Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Smt. Sudha Gupta vs The State Of Madhya Pradesh on 26 June, 2014

1                          M.Cr.C No.3468/2014

             Smt. Sudha Gupta and others
                         Vs.
    State of M.P. through P. S. Huzrat Kotwali, Gwalior

26/06/2014

       Shri V. K. Bhardwaj, Senior Counsel with Shri
Anvesh Jain, counsel for the petitioners.
       Shri R.K. Shrivastava, Panel Lawyer for the
respondent / State.

Heard.

1. Being aggrieved by the order dated 10/03/2014 passed by the learned 1st A.S.J., Gwalior in Case No. 170/2014 "State of M.P. Vs. G.K. Shakya and others", the petitioners have filed this petition under Section 482 of Cr.P.C to invoke the inherent power of this Court and to quash the impugned order.

2. Brief facts just necessary for disposal of this case are that a challan was filed against the petitioners before the learned 1st A.S.J, Gwalior under Sections 120-B, 420, 477-A of IPC read with Section 27 and 64 of Indian Stamp Act, 1899.

3. It is alleged that G.K. Shakya is the Dy. Registrar in the Office of Registrar. Other accused persons, the sellers and purchasers of Roxy Talkies. To evade stamp duty, the purchasers sold 1/8th share of the Roxy Talkies to Smt. Sudha Gupta and others (the petitioners) which is just an eye wash. The sellers were shown as the co-owners of the property. The property was then partitioned and a large chunk of the property was then given to earlier sellers and the partition deed was registered subsequently. According to Indian Stamp Act, the small portion of the property after division is liable for revenue, with this ulterior motive to evade stamp duty and registration duty the partition deed was executed. After its execution small part of the property remained with the sellers. With the 3rd sale deed, this property was again sold to Smt. Sudha Gupta and others. These transactions were made to evade the stamp duty. Mr. G.K. Shakya, the Dy. Registrar deliberately omitted to take notice of these transactions. Had the "Roxy Talkies"

sold at once stamp duty could have imposed to the 3 M.Cr.C No.3468/2014 tune of Rs. 48,32,678/-. The accused persons connived to create forged documents and thereby committed offence under Sections 120-B, 420, 477- A of IPC read with Section 27 and 64 of Indian Stamp Act.

4. After hearing the parties concerned, the learned 1st A.S.J, Gwalior passed the impugned order on 10.3.2014 and discharged the accused persons for the offence under Section 477-A of IPC and held that there appears a prima facie case under Section 120-B, 420 of IPC read with Section 27 and 64 of Indian Stamp Act and remanded the case to the court of CJM, Gwalior with a direction to frame charge under Section 120-B, 420 IPC and Section 27 read with Section 64 of Indian Stamp Act and to decide the matter according to law.

5. Petitioners assailed the order on the ground that Section 64 of Indian Stamp Act provides punishment of fine to the extent of Rs. 5000/- only. Section 27 (1) & (2) of the Indian Stamp Act, 1899 does not have any role in the present context. Section 420 of IPC is also not attracted in the 4 M.Cr.C No.3468/2014 present facts and circumstances of the case. Prima facie the ingredients of offence of cheating is totally missing.

6. On 30.10.2008 by the registered sale deed, petitioners became the owners of 1/8th share of the property. Subsequently, after partition on 21.10.2008 the bigger share of the property came into the hands of the petitioners along with its assets and liabilities. Thereafter, vide a registered sale deed dated 5.1.2008 the remaining share of the sellers was purchased. At the best the transaction could be violative of Section 27 of the Act of 1899. The learned 1st ASJ utterly erred in remanding the matter back for framing charge under Section 420 of IPC. In the present case there is absence of any demand or promise from the side of the petitioners.

7. Learned counsel for the petitioners, relied upon the judgment in the case of State of Madhya Pradesh Vs. Martand Singh Ju Deva, Rewa reported in 1984 JLJ 328 and submitted that reference could be made by the Sub Registrar prior to registration of the document and not thereafter.

Meaning thereby, the prosecution initiated also could not have been initiated against the applicants after registration of the documents. The learned counsel for the petitioners also placed reliance on "Vijayander Kumar & others Vs. State of Rajasthan and others" reported in (2014) 3 SCC 389 and "Ravindra Kumar Vs. Rugmini Ram Raghav" reported in (2009) 11 SCC 529, wherein the Hon'ble Supreme Court has laid down the principles relating to exercise of jurisdiction under Section 482 of Cr.P.C to quash the complaint and criminal proceedings.

8. The counsel for the respondent / State, vehemently opposed the above proposition and submitted that as there has been a clear cut case of evading the stamps duty/registration fee the petitioners committed to defraud the government exchequer, the learned ASJ has rightly remanded the case for trial under Sections 120-B, 420 of IPC and under Section 27 read with Section 64 of Indian Stamp Act.

9. As it is conceded by the learned counsel for the petitioners that the Section 27 read with Section 64 of Indian Stamp Act,1899 may be applicable in this case, we are not adverting to this issue.

10. The relevant provisions are re-produced here for better understanding of the same:

S.120-B (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Section 420. Cheating and dishonestly inducing delivery of property-

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or 7 M.Cr.C No.3468/2014 any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The necessary ingredients of cheating and dishonestly inducing delivery of property is under :-

(i) There must be deception ie the accused must have deceived someone

(ii) That by the said deception. The accused must induce a person,

(a) to deliver any property; or

(b) to make , alter or destroy the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property.

(iii) That the accused did so dishonestly.

11. Keeping in mind the facts of this case, there is "no inducement" in the present case. Therefore, an important and essential ingredient of Section 420 of IPC is lacking.

12. The provisions of Section 64 of Indian Stamp Act, 1899 can be profitably reproduced:

64. Penalty for omission to comply with provisions of section 27- Any person who, with intent to defraud the Government,-

(a) executes any instrument in which all the facts and circumstances required by section 27 to be set forth in such instrument are not fully and truly set forth; or

(b) being employed or concerned in or about the preparation of any instruments, neglects or omits fully and truly to set forth therein all such facts and circumstances; or (C) does any other act calculated to deprive the Government of any duty or penalty under this Act, shall be punishable with fine which may extend to five thousand rupees.

Plain reading of the provision shows that prima facie there seems to be the applicability of this provision in the present case.

13. The learned counsel for the petitioners relied upon Shiji Alias Pappu and others Vs. Radhika and another (2011) 10 SCC 705, in which the Hon'ble Supreme Court has discussed about the plenitude of power of the High Court to quash the 9 M.Cr.C No.3468/2014 proceedings, it is observed by the Hon'ble Supreme Court:

Plenitude of power of High Court under to quash proceedings - Obligation of High Court in its exercise - Principles summarized - Held, plenitude of power under S. 482, by itself makes it obligatory for High Court to exercise the same with utmost care and caution - Width and nature of power itself demands that its exercise is sparing and only in cases where High Court is, for reasons to be recorded, of clear view that continuance of prosecution would be nothing but an abuse of process of law.

Another citation placed by the learned counsel for the petitioners Komalchand Vs. State (1965) JLJ 656 C.N 106 in which the Apex Court has held as under :

Stamp Act, 1899- Ss. 33 & 35 - document registered by the Registering Officer - after registration cannot enquire as to the value of the property covered by the document - deficit stamp duty cannot be ordered to be paid - the power of Registering Officer ends with the registration - M.P. Registration Manual

-Paras 231 and 232.

This citation is on different footing and is not applicable, as the registering authority has not opened the case after registration of the sale deed.

14. On the foregoing discussions, it would be asserted that continuing prosecution under Section 420 of IPC would be futile exercise. Section 482 of Cr.P.C would in such circumstances be justifiably invoked to prevent the abuse of process of law and thereby preventing the wasteful expenditure and time of the trial Court. Therefore, partly allowing this petition, the order dated 10.3.2014 passed by the learned 1st A.S.J, Gwalior in Criminal Case No. 170/2014 is quashed to the extent of framing of charge against the petitioners under Section 420 of IPC only. It is made clear that the other part of the order dated 10.3.14 shall remain in force.

(S.K. Palo) Judge dcs