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W.P.2431/2010
M.Cr.C.848/2010
HIGH COURT OF MADHYA PRADESH: JABALPUR
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri M.A.Siddiqui
WRIT PETITON NO.2431/2010
Dev Vrat Mishra, aged about 52 years
S/o Shri Ramesh Prasad Mishra,
residing at House No.945,
Shaki Nagar, Gupteshwar,
Jabalpur (M.P.)
.......Petitioner
-Versus-
1. State of Madhya Pradesh through
the Superintendent of Police, Office
of the Lokayukt Bhopal (M.P.)
2. The Superintendent of Police,
Special Police Establishment,
Office of the Lokayukt, Jabalpur
(M.P.)
.......Respondents
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For the petitioner: Shri Anil Khare, Advocate with Ku.Namrata
Kesharwani, Advocate.
For the respondent: Shri Aditya Adhikari, Advocate.
For the intervenor: Shri Kishore Shrivastava, Senior Advocate
with Shri Kapil Jain, Advocate.
--------------------------------------------------------------------------------------------------------
MISCELLANEOUS CRIMINAL CASE NO.848/2010
Surendra Kori, son of Late Shri
K.L.Kori, aged 47 years, occupation:
Sub-Registrar, then posted at Jabalpur,
R/o Flat No.B-6, Hemasha Apartment,
Near G.S.College, South Civil Lines,
Jabalpur, M.P.
........Petitioner
-Versus-
State of Madhya Pradesh, through
Special Police Establishment,
Lokayukt, Bhopal, M.P. .........Respondent
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M.Cr.C.848/2010
--------------------------------------------------------------------------------------------------------
For the petitioner : Shri Manish Datt with Shri Siddharth
Datt, Advocates.
For the respondent: Shri Aditya Adhikari, Advocate.
--------------------------------------------------------------------------------------------------------
Date of hearing: 21/09/2010
Date of Order: 04/10/2010
**********
ORDER
Per: Rakesh Saksena,J.
Since in both the cases petitioners have sought quashing
of the first information report dated 6.1.2010 leading to the
registration of Crime No.2/2010 and its investigation by Special
Police Establishment Lokayukt, Bhopal, this order shall govern the
disposal of both the cases.
2. Special Police Establishment, Lokayukt, Bhopal
registered the aforesaid first information report on 6.1.2010 against
the petitioners under sections 13(1)(d) read with section 13(2) of the
Prevention of Corruption Act, 1988 and sections 420 and 120-B of
the Indian Penal Code. According to F.I.R, complainant Rashmi
Pathak submitted a written report to Lokayukt, Bhopal on 12.5.2009.
After verification, Special Police registered the F.I.R. containing
accusation that Dev Vrat Mishra, the then DSP Lokayukt, Jabalpur
purchased house No.945 situated at Gulab Singh ward, Jabalpur
from one N.Vijayan. In the sale deed, area of the house was shown as
1736 sq.ft. and the stamp duty of Rs.74,025/- was paid. On
verification, it was revealed that the area of the house was in fact
2454 sq.ft. On the sale deed, stamp duty of Rs.1,03,459/- ought to
have been paid whereas Dev Vrat Mishra in conspiracy with Sub-
Registrar Surendra Kori paid the stamp duty only of Rs.74,025/-. On
verification from the Public Works Department, Jabalpur, it was
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found that the constructed area of the three floors of the house was
also mentioned less in the sale deed with a view to evade the
requisite stamp duty payable on the sale deed. After declaring the
value of Rs.7 lacs, the registration and other fees were paid only to
the tune of Rs.74,025/- whereas according to prevalent guidelines
issued by Collector, Jabalpur in the year 2002 total stamp duty and
registration fee etc. Rs.1,03,459/- were required to be paid. Thus,
accused Dev Vrat Mishra and Sub-Registrar Surendra Kori
deliberately caused financial loss of Rs.29,434/- to State. Dev Vrat
Mishra, thus, obtained pecuniary advantage of Rs.29,434/-.
According to first information report, Dev Vrat Mishra, the then DSP
Special Police Establishment, Lokayukt entered into conspiracy with
Surendra Kori, the then Sub-Registrar and by abusing his position as
public servant obtained pecuniary advantage and caused loss to
State Exchequer of Rs.29,434/-, therefore, both the accused
committed offences under sections 13(1)(d) read with section 13(2)
of the Prevention of Corruption Act, 1988 and sections 420 and 120-
B of the Indian Penal Code.
3. Learned counsel for the petitioner Dev Vrat Mishra
contended that the aforesaid first information report was registered
by Special Police Establishment on being referred by Lokayukt,
Bhopal as complainant Smt. Rashmi Pathak had submitted a
complaint to Lokayukt making number of allegations against him. It
was alleged that Dev Vrat Mishra was illegally posted as DSP SPE
Lokayukt in conspiracy with the then Superintendent of Police
Lokayukt, Sagar in contravention of “Madhya Pradesh Police
Executive (Gazetted) Services Recruitment & Promotion Rules, 2000
and that he had collected huge wealth disproportionate to known
source of his income. He had purchased a splendid house worth
Rs.20 lacs by showing its price only Rs.7 lacs. This complaint of
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allegations was filed by Rashmi Pathak in Form-I described under
M.P. Lokayukt Evam Up-Lokayukt (Investigation) Rules,1982.
Learned counsel submitted that FIR was registered mechanically
without applying the mind that no ingredients of the offence under
which the first information was registered were present. When the
complaint was made to Lokayukt, he had to make an enquiry and
submit his report to the competent authority under section 12 of
M.P.Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (for brevity
referred to as “Lokayukt Adhiniyam”). In view of the provision of
section 8(c) of Lokayukt Adhiniyam, Lokayukt was debarred from
initiating the enquiry in the present case because the complaint by
Rashmi Pathak was made to him after expiration of the period of 5
years from the date of execution of sale deed which was executed on
15.4.2002. He further submitted that Lokayukt did not comply with
the provision of section 10 of the Lokayukt Adhiniyam and did not
give any opportunity to petitioner to explain about the accusation
made against him. Thus, it contravened the principles of natural
justice. Learned counsel referring to Rule 16 of M.P.Lokayukt Evam
Up-Lokayukt (Investigation) Rules, 1982, submitted that when
Lokayukt or Up-Lokayukt conducts an investigation under the Act,
he is bound to serve a copy of the complaint or statement of the
grounds of investigation on public servant concerned and afford
reasonable opportunity to him or his authorised representative to
inspect the copy of affidavit or complaint or other documents which
may be filed in support of the complaint, affidavit or statement. Since
the aforesaid legal requirements were not complied by Lokayukt and
prima facie no ingredients for constituting the offence under sections
13(1)(d) read with section 13(2) of the Prevention of Corruption Act
and sections 420 and 120-B of I.P.C. were present in the facts and
circumstances brought on record, the first information report and
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the investigation pending against the petitioner was liable to be
quashed.
4. Shri Anil Khare, referring to I.A.No.9101/2010,
submitted that petitioner on coming to know that the constructed
area of the house was slightly more than what had been shown in the
sale deed at the time of its execution, submitted an application to the
District Registrar, Jabalpur for getting the inspection of the house
done. On this application, the Collector of Stamps directed
registration of a case under section 47-A(3) of the Indian Stamp Act
on 6.1.2010. The said application is still pending.
5. Shri Manish Datt, learned counsel for the petitioner
Surendra Kori, Sub-Registrar, submitted that market value of the
said house was assessed as per Government guidelines. There was
no evidence that petitioner Sub-Registrar conspired with Dev Vrat
Mishra to provide him advantage and to cause financial loss to
State. The facts as stated in the first information report if taken in
their entirety, do not disclose the commission of offence under
section 13(1)(d) r/w 13(2) of Prevention of Corruption Act and
sections 420, 120-B of the Indian Penal Code. The necessary
ingredients to constitute the aforesaid offences against Surendra
Kori were completely missing in the facts of the case.
6. Shri Aditya Adhikari, learned counsel for SPE Lokayukt
and Shri Kishore Shrivastava, learned Senior Advocate for
complainant Rashmi Pathak submitted that in view of the allegations
made by the complainant and the evidence collected by the police a
prima facie case for prosecution of the petitioners has been made
out, therefore, the first information report and the investigation
against the petitioners cannot be quashed.
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7. We have heard the learned counsel for the parties and
perused the case diary produced by the learned counsel for SPE-
Lokayukt and other material on record.
8. In support of his contentions some documents have been
filed by petitioner Dev Vrat Mishra along with the petition, but
learned counsel for respondents contended that at the stage of
investigation any document which does not form part of prosecution
evidence, cannot be considered. In State of M.P. Vs. Awadh
Kishore Gupta and others (2004)1 SCC 691, Apex Court held
that when investigation was not complete, it was impermissible for
the High Court to look into materials, the acceptability of which is
essentially a matter for trial. While exercising jurisdiction under
section 482 of the Code, it is not permissible for the Court to act as if
it was a trial Judge. Even when charge is framed at that stage, the
Court has to only prima facie be satisfied about existence of
sufficient ground for proceeding against the accused. Apex Court
approved the observations made by it in Chand Dhawan Vs.
Jawahar Lal (1992) 3 SCC 317) that the Court should not act on
annexures to the petitions under section 482 of the Code, which
cannot be termed as evidence without being tested and proved. In
State of Orissa Vs. Debendra Nath Padhi (AIR 2005 SC 359),
Supreme Court expressed its view that at the time of framing charge
or taking cognizance accused has no right to produce any material.
In Rukmini Narvekar Vs. Vijaya Satardekar and others (2008)
14 SCC 1), two judges bench of Apex Court observed: “22. Thus, in
our opinion, while it is true that ordinarily defence material cannot
be looked into by the Court while framing of the charge in view of
D.N.Padhi case, there may be some very rare and exceptional cases
where some defence material when shown to the trial Court would
convincingly demonstrate that the prosecution version is totally
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absurd or preposterous, and in such very rare cases the defence
material can be looked into by the court at the time of framing of the
charges or taking cognizance. In our opinion, therefore, it cannot be
said as an absolute proposition that under no circumstances can the
court look into the material produced by the defence at the time of
framing of the charges, though this should be done in very rare cases
i.e. where the defence produces some material which convincingly
demonstrates that the whole prosecution case is totally absurd or
totally concocted.” However, in para 38 which expressed the opinion
of Hon’ble Justice Shri Altamas Kabir, it was observed: “In my view,
therefore, there is no scope for the accused to produce any evidence
in support of the submissions made on his behalf at the stage of
framing of charge and only such materials as are indicated in Section
227 Cr.P.C. can be taken into consideration by the learned
Magistrate at that stage. However, in a proceeding taken therefrom
under Section 482 CrPC the court is free to consider material that
may be produced on behalf of the accused to arrive at a decision
whether the charge as framed could be maintained. This, in my view,
appears to be the intention of the legislature in wording Sections 227
and 228 the way in which they have been worded and as explained in
Debendra Nath Padhi case by the larger Bench therein to which the
very same question had been referred.”
9. On due consideration of the above proposition of law as
enunciated by the Apex Court, it appears to us that High Court may
consider material that may be produced on behalf of accused while
exercising power under section 482 Cr.P.C. to arrive at a decision
whether the charge as framed could be maintained. Thus, such
material can be considered under section 482 Cr.P.C. when a
challenge has been made to the order of framing charge by the trial
Court. In the present case, however, situation is otherwise; the
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charge sheet is yet to be filed, therefore, the annexures filed by the
petitioners cannot be considered. We are conscious that petitioner
Dev Vrat Mishra has filed this petition under Article 226/227 of the
Constitution of India, but in our opinion, the settled position of law
cannot be disturbed to permit an accused to produce evidence in his
defence before the investigation is complete and charge sheet is
filed.
10. Section 7 of Lokayukt Adhiniyam provides that subject to
the provisions of the Act, on receiving complaint or other
information, Lokayukt may proceed to enquire into an allegation
made against a public servant in relation to whom the Chief Minister
is the competent authority and the Up-Lokayukt may proceed to
enquire into such allegation against any other public servant.
Provided Lokayukt may enquire into an allegation made against any
public servant in relation to whom the Chief Minister is not the
competent authority. Explanation attached to section 7 clarifies that
expressions “may proceed to inquire” and “may inquire” include
investigation by police agency put at the disposal of Lokayukt and
Up-Lokayukt in pursuance of sub-section (3) of section 13. Sub-
section (3) of section 13 empowers Lokayukt or Up-Lokayukt for the
purpose of conducting enquiries under the Act to utilize the services
of (i) Divisional Vigilance Committee constituted under Section 13-A;
(ii) any officer or investigation agency of the State or Central
Government with the concurrence of that Government; or (iii) any
other person or agency.
11. Under M.P. Special Police Establishment Act, 1947,
Special Police force has been constituted by the State of Madhya
Pradesh for the investigation of certain offences affecting the public
administration. By virtue of section 4 of the said Act, the
Superintendence of investigation by M.P. Special Police
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Establishment vests in the Lokayukt appointed under M.P. Lokayukt
Adhiniyam. Thus, the Special Police Establishment can be utilised by
Lokayukt for the purpose of conducting inquiry under the Act.
12. Section 8 of Lokayukt Adhiniyam puts restriction on the
power of Lokayukt or Up-Lokayukt which reads as under:
8. Matter not subject to enquiry.- The Lokayukt or
an Up-Lokayukt shall not inquire into any matter.-
(a) in respect of which a formal and public inquiry has
been ordered under the Public Servants (Inquiries) Act,
1950 (No.37 of 1950);
(b) which has been referred for inquiry under the
Commission of Inquiry Act, 1952 (No.60 of 1952); or
(c ) relating to an allegation against a public servant, if
the complaint is made after expiration of a period of five
years from the date on which the conduct complained
against is alleged to have been committed.
13. Learned counsel for the petitioners argued that since the
cause of action against them was the sale deed which was
undervalued, no inquiry by Lokayukt could have been initiated
because the said sale deed was executed in the year 2002 and the
complaint in respect to said sale deed was made in the year 2009. On
perusal of the complaint submitted to Lokayukt in Form-I by Smt.
Rashmi Pathak, it appears that complaint referred to the acquisition
of huge wealth disproportionate to the known source of income of
Dev Vrat Mishra and many other matters besides the allegation that
he purchased a house worth Rs.20 lacs by showing its price only Rs.
7 lacs. If on verification of the complaint, it was disclosed to Special
Police Lokayukt that some offence was disclosed, in our opinion, the
police cannot be held to be powerless to register the F.I.R. and
proceed with the investigation.
14. In the present case, on perusal of first information report
of Crime No.2/2010, it is revealed that it was registered against the
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petitioners only on the accusation that they conspired to undervalue
the house purchased by petitioner Dev Vrat Mishra and evaded
stamp duty causing loss of Rs.29,434/- to State and thereby they
obtained pecuniary advantage by abusing their positions as public
servants and cheated the Government. Perusal of the evidence
collected by police further indicates that except the aforesaid
allegations no other aspect was taken into consideration by it. There
is nothing in the case diary to indicate that police proceeded to
investigate the allegation of amassing the property or pecuniary
resources by the petitioner disproportionate to his known source of
income.
15. In section 10 of Lokayukt Adhiniyam, it has been
provided that Lokayukt or Up-Lokayukt shall, in each case before it,
decide the procedure to be followed for making the enquiry and in so
doing ensure that the principles of natural justice are satisfied. Since
in the case in hand, Special Police Establishment registered a F.I.R.
and proceeded for investigation, it cannot be held that it was an
inquiry by Lokayukt. Had Lokayukt proceeded to inquire into the
allegations made in the complaint in Form-I by the complainant, it
would have been incumbent on him to ensure that the principles of
natural justice were satisfied. In our opinion merely on the ground of
expiry of five years after the date on which the conduct complained
against a public servant, as alleged to have been committed, it
cannot be held that even on disclosure of the commission of a crime,
Lokayukt or Up-Lokayukt was debarred to refer the matter to Special
Police Establishment for verification. If Special Police found that a
crime had been committed it was well in its power to register the
F.I.R. and investigate the same. Once the first information report is
registered by the police, it would be free to investigate the matter
and conclude it by filing final report under section 173 of the Code of
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Criminal Procedure. The jurisdiction of Lokayukt to inquire into the
allegations made against a public servant on receiving a complaint or
other information is altogether different. Even for inquiry,
investigation by police agency put at the disposal of Lokayukt can be
sought. The inquiry by Lokayukt culminates into a report under
section 12 of the “Lokayukt Adhiniyam” to the ‘competent authority’
defined under section 2(h) of “Lokayukt Ahiniyam”.
16. Since the petitioners have challenged the registration of
the first information report of Crime No.2/2010 under sections 13(1)
(d) r/w 13(2) of the Prevention of Corruption Act and sections 420
and 120-B of the Indian Penal Code, we have to evaluate only the
allegations made in the F.I.R. and the material collected against
them during investigation.
17. Crux of the first information report and the evidence
collected during investigation is that petitioner Dev Vrat Mishra in
conspiracy with Sub Registrar Surendra Kori undervalued the house
and paid only Rs. 74,025/- towards stamp duty and taxes etc.
whereas on verification from the PWD Jabalpur, it was disclosed that
constructed area of the house was not correctly shown in the map
and sale deed. Dev Vrat Mishra was legally required to pay stamp
duty etc. of Rs.1,03,459/-. And Surendra Kori without making any
spot inspection, accepted the valuation given by Dev Vrat Mishra and
permitted him to obtain advantage of Rs.29,434/-. They, thus, caused
loss to State. It was said that at that time Dev Vrat Mishra was DSP
in SPE Lokayukt and Surendra Kori was Sub Registrar, therefore,
they abused their positions as public servants and cheated the State.
18. The contention of the learned counsel for petitioner Dev
Vrat Mishra that at time of registration of the sale deed petitioner
was not posted as DSP, Lokayukt finds support from the case diary
wherein it has been indicated that on 15.4.2002 when the impugned
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sale deed was executed, he was not posted in Special Police
Establishment Lokayukt; he was posted as Company Commander in
P.T.S.Umaria, Shahdol. This fact is substantiated by letter dated
25.1.2010 addressed to Superintendent of Police, SPE from
Superintendent of Police, Jabalpur. Thus, the allegation made in the
first information report that Dev Vrat Mishra abused his position as
DSP Lokayukt prima facie does not appear correct. Learned counsel
for the petitioners submitted that valuation given in the document
(sale deed) may be less than actual market value, but in such
circumstances matter may be referred to the Collector for
determination of the market value of the property and the proper
duty payable thereon. Section 47-A of the Indian Stamp Act, 1899 as
inserted for Madhya Pradesh provides:
47-A. Instruments undervalued how to be dealt with.-
If the registering officer appointed under the Registration
Act, 1908 (No.XVI of 1908) while registering any
instrument has reason to believe that the market value of
the property which is the subject- matter of such
instrument has not been truly set-forth in the instrument,
he may, after registering such instrument, refer the same
to the Collector for determination of market value of such
property and the proper duty payable thereon.
(2) On receipt of a reference under sub-section (1), the
Collector shall, after giving the parties a reasonable
opportunity of being heard and after holding 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 purpose 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
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reason to believe that the market value of 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 nothing 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.
(4) Any 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 or transfer it to
the Additional Commissioner of the Division.
(5) ……….. …………. ……….. ……… ……………..
(6) ………. ………… ……….. ……….. ……………..
(7) ……… ………… …………. ………. ……………..
(8) ……… ……….. ………… …………. …………….
19. Learned counsel for the petitioner Surendra Kori, Sub-
Registrar submitted that on 15.4.2002 itself petitioner had detected
that the sale deed was not valued according to prevalent guidelines.
He had recorded this fact in the Minute Book of the year 2002-03 of
the Office of Sub-Registrar, Jabalpur. On page 89 of the book of
15.4.2002 particulars about spot inspection of the house situated in
Gulab Singh ward were recorded. This Minute Book was seized by
the police on 27.1.2010. A copy of the seizure memo and the extract
of the book reveals that the proposed valuation of the house was
Rs.8,27,500/-. However, according to valuation done by Special
Police Establishment, Lokayukt, the valuation of the house was of Rs.
10,30,488/-, therefore, the required stamp duty was Rs.1,03,459/-.
Thus, stamp duty was paid less to the tune of Rs.29,434/-.
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20. After perusal of the statements of witnesses recorded by
the police during investigation and the documents collected by it, it
appears that the cause of action against the petitioners was that the
valuation of the house was not correctly done and stamp duty was
paid less. It is true that if the property was undervalued, it resulted
in loss to State Exchequer, but the question is whether the act of the
petitioners constituted the offences as alleged by the police. Section
13(1)(d) of Prevention of Corruption Act,1988 reads as under:-
13. Criminal misconduct by a public servant.- (1) A
public servant is said to commit the offence of criminal
misconduct,-
(a) …. … ….. …….. ……… ………
(b) ……. …….. ….. ……… …….. ……….. ………….. ………. …
(c) ….. ………… ……… …………. …………… ……….. ….
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for
any other person any valuable thing or pecuniary
advantage,: or
(ii) by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public servant, obtains for
any person any valuable thing or pecuniary advantage
without any public interest; or
21. It is on record in the case diary that at the relevant time
petitioner Dev Vrat Mishra was not posted as DSP, SPE Lokayukt,
Jabalpur, therefore, it does not appear that he could have abused his
that position at the relevant time. There is absolutely no evidence in
the case diary to indicate that Dev Vrat Mishra or Surendra Kori
abused their positions or indulged in corrupt or illegal means to
obtain the pecuniary advantage as public servants. Merely because
Dev Vrat Mishra was a public servant, it cannot be inferred that he
abused his position as a public servant if he sought execution and
registration of sale deed wherein property was undervalued. If the
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contention of learned counsel for the State is accepted then in every
case where a sale deed is executed which is undervalued and vendor
or vendee is public servant, he would be liable to be prosecuted
under section 13(1)(d) of the Prevention of Corruption Act. In our
opinion, it would be a preposterous proposition which cannot be
accepted. In C.K.Damodaran Nair vs. Govt. of India (1997) 9
SCC 477) the Apex Court observed that “The position will, however,
be different so far as an offence under Section 5(1)(d) read with
section 5(2) of the Act is concerned. For such an offence prosecution
has to prove that the accused “obtained” the valuable thing or
pecuniary advantage by corrupt or illegal means or by otherwise
abusing his position as a public servant and that too without the aid
of statutory presumption under Section 4(1) of the Act.” Same
proposition was reiterated by the Apex Court in R.Balakrishna
Pillai Vs. State of Kerala (2003) 9 SCC 700). In the aforesaid
circumstances, we are of considered view that there is absolutely no
material in the case diary to indicate that petitioners abused their
positions as public servants to obtain pecuniary advantage. Even if
the evidence collected by the prosecution is taken as it is, it cannot
be concluded that the petitioners abused their positions as public
servants to obtain the pecuniary advantage.
22. For the offence punishable under section 420 of the
Indian Penal Code, it is required to be seen whether prima facie
ingredients constituting the offence are made out. Definition of
“cheating” is provided under section 415 of the Indian Penal Code
which reads as under:-
415. Cheating.
“Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
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intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived,
and which act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property, is said to
“cheat”. “Deceiving” means causing to believe what is false or
misleading as to a matter of fact or leading into error. Whenever a
person fraudulently represents as an existing fact, that which is not
an existing fact,he commits deception. The person cheated must
have been intentionally induced to do an act which he would not
have done, but for the deception practiced on him. The intention at
the time of the offence and the consequence of the act or omission
has to be considered.
23. It is true that offence of cheating as defined cannot be
made out where there is no evidence to show that accused had an
intention of causing damage or harm by his act or that his act was
likely to cause damage or harm to the deceived person in body,
mind, reputation or property. To hold a person guilty of offence of
cheating, it is required to be shown and proved that an intention of
cheating was in existence at very inception.
24. As far as the material collected during investigation, in
the present case, it is prima facie on record that sale deed sought to
be registered, did not depict the correct picture of the property and
the house sought to be sold was undervalued. The valuation and the
constructed area of the house described by petitioner Dev Vrat
Mishra were different than the value of the house sought to be
proved by the prosecution. It prima facie appears from the
allegations and the material in the case diary that a loss of stamp
duty of Rs.29,434/- was caused to State by the act of petitioners. At
this stage of investigation, it cannot be held that they had no guilty
intention, though it has to be established by the prosecution at
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appropriate stage of the trial. A presumption or an inference that
the petitioners had no mens rea of causing loss to State, by not
paying the requisite stamp duty, by undervaluing the house in
question, cannot, at this stage be raised. As far as proof of
conspiracy i.e. offence under section 120-B of the Indian Penal Code
is concerned, there cannot be direct evidence always, it can be
proved by the circumstantial evidence also. In our opinion, the
evidence about the existence of conspiracy between the two
petitioners cannot be appreciated at this stage.
25. The Hon’ble Apex Court while dealing with the power
conferred under Section 482 of Cr.P.C. in the leading case of State
of Haryana and others Vs. Bhajan Lal and others, AIR 1992 SC
604 held as under :-
“In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above. We give the following categories of
cases by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any Court or otherwise to
secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined any sufficiently channelized and
inflexible guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases, wherein such power should be exercise.”
1. Where the allegations made in the First Information
Report or the complaint, even if they are taken at their face value
and accepted in their entirely do not prima facie constitute any
offence or make out a case against the accused.
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2. Where the allegations in the First Information Report
and other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers,
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR
or complaint any of the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
4. Where the allegations in the FIR do not constitute a
cognizable offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under Section
155(2) of the Code.
5. Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and continuance
of the proceedings and or where there is a specific provision in the
Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with
mala fide and or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.
26. In view of the aforesaid decision, petitioners’ case in
respect to offence under section 13(1)(d) read with section 13(2) of
the Prevention of Corruption Act falls in clause (3) as the
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uncontroverted allegations made in the F.I.R. or the evidence
collected in support of the same do not disclose the commission of
the said offence. However, the accusation under sections 420 and
120-B of the Indian Penal Code cannot be said to be without any
substance.
27. The submission made by the learned counsel for the
petitioners that the criminal proceedings were instituted maliciously
on the behest of complainant Rashmi Pathak, therefore, F.I.R. and
the investigation deserved to be quashed, cannot be accepted. Apex
Court in the case of M/s Zandu Pharmaceutical Works Ltd. and
others vs. Md. Sharaful Haque and others( AIR 2005 SC 9)
observed that when an information is lodged at the police station and
an offence is registered, then the mala fides of the informant would
be of secondary importance. It is the material collected during the
investigation and evidence led in Court which decides the fate of the
accused person. The allegations of mala fides against the informant
are of no consequence and cannot by themselves be the basis for
quashing the proceedings.
28. In view of the above discussions, we are of the view that
the commission of offence under section 13(1)(d) read with 13(2) of
the Prevention of Corruption Act is not disclosed from the first
information report as well as from the material collected during
investigation. As such the F.I.R. as well as further investigation with
respect to offence under section 13(1)(d) read with section 13(2) of
the Prevention of Corruption Act is erroneous and is liable to be
quashed. However, the investigation with respect to offence under
sections 420 and 120-B of the Indian Penal Code cannot be quashed.
29. In the result, both the petitions (W.P.No.2431/2010
and M.Cr.C.No.848/2010) are partly allowed. Registration of first
information report and the investigation with respect to offence
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under section 13(1)(d) read with section 13(2) against the petitioners
is quashed.
30. Before parting we make it clear that this order shall not
affect any enquiry, investigation or proceedings, if any, pending
before Special Police Establishment or Lokayukt in respect to other
allegations made by the complainant against petitioner Dev Vrat
Mishra.
(Rakesh Saksena) (M.A.Siddiqui)
Judge Judge
b
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