Andhra HC (Pre-Telangana)
P.V.G.K.S. Sastry, S/O. Subramanyam ... vs The State Of Andhra Pradesh Through The ... on 21 July, 2005
Equivalent citations: 2005(2)ALD(CRI)415, IV(2006)BC404
ORDER C.Y. Somayajulu, J.
1. Second respondent entered into an agreement to purchase the property of Mallela Ramesh Robert, son of John for Rs. 2,40,000/- on 03-07-2004 and got that agreement of sale registered on the same day i.e., 03-07-2004. The vendor Mallela Ramesh Robert unilaterally executed a deed of cancellation dated 14-7- 204, canceling the agreement of sale dated 03-07-2004 executed by him in favour of the second respondent and presented it for registration. Petitioner kept the registration of the said deed of cancellation pending for some time and registered it as document No. 828 of 2005 on 21-02-2005. Alleging that petitioner had fraudulently registered the deed of cancellation of the agreement in his favour, second respondent filed a private complaint against the petitioner under Section 81 of the Registration Act, 1908 ('the Act'). Learned Magistrate, after recording the sworn statement of the 2nd respondent, took the complaint on file as C.C.No.34 of 2005. This petition is filed to quash the said C.C.
2. The main contention of the learned Counsel for the petitioner is that since petitioner while discharging his duties as Sub- Registrar only had registered the deed of cancellation, the learned Magistrate was in error in taking cognizance of the offence against the petitioner though no sanction to prosecute him was obtained by the 2nd respondent under Section 197 Cr.P.C. and in any event, since petitioner, as Sub-Registrar has no option but to register a document present to him, if it complies with all the requirements of the Stamp Act and Registration Act, no malafides can be attributed to him. It is also his contention that since the second respondent did not make Mallela Ramesh Robert, his vendor an accused, question of petitioner committing an offence under Section 81 of the Act by registering the deed of cancellation does not arise.
3. The contention of the learned Counsel for the second respondent is that second respondent, who got registered the agreement of sale by paying a stamp duty of Rs. 27,555/- is cheated by the petitioner registering the deed of cancellation unilaterally executed by the vendor, by paying a meagre stamp duty of Rs. 100/- and contends that since second respondent is not a party to the deed of cancellation petitioner ought not to have registered the same, and so it is clear that petitioner did not act honestly and hence is covered by Section 81 of the Act because his act of registering the deed of cancellation caused injury to the second respondent and contends that since sanction to prosecute can be obtained at any time the learned Magistrate taking cognizance of the case against the petitioner cannot be said be erroneous. He placed strong reliance on K. Kalimuthu v. State, (2005) 4 Supreme Court Cases 512. It is his contention that petitioner without registering the deed of cancellation ought to have directed the executant thereof to approach the civil Court or ought to have served a notice on the second respondent before registering the deed of cancellation and so there are no grounds to quash the complaint.
4. Petitioner is working as a Sub-Registrar. His appointment is governed by the Andhra Pradesh Registration Subordinate Service Rules (herein after referred as 'Service Rules') issued in G.O.Ms.No.372, Revenue (U), Dated 24-02-1983, as per which there are two grades of Sub-Registrars, i.e, Sub-Registrar, Grade-I who will be in Category-1 and Sub-Registrar, Grade-II who will be in Category 2 As per Rule 2 of the Service Rules, appointment of Sub-Registrar, Grade-I is by promotion from the category of the Sub-Registrars, Grade-II and for Sub- Registrar Grade-II is by direct recruitment or by Recruitment by transfer and as per Rule 4 of the Service Rules, the appointing authority for the Categories of Sub-Registrars, Grade-I and Grade-II, is the Deputy Inspector General of Registration and Stamps. Since it is well known that appointing authority has the power to remove also, Deputy Inspector General of Registration and Stamps would be the authority to remove Sub-Registrars G! rade-I and Grade-II. No rule in the Service Rules lays down the Deputy Inspector General of Registration and Stamps has to obtain sanction from the Government to remove Sub-Registrar Grade-I or Grade-II from Service. So it is clear that Sub-Registrar Grade-I and Grade-II can be removed without the sanction of the State Government. . Since Section 197 Cr.P.C. applies only to such Government Servants who cannot be removed from their Office save by or with the sanction of the Government, and since sanction of the Government for removal of petitioner Government is not required, he cannot take shelter under Section 197 Cr.P.C. See K.CH. Prasad v. Smt. J. Vanalatha Devi, and DR. Lakshmansingh Himatsingh Vaghela v. Naresh Kumar Chadrashanker Jha, . In view thereof failure to obtain sanction to prosecute the petitioner from the State Government is not and cannot be a bar for the learned Magistrate taking cognizance of the complaint against the petitioner though he is a Government! Servant. K. Kalimuthu's case (1 supra) relied on by the learn! ed couns el for 2nd respondent has no application to the facts of this case.
5. Section 81 of the Act reads:- "81. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure- Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such documents in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the Indian Penal Code (XLV of 1860), to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."
Section 44 IPC defines 'injury' as any harm 'illegally' caused to any person, body, mind, reputation or property. So for an 'injury' to be an offence, it must have been caused 'illegally'. The word 'illegal' also is defined in Section 43 of the Act. So the point for consideration is whether the petitioner can be said to have acted 'illegally' when he registered the deed of cancellation presented by the vendor. It is well known that for a 'cancellation' of an agreement to be effective, it has to be by the consent of both the parties to the agreement. If one of the parties only unilaterally cancels an agreement, and if the other party does not agree to that cancellation it amounts to a breach of the agreement, and the party not agreeing for the cancellation can seek the remedies available to him under law. The agreement dated 03-07-2004 in favour of the second respondent was executed only by Mallela Ramesh Robert. Second respondent did not sign the said agreement. The fac! t of second respondent not joining the execution of the agreement has relevance for disposal of this petition, though it has no relevance for a decision on its validity. In my considered opinion the fact of the petitioner registering the deed of cancellation unilaterally executed by the vendor of 2nd respondent, cannot result in any 'injury' to the second respondent because the agreement does not get extinguished by such registration, and the remedy of the petitioner to enforce that agreement still subsists. As long as the petitioner is not willing to accept such cancellation the dead of cancellation registered by the petitioner would be non est because there is no consensus ad idem between the petitioner and his vendor for the said cancellation.
6. The allegations made against the petitioner in the complaint, read:- "a. That the cancellation of the agreement of sale or registered sale deed should be done at the option of both the parties or all parties to the document i.e., the vendor (s) vendee (s). In instant case, both the vendor (Mallela Ramesh Robert) and Vendee (the complainant) should be present to present the document for cancellation of the document previously registered. b. That in the registration Act, 1908, nowhere, it was provided a room for the vendor, at this own option, alone, to cancel the document registered previously except the cancellation of the General Power of Attorney. Revocation of previously registered settlement and cancellation of WILL. c. That except the cancellation of the documents referred to above, the accused has no power to make a registration of cancellation of the document under the provisions of the Registration Act, 1908. d. That while dealing in such a case, the accused, after receiving the document for cancellation of agreement of sale, discharge the duties legitimately, in the following manner, in consonance of the rules of natural justice and good conscious. i. The accused ought to have directed the vendor to approach the civil court to invoke action under the Specific Relief Act. ii. The accused ought to have served notice to the complainant (Vendee) to represent her cause. iii. The accused ought to have rejected the same since the complainant )vendee) paid a stamp duty of Rs. 27,555/- much for the registration of the agreement of sale dated 03.07.2004 than the stamp duty of Rs. 100/- paid for cancellation of the document dated 14.07.2004. iv. That the accused, taking into consideration of the stamp duty of Rs. 100/- should not put the complainant (vendee) into much loss of foregoing the stamp duty of Rs. 27,555/-"
7. Petitioner being a Sub-Registrar is bound by the Act and the Rules made thereunder. As per Rule 161 of the Rules, made under the Act by the State Government, registration can be refused for the following reasons:- (i) That the document is written in a language which the registering officer does not understand and which is not commonly used in the District, and that it is unaccompanied by a true translation and a true copy. (ii) That it contains unattested interlineations, blanks, erasures, or alterations, which in the opinion of the registering officer require to be attested. (iii) That the description of the property is in sufficient to identify it or does not contain the information required by Rule 20. (iv) That the document is unaccompanied by a copy or copies of any map or plan which it contains. (v) That the date of execution is not stated in the document or that the correct date is not ascertainable. (vi) That it is presented after the prescribed time. (vii) That it is presented by a person who has no right to present it. (viii) That the executing parties or their representatives, assigns or agents have failed to appear within the prescribed time. (ix) That the registering officer is not satisfied as to the identity of a person appearing before him who alleges that he executed the document. (x) That the registering officer is not satisfied as to the right of a person appearing as a representative, assign, or agent so to appear. (xi) That execution is denied by any person purporting to be an executing party or by his agent. (xii) That the person purporting to have executed the document is a minor, an idiot or a lunatic. (xiii) That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed. (xiv) The alleged death of a person by whom the document purports to have been executed has not been proved. (xv) Not being satisfied as to the fact of execution, in case of will or of an authority to adopt, presented after the death of the testator or donor. (xvi) That the prescribed fee or fine has not been paid.
8. Since none of the above mentioned circumstances are present in this case petitioner could not have refused registration of the deed of cancellation presented by the vendor of the petitioner. Deeds of cancellation are covered by entry 15 in Schedule 1-A to the Stamp Act as per which Rs. 30/- stamp duty would be sufficient for a deed of cancellation. So petitioner by registering the deed of cancellation with Rs. 100/- stamp cannot be said to have even prima facie, acted with an intention to cause 'injury' to the second respondent.
9. Second respondent seems to have been piqued by the fact of the petitioner registering the deed of cancellation engrossed on Rs. 100/- stamp, when he spent Rs. 27,555/- towards stamp duty for the agreement. Amount of stamp duty to be payable on the instruments is mentioned in Schedules 1 and 1A of the Stamp Act. Registering authority has no discretion in that regard. So the fact that the petitioner registered the deed of cancellation containing a stamp less, than that of the agreement, when it is strictly in accordance with Schedule 1A of the Stamp Act, cannot be a ground for prosecuting the petitioner. Since the agreement of sale is executed by Mr. Ramesh Robert only and since the same Ramesh Robert has presented a deed of cancellation, petitioner cannot refuse registration thereof. As stated earlier such registration does not cause any injury to the second respondent, for him to invoke section 81 of the Act against the petitioner, as he in spite of the deed of cancell! ation, has a right to proceed against his vendor and seek its enforcement, if he is not willing to abide by the cancellation of the agreement by his vendor.
10. In view of the above continuation of criminal proceedings against the petitioner would but be an abuse of process of court and hence, this Court can interfere and quash the proceedings.
11. Hence, the Criminal Petition is allowed and proceedings against the petitioner in C.C.No. 34 of 2005 on the file of the Judicial First Class Magistrate, Kanigiri are quashed.