Madhya Pradesh High Court
Rituraj Singh vs The State Of Madhya Pradesh on 7 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
ON THE 7th OF FEBRUARY, 2024
MISC. CRIMINAL CASE NO.5408 OF 2017
BETWEEN:-
RITURAJ SINGH S/O SAHDEVA SINGH, AGED ABOUT 44
YEARS, CONSERVATOR OF FOREST RESEARCH AND
DEVELOPMENT, GOVT. OF MIZORAM AIZAWL.
....APPLICANT
(BY SHRI R.K.VERMA- SENIOR ADVOCATE WITH SHRI
ASHISH DATTA- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
REVENUE, VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. COLLECTOR RAISEN, DISTRICT RAISEN (M.P.)
3. COLLECTOR OF STAMPS, RAISEN DISTRICT
RAISEN (MADHYA PRADESH)
2
4. STATE OF MADHYA PRADESH THROUGH SHRI R.N.
SORTE, SENIOR DEPUTY REGISTRAR RAISEN
(M.P.)
....RESPONDENT
(BY SHRI MOHAN SAUSARKAR- GOVT. ADVOCATE)
This petition came up for hearing on 10.01.2024 and the order
was kept reserved.
ORDER
Vide this common order MCRC No.5408/2017 and WP No.5015/2015 are being disposed of. Since common questions of law and facts are invoked, therefore the facts are being culled out from MCRC No.5408/2017.
2. The prayer in MCRC No.5408/2017 (Rituraj Singh Vs. State of MP and others) is for quashing of Criminal Complaint No.98/2016 dated 10.11.2014 (Annexure A-12) and the order dated 2.2.2016 (Annexure P-13) passed by the Judicial Magistrate First Class, Raisen. The prayer in WP No.5015/2015 (Rituraj Singh and another Vs. State of MP and others) is for issuance of a writ in the nature of certiorary, for quashing of the orders dated 26.3.2015 (Annexure P-1) passed in Case No.136/B-105/2013-14/47-A (3) and 3 in Case No.137/B-105/2013-14/47-A(3) by the Collector of Stamps, Raisen.
3. Petitioner Rituraj Singh is an Indian Forest Services (IFS) Officer. He had purchased the agricultural land measuring 3.16 acres comprised of Khasra No.297/1/1, 297/2, 297/1/1/2 and 297/2/2/ situated at P.H. No.16, Village Barla, District Raisen vide registered sale deed dated 17.3.2011 in the name of his wife Smt. Disha Singh. He also purchased the agricultural land measuring one acre in his own name, comprised of Khasra No.297/1/1 and 297/2 vide registered sale deed dated 17.3.2011. The total sale consideration of Rs.13,62,000/- was paid to the vendor (Bhanwarlal). The agricultural land purchased in the name of Disha Singh was further sold to Smt. Shanti Singh vide registered sale deed dated 6.8.2012. The land so purchased by the petitioner was recorded as an irrigated land in the revenue record. As per the guidelines issued by the Collector, the prevailing market value of the land within the periphery of District Raisen for the year 2010-11 was Rs.6,52,000/- per hectare. The total area purchased by the 4 petitioner Rituraj Singh and her wife Smt. Disha Singh on being transferred to Smt. Shanti Singh was approximately 4.16 acres. The Collector rate as per the guidelines for the year 2010-11 would come out to be Rs.11,41,000/-. However, the petitioner had purchased the aforesaid land even at higher rates, i.e., for a consideration of Rs.13,62,000/- from one Bhawanlal. The Collector rate for the year 2010-11, as per the guidelines of the year, could have been appreciated in the light of its entry at Sl.No.123.
4. The petitioner had paid the total sale consideration of Rs.13,62,000/- to the vendor and the same was in excess of the prevailing market value as per the Collector rate, which was only Rs.11,41,000/-. The petitioner had also made a declaration of the property so purchased by him in his parent department. An anonymous complaint was made before the respondent/Collector of Stamps, Raisen, alleging that the sale deed dated 17.3.2011 was under valued instrument. A show cause notice was issued to the petitioner on 10.9.2014, directing him to submit the deficit stamp duty of about Rs.2 lakhs. At that point of time, the said show notice 5 was challenged by the petitioner in WP No.16314/2012, but the same was got dismissed as withdrawn on 30.10.2014 with the liberty to avail the remedy before the Collector of Stamps by filing a detailed reply. Thereafter reply was filed by the petitioner on 12.11.2014, in which a request was made to supply a copy of the memo of complaint, statement of the complainant if any, recorded and other documents. None of the documents as asked for by the petitioner was supplied and on the contrary, the Collector of Stamps proceeded in the matter without providing any opportunity of hearing to the petitioner and ultimately passed the order dated 26.3.2015, calling upon the petitioner to pay the deficit stamp fee within the stipulated period of 30 days, failing which the same would be recovered as arrears of land revenue. Similar order was passed in respect of another sale deed executed in favour of Smt. Disha Singh, wife of the petitioner. In case No.137/B-105/2013- 14/47-A (3), the market value was assessed to be Rs.10,09,615/-. The deficiency in the market value was calculated as Rs.42,703/-, and the deficiency in registration fee was calculated as Rs.3,856/-, 6 thereby totaling Rs.46,559/-. In case No.137/B-105/2013-14/47-A (3), the market value was assessed to be Rs.21,90,385/-. The deficiency in the market value was calculated as Rs.1,59,540/-, and the deficiency in the registration fee was assessed to be Rs.18,448/-, thereby totaling Rs.1,78,388/-. In this manner total deficiency in both the sale deeds was assessed to be Rs.46,559/- + Rs.1,78,388/- = Rs.2,24,947/-. Before the Collector of Stamps, Raisen, the petitioner on being served with the show cause notice, took the following stand:-
"1. That, it is humbly submitted that the undersigned has received the Notice dated 10.09.2014 from your office. By the notice dated 10-09-2014, the undersigned has been charged that the sale deeds dated 17-03-2011 were under valued and thereby revenue loss of Rs. 2 lacs, desired stamp duty was not paid by the undersigned by suppressing the notice dated 10- 09-2014, the undersigned has also been directed to submit explanation as to why criminal case for offences under Sections 420, 467 & 468 of IPC be registered against him.
2. That, it is humbly submitted that after receiving the notice dated 10.09.2014, undersigned has submitted an application dated 14.10.2014 and requested for supply of all the necessary materials on the basis of which, findings are 7 recorded in the notice dated 10-09-2014 in in response to the application dated 14-10-2014, your office has only supplied a copy of the undersigned agreement date 17.03.2014, in respect of the same agricultural land which is purchased by the undersigned by registered sale deed dated 17.03.2014 The undersigned has not been supplied with the memo of compliant made against the undersigned by your office. The undersigned is unaware about the person who has lodged the complaint against the undersigned and whether the memo of said complaint is accompanied with the relevant materials, on the basis of which cognizance could be taken against the undersigned. It is humbly submitted that in absence of supply of memo of complaint and other relevant materials, the undersigned is really unable to defend himself to furnish the appropriate reply/explanation in response to the notice dated 10-09-2014 It is therefore, humbly submitted that the undersigned hoay kindly be given the copy of the memo of complaint and entire relevant materials in compliance to the principles of natural justice so that the Non- applicant No 1 may be in a position to lay proper defense on himself in the instant case.
3. That, under circumstances, for the time being. NA-1 is submitting tentative preliminary statements and this reply may not be treated as final on behalf of NA-1 detailed reply, shall be submitted in your office, after supply of material of complaint and other relevant materials which were taken into consideration which issuing the notice dated 10.09.2014 The factum of the non- supply of all the relevant materials would amount 8 to violation of principles of natural justice as the undersigned will be unable to properly defend himself. So in the interest of justice, all the desired documents may kindly be supplied to the undersigned.
4. That, from the perusal of the photocopy of the unregistered so called agreement dated 17-03- 2011, it would become clear that no details of transaction for which the unregistered agreement was executed as is mentioned in the overleaf of the stamp papers. It is not clear as to for what purposes the stamp papers were purchased and detailed of purchaser is also not legible. In this view of the matter, the undersigned is really unable to understand for what purposes, stamps were purchased and on what basis, such agreement was typed on the stamp paper, It is noteworthy that on 17.03.2011, the NA-1 has got the registered sale deed executed in his favor as also in favor of his wife Smt. Disha Singh. In this view of the matter, there is virtually no reason available with the undersigned to enter into another unregistered agreement. Prima facie, from perusal of the photocopies of the unregistered agreement, it appears that the same is not a genuine document. Moreover, the NA-1 is unaware as to whether the complainant has been examined and his statement has been recorded by your office in support of the memo of complaint. In absence of all these formalities, no comclusion, finally of the nature detailed in the notice dated 10.09.2014 could be drawn further that once the proceedings for registration are complated in favor of NA-1 all the rights of the seller are extinguished and being hardly any subsisting 9 rights whith the seller so as to enter into an agreement with NA-1 besides absence of endorsement of Nanni Devi and Mohar Bal (co- executors & consenters in transfer and sale of alleged land) in the impugned agreement on the same date of execution of sale deed is surprising.
5. That, from perusal of the Collector guidelines of 2010-11, it would become clear that the market value of the irrigated agricultural land at that point of time was Rs. 6,52,000/- pr Hectate ie, for 4.16 acre 1.6834922717 hectare equivalent to 10,97,637/- against which the sale consideration has been paid to the tune of 13,62,000/- which being almost more than 25% of the market value mentioned in the collector guidelines for year 2010-11 and accordingly, the sale deed has been executed independently by NA-1 and Smt. Disha singh by means of two independent registered documents NA-1 having only executed the same for 5,28,000/- inspite of this fact the notice has been served to NA-1 for entire sale consideration further it is humbly submitted that it is well understood that the collectors guidelines ate a consequence of huge conglomeration of statistical data, ground truthing and highest degree of screening and scoping by means of brainstorming by persons of standing and repute such pegging of rates by the collector are a bench mark for all transaction of land as such in all canons of reasonability it is expected that a person of reasonable diligence would not be swayed by any other consideration than collectors guidelines to enter into transaction for purchase of land. Under such circumstances it is humbly requested that the transaction as alleged under the impugned 10 agreement should be viewed with an element of doubt and caution as the total transaction alleged is almost 4 (Four) times the market value moreover at the time of registering sale deed at 17/3/11 the registering officer (Sub Registrar) has examined the legality of the Sale deed & has also calculated the valuation of the Property & Stamp duty, Registration fee, accordingly to the Collector guidelines & only then has registered the Sale deed desides the impugned agreement being incidentally dated 17.03.2011 which is very surprising as it is expected that the rigorous & unbiased inquest before registration of any sale deed eliminates any possibility of secretive, collusive misrepresentative or selected display of transaction at the time of registering the sale deed, no fact relating to the deal was suppressed by NA-1 Thus no attempt has been made by the undersigned to cause any revenue loss to the State Govt.
6. That, from perusal of the aforesaid, it would become clear that the undersigned has not made any attempt to get registered sale deeds undervalued, It is for this reason, there is no material or evidence available as on the date with the NA-1 and there is no satisfactory findings recorded in the notice dated 10.09.2014 that could even prima facie justify the proposal for registration of offences under Sections 420, 467 & 468 of the IPC. In fact, the ingredients requiring the constitution of offences under Sections 420, 467& 468 of the IPC are completely lagging behind in the given case. It is therefore, there is no justification in registering any nature of criminal case much less has mentioned in the 11 notice dated 10.09.2014 against the undersigned even otherwise when the matter is Sub Registrar in the Court of District registrar no question of imposing section, 420, 467 & 468 I.P.C. arises.
7. That, it is noteworthy, that the NA-1 has purchased the agricultural land from the bonafide Bhoomi Swanmi namely, Ghawar Lodhi, his name is duly recorded in the revenue records as Bhoomi Swami of the agricultural land, moreover, the NA- 1 has also intimated his department about his intention of purchasing the agricultural land and has also disclosed the barty to the transaction is beyond any reasonable comprehension and that in the deputed factum of purchase of agricultural land in the statement of immovable property as on 01.01.2012 you are humbly requested to kindly make note of the fact that a matrimonial dispute is subsisting between the NA-1 and his wife Smt. Disha Singh and divorce petition on the ground of cruelty has already been filed by the undersigned against his wife Smt. Disha Singh and that on the consent of the wife of the NA-1, her portion of agricultural land has already been transferred in the name of the mother of NA-1 Smt. Disha Singh vide sale deed dated 06-08- 2012 Thus, possibility of false implication at the beliest of the wife of the undersigned Smt. Disha Singh cannot be ruled out moreover complaint by NA-2 who herself is alleged to be a fransaction there ate two separate transactions which were executed, one is with NA-1 (undersigned) & another whith Smt. Disha Singh w/ Rituraj Singh and AN-1 not beig responsible for the second transaction.
8. Presently, the NA-1 is unawate as to whether 12 your office has taken action on the basis of some genuine complaints or the entire action has been taken on the basis of some anonymous complaint anyhow on perusal of documents made available to the NA-1, it appears that notice has been issud on basis of anonymous & unsubstantiated complaint moreover it is not clear whether the notice is equally directed to Smt. Disha Singh and NA-1 and whether the fact of purchase of property from Shri. Bhawarlal Lodhi by meads of two independent registered documents i.e. 3.16 acres and 1.0 acres respectively by two independent legal entities has been taken into consideration before issuing the same. Therefore NA-1 may kindly be provided with all the relevant documents leading to issuance of notice with all the alleged impurations under the sections mentioned in the notice dated 10.09.2014 including a copy of reply of NA-2 Smt. Disha Singh as the entire episode is interlocked with her assertion and likelihood of her being biased and chances of her premeditated unsubstantionated assertions based on irrelevant and extraneous considerations on alleged grounds of Coercion, Undue-Influence, Fraud, Mistake & Misrepresentation cannot be ruled out. Sir all the above materials are highly relevant for the purposes of filing appropriate reply on behalf of the undersigned.
9. That, in the notice dated 10.09.2014 it is mentioned that the revenue loss of Rs. 2 lac has been caused to the State Govt. no calculation or basis has been unfolded in the notice dated 10- 09-2014 so as to lehally covince a person about the genuineness for reaching to the figure of Rs. 2 13 lacs as the entire transaction of land has been split into tivo by execution sale deed ie. 1.1 acre against NA-1 and 16 acre against NA-2.
10. That the non-applicant has not executed any agreement on 17/03/2014 with the applicant Bhawarlal for land vide Khasra no. 29/1/1 & 297/2 wxcept the sale deed therefore the alleged Agreement it is not binding on the non- applicant NA-1 Photo copy of any document is not an admissible evidence in accordance to law as such no action should be taken on the basis of such document.
Prayer The impugned agreement suffers from various ganeric defects and appears to be artificially manufactured to falsely implicate the NA-1 It is therefore requested that on the basis of above stated grounds and justifications besides taking into account facts & circumstances in harmony with related documents the proceeding initiated against NA-1 be withdrawn in the interest of Justice."
5. The aforesaid orders dated 26.3.2015 were passed in both the cases, ignoring the stand of the petitioner mainly on the ground that the vendor did not appear before the authority despite the letters dated 10.9.2014 and 20.11.2014 and vendee/petitioner appeared and filed the affidavit of the vendor in which the vendor 14 has denied to have executed any agreement dated 17.3.2011 in any manner. The recital of the photostat copy of agreement to sell was believed on the ground that the signatures of the vendor and vendee were matching and in the agreement to sell, the land measuring 4.16 acres was proved to have been agreed for a consideration of Rs.42 lakhs. The order dated 26.3.2015 passed by the Collector of Stamps in Case No.136/B-105/2013-14/47-A (3) was assailed by the petitioner in WP No.5015/2015 in which the interim protection was granted to the petitioner, thereby directing that no coercive action be taken against the petitioner. The interim order is still in operation. In order to appreciate the controversy in its entirety, it would be relevant to peruse Section 47-A of the Indian Stamp Act, 1899 (for brevity "Stamp Act, 1899") as introduced vide Madhya Pradesh Amendment Act No.8/1975 with effect from 15.7.1975. Section 47 (A) of the Act is reproduced as under:-
"[47.A-Instruments undervalued how to be dealt with. - (1) If the Registering Officer appointed under the Registration Act, 1908 (No. XVI of 1908), while registering any instrument finds that the market value of any property which is the subject matter of such instrument has been 15 setforth less that the minimum value determined in accordance with any rules under this Act, he shall before registering such instrument refer the same to the Collector for the determination of the market value of such property and the proper duty payable thereon.
(1-A) Where the market value as setforth in the instrument is not less than the minimum value determined in accordance with any rules under this Act, and the Registering Officer has reason to believe that the market value has not been truly sertforth in the instrument, he shall register such instrument and thereafter refer the same to the Collector for determination of market value of such property and proper duty payable thereon.] (2) On receipt of a reference under-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holing an enquiry in such manner, as may be prescribed, determine the market value of the property which is the subject matter of such instrument and the duty as aforesaid. The difference, if any, in the amount of duty shall be payable by the person liable to pay the duty.
(3) The Collector may suo-motu, within five years from the date of registration of any instrument not already referred to him under sub-section (1), call for and examine the instrument for the purposes of satisfying himself as to the correctness of the market value of the property which is the subject matter of any such instrument and the duty payable thereon and if after such examination, he has reason to believe that the market value of 16 such property has not been truly set forth - in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty:
Provided that noting in this sub-section shall apply to any instrument registered prior to the date of the commencement of the Indian Stamp (Madhya Pradesh Amendment) Act, 1975.
[(3-A) For the purpose of inquires under this Section, the Collector shall have the power to summon and enforece the attendance of withnesses including the parties to the instrument, or any of them and to compel the production of documents by the same means and so far as may be in the same manner, as is provided in the case of Civil Court under the Code of Civil Procedure, 1908 (Central Act No. V of 1908).] [(4) Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3) may, in the prescribed manner appeal against such order to the Commissioner who may either himself decide the appeal r transfer it to the Additional Commissioner of the Division.] (5) Any person aggrieved by an order passed in appeal under sub-section (4) may in the prescribed manner appeal against such order to the Chief Controlling Revenue-authority. Madhya Pradesh.17
(6) Every first and second appeal shall be filed within thirty days from the date of the communication of the order against which the appeal is field, alongwith a certified copy of the order to which objection is made and shall be presented and verified in such manner as may be prescribed:
Provided that in computing the period aforesaid, the time requisite for obtaining a copy of the order appealed against shall be excluded.
(7) The appellate authority shall follow such procedure as may be prescribed:
Provided that no order shall be passed without affording opportunity of being heard to the appellant.
(8) The order passed in second appeal or, where no second appeal is preferred the order passed in first appeal shall be final and subject to orders passed in first or second appeal, as the case may be, the order passed by the Collector under sub-
section (2) or sub-section (3) shall be final and shall not be called into question in any civil court or before any other authority whatsoever.
Explanation - For the purpose of this Act, -
(i) market value of any property other than the property which is the subject matter of conveyance by or on behalf of the central Government or the State Government or any authority or body incorporated by or under any law for the time being in force, shall be estimated 18 to be the price which in the opinion of the Collector or the appellate authority, as the case may be, such property would have fetched or fetch if sold in the market on the date of execution of instrument:
(ii) market value of any property which is subject matter of conveyance by or on behalf of the Central Government or the State Government or any authority or body incorporated by or under any law, for the time being in force shall be the value shown in the instrument.]"
6. Perusal of the orders dated 26.3.2015 passed by the Collector of Stamps, Raisen in both the cases would show that the office of the Collector of Stamps allegedly received an agreement dated 17.3.2011 through email, whereby a complaint was made by some unknown person that the total sale consideration as agreed between the parties, i.e. vendor and vendee, was to the extent of Rs.42 lakhs, whereas the sale consideration was wrongly shown in the sale deeds to the tune of Rs.13,62,000/-. On the basis of email (agreement to sell) the proceedings were initiated without finding and verifying the truthfulness and genuineness of the said email post with reference to the said document, if any. The agreement to sell 19 allegedly received through email has no origin in terms of existence of the original agreement to sell. Even the respondent/Collector, Raisen gave a sanction for prosecution of the petitioner under Sections 27 and 64 of the Stamp Act, 1899 in purported exercise of powers conferred under Sections 70 of the Stamp Act, 1899. Perusal of the aforesaid order dated 17.10.2014 would show that there was no reference made by the Collector, Raisen in respect of the alleged agreement to sell and the order dated 17.10.2014 has been passed in a very mechanical manner, alleging that the instruments of the sale have been executed in a deceitful manner. For ready reference, the order dated 17.10.2014 is reproduced as under:-
" %%&vkns'k%%& jk;lsu] fnukad 17&10&2014 Øekad@32@ftyk iath;d jk;lsu }kjk izLrqr fd;k x;k fnukad 17-03-2011 dks i{kdkj bdjkjdrkZ % Jh Hkaojyky yks/kh vk0 Jh NksVsjke yks/kh] fuoklh d`"kd xzke ckjyk rglhy o ftyk jk;lsu e0iz0 ,oa bdjkjxzfgrkx.k % 1- f_rqjkt flag vk0 Lo0 Jh lgnso flag] fuoklh&bZ&1@184 vjsjk dkyksuh Hkksiky rglhy gqtwj ftyk Hkksiky e0iz0 2- Jherh fn'kk flag ifRu f_rqjkt flag fuoklh&bZ&1@184 vjsjk dkyksuh Hkksiky rglhy gqtwj ftyk Hkksiky e0iz0 miiath;d dk;kZy; jk;lsu esa nks foØ;&i= Øe'k% nLrkost Øekad 2425] 2426 fnukad 17-03-2011 iathc) djk;s gSA 20 ftlesa i{kdkj }kjk diViwoZd xyr nLrkost rS;kj fd;k x;kA i{kdkj dk mDr vkpj.k Hkkjrh; LvkWEi ,DV dh /kkjk 27] 64 lgifBr Hkkjrh; n.M lfgrk ds lqlaxr izko/kkuksa ds varxZr n.Muh; gSA blds fy, fof/kor~ vkijkf/kd izdj.k dk;e fd;s tkus ,oa Hkkjrh; LvkWEi ,DV dh /kkjk 70 ds varxZr ftyk iath;d jk;lsu }kjk pkgh xbZ vfHk;kstu dh dk;Zokgh djus dh Lohd`fr nh tkrh gSA dysDVj jk;lsu ¼e0iz0½"
7. The aforesaid order is the result of non-application of mind. Even the competent authority was not alive to the situation and the sanction has been granted without there being any reference of any agreement to sell in the aforesaid order. The aforesaid order besides being cryptic is totally non-speaking in nature. As per the requirement of the law, if the Registering Officer appointed under the Act while registering the instrument finds that the market value of any property has been set forth less than the minimum value determined in accordance with any rule under this Act, he shall before registering such instrument refer to the same to the Collector for determination of the market value of such property and the proper duty payable thereon. If the market value, as set forth in the 21 instrument is not less than the minimum value determined in accordance with any rule under this Act, the Registering Authority has reason to believe that the market value has not been truly setforth in the instrument, he shall register such instrument and thereafter refer the same to the Collector for determination of the market value of such property and the proper duty payable thereon. In the present case, after registering the instruments/sale deeds, the Registering Officer has not referred the sale deeds to the Collector by making any reference for the determination of the market value. Admittedly, the market value as projected in the instruments/sale deeds is higher than the minimum value based on the Collector rate. In such a situation, in terms of Section 47-A and 47(1-A) of the aforesaid Act, a reference was required to be made by the Registering Officer to the Collector, and thereafter the Collector was required to provide a reasonable opportunity of hearing to the parties, and after holding an inquiry, the Collector was required to determine the market value of the property for the purposes of calculating the deficit stamp duty.
22
8. The Collector took cognizance only on the basis of some agreement to sell received through email without ascertaining the genuineness of the same with reference to the existence of original agreement to sell. No cognizance could have been taken by the Collector on the basis of secondary evidence, which was not proved in accordance with law at the threshold of Section 65 (B-2) of the Evidence Act, 1872. After granting sanction in a mechanical manner, the District Registrar, Raisen, vide order dated 29.10.2014, directed the respondent No.4/ Senior Deputy Registrar to file a complaint against the petitioner before the competent Court. Accordingly, the respondent No.4 filed a Criminal Complaint No.98/2016 before the Judicial Magistrate First Class, Raisen against the petitioner as well as against Smt. Disha Singh, seeking action against the petitioner in terms of Sections 27, 64 and 70 of the Stamp Act, 1899, and they be punished in accordance with the law. The complaint was filed on 11.11.2014 and thereafter, the case was adjourned at the instance of learned State counsel to address arguments on many occasions and ultimately vide order dated 23 2.2.2016, the cognizance was taken by the Judicial Magistrate First Class, Raisen, under Sections 27 and 64 of the Stamp Act, 1899.
9. A perusal of the order dated 2.2.2016 passed by the Judicial Magistrate First Class, Raisen is proved to be in contravention of the provisions of the Code of Civil Procedure, as no statements of witnesses were recorded nor were any reasons assigned for taking cognizance under Sections 27 and 64 of the Stamp Act, 1899. The order of taking cognizance did not specify as to how violations in terms of Sections 27 and 64 of the Stamp Act, 1899 were committed. Section 27 of the Stamp Act, 1899 would require that 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. In the case of an instrument relating to immovable property chargeable with an ad valorem duty on the market value of the property, and not on the value set forth, the instrument shall fully and truly set-forth the annual land revenue in the case of revenue 24 payable for the land, the annual rental or gross assets, if any, in the case of other immovable property, the local rates, municipal or other taxes, if any, to which such property may be subjected under the rules. In terms of Section 47 of the Stamp Act, 1899, as applicable to the State of Madhya Pradesh, a specific provision has been made that after registration of the sale deed, in case the consideration is found to be more than the Collector rate, the Registering Authority was required to make a reference to the Collector. In order to take suo motu cognizance, the Collector was required to have authentic information. In the instant case, only an email complaint based on some photostat agreement to sell has been made as the basis for the determination of deficit market value. The cognizance has been taken by the Court under Section 27 of the Stamp Act,1899, which is not attracted as the sale consideration, market value and stamp fee etc. have been duly shown, and the document has been rightly executed with full particulars in the sale deed and thereafter the same was registered without finding any deficit stamp duty. Section 64 of the Stamp Act 1899, provides for a penalty for omission to 25 comply with the provisions of Section 27 of the Stamp Act, 1899. Any person who, with intent to defraud the Government executes any instrument in which all the formalities as required by Section 27 are not fully and truly set forth, then such person shall be punished with a fine which may extend to five thousand rupees. Section 64
(a) of the Stamp Act, 1899 deals with the executant, who executes the instrument in question.
10. Apparently, the aforesaid provision is applicable to the executant of the document i.e. the vendor and not the vendee. The petitioner is the vendee under the said instrument, and therefore the requirement of Section 27 of the Stamp Act, 1899 and punishment provided under Section 64 of the Stamp Act, 1899 are applicable only to qua executant of the instrument i.e. vendor. Imposition of fine could have been imposed by the authority in terms of Section 64(c) of the Stamp Act, 1899 and not by any other authority. The deficit stamp duty was sought by the respondent/Collector vide orders dated 26.3.2015; therefore, the penalty has already been imposed, which is the subject matter of WP No.5015/2015. Section 26 70 of the Stamp Act, 1899 deals with the institution and conduct of prosecution. No prosecution in respect of any offence punishable under this Act or any Act hereby repealed, shall be instituted without the sanction of the Collector.
11. Perusal of the order dated 17.10.2014 granting sanction is totally erroneous. In the aforesaid order, even the competent authority was not alive to the facts i.e. the factum of agreement to sell. There was no reference made in the order of sanction regarding agreement to sell and the order has been passed in a very mechanical manner. The order of sanction, besides being illegal is totally non-speaking and can be quashed on this count alone. In the absence of any sanction, the prosecution could not be lodged against the petitioner, who is vendee of the instrument, and therefore in terms of Section 64 of the Stamp Act, 1899 also, the prosecution of the vendee is precluded under the scheme of the Act. Even otherwise, the document which was allegedly received by the Collector of Stamps is a photostat copy of agreement to sell dated 11.3.2011, which was allegedly received through email. Sections 62, 27 65(a) and 65(b) of the Evidence Act, 1872 provide as under: Any documentary evidence by way of an electronic record in view of Sections 59 and 65(a) of the Evidence Act, 1872 can be proved only in accordance with the procedure prescribed under Section 65(b) of the Evidence Act, 1872. Section 65(b) of the Evidence Act, 1872 deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non-obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, which is printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed to be a document, only if the conditions mentioned in this section are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record, which is called computer output, depends on the satisfaction of the four conditions under Section 65 (B)(2) of the Evidence Act. 28 The specified conditions under Section 65(B)(2) of the Evidence Act are enumerated as under:-
"(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for sometime, the break or breaks had not affected either the record or the accuracy of its contents;
and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity."
12. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an 29 electronic record, it is permissible provided the following conditions are satisfied:
"(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device."
A person is only required to state in the certificate that the same is to the best of his knowledge and belief. More importantly, such a certificate must accompany the electronic record, like a computer printout, compact disc (CD), video compact disc (VCD), pen drive etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are 30 the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to the travesty of justice. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Sections 65-B of the Evidence Act are not complied with. In the instant case, there is total non- compliance of Section 64(B)(2) and 64(B)(4) of the Evidence Act. The aforesaid requirements are mandatory in nature, as held by the Hon'ble Supreme Court in the case of Anvar P.V. Vs. P.K.Basheer and others, (2014) 10 SCC 473. Taking cognizance on the basis of secondary evidence is an abuse of the process of law. Secondary evidence is not proven to have been led on legal parameters. Firstly, in order to permit secondary evidence, the existence of original document has to be established on the record. Original agreement to sell has not come forth on record, nor has any proof of loss pleaded and established by the prosecution. In the absence of existence of 31 the original agreement to sell and loss thereof, no secondary evidence could have been taken note of by the authorities at the first instance, and the Judicial Magistrate First Class while summoning the petitioner. Even if the orders passed by the Collector of Stamps, Raisen dated 26.3.2015 are appealable before the Commissioner in terms of Section 47-A(4) of the Act as applicable to the State of Madhya Pradesh, but the aforesaid alternative remedy would not be efficacious enough to be resorted to. There is no complete bar on entertaining the petition in spite of the existence of an alternative remedy. The only question is whether it should be exercised under the circumstances enumerated by the Hon'ble Supreme Court, in the case of Magadh Sugar & Energy Ltd. Vs. State of Bihar & others, 2021 SCC Online SC 801. The circumstances were enumerated by the Hon'ble Supreme Court after taking into consideration the judgments in Whirlpool Corporation Vs. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1, Harbanshal Sahni Vs. Indian Oil Corporation Ltd., (2003) 2 SCC 107 and Radha Krishan Industries Vs. State of Himachal Pradesh, 2021 32 SCC Online SC 334. The Hon'ble Supreme Court, after considering the law on the subject has concluded that there is no complete bar on entertaining a writ petition in spite of the existence of an alternative remedy, provided the following conditions are satisfied:-
"(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;33
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
13. The Hon'ble Apex Court in Hari Krishna Mandir Trust vs. State of Maharashtra and others (2020) 9 SCC 356 has held that the High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a writ of mandamus or in the nature of mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on 34 irrelevant consideration. The Hon'ble Apex Court in paras No.100, 101 and 102 held in the following manner:-
"100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration.
101. In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
102. In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr. 2002) 4 SCC
638. Pattanaik J. observed: (SCC p. 659, para
17) "17..... One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which 35 entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (see kalian Singh v. State of U.P. AIR 1962 SC 1183). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law." (emphasis in original)."
There cannot be any doubt that an important requisite for issuance of mandamus lies in the direction to enforce a legal duty. The duty 36 must be shown to exist towards the petitioners. The only caveat is that the statutory duty must exist before it can be enforced through mandamus unless a statutory duty or right can be read in the provision itself; mandamus cannot be issued to enforce the same.
14. In view of the aforesaid legal and factual position involved in the present case, this Court is of the considered view that the respondent/Collector, Raisen, has exceeded its jurisdiction while taking cognizance on the basis of photostat copy of agreement to sell, the execution of which has not been proved in accordance with law. The granting of sanction by the Collector is totally illegal, as the same did not correspond to any agreement to sell, and the same was granted in a very stereotyped and mechanical manner. The impugned prosecution of the petitioner is also against the requirement of law in terms of Sections 27 and 64 of the Stamp Act, 1899.
15. For the reasons recorded hereinabove, I deem it appropriate to quash the Criminal Complaint No.98/2016 dated 10.11.2014 (Annexure A-12) and all subsequent proceedings, if any, 37 undertaken in pursuance thereof. Accordingly, MCRC No.5408/2017 and WP No.5015/2015 are allowed. Normal consequences to follow.
(Raj Mohan Singh) Judge 07/02/2024 MANZOOR AHMED 2024.02.08 10:35:17 +05'30' Ansari