Bombay High Court
Ravindra Babulal Jain And Anr vs The State Of Mah And Anr on 1 October, 2015
Bench: R.M. Borde
1 CRI.APPLICATION NO.4614/2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.4614 OF 2012
1. Ravindra Babulal Jain,
Age 45 yrs., Occ. Business,
Vardhaman Residency, Ulkanagari,
Auragabad.
2. Ashish Tejmal Mugdiya,
Age 36 yrs., Occ: Business,
r/o. N-3, CIDCO, Aurangabad.
...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through the Secretary,
Home Department,
Mantralaya, Mumbai 32
2. The Dy.Superintendent of Police,
Anti Corruption Bureau, Aurangabad,
Tq. & Dist. Aurangabad.
...RESPONDENTS
...
Mr. R.R.Mantri, Advocate for the applicants.
Mrs. A.V.Gondhalekar, APP for respondent State.
...
CORAM: R.M.BORDE
AND
P.R.BORA, JJ.
***
Date of reserving
the judgment:September 8th, 2015
Date of pronouncing
the judgment:October 1st, 2015.
***
JUDGMENT (Per P.R.Bora, J.):
1. Rule. Rule made returnable and heard forthwith
with the consent of learned Counsel for the parties.
The applicants have filed the present application for
quashment of the FIR lodged against them and Crime
2 CRI.APPLICATION NO.4614/2012
No.I-141/2012 registered against them on the basis of the
said FIR at City Chowk Police Station, Aurangabad, for the
offenses punishable under Sections 119, 167, 418, 468,
471 read with Section 34 of the Indian Penal Code, Section
13(1)(d) read with Section (2) of Prevention of Corruption
Act and Sections 59 and 62 of the Bombay Stamps Act,
1958.
2. On 30.8.2012, Shri Bramhadeo Vasudeo
Gawade, the then Deputy Superintendent of Police, Anti
Corruption Bureau, Aurangabad, filed written report
against the present applicants at City Chowk Police
Station, Aurangabad, alleging that the present applicants,
in connivance with Shri V.M.Made, the then in-charge Sub
Registrar-II, Aurangabad, and Mrs. Kavita Pradip Kadam,
the then Junior Clerk working in the office of Sub
Registrar-II, Aurangabad, got registered the sale deed
No.4228 in respect of land admeasuring 8 acres 4 gunthas
out of Gat No.72 situate at Mouje Satara, taluka and
district Aurangabad, showing market value of the said
property as Rs.3500/- per square meter when the market
value of the said property at the relevant time was
Rs.4100/- per square meter and thus caused revenue loss
to the tune of Rs.12,76,000/- to the Government. It was
also alleged that the applicant completed the aforesaid
transaction by preparing false documents, false record and
fraudulently and dishonestly used the said record as
genuine one. On the basis of the report so lodged by Shri
Gawade, the offence was registered against the present
3 CRI.APPLICATION NO.4614/2012
applicants and two others, namely, Shri Made and
Sau.Kavita Kadam on 30.8.2012 for the offenses
punishable under Sections 119, 167, 418, 468, 471 read
with Section 34 of the Indian Penal Code, Section 13(1)(d)
read with Section 13 (2) of Prevention of Corruption Act
and Sections 59 and 62 of the Bombay Stamps Act, 1958,
and the investigation was set in motion. The applicants
were arrested on the same day. The record shows that
police custody of the applicants / accused was obtained
upto 3rd November,
ig 2012, and thereafter, on 3rd
November, 2012 itself, both the applicants were released
on bail.
3. The prosecution case, as is revealing from the
contents of the FIR, is that the applicants purchased the
land Gat No.72 admeasuring 8 acres, 4 gunthas for
consideration of Rs. three crores, sixty lacs. The sale
deed in that regard was presented for registration on 2nd
of December, 2008 before the Sub Registrar-II,
Aurangabad. While presenting the deed of sale for its
registration, the applicants i.e. the purchasers of the
subject land did not disclose the true market value of the
aforesaid land which, according to the prosecution, was
Rs.4100/- per square meter as per the Ready Reckoner
rates declared by the Government in the year 2008. It is
alleged that the applicants showed the market value of
the said property as Rs.3500/- per square meter which
was the Ready Reckoner rate of the earlier year i.e. of
2007. According to the prosecution, as per Ready
4 CRI.APPLICATION NO.4614/2012
Reckoner rates of the year 2008, the market value of the
subject property was Rs.seven crores, five lacs, twenty
thousand and the stamp duty payable on the same was
Rs.thirty five lacs, twenty six thousand. The present
applicants, as alleged by the prosecution, declared the
market value of the subject property to the tune of Rs.
four crores, fifty lacs on the strength of the Ready
reckoner rates of 2007 and paid the stamp duty to the
tune of Rs.22,50,000/- only. According to the
prosecution, the applicants thus paid less stamp duty to
the extent of Rs.12,76,000/- and caused loss to the
Government revenue to that extent.It is also the case of
the prosecution that while registering the subject
instrument, the present applicants used false and forged
documents as genuine one and conniving with the then in
charge Assistant Sub Registrar, namely, Shri Made and the
then Junior Clerk in the Office of the Sub Registrar-II,
Aurangabad, namely, Sau. Kavita Kadam, cheated the
Government by causing loss of Rs.12,76,000/- to the
Government.
4. Prosecution case also reveals that Shri
K.N.Tandale and two others have made complaint alleging
that the racket was in existence in the office of the Sub
Registrar which was helping the private builders to evade
the stamp duty. On the basis of the said complaint, it is
the contention of the prosecution that the transaction
entered into by the present applicants pertaining to the
sale deed executed and registered on 2nd December,
5 CRI.APPLICATION NO.4614/2012
2008, at Sr.No. 4228 of 2008, was also examined and the
same was found objectionable.
5. Shri R.R.Mantri, learned counsel for the
petitioners, vehemently argued that initiation of the
alleged criminal prosecution against the applicants was a
vindictive action at the instance of the persons who were
interested in the subject land. Learned Counsel further
submitted that though the entire transaction was clean,
transparent and in accordance with the provisions of law,
on some false pretext and with colourable exercise of the
powers, a total false case came to be registered against
the applicants. Learned Counsel further submitted that
the subject property was purchased by the applicants in a
public auction for consideration of Rs. 3,00,60,000/- (Rs.
three Crores, sixty lacs), however, the market value of the
said property was shown to be Rs.4,50,00,000/- and,
accordingly, stamp duty of Rs.22,50,000/- ( Rs. twenty
two lacs, fifty thousand) was paid by the applicants.
Learned Counsel further submitted that since the then in-
charge Sub Registrar was satisfied with the market value,
as was shown by the applicants, he accepted the
document for registration and registered the same.
Learned Counsel further submitted that the allegations
against the applicants that they prepared false and forged
document, and used them to be genuine one, is absolutely
false and unfounded. Learned Counsel further submitted
that the FIR, even if read as it is, and accepted to be true,
no offence can be said to have been made out against the
6 CRI.APPLICATION NO.4614/2012
present applicants. Learned Counsel further submitted
that in view of the specific provisions of the Bombay
Stamp Act pertaining to evasion of stamp duty and
providing punishment for the same, general provisions of
the Indian Penal Code cannot be pressed into service.
Learned Counsel further argued from the facts that the
FIR was registered at wee hours i.e. at 6 a.m. on 30th
August, 2012, and the arrests of the present applicants
were made in the early morning and even before
registration of the FIR,ig it is writ large that the entire
action was with mala fide intention. Learned Counsel
submitted that initiation of the criminal prosecution against
the applicants is abuse of process of the Court and he,
therefore, prayed for quashment of the FIR and the crime
registered against the applicants on the basis of the said
FIR. Learned Counsel added that some of the offenses
alleged against the applicants under the Indian Penal
Code, can be invoked only against the Government
servants and not against the private individuals. Learned
Counsel further submitted that Sections 13(1)(d) and
13(2) of the Prevention of Corruption Act also cannot be
invoked against the present applicants.
6. Mrs. A.V.Gondhalekar, learned Assistant Public
Prosecutor, opposed the submissions advanced on behalf
of the applicants. Learned A.P.P. strongly supported the
criminal prosecution initiated against the present
applicants. Learned A.P.P. submitted that showing the
market value of the property in question, according to the
7 CRI.APPLICATION NO.4614/2012
Ready Reckoner rates prevailing in the year 2007, though
the sale deed was presented for registration on 2nd of
December, 2008, was with the only intention of cheating
the Government and causing revenue loss to the
Government. Learned A.P.P. further submitted that non
mentioning of zone number within which the subject
property falls, also clearly indicates the ill intention of the
applicants. Learned A.P.P. further submitted that even in
the past, the applicants had adopted the same modus
operandi and had caused revenue loss to the Government
in lacs of rupees. Learned A.P.P. submitted that the
offensea alleged against the applicants are prima facie
made out through the contents of FIR. Learned A.P.P.
therefore prayed that in such circumstances, this Court
shall refrain from exercising its powers under Section 482
of the Code of Criminal Procedure.
7. We have carefully considered the submissions
advanced by the learned Counsel for the applicants as
well as on behalf of learned A.P.P. We have perused the
FIR, the written submissions filed on behalf of the State
and the documents filed on record by the applicants as
well as by the State. On the basis of the FIR lodged by
Shri Bramhadeo V. Gawade on 30.8.2012, a crime has
been registered against the applicants for the offenses
punishable under Sections 59 and 62 of the Bombay
Stamp Act, 1958, Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988, and
Sections 119, 167, 418, 468, 471 and 34 of the Indian
8 CRI.APPLICATION NO.4614/2012
Penal Code. The offenses under Sections 119 and 167 of
the Indian Penal Code; so also the offenses under Section
13(1)(d) and 13(2) of the Prevention of Corruption Act,
1988, are attracted only against the public servants. As
such, now it will have to be seen whether, on the basis of
the FIR lodged against the applicants and the material
placed on record by the prosecution in support thereof ,
any case under Sections 418, 471, 468 and 34 of the
Indian Penal Code can be said to be made out.
8.
Considering the contents of the FIR and the
material on record, it is apparent that Section 418 of the
Indian Penal Code may not apply to the present case.
This Section talks of cheating with knowledge that
wrongful loss may ensue to the person whose interest the
offender is bound to protect. No such case is made out in
the FIR or through the other material on record.
9. The offences of (i) forgery for the purpose of
cheating (Section 468) and (ii) using as genuine a forged
document (Section 471) are alleged to have been
committed by the applicants sharing common intention
(Section 34) with the other two accused namely; Shri
Made, the then Assistant Sub Registrar and Sau Kavita
Kadam, the then Junior Clerk working in the office of Sub
Registrar-2, Aurangabad, on the following grounds.
(I) The applicants submitted the in-put form which was
not correctly filled.
9 CRI.APPLICATION NO.4614/2012
(II) The applicants intentionally did not mention the zone
number within which the subject property is situated.
(III) The ready recknoer rate and zone number are not
mentioned at the top of the document of sale deed.
(IV) The market value of the subject property is
deliberately shown less.
(V) The market value of the property is fraudulently
assessed as per the ready recknoer rates prevailing
in the year 2007 i.e. Rs.3,500/- per Sq. Mtr. When
the same ought to have been assessed at the ready
recknoer rates of the year 2008 i.e. Rs.4,100/- per
Sq. Mtr., with a view to confer pecuniary advantage
to the applicants which resulted in causing wrongful
loss to the Government to the tune of
Rs.12,76,000/-.
(VI) The applicants and the other two accused had
common intention to cheat the Government.
10. After having considered the aforementioned
grounds in light of the pleadings and documents placed on
record, it does not appear to us that any offence under
Indian Penal Code, as alleged, would be attracted against
the applicants. Even if it is assumed that, the in-put form
is not correctly filled, that zone number is not mentioned
and that incorrect market value is mentioned of the
subject property, even then no offence can said to be
10 CRI.APPLICATION NO.4614/2012
made out by the applicants of using false document or of
forgery.
11. To attract an offence under section 468 of
Indian Penal Code, the following are the requirements.
(i) That, the document in question is a forgery;
(ii) That, the accused forged it;
(iii) That, in forging it he intend that it shall be used for
the purpose of cheating.
12.
The assertion of a false claim in a document
does not constitute the document a false one. Mere
inclusion of certain false recitals or particulars though may
amount to making a false statement, does not amount to
forgery. The mere fact that a document contains some
false recitals or untrue statement would not make it a false
document. A suit plaint or a written statement may
contain certain averments which may be untrue, but such
untrue statements in pleading or application would not be
sufficient to make them forged documents. Similarly, the
affidavit though supposed to contain only true statements
may contain untrue statements. The deponent in such
cases may perhaps be liable for other offences, but not the
offence of forgery. Having regard to the definition of a
false document under section 464 of Indian Penal Code, a
document can be said to be forged only if it purports to be
signed or sealed by a person who in fact never signed or
sealed it.
11 CRI.APPLICATION NO.4614/2012
13. In view of the above, we have no doubt in our
mind that, even if the allegations made in the F.I.R. are
accepted in their entirety, no offence can be said to be
made out against the applicants under section 468 of
Indian Penal Code.
14. To attract an offence under section 471 of
Indian Penal Code, essential requirement is that, there
should be a use of forged document. As discussed here-
in-above, none of the documents as alleged by the
prosecution can said to be a forged document. When the
preparation of a document does not amount to a forgery,
the use of such document does not constitute as offence
under this section.
15. As has been discussed here-in-above merely
because in the in-put form and the cover page of the 'Deed
of Sale' the applicants have showed the market value of
the subject property derived at by the rate of Rs.3,500/-
per Sq. Mtr. which was the ready recknoer rate published
by the Government for the year 2007 for the zone under
which the property in question is situated when according
to prosecution the market value of the said property
should have been determined at the rate of Rs.4,100/- per
Sq. Mtr. which was ready recknoer rate for the year 2008
since the sale deed was being registered on 2 nd of
December, 2008, neither the in-put form, nor the deed of
sale or any other document related thereto can be termed
as a false or forged document.
12 CRI.APPLICATION NO.4614/2012
16. Now, we will examine the correctness and the
legality of the allegation against the applicants that they
deliberately, showed the market value of the subject
property less with a view to make wrongful gain for them
and cause wrongful loss to the Government.
17. Stamp duty requires to be paid at the rate as
prescribed under Article 25 of the Stamp Duty Act on the
true Market Value of the property which is the subject
matter of the conveyance. As defined by Section 2(na) of
the Stamp Act 'Market Value' in relation to any properly
which is the subject matter of any instrument means the
price which such property would have fetched if sold in
open market on the date of execution of such instrument
or the consideration stated in the instrument whichever is
higher.
18. In the instant case, it is the specific allegation
against the applicants that, they with fraudulent and
dishonest intention did not disclose the true market value
of the subject property while presenting the deed of sale of
the said property for its registration before the Sub
Registrar and thereby cheated the Government by causing
revenue loss of Rs.12,76,000/-. The prosecution has
assessed the market value of the subject property to the
tune of Rs.7,05,20,000/-. It is assessed by determining
the value of the said property at the rate of Rs.4,100/- per
Sq. Mtr. The rate of Rs.4,100 per Sq. Mtr. Is derived from
the ready recknoer rates published by the Government for
13 CRI.APPLICATION NO.4614/2012
the year 2008 for the area / zone under which the subject
property is situated.
19. Having regard to the definition of 'Market Value'
as provided under section 2(na) of the Stamp Act the
whole approach adopted as above by the prosecution in
determining the market value of the subject property
appears erroneous. As held by the Hon'ble Apex Court in
the case of Jawajee Nagnatham V/s. Revenue
Divisional Officer, Adilabad, A.P. and Others (1994)
4 S.C.C. 595, the Basic Valuation Register (for the instant
matter the Ready Recknoer) prepared and maintained for
the purpose of collecting stamp duty has no statutory base
or force and it cannot form a foundation to determine the
market value mentioned thereunder in instrument brought
for registration.
20. Similar view is taken by the Hon'ble Apex Court
in the subsequent judgment in the matter of R. Sai
Bharathi V/s. J. Jaylalitha and other (2003 AIR
S.C.W. 6349). The Hon'ble Apex Court has held that,
"... the guideline value will only afford a
prima-facie base to ascertain the true or
correct market value. Guideline value is not
sacrosanct, but only a factor to be taken note
of if at all available in respect of an area in
which the property transferred lies. In any
event, for the purpose of Stamp Act guideline
value alone is not a factor to determine the
value of the property and the authorities
cannot regard the guideline valuation as the
14 CRI.APPLICATION NO.4614/2012
last word on the subject of market value."
21. In view of the law laid down as above by the
Apex Court, the very foundation of the charge leveled
against the applicants that the market value of the subject
property was deliberately shown less by them with a view
to earn wrongful gain gets uprooted.
Secondly, even if it is assumed that the market
value of the property in question was shown less by the
applicants, the registering officer i.e. the Sub Registrar,
Aurangabad could have very well referred the instrument
to the Collector for determination of the true market value
of the said property under section 32 A(2) of the Stamp
Act. Sub Registrar, Aurangabad admittedly did not adopt
the said course and preferred to register the instrument by
accepting the stamp duty payable on the market value as
was shown of the property in question. The Sub Registrar,
thus, impliedly accepted the value as set-forth in the
instrument to be the true market value of the subject
property.
22. In fact, the consideration paid of
Rs.3,60,00,000/- of the property in question can be
accepted to be the true market value of the said property
since the applicants purchased the said property in public
auction. The material on record reveal that the vendor
society had issued proclamation in 'Daily Lokmat' and
invited tenders for purchase of the subject land. The
averments in the Sale Deed executed of the subject land
reveal that, in response to the paper publication various
15 CRI.APPLICATION NO.4614/2012
prospective purchasers approached to the vender society
and submitted their proposals and on 24.06.2008 in terms
of negotiations and since the highest consideration to the
tune of Rs.3,60,00,000/- was offered by the present
applicants the vendor society resolved to sell the subject
land to the applicants.
As defined in Section 2(na) of the Stamp Act the
price fetched by the property in an open market is to be
held as the market value of the said property on the day of
execution of the instrument in relation the said property.
There is reason to believe that on considering the recitals
in the sale deed reflecting that the property has been
purchased in an open auction for the consideration of
Rs.3,60,00,000/- and despite that the stamp duty was
being paid on the value of Rs. 4,50,00,000/-, the Sub
Registrar accepted the said document for registration and
allowed its registration without indulging in any further
enquiry whether the market value as shown is assessed as
per the 2008 ready recknoer rates published by the
Government or otherwise. Further, as was submitted by
the learned Counsel for the applicants, the property in
question falls under the Green Zone and as such, whatever
price was offered by the applicants to the said property,
according to them, was the optimum, price. This may
also be the reason that the Sub Registrar did not conduct
any further enquiry or objected to the market value as
shown of the property in question. Prima-facie, we find
nothing to be blamed either on part of the applicants or
the concerned Sub Registrar and his staff. Further, even if
16 CRI.APPLICATION NO.4614/2012
it is accepted that, the market value of the subject
property was shown less by the applicants and this aspect
was overlooked by the Sub Registrar and his supporting
staff, resulting in causing loss of revenue to Government,
there exist the necessary provisions in the Stamp Act itself
to take care of such situation / contingency. Sub Section
(5) of Section 32 (A) of the Stamp Act provides that the
Collector of the District may, suo-moto or on receipt of
information from any source, within ten years from the
date of registration of any instrument may examine it for
the purpose of satisfying himself as to the correctness of
the market value of the immovable property which is the
subject matter of such instrument and the duty payable
thereon, and if after such examination, he has reason to
believe that the market value of such property has not
been truly and fully set-forth in the instrument, he shall
proceed as provided in Sub section (4) which reads thus:
(4) On receipt of the instrument of the true
copy of the instrument as the case may be,
under sub-section (2) or (3), the Collector of the
District shall, after giving the parties concerned a
reasonable opportunity of being heard and in
accordance with the rules made by the State
Government in that behalf, determine the true
market value of the immovable property which is
the subject matter of the instrument and the
proper duty payable thereon. Upon such
determination, the Collector of the District shall
require the party liable to pay the duty, t make
the payment of the amount required to make up
the difference between the amount of duty
determined under this sub-section and the
amount of duty already paid by him and shall
17 CRI.APPLICATION NO.4614/2012
also require such party to pay in addition, ( a
penalty [of 2 per cent for every month or part
thereof] from the date of execution of the
instrument on differential amount of stamp
duty); and on such payment, the instrument
received under sub-section (2) or (3) shall be
returned to the officer or person referred to
therein.
It is significant to note that the aforesaid course of
action has already been resorted to against the applicants.
The documents on record evince that a notice under
section 32(A)(2) of the Act has been issued to the
applicants on 16.06.2010. When such course was already
availed, we find no propriety in initiating the criminal
proceeding against the applicants under the provisions of
Indian Penal Code and more so when there does not seem
any cogent, concrete and sufficient material available
against the applicants in that regard.
23. Similar controversy was involved in the matter
of Sanjay Shivaji Dhapse V/s. State of Maharashtra
(2014 All M.R. (Cri.) 3617). In the said Petition, an
offence was sought to be registered against the Insurance
Company alleging that, it did not affix the stamp of
sufficient amount and thereby caused loss of revenue to
the Government and thus cheated the Government. The
Division Bench of this Court, however rejected the said
contention holding that not affixing stamp of adequate
amount would amount to irregularity and it is always
subject to verification / check by the concerned
18 CRI.APPLICATION NO.4614/2012
Government Officer. The Division Bench also took note of
the fact that, in response to the notice received, the
Insurance Company has paid the deficit stamp duty.
24. After having considered the entire material on
record it appears to us that, on the basis of such record at
the most offences under section 59 and 62 may be
attracted against the applicants, but, in no case any of the
offence under Indian Penal Code, as alleged, can said to be
made out against them.
ig If at all any guilt seems to be
attributable on part of the applicants, it is that of not
showing the market value of the subject property
determined by applying the ready recknoer rates published
by the Government for the year 2008; but then the offence
which may be made out would be under the penal
provision of the Stamp Act i.e. under sections 59 and 62 of
the said Act and not under the Indian Penal Code. In view
of the specific provisions in the Stamp Act in regard to the
alleged intention of evading stamp duty and punishment
provided for the same, general provisions of Indian Penal
Code may not apply.
25. In so far as the prosecution under the
provisions of Stamp Act are concerned, it is the further
contention of the applicants that, in view of Section 59-A
of the Act no prosecution would lie since the subject
instrument was produced before the 3rd Joint Civil Judge,
Senior Division, Aurangabad in Special Civil Suit
No.514/2009, and the same has been admitted by the said
19 CRI.APPLICATION NO.4614/2012
Court. However, we do not wish to enter into the merits
of the said matter. Suffice it to say that, the allegations
made in the F.I.R. and the material placed on record in
support thereof even if taken at their face-value and
accepted as it is, do not constitute any of the offence as
alleged therein against the applicants under the provisions
of Indian Penal Code. We have already noted that the
offence as alleged under the Prevention of Corruption Act
would not be attracted against the applicants.
26.
In the circumstances, the continuation of the
criminal proceedings against the applicants in so far as it
relates to the offences under Indian Penal Code, and
Prevention of Corruption Act, would amount to the abuse
of the process of the Court.
We, therefore, quash the F.I.R. and the further
criminal proceeding being Crime No. I-141/2012 to the
extent it relates to the offences under Indian Penal Code
and the Prevention of Corruption Act against the
applicants.
Rule made absolute in above terms.
(P.R.BORA) (R.M.BORDE)
JUDGE JUDGE
...
AGP/crapln4614-2012
