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2018 DIGILAW 433 (ORI)

Tarini Charan Sahu v. State of Odisha, Vigilance

2018-04-19

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This is an application under Section 482 of the Code of Criminal Procedure with a prayer to quash the order of cognizance dated 05.09.2014 passed by the learned Special Judge, Vigilance, Bhubaneswar in T.R. Case No. 36 of 2014 corresponding to Bhubaneswar Vigilance P.S. Case No. 74 of 2010 for the offences punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 420/120-B of the Indian Penal Code. 2. The F.I.R. was drawn up by one D.D. Seth, Deputy Superintendent of Police, Vigilance Cell, Bhubaneswar on 06.12.2010 with the contention that on receipt of reliable information regarding registration of Deeds for transfer of land at a lower cost than the prevailing market rate by some Real Estate Company, an enquiry was taken up. It was found out that Sri Dillip Prasad Shaw and Sri Sugat Mohanty, Managing Director and Director respectively of M/s Aryan Infrastructure Private Limited, Bhubaneswar had purchased the lands in and around Bhubaneswar Town showing less cost in the Sale Deeds registered during the years 2002 and 2005 thereby avoiding the actual stamp duty and registration fee, causing loss to the State Exchequer. The allegation and enquiry related to four Sale Deeds, two of the year 2002 and other two of the year 2005. It was further alleged in the F.I.R. that Sri Prahallad Nanda and Tarini Charan Sahu, the present petitioner were functioning as District Sub-Registrar, Khurda during relevant periods of execution of the said Sale Deeds in the year 2002 and 2005 and had shown undue official favour to the purchasers by abusing their official position thereby causing a loss of Rs. 12,77,546/- to the State Exchequer. Accordingly, the case was registered vide Bhubaneswar Vigilance P.S. case No. 74 dated 06.12.2010 against the present petitioner and Prahallad Nanda, who were functioning as Sub-Registrars, besides the two purchasers, after completion of investigation, charge sheet was submitted and cognizance of the offence was taken by the learned Special Judge, Vigilance, Bhubaneswar by the impugned order. 3. Accordingly, the case was registered vide Bhubaneswar Vigilance P.S. case No. 74 dated 06.12.2010 against the present petitioner and Prahallad Nanda, who were functioning as Sub-Registrars, besides the two purchasers, after completion of investigation, charge sheet was submitted and cognizance of the offence was taken by the learned Special Judge, Vigilance, Bhubaneswar by the impugned order. 3. It was submitted by the learned counsel for the petitioner at the outset that even conceding the entire prosecution allegation regarding the alleged transactions to be true for the sake of argument, there is absolutely no case prima-facie made out against the petitioner which has been lost sight of by; the learned trial Court while taking cognizance of the alleged offences. It was submitted that the only allegation that was made in the F.I.R. which was registered after about 8 years and 5 years of registration of the four Sale Deeds was that actual valuation of the lands transferred under those Deeds were not shown as per the then prevailing market price. Hence, the purchasers evaded actual stamp duty and registration Fee and the present petitioner functioning as Sub-Registrar was a party to the said acts by showing undue favour to the purchasers. It was submitted further that the two Sale Deeds of the year 2005 related to the present petitioner’s period of functioning as Sub-Registrar vide Sale Deed No. 2596 of 2005 and 2595 of 2005. It is undisputed case of the prosecution that the stamp duty and the registration fee as required to be paid for registration according to the valuation shown in the Deeds have been duly paid. The only allegation is that the valuation of the lands transferred, was shown to be much less than the prevailing market price. Thus, it was submitted that the price of the land mentioned in the Deeds was not the market value but it was the estimated value given by the parties only for the purpose of collection of stamp duty and registration fee. It was submitted that Rule 25(2) of the Orissa Registration Rules, 1988 mandates that a Deed of transfer of an immovable property shall be registered if stamp duty and registration fee at the prescribed rate on the consideration set forth in instrument in question, are paid. It was submitted that Rule 25(2) of the Orissa Registration Rules, 1988 mandates that a Deed of transfer of an immovable property shall be registered if stamp duty and registration fee at the prescribed rate on the consideration set forth in instrument in question, are paid. It was submitted that the petitioner functioning as Sub-Registrar had no option than to register the documents since the stamp duty and registration fee as prescribed, were duly paid by the parties. It was further submitted that as per Section 47-A of the Indian Stamp Act, as it stood prior to its amendment in 2009, the alleged incident being of 2005, where the Registering Officer has reason to believe that the market value of the property which is the subject matter of such instrument has not been truly set-forth in the instrument, he may after registering such instrument, refer the matter to the Collector for determination of the market value of such property and the proper duty payable therein. 4. It was submitted on behalf of the petitioner that both the documents were registered on 02.03.2005. On 06.04.2005 the petitioner after verification of records found that both the documents were undervalued and accordingly, he booked both the documents under Section 47-A of the Indian Stamp Act and forwarded the same to the Collector concerned on 13.06.2005 for determination of the market value and realization of further stamp duty. Thus, it was submitted that the petitioner has never acted illegally nor had any malafide intention to be attributed with, but the Vigilance Officer after lapse of more than five years came up with allegation that the petitioner in conspiracy with the purchasers allowed the registration of the documents ignoring the fact that the price of the property alienated under the Sale Deeds was shown much less than the prevailing market price. Hence, it was submitted that there was absolutely no case made out against the petitioner and the learned trial Court without application of judicial mind has taken cognizance of the offences mechanically which is liable to be set aside. 5. Hence, it was submitted that there was absolutely no case made out against the petitioner and the learned trial Court without application of judicial mind has taken cognizance of the offences mechanically which is liable to be set aside. 5. Lastly, it was submitted by the learned counsel for the petitioner that the final charge-sheet was submitted under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act and Sections 120-B and 420, I.P.C. and it has been mentioned therein that the present petitioner has retired from government service on 31.01.2011 attaining superannuation and hence no sanction order was required against him. It was submitted that since the alleged acts were performed in the official capacity of the petitioner sanction order under Section 197, Cr.P.C. was a necessity before taking cognizance. 6. Per contra, it was submitted by the learned counsel appearing for the State, Vigilance, that the petitioner having full knowledge about the under valuation of the properties in the alleged documents has illegally permitted the registration of those documents and hence in connivance with the co-accused purchasers has caused loss to the State Exchequer. It was submitted further that as per the circulars issued by the Inspector General of Registration-cum-Excise Commissioner, Orissa, Cuttack, one on 06.08.1991 and the other on 23.09.1994, the petitioner working as Sub-Registrar was required to prepare a check list in respect of each document was presented for registration and on presentation of document for registration if he was of the opinion that the document was prima-facie undervalued, he should have informed the party/parties of such under valuation at the time of presentation of the documents for registration and obtained his/her signature, making an endorsement to that effect on the document. In another circular issued on 10th March, 1997 it was further instructed that in order to regularize the matter, while maintaining the Valuation Register and the Check List, separate valuation in respect of each Kissam of land of each Mouza should be shown. It was submitted that in course of investigation, it was found out that just three days before registration of two alleged Deeds, the petitioner had registered another document wherein the valuation of the land was shown at Rs. It was submitted that in course of investigation, it was found out that just three days before registration of two alleged Deeds, the petitioner had registered another document wherein the valuation of the land was shown at Rs. 1,31,20,000/- per acre which should have been maintained in a Register and that being within the knowledge of the petitioner, registration of two alleged Sale Deeds showing the valuation only at Rs. 10 Lakhs per acre shows the malafide intention of the petitioner. It was submitted that had the petitioner compared the valuation with the check list prepared by him, he could have noticed the under valuation given by the purchasers and the documents should have been marked as undervalued as per the circular issued by the Government from time to time. It was submitted by the learned counsel for the State, Vigilance, that the prosecution case is not that the petitioner should have refused to register the said two documents, but it is the allegation that when those two documents were presented for registration, he should have informed the parties about under valuation of the properties and should have made an endorsement on the document. Thus, having failed to perform an act which he was legally bound to do, he has committed illegality thereby becoming liable for the alleged offences. It was submitted that as per the settled position of law, if a person is guilty of breach of departmental order, he may be held to be guilty as he was legally bound to act in terms thereof. It was further submitted that it is extremely difficult to produce any direct evidence to prove conspiracy but the conduct of the accused-petitioner in violating the prescribed guidelines shows the existence of the conspiracy which can be inferred from the attending circumstances. 7. In reply to the submissions made on behalf of the State, Vigilance, it was submitted by the learned counsel for the petitioner that as per the mandate of Section 47-A of the Stamp Act, the petitioner was supposed to report the under-valuation after registration of the document. In this case as stated earlier, after registration, finding the documents to be under-valued, he has referred it to the concerned Collector for determination of the actual market value and realization of the deficit stamp duty. In this case as stated earlier, after registration, finding the documents to be under-valued, he has referred it to the concerned Collector for determination of the actual market value and realization of the deficit stamp duty. It was further submitted and placed that in the meantime, though after submission of the charge-sheet the valuation has been assessed and the deficit stamp duty has also been realized from the concerned parties and the matter has been closed on 06.10.2015 in Certificate Case No. 13 of 2011. A copy of the said order has been filed as Annexure-3 to the application. Lastly, it was submitted that in a letter written by Under Secretary (Registration), Board of Revenue, Orissa, Cuttack addressed to the Under Secretary, Government in Revenue and D.M. Department Orissa dated 26.08.2011, it has been mentioned that the present petitioner during his incumbency as D.S.R., registered two Sale Deeds on 02.03.2005 and after registration, he booked both the documents under Section 47(A) of the Stamp Act on 06.04.2005 and forwarded the same to the Stamp Collector, Bhubaneswar on 13.06.2005 for determination of the market value and realization of the Stamp Duty. It has further been mentioned in the letter that since the documents have been forwarded to the Stamp Collector, Sri Sahu, the present petitioner, does not have any role to play for determination of the market value of the property involved in the said transaction. It has further been mentioned that in view of the statutory provision of the Stamp Act Sri Sahu may not be held responsible for causing loss of revenue as pointed out by the Vigilance but it was unbecoming on his part to take more than one month to book the documents under Section 47(A) of the Stamp Act which creates a doubt on his bonafides. A copy of the said letter is also annexed to the application as Annexure-4. 8. After hearing the learned counsel from both sides at length and on perusing the materials placed on record, the only allegation made out against the petitioner is that at the time of registration, he failed to point out the parties regarding the actual valuation of the property and to make an endorsement on the document which he was supposed to do as per the circular issued by the department. It is not disputed that the petitioner could not have refused registration of the documents. It is not disputed that the petitioner could not have refused registration of the documents. Section 47(A) of the Stamp Act prior to the amendment in 2009 read as follows: “47-A Instrument under-valued how to be dealt with-where the registering officer under the Registration Act, 16 of 1908, while registering any instrument of conveyance, exchange, gift, partition or settlement has reason to believe that the market value of the property which is the subject matter of such instrument has not been truly set forth in the instrument, he may, after registering such instrument, refer the matter to the Collector for determination of the market value of such property and the proper duty payable therein. “ The aforesaid provision of law makes it clear that if the Registering Authority has reason to believe that the value has been shown less than the prevailing market value, he may after registering such instrument refer the matter to the Collector for determination of the actual market value and realization of deficit Stamp Duty. In this case, the petitioner after registration of the documents has booked the documents under Section 47-A of the act for under valuation and has referred the same to the concerned Collector for the needful. There is no specific time limit prescribed anywhere as to within what period after registration, the documents should be booked for under-valuation and sent to the Collector. The circular issued by the Government as placed on behalf of the State, Vigilance also does not specify any time limit for the said purpose. Of course, the petitioner has taken about more than a month for booking the document after registration. But in this regard it was submitted by the learned counsel for the petitioner that the petitioner being the Sub-Registrar in a busy district, there were number of documents registered during the period and the verification of those documents used to take considerable time. It was further submitted that the two documents picked up by the Vigilance Department were not only the documents registered during the period and the petitioner did not have any intention in causing the delay in booking the documents. 9. It was further submitted that the two documents picked up by the Vigilance Department were not only the documents registered during the period and the petitioner did not have any intention in causing the delay in booking the documents. 9. The only allegation that was raised on behalf of the State Vigilance is that at the time of registration the petitioner should have pointed out under valuation to the parties and should have made an endorsement on the document obtaining the signatures of the parties. This submission was made with the contention that three days prior to the registration of the alleged documents, the petitioner had registered another document at a much higher price. But, it is difficult to accept the contention that the petitioner functioning as Sub-Registrar would remember the valuation put in all the documents registered during the period so as to immediately find out the correctness of the valuation mentioned in the documents while resented for registration. A person cannot be held guilty or liable for mis-conduct merely on assumption that he should have remembered something which he has failed to remember. It was further submitted on behalf of the petitioner that had the petitioner any intention of cheating the Government or helping the parties in mentioning less valuation, he could not have booked those documents for under-valuation thereafter. The entire exercise of booking the documents and referring those to the concerned collector for determination of actual market value and realization of deficit Stamp Duty was completed by 13.06.2005 after registration on 02.03.2005. But, peculiarly the Vigilance department came up with the allegation of conspiracy and misconduct of the petitioner five years thereafter to book the petitioner for the charges. 10. The basic jurisprudence of criminal law is the mens-rea or the motive of the accused to fasten him with the liability of committing the alleged offence. Mere lapses or inadvertence cannot be termed as offence so as to invite punishment under the penal laws. In the case at hand the entire chain of circumstances as narrated here-in-before no way makes out any motive on the part of the petitioner to substantiate the allegations of misuse of his official position in order to have any illegal gain or causing loss to the State exchequer. In the case at hand the entire chain of circumstances as narrated here-in-before no way makes out any motive on the part of the petitioner to substantiate the allegations of misuse of his official position in order to have any illegal gain or causing loss to the State exchequer. After registering the Sale Deeds, finding those to have been undervalued, the petitioner had taken necessary steps as required under Section 47(A) of the Stamp Act. Of course, there appears to be little delay but as stated earlier there is no statutory time limit for such procedure. It is also not the case of the prosecution that the lapses or delay were found out by any authority whereafter the petitioner took the correctional steps. Rather the Vigilance Officer after a long lapse of five years got up from slumber to register the F.I.R. alleging the offences to have been committed by the petitioner. 11. That apart, it is nowhere the case of the prosecution as to in what manner the petitioner had derived any illegal benefit out of the transactions or was a party to the conspiracy with the parties to the Deeds. Had it been so, the petitioner could not have undertaken the correctional measures in submitting the documents to the concerned authority for proper valuation and realization of required stamp duty. 12. As regards the sanction under Section 197, Cr.P.C. as it was submitted on behalf of the petitioner and mentioned in the charge-sheet no sanction order was obtained since the petitioner had retired by the time of submission of charge-sheet and taking of cognizance. But, it is the settled position of law that sanction is not necessary for a retired government servant for his prosecution for the offences under the Prevention of Corruption Act. But, sanction is mandatory even in case of a retired government employee for prosecuting him for the offences punishable under the Indian Penal code as decided by the Hon’ble Apex Court in Criminal Appeal No. 2168 of 2010 SC (State of Punjab v. Labh Singh) decided on 17.12.2014. Thus, in absence of sanction under Section 197, Cr.P.C. cognizance for the offences punishable under Sections 420/-120-B, I.P.C. could not have been taken against the petitioner. That being so, the allegations of cheating and conspiracy also fail. 13. Thus, in absence of sanction under Section 197, Cr.P.C. cognizance for the offences punishable under Sections 420/-120-B, I.P.C. could not have been taken against the petitioner. That being so, the allegations of cheating and conspiracy also fail. 13. Considering the entire facts and circumstances as narrated above and the position of law, I am of the considered view that prosecuting the petitioner for the alleged offences under section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and Sections 420/-120-B of the I.P.C. would be an absolute miscarriage of justice and abuse of process of the Court apart from putting the petitioner to trial for the offences which are not prima facie made out against him. 14. Accordingly, it is directed that the order of cognizance passed by the learned Special Judge, Vigilance, Bhubaneswar dated 05.09.2014 in T.R. Case No. 36 of 2014 so far as the present petitioner is concerned is quashed and the petitioner is discharged from the said offences. The CRLMC is disposed of accordingly. CRLMC disposed of.