[Cites 5, Cited by 0]
Bombay High Court
Chandubhai Narayandas Patel And Anr vs The State Of Maharashtra And Ors on 1 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:15466-DB
48-apl-1376-2011 Final.doc
MPBalekar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1376 OF 2011
Chandubhai Narayandas Patel
and Anr. ... Applicants
V/s.
The State of Maharashtra and Ors. ... Respondents
Ms. Mallika I. a/w Bhavesh V. for the applicants.
Mr. Yogesh M. Nakhwar, APP for the State - respondent
No. 1.
Mr. Shubham P. i/by Sandeep Salunkhe for respondent
Nos. 3.
CORAM : AMIT BORKAR, J.
DATED : APRIL 1, 2026
P.C.:
1. The applicants have come before this Court challenging the
very initiation of prosecution which has arisen from First
Information Report No. 484 of 2011 registered at Malad Police
Station for alleged offence under Section 83 of the Registration
Act, 1908. It is their case that the registration of said crime itself is
without proper legal basis and therefore continuation of such
prosecution cannot be permitted.
2. During pendency of the present proceedings, it is brought on
record that applicant No. 1 has expired. In view of settled position
of law, proceedings against a deceased person cannot survive.
Therefore, the application stands abated as against applicant No. 1
48-apl-1376-2011 Final.doc
and survives only in respect of remaining applicants.
3. The background facts show that the competent officer, who
is empowered under the provisions of the Registration Act to take
action in such matters, on 6 December 2011 recorded a statement
forming basis of the prosecution. In that statement, it is alleged
that the applicants had presented for registration an instrument
bearing No. 11/1017/2005. According to the officer, stamp duty of
Rs. 80,200/- was paid which corresponded to an area of about 77
square meters. However, in the instrument itself, the area was
described as 836 square feet instead of 836 square meters. On this
basis, it is alleged that there was misrepresentation and thereby
cheating of Government revenue. It is further alleged that
subsequently a deed of rectification came to be registered on 1
August 2016 wherein the area was corrected and some portion
was shown in meters and nominal stamp duty of Rs. 100/- was
paid. On these allegations it is contended that the applicants have
made themselves liable for prosecution under the provisions of the
Registration Act.
4. The learned advocate appearing for the applicants has taken
the Court through Article 36 of the Maharashtra Stamp Act, 1958,
particularly clause (iv) and Explanation 1. Her submission is that
for the purpose of levy of stamp duty in case of lease transactions
of long duration, the determining factor is not merely the physical
area mentioned in the document, but the consideration in the
nature of premium, advance, or deposit agreed between the
parties. Explanation 1 makes it clear that such monetary
component alone is to be treated as consideration for assessing
48-apl-1376-2011 Final.doc
market value. According to her, therefore, even if there is any
discrepancy in description of area in the instrument, that by itself
does not affect the quantum of stamp duty payable when the
premium amount remains unchanged. She submits that the very
foundation of prosecution namely alleged loss of revenue is
therefore misconceived.
5. She has further drawn attention to Section 82 of the
Registration Act, which provides for punishment where a person
intentionally makes a false statement before a registering officer. It
is argued that the essential ingredient of the offence is intentional
falsehood with a purpose to gain unlawful advantage. According to
her even if the allegations in the FIR are accepted as they stand,
there is no material to indicate that the applicants had any
intention to deceive or to evade lawful stamp duty. She submits
that when the Act itself shows that area is not decisive for stamp
valuation in such case, mere incorrect mention of area cannot be
equated with intentional false statement attracting penal
consequences. On this reasoning, it is urged that continuation of
prosecution would be nothing but abuse of process of law.
6. On the other hand, the learned APP has opposed the
application. He submits that the question whether there was
intention to make false statement or not is a matter which requires
evidence and cannot be decided at this preliminary stage.
According to him the Court should not enter into appreciation of
such disputed aspects while exercising writ jurisdiction. He further
submits that whether correct stamp duty was paid or not is also an
issue which can be examined only during trial. Therefore,
48-apl-1376-2011 Final.doc
according to him, the applicants must face the trial and establish
their defence before the competent court. On this basis, he has
prayed that the application be dismissed.
7. The learned advocate appearing for the complainant has
supported the stand taken by the prosecution and has adopted the
submissions of the learned APP. According to him, the allegations
disclose commission of an offence and therefore no interference is
warranted at this stage.
8. Upon hearing the rival submissions and on careful perusal of
the relevant statutory provisions, this Court finds that the
continuation of prosecution in the present case cannot be
sustained. Section 82 of the Registration Act is a penal provision. It
requires that a person must have made a false statement
intentionally before the registering authority while discharging
official duties. The purpose of such provision is to prevent parties
from securing unlawful benefit by misleading the authority and
thereby causing loss to public revenue or defeating the scheme of
the statute.
9. In the present case the allegation is confined to description
of area in the lease instrument, where 836 square feet is
mentioned instead of 836 square meters. At first glance, it may
appear to be a discrepancy. However, when the charging provision
under Article 36 is examined it becomes evident that the basis for
calculation of stamp duty in such leases is the market value
derived from consideration in the form of premium, advance, or
deposit. Explanation 1 further clarifies that such monetary
48-apl-1376-2011 Final.doc
component alone is to be treated as consideration.
10. Therefore what assumes importance is the amount of
premium agreed between the parties. If that amount remains
unchanged the quantum of stamp duty would also remain
unaffected. In such situation incorrect mention of area does not
result in reduction of stamp duty liability. It does not confer any
financial advantage upon the applicants. On the contrary such
recital reduces the extent of property in favour of the lessee. Thus,
the applicants themselves stand to suffer rather than gain.
11. It is also material that subsequently the parties have
executed a rectification deed correcting the area and have paid
necessary stamp duty for such rectification. This conduct indicates
that the discrepancy was not deliberate but was a mistake which
was later corrected. There is nothing on record to show that at the
time of execution of the original instrument, there was any
intention to mislead the registering authority or to evade payment
of lawful duty.
12. In absence of such intention the essential ingredient of
offence under Section 82 is not satisfied. Mere incorrect recital
without corresponding impact on revenue and without intention to
deceive cannot be elevated to criminal offence. If such
prosecutions are allowed to continue, it would result in misuse of
penal provisions in cases where the dispute is essentially clerical in
nature.
13. In these circumstances this Court is of the view that allowing
the prosecution to proceed would amount to abuse of process of
48-apl-1376-2011 Final.doc
law. The criminal law cannot be set in motion in absence of
foundational ingredients of the offence. Therefore, interference is
warranted.
14. Hence, Rule is made absolute in terms of prayer clause (b).
15. The criminal application stands disposed of.
(AMIT BORKAR, J.)
