while registering Ex.P.1, he accepted the value of subject property covered by Ex.P.1 at Rs.15,000/- per acre instead of Rs.26 per sq.yd as mentioned in Ex.P.3 and P.3(a)- basic value register. The explanation offered by A.O for not accepting the book value is already stated supra. He submits that since the nature of property is mentioned as agricultural land in Ex.P.1, he personally inspected the same with the help of V.A.O and M.R.O and confirmed the property as agricultural land and accepted its value at Rs.15,000/- per acre. Thus, the A.O claims his acts as bonafide and done in good faith and tries to justify them. That the A.O personally inspected the Ex.P.1 property along with V.A.O and M.R.O and obtained certificate from them regarding the nature of property is manifest from Ex.P.2. The prosecution is also not disputing the same but its contention is otherwise. The prosecution contention is that according to Section 47A of Stamp Act, when a registering officer noticed that the parties to a document failed to truly set forth the market value of the property in the instrument or when they failed to adopt the value arrived at by him as per the guidelines prescribed in basic value register, he has no other option except keeping the instrument pending registration and refer the matter to Collector for determination of the market value. In the instant case, the prosecution vehemently contends, the A.O deviated from the said procedure and adopted his own, which is illegal and unwarranted. Therefore, his act constituted criminal misconduct. 10) Then the second document is concerned, it is an admitted fact that the A.O registered Ex.P.4 while working as Sub-Registrar, Chirala. In that case he adopted the market value of the property as Rs.100/- per sq.yd against its book value of Rs.200/- per sq.yd. His explanation in this regard which was already set out supra is that the Chirala Sub-Registrar’s office is a heavy work-office and there was a separate Senior Assistant to deal with the market value guidelines register and when A.O forwarded Ex.P.4 document to him, he quoted the market value as Rs.100/- per sq.yd and A.O bonafidely accepted the same and registered the document accordingly. That the Senior Assistant would maintain the basic value register at Chirala was deposed by PWs.2 and 4. That the Senior Assistant would maintain the basic value register at Chirala was deposed by PWs.2 and 4. PW.2 deposed that the U.D clerk of the Sub-Registrar office will maintain the market value basic register. Whereas PW.4 deposed that as per rules, a Senior Assistant was provided to Sub-Registrar’s office, Chirala for verification of market value and to submit report to the Sub-Registrar before the document was registered. He further deposed that there is a book called market value transmission register in which the Senior Assistant has to mention the market value, stamp duty and fee levied and on the basis of that report, the Sub-Registrar would act. He further deposed that the aforesaid particulars were not furnished in the book stated supra. Thus, the evidence of PWs.2 and 4 would show that the Senior Assistant in the Sub-Registrar’s office, Chirala was responsible for the maintenance of basic value register. The submission of A.O is that on his information, he accepted the value of the property as Rs.100/- per sq.yd. 11) So in the light of explanations offered by A.O regarding the registration of Exs.P.1 and P.4, the issue is whether he can be held to have acted bonafidely and in good faith and even if it is so held, still whether he is guilty of criminal misconduct. Hence I perused Exs.P.1 and P.4 and other relevant evidence with reference to the explanations offered by the A.O. Ex.P.1 is the document bearing No. 456/1990 covered by patta No.3036 in Sy.No.61/2B2 in an extent of Ac.1-56 cents. Parties have referred the subject property as agricultural land and also mentioned the boundaries as agricultural lands. They valued the land @ Rs.15,000/- per acre. Whereas under Ex.P.3(a) entry in Ex.P.3 – basic value register maintained by Sub-Registrar Office, Ammanabrolu, S.No.61/2B2 is not referred as agricultural land but its value is mentioned in terms of square yards i.e., Rs.26/- per sq.yd. It indicates that as per Ex.P.3, S.No.61/2B2 is denoted as a house site but not an agricultural land. Therefore, as rightly argued by the appellant, the issue before him was not the undervaluation of the property by the parties but the nature of the property. It indicates that as per Ex.P.3, S.No.61/2B2 is denoted as a house site but not an agricultural land. Therefore, as rightly argued by the appellant, the issue before him was not the undervaluation of the property by the parties but the nature of the property. Under Section 47A of Indian Stamp Act, when the Registering Officer came to know that the parties have not truly set forth the market value of the property in the instrument submitted for registration or the parties failed to adopt the value arrived at by him as per the guidelines prepared by the Government, then he may keep pending such instrument and refer the matter to the Collector for determination of the market value. The submission of A.O with reference to Section 47A of Stamp Act is that since the issue was not the mere undervaluation by the parties in which case he would have referred the matter to the District Collector, but the issue was with regard to the nature of the property, he was prompted to physically inspect the property along with V.A.O and M.R.O to ascertain the true nature of the property. He submits that he adopted this course in the lines of Section 27 of Indian Stamp Act in the interest of the Government. Section 27 of Indian Stamp Act reads thus: 27. Facts affecting duty to be set forth in the instrument:- “The consideration, if any, the market value of the property and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. Provided that a registering officer appointed under the Registration Act, 1908 or any other officer authorised in this behalf, may inspect the property, which is the subject matter of such instrument, make necessary local enquiries call for and examine all the connected records and satisfy that the provisions of this section are complied with.” 12) The A.O seeks justification of his acts under the shelter of this proviso. It must be noted that proviso to Section 27 was added by A.P Amendment Act, 8 of 1998 with effect from 23.04.1998. Whereas, as per the endorsement on Ex.P.2, the A.O inspected the property on 10.07.1990 i.e, long prior to the proviso to Section 27 cane into force. It must be noted that proviso to Section 27 was added by A.P Amendment Act, 8 of 1998 with effect from 23.04.1998. Whereas, as per the endorsement on Ex.P.2, the A.O inspected the property on 10.07.1990 i.e, long prior to the proviso to Section 27 cane into force. It is true that the acts of A.O cannot be validated by giving a retrospective effect to the proviso to Section 27 but at the same time the bonafides of the acts done by the A.O which are later metamorphosised into law, cannot be doubted. It is true that after local inspection of the property, the A.O ought to have submitted record to District Collector along with his report for fixation of market value, but instead, he himself accepted the market value quoted by the parties in Ex.P.1 in terms of acreage. However, for this mere overreach, the acts of A.O cannot be painted with corrupt or illegal brushes, in my view particularly, when the prosecution did not put-forth any material to show that he did all these acts by accepting bribe from the parties concerned. Hence his explanation regarding Ex.P.1 can be accepted. 13) Then Ex.P.4 is concerned, it is a sale deed bearing document No.1339/1995 in respect of 3,038 sq.yds of vacant site in Chirala. The parties mentioned the market value @ Rs.31/- per sq.yd. However the A.O levied stamp duty and registration charges by adopting market value of the site @ Rs.100/- per sq.yd. As per Ex.P.6 basic value register the value of property is Rs.200/- per sq.yd. The explanation of A.O as stated supra is that Chirala being a busy Sub-Registrar office, a separate Senior Assistant was posted to deal with market value guidelines register and when A.O forwarded the document to concerned Senior Assistant, he quoted the market value as Rs.100/- per sq.yd and so bonafidely believing the same, he quoted the stamp duty accordingly. PWs.2 and 4 deposed that the U.D clerk of Sub-Registrar Office will maintain the market value register. It appears the trial Court did not give weight to their evidence and observed that PW.4 made a half-hearted attempt to support the A.O without any basis. PWs.2 and 4 deposed that the U.D clerk of Sub-Registrar Office will maintain the market value register. It appears the trial Court did not give weight to their evidence and observed that PW.4 made a half-hearted attempt to support the A.O without any basis. The trial Court observed that even if the Senior Assistant orally informed A.O about the market value and stamp duty as deposed by PW.4, still the A.O being the Sub-Registrar is expected to verify the market value guidelines register which was readily available with him and since a property worth Rs.3,03,800/- was the subject matter of the registration. The trial Court also observed that accused failed to take steps to summon the market value transmission register to prove that the Senior Assistant did not make mention of the market value, stamp duty and registration fee. On these observations, the trial Court ultimately held that the A.O wantonly arrived at the market value at Rs.100/- per sq.yd against its book value of Rs.200/- per sq.yd and caused pecuniary loss to the State in order to enrich himself dishonestly. 14) I am unable to agree with the appreciation of evidence and observations of trial Court regarding Ex.P.4 transaction. PW.2 who was the successor Sub-Registrar at Chirala, deposed in the cross-examination that the U.D clerk of the Sub-Registrar Office will maintain the market value basic register. The prosecution did not take any objection and declared this witness as hostile. Similarly, PW.4 also admitted in the cross-examination that as per the rules, a Senior Assistant was provided to Sub-Registrar’s office, Chirala for verification of market value and to submit a report to Sub-Registrar before the document was registered. He further stated that there was a book called market value transmission register in which the Senior Assistant has to mention the market value, stamp duty and fee to be levied on the basis of which the Sub-Registrar would act. He stated that he verified the said register but those particulars were not noted. He also stated that he came to know that Senior Assistant orally informed to A.O about those particulars. It must be noted that the prosecution did not express grievance against his evidence and did not declare him hostile. He stated that he verified the said register but those particulars were not noted. He also stated that he came to know that Senior Assistant orally informed to A.O about those particulars. It must be noted that the prosecution did not express grievance against his evidence and did not declare him hostile. When the evidence of PWs.2 and 4 is perused, it would support the contention of A.O that a separate Senior Assistant was posted to maintain a register called market value transmission register to mention the market value, stamp duty and fee to be levied. The A.O submits that going by the oral information of the said Senior Assistant, he accepted the market value @ Rs.100/- per sq.yd. Though the prosecution did not declare these witnesses as hostile, the trial Court did not consider their evidence in favour of A.O. Their evidence would probablise the defence version. When a Senior Assistant is posted for that particular duty, it is natural for A.O being Sub-Registrar to refer the matter to him and ascertain the market value and act upon accordingly. The observation of trial Court that the A.O did not summon the market value transmission register is unwarranted in view of the admission of PW.4 about its existence and maintenance by the Senior Assistant. Similarly the observation of trial Court that the A.O had the responsibility to personally verify the market value guidelines register also cannot be accepted because of the fact that Chirala Sub-Registrar Office is a busy office and a Senior Assistant was provided to maintain the market value transmission register to inform the market values to the Sub-Registrar. So I find the explanation of A.O as believable. 15) Now it has to be seen, when the explanations of A.O are found satisfactory whether the charge of criminal misconduct under Section 13(1)(d) of P.C. Act is still attracted. A careful perusal of Section 13(1)(d) of P.C. Act, would show that mere deviation from a rule or procedure by a public servant will not attract the charge of criminal misconduct. To attract the said charge, the prosecution shall establish that – a public servant has derived pecuniary advantage for himself or any other person; such deriving is by employing corrupt or illegal means or by abusing his position as public servant; and without any public interest. To attract the said charge, the prosecution shall establish that – a public servant has derived pecuniary advantage for himself or any other person; such deriving is by employing corrupt or illegal means or by abusing his position as public servant; and without any public interest. It must be noted that prosecution must establish all the ingredients by cogent evidence and the presumption under Section 20 of P.C.Act has no application to the offence under Section 13(1)(d) of P.C.Act. In the instant case, the prosecution could only establish that A.O has deviated from basic value register. However it failed to establish further that such deviation was made only to derive pecuniary advantage to himself or others. Prosecution neither averred nor proved that the A.O employed corrupt or illegal methods or abused his official position and derived pecuniary advantage to himself or others. In the absence of proving these vital ingredients, the A.O cannot be held guilty of criminal misconduct for mere breach of a rule or procedure. The phraseology such as “corrupt or illegal means”, “abusing his position as public servant” employed in Section 13(1)(d) of P.C Act indicates that the prosecution needs to prove the mens rea or dishonest intention coupled with deriving pecuniary advantage to himself or others, to bring home the charge of criminal misconduct. 16) Thus there is a subtle distinction between misconduct and criminal misconduct. A deviation of rule or procedure by a public servant may result in misconduct attracting departmental action but the offence of criminal misconduct needs more than mere deviation. Such deviation shall be coupled with dishonest intention and undue enrichment for himself or others. My view is fortified by the unreported judgments cited by the appellant, passed by our High Court in Criminal Appeal Nos. 1251 and 1294 of 2005. The facts are similar to the present case. The appellants in those cases are the Joint Sub-Registrar and Senior Assistant at Guntur. They were charged for the offence under Section 13(1)(d) r/w 13(2) of P.C.Act for undervaluing and registering the document. While allowing the appeals, learned Judge observed thus: “Therefore, even the department is not specific on the aspect that collecting lesser duty is on account of any fraud or collusion. They were charged for the offence under Section 13(1)(d) r/w 13(2) of P.C.Act for undervaluing and registering the document. While allowing the appeals, learned Judge observed thus: “Therefore, even the department is not specific on the aspect that collecting lesser duty is on account of any fraud or collusion. More importantly in this case, absolutely the prosecution did not adduce any evidence to prove affirmatively that collecting lesser stamp duty is on account of fraud or collusion between the appellant and the parties to the documents concerned.?It is also not possible to infer from the circumstances that the act of collecting lesser stamp duty by the appellants is the result of any fraud or collusion with the parties to the respective documents. Admittedly, there is no evidence forthcoming indicating that the appellants intended to have pecuniary advantage either for themselves or for the parties to the respective documents. PW.4 in his evidence stated that he presumes that there is pecuniary advantage to the first accused since there was loss to the Government by levying lesser stamp duty in respect of the impugned documents. The view expressed by PW.4 does not stand to reason since it is not possible to presume that the appellants/A1 and A2 intended to have any pecuniary advantage by mere levying lesser stamp duty on the impugned documents. As there is no direct or circumstantial evidence showing that the appellants/A1 and A2 collected lesser stamp duty with a fraudulent or dishonest intention by collusion with the parties to the respective documents, I am of the considered view that the learned trial Court went wrong in finding the appellants/A1 and A2 guilty for the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The conviction and sentence passed by the learned trial Court against the appellants/A1 and A2 are liable to be set aside.” 17) In the other cited judgments also, similar view was expressed. Therefore, I hold that prosecution failed to prove the charge under Section 13(1)(d) of P.C.Act for the offence of criminal misconduct. The other charges levelled against A.O being consequential to the main charge, they too shall fail. Therefore, I hold that prosecution failed to prove the charge under Section 13(1)(d) of P.C.Act for the offence of criminal misconduct. The other charges levelled against A.O being consequential to the main charge, they too shall fail. 18) So far as the second argument of appellant that the trial is vitiated due to mis-joinder of the charges is concerned, the trial Court has given proper finding in that regard and hence, I see no substance in the said argument. The A.O was not misled in understanding the charges or in choosing his defence and there was no consequent failure of justice occasioned in the matter of framing of charges. 19) POINT No.3: In the result, for the above mentioned reasons, the Criminal Appeal is allowed and conviction and sentence passed by the trial Court are set aside and the appellant-A.O is acquitted of the charges levelled against him. Fine amount if deposited shall be returned.