{"id":80057,"date":"2010-10-04T00:00:00","date_gmt":"2010-10-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dev-vrat-mishra-vs-the-state-of-madhya-pradesh-on-4-october-2010"},"modified":"2017-03-25T13:29:03","modified_gmt":"2017-03-25T07:59:03","slug":"dev-vrat-mishra-vs-the-state-of-madhya-pradesh-on-4-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dev-vrat-mishra-vs-the-state-of-madhya-pradesh-on-4-october-2010","title":{"rendered":"Dev Vrat Mishra vs The State Of Madhya Pradesh on 4 October, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Dev Vrat Mishra vs The State Of Madhya Pradesh on 4 October, 2010<\/div>\n
                                                 (1)\n                                                                                      W.P.2431\/2010\n                                                                                     M.Cr.C.848\/2010\n\n\n\n              HIGH COURT OF MADHYA PRADESH: JABALPUR\n\n\n       Division Bench: Hon'ble Justice Shri Rakesh Saksena\n                       Hon'ble Justice Shri M.A.Siddiqui\n\n\n                          WRIT PETITON NO.2431\/2010\n\n\n                 Dev Vrat Mishra, aged about 52 years\n                 S\/o Shri Ramesh Prasad Mishra,\n                 residing at House No.945,\n                 Shaki Nagar, Gupteshwar,\n                 Jabalpur (M.P.)\n\n                                                                                .......Petitioner\n\n                                   -Versus-\n\n           1. State of Madhya Pradesh through\n              the Superintendent of Police, Office\n              of the Lokayukt Bhopal (M.P.)\n\n           2. The Superintendent of Police,\n              Special Police Establishment,\n              Office of the Lokayukt, Jabalpur\n              (M.P.)\n\n                                                                            .......Respondents\n\n--------------------------------------------------------------------------------------------------------\n\n      For the petitioner:              Shri Anil Khare, Advocate with Ku.Namrata\n                                       Kesharwani, Advocate.\n       For the respondent: Shri Aditya Adhikari, Advocate.\n       For the intervenor: Shri Kishore Shrivastava, Senior Advocate\n                                       with Shri Kapil Jain, Advocate.\n--------------------------------------------------------------------------------------------------------\n\n\n           MISCELLANEOUS CRIMINAL CASE NO.848\/2010\n\n\n                 Surendra Kori, son of Late Shri\n                 K.L.Kori, aged 47 years, occupation:\n                 Sub-Registrar, then posted at Jabalpur,\n                 R\/o Flat No.B-6, Hemasha Apartment,\n                 Near G.S.College, South Civil Lines,\n                 Jabalpur, M.P.\n                                                                             ........Petitioner\n\n                          -Versus-\n\n                 State of Madhya Pradesh, through\n                 Special Police Establishment,\n                 Lokayukt, Bhopal, M.P.                                     .........Respondent\n                                                  (2)\n                                                                                      W.P.2431\/2010\n                                                                                     M.Cr.C.848\/2010\n\n\n\n--------------------------------------------------------------------------------------------------------\n\n        For the petitioner :               Shri Manish Datt with Shri Siddharth\n                                           Datt, Advocates.\n        For the respondent:                Shri Aditya Adhikari, Advocate.\n\n--------------------------------------------------------------------------------------------------------\n\n                                            Date of hearing:                    21\/09\/2010\n                                            Date of Order:                      04\/10\/2010\n\n                                            **********\n\n                                           ORDER\n<\/pre>\n
Per: Rakesh Saksena,J.\n<\/p>\n<\/p>\n
                 Since in both the cases petitioners have sought quashing<\/p>\n
of the first information report dated 6.1.2010 leading to the<\/p>\n
registration of Crime No.2\/2010 and its investigation by Special<\/p>\n
Police Establishment Lokayukt, Bhopal, this order shall govern the<\/p>\n
disposal of both the cases.\n<\/p>\n
2.               Special         Police        Establishment,             Lokayukt,           Bhopal<\/p>\n
registered the aforesaid first information report on 6.1.2010 against<\/p>\n
the petitioners under sections 13(1)(d) read with section 13(2) of the<\/p>\n
Prevention of Corruption Act, 1988 and sections 420 and 120-B of<\/p>\n
the Indian Penal Code. According to F.I.R, complainant Rashmi<\/p>\n
Pathak submitted a written report to Lokayukt, Bhopal on 12.5.2009.<\/p>\n
After verification, Special Police registered the F.I.R. containing<\/p>\n
accusation that Dev Vrat Mishra, the then DSP Lokayukt, Jabalpur<\/p>\n
purchased house No.945 situated at Gulab Singh ward, Jabalpur<\/p>\n
from one N.Vijayan. In the sale deed, area of the house was shown as<\/p>\n
1736 sq.ft. and the stamp duty of Rs.74,025\/- was paid. On<\/p>\n
verification, it was revealed that the area of the house was in fact<\/p>\n
2454 sq.ft. On the sale deed, stamp duty of Rs.1,03,459\/- ought to<\/p>\n
have been paid whereas Dev Vrat Mishra in conspiracy with Sub-<\/p>\n
Registrar Surendra Kori paid the stamp duty only of Rs.74,025\/-. On<\/p>\n
verification from the Public Works Department, Jabalpur, it was
\n                                    (3)<\/span>
\n                                                               W.P.2431\/2010
\n                                                              M.Cr.C.848\/2010<\/p>\n
found that the constructed area of the three floors of the house was<\/p>\n
also mentioned less in the sale deed with a view to evade the<\/p>\n
requisite stamp duty payable on the sale deed. After declaring the<\/p>\n
value of Rs.7 lacs, the registration and other fees were paid only to<\/p>\n
the tune of Rs.74,025\/- whereas according to prevalent guidelines<\/p>\n
issued by Collector, Jabalpur in the year 2002 total stamp duty and<\/p>\n
registration fee etc. Rs.1,03,459\/- were required to be paid. Thus,<\/p>\n
accused   Dev     Vrat    Mishra   and   Sub-Registrar   Surendra       Kori<\/p>\n
deliberately caused financial loss of Rs.29,434\/- to State. Dev Vrat<\/p>\n
Mishra,   thus,   obtained    pecuniary    advantage     of    Rs.29,434\/-.<\/p>\n
According to first information report, Dev Vrat Mishra, the then DSP<\/p>\n
Special Police Establishment, Lokayukt entered into conspiracy with<\/p>\n
Surendra Kori, the then Sub-Registrar and by abusing his position as<\/p>\n
public servant obtained pecuniary advantage and caused loss to<\/p>\n
State   Exchequer    of   Rs.29,434\/-,   therefore,   both    the   accused<\/p>\n
committed offences under sections 13(1)(d) read with section 13(2)<\/p>\n
of the Prevention of Corruption Act, 1988 and sections 420 and 120-<\/p>\n
B of the Indian Penal Code.\n<\/p>\n
3.         Learned counsel for the petitioner Dev Vrat Mishra<\/p>\n
contended that the aforesaid first information report was registered<\/p>\n
by Special Police Establishment on being referred by Lokayukt,<\/p>\n
Bhopal as complainant Smt. Rashmi Pathak had submitted a<\/p>\n
complaint to Lokayukt making number of allegations against him. It<\/p>\n
was alleged that Dev Vrat Mishra was illegally posted as DSP SPE<\/p>\n
Lokayukt in conspiracy with the then Superintendent of Police<\/p>\n
Lokayukt, Sagar in contravention of “Madhya Pradesh Police<\/p>\n
Executive (Gazetted) Services Recruitment & Promotion Rules, 2000<\/p>\n
and that he had collected huge wealth disproportionate to known<\/p>\n
source of his income. He had purchased a splendid house worth<\/p>\n
Rs.20 lacs by showing its price only Rs.7 lacs. This complaint of
\n                                  (4)<\/span>
\n                                                            W.P.2431\/2010
\n                                                           M.Cr.C.848\/2010<\/p>\n
allegations was filed by Rashmi Pathak in Form-I described under<\/p>\n
M.P.   Lokayukt   Evam    Up-Lokayukt    (Investigation)    Rules,1982.<\/p>\n
Learned counsel submitted that FIR was registered mechanically<\/p>\n
without applying the mind that no ingredients of the offence under<\/p>\n
which the first information was registered were present. When the<\/p>\n
complaint was made to Lokayukt, he had to make an enquiry and<\/p>\n
submit his report to the competent authority under section 12 of<\/p>\n
M.P.Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (for brevity<\/p>\n
referred to as “Lokayukt Adhiniyam”). In view of the provision of<\/p>\n
section 8(c) of Lokayukt Adhiniyam, Lokayukt was debarred from<\/p>\n
initiating the enquiry in the present case because the complaint by<\/p>\n
Rashmi Pathak was made to him after expiration of the period of 5<\/p>\n
years from the date of execution of sale deed which was executed on<\/p>\n
15.4.2002. He further submitted that Lokayukt did not comply with<\/p>\n
the provision of section 10 of the Lokayukt Adhiniyam and did not<\/p>\n
give any opportunity to petitioner to explain about the accusation<\/p>\n
made against him. Thus, it contravened the principles of natural<\/p>\n
justice. Learned counsel referring to Rule 16 of M.P.Lokayukt Evam<\/p>\n
Up-Lokayukt (Investigation) Rules, 1982, submitted that when<\/p>\n
Lokayukt or Up-Lokayukt conducts an investigation under the Act,<\/p>\n
he is bound to serve a copy of the complaint or statement of the<\/p>\n
grounds of investigation on public servant concerned and afford<\/p>\n
reasonable opportunity to him or his authorised representative to<\/p>\n
inspect the copy of affidavit or complaint or other documents which<\/p>\n
may be filed in support of the complaint, affidavit or statement. Since<\/p>\n
the aforesaid legal requirements were not complied by Lokayukt and<\/p>\n
prima facie no ingredients for constituting the offence under sections<\/p>\n
13(1)(d) read with section 13(2) of the Prevention of Corruption Act<\/p>\n
and sections 420 and 120-B of I.P.C. were present in the facts and<\/p>\n
circumstances brought on record, the first information report and
\n                                       (5)<\/span>
\n                                                                    W.P.2431\/2010
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the investigation pending against the petitioner was liable to be<\/p>\n
quashed.\n<\/p>\n
4.             Shri   Anil   Khare,      referring      to    I.A.No.9101\/2010,<\/p>\n
submitted that petitioner on coming to know that the constructed<\/p>\n
area of the house was slightly more than what had been shown in the<\/p>\n
sale deed at the time of its execution, submitted an application to the<\/p>\n
District Registrar, Jabalpur for getting the inspection of the house<\/p>\n
done.    On    this   application,   the    Collector    of   Stamps    directed<\/p>\n
registration of a case under section 47-A(3) of the Indian Stamp Act<\/p>\n
on 6.1.2010. The said application is still pending.<\/p>\n
5.             Shri Manish Datt, learned counsel for the petitioner<\/p>\n
Surendra Kori, Sub-Registrar, submitted that market value of the<\/p>\n
said house was assessed as per Government guidelines. There was<\/p>\n
no evidence that petitioner Sub-Registrar conspired with Dev Vrat<\/p>\n
Mishra to provide him advantage and to cause financial                  loss   to<\/p>\n
State. The facts as stated in the first information report if taken in<\/p>\n
their entirety, do not disclose the commission of offence under<\/p>\n
section 13(1)(d) r\/w 13(2) of Prevention of Corruption Act and<\/p>\n
sections 420, 120-B of the Indian Penal Code. The necessary<\/p>\n
ingredients to constitute the aforesaid offences against Surendra<\/p>\n
Kori were completely missing in the facts of the case.<\/p>\n
6.             Shri Aditya Adhikari, learned counsel for SPE Lokayukt<\/p>\n
and     Shri   Kishore    Shrivastava,      learned     Senior   Advocate      for<\/p>\n
complainant Rashmi Pathak submitted that in view of the allegations<\/p>\n
made by the complainant and the evidence collected by the police a<\/p>\n
prima facie case for prosecution of the petitioners has been made<\/p>\n
out, therefore, the first information report and the investigation<\/p>\n
against the petitioners cannot be quashed.\n<\/p>\n
                                   (6)<\/span><\/p>\n
                                                            W.P.2431\/2010
\n                                                           M.Cr.C.848\/2010<\/p>\n
7.          We have heard the learned counsel for the parties and<\/p>\n
perused the case diary produced by the learned counsel for SPE-<\/p>\n
Lokayukt and other material on record.\n<\/p>\n
8.          In support of his contentions some documents have been<\/p>\n
filed by petitioner Dev Vrat Mishra along with the petition, but<\/p>\n
learned counsel for respondents contended that at the stage of<\/p>\n
investigation any document which does not form part of prosecution<\/p>\n
evidence, cannot be considered. In        State of M.P. Vs. Awadh<\/p>\n
Kishore Gupta and others (2004)1 SCC 691, Apex Court held<\/p>\n
that when investigation was not complete, it was impermissible for<\/p>\n
the High Court to look into materials, the acceptability of which is<\/p>\n
essentially a matter for trial. While exercising jurisdiction under<\/p>\n
section 482 of the Code, it is not permissible for the Court to act as if<\/p>\n
it was a trial Judge. Even when charge is framed at that stage, the<\/p>\n
Court has to only prima facie be satisfied about existence of<\/p>\n
sufficient ground for proceeding against the accused. Apex Court<\/p>\n
approved the observations made by it in Chand Dhawan Vs.<\/p>\n
Jawahar Lal (1992) 3 SCC 317) that the Court should not act on<\/p>\n
annexures to the petitions under section 482 of the Code, which<\/p>\n
cannot be termed as evidence without being tested and proved. In<\/p>\n
State of Orissa Vs. Debendra Nath Padhi (AIR 2005 SC 359),<\/p>\n
Supreme Court expressed its view that at the time of framing charge<\/p>\n
or taking cognizance accused has no right to produce any material.<\/p>\n
In Rukmini Narvekar Vs. Vijaya Satardekar and others (2008)<\/p>\n
14 SCC 1), two judges bench of Apex Court observed: “22. Thus, in<\/p>\n
our opinion, while it is true that ordinarily defence material cannot<\/p>\n
be looked into by the Court while framing of the charge in view of<\/p>\n
D.N.Padhi case, there may be some very rare and exceptional cases<\/p>\n
where some defence material when shown to the trial Court would<\/p>\n
convincingly demonstrate that the prosecution version is totally
\n                                  (7)<\/span>
\n                                                          W.P.2431\/2010
\n                                                         M.Cr.C.848\/2010<\/p>\n
absurd or preposterous, and in such very rare cases the defence<\/p>\n
material can be looked into by the court at the time of framing of the<\/p>\n
charges or taking cognizance. In our opinion, therefore, it cannot be<\/p>\n
said as an absolute proposition that under no circumstances can the<\/p>\n
court look into the material produced by the defence at the time of<\/p>\n
framing of the charges, though this should be done in very rare cases<\/p>\n
i.e. where the defence produces some material which convincingly<\/p>\n
demonstrates that the whole prosecution case is totally absurd or<\/p>\n
totally concocted.” However, in para 38 which expressed the opinion<\/p>\n
of Hon’ble Justice Shri Altamas Kabir, it was observed: “In my view,<\/p>\n
therefore, there is no scope for the accused to produce any evidence<\/p>\n
in support of the submissions made on his behalf at the stage of<\/p>\n
framing of charge and only such materials as are indicated in Section<\/p>\n
227 Cr.P.C. can be taken into consideration by the learned<\/p>\n
Magistrate at that stage. However, in a proceeding taken therefrom<\/p>\n
under Section 482 CrPC the court is free to consider material that<\/p>\n
may be produced on behalf of the accused to arrive at a decision<\/p>\n
whether the charge as framed could be maintained. This, in my view,<\/p>\n
appears to be the intention of the legislature in wording Sections 227<\/p>\n
and 228 the way in which they have been worded and as explained in<\/p>\n
Debendra Nath Padhi case by the larger Bench therein to which the<\/p>\n
very same question had been referred.”\n<\/p>\n
9.         On due consideration of the above proposition of law as<\/p>\n
enunciated by the Apex Court, it appears to us that High Court may<\/p>\n
consider material that may be produced on behalf of accused while<\/p>\n
exercising power under section 482 Cr.P.C. to arrive at a decision<\/p>\n
whether the charge as framed could be maintained. Thus, such<\/p>\n
material can be considered under section 482 Cr.P.C. when a<\/p>\n
challenge has been made to the order of framing charge by the trial<\/p>\n
Court. In the present case, however, situation is otherwise; the
\n                                           (8)<\/span>
\n                                                                    W.P.2431\/2010
\n                                                                   M.Cr.C.848\/2010<\/p>\n
charge sheet is yet to be filed, therefore, the annexures filed by the<\/p>\n
petitioners cannot be considered. We are conscious that petitioner<\/p>\n
Dev Vrat Mishra has filed this petition under Article 226\/227 of the<\/p>\n
Constitution of India, but in our opinion, the settled position of law<\/p>\n
cannot be disturbed to permit an accused to produce evidence in his<\/p>\n
defence before the investigation is complete and charge sheet is<\/p>\n
filed.\n<\/p>\n
10.            Section 7 of Lokayukt Adhiniyam provides that subject to<\/p>\n
the      provisions   of    the    Act,   on    receiving   complaint    or   other<\/p>\n
information, Lokayukt may proceed to enquire into an allegation<\/p>\n
made against a public servant in relation to whom the Chief Minister<\/p>\n
is the competent authority and the Up-Lokayukt may proceed to<\/p>\n
enquire into such allegation against any other public servant.<\/p>\n
Provided Lokayukt may enquire into an allegation made against any<\/p>\n
public servant in relation to whom the Chief Minister is not the<\/p>\n
competent authority. Explanation attached to section 7 clarifies that<\/p>\n
expressions “may proceed to inquire” and “may inquire” include<\/p>\n
investigation by police agency put at the disposal of Lokayukt and<\/p>\n
Up-Lokayukt in pursuance of sub-section (3) of section 13. Sub-<\/p>\n
section (3) of section 13 empowers Lokayukt or Up-Lokayukt for the<\/p>\n
purpose of conducting enquiries under the Act to utilize the services<\/p>\n
of (i) Divisional Vigilance Committee constituted under Section 13-A;<\/p>\n
(ii) any officer or investigation agency of the State or Central<\/p>\n
Government with the concurrence of that Government; or (iii) any<\/p>\n
other person or agency.\n<\/p>\n
11.            Under M.P. Special Police Establishment                  Act, 1947,<\/p>\n
Special Police force has been constituted by the State of Madhya<\/p>\n
Pradesh for the investigation of certain offences affecting the public<\/p>\n
administration. By virtue of section 4 of the said Act, the<\/p>\n
Superintendence            of     investigation    by   M.P.    Special       Police
\n                                   (9)<\/span>
\n                                                            W.P.2431\/2010
\n                                                           M.Cr.C.848\/2010<\/p>\n
Establishment vests in the Lokayukt appointed under M.P. Lokayukt<\/p>\n
Adhiniyam. Thus, the Special Police Establishment can be utilised by<\/p>\n
Lokayukt for the purpose of conducting inquiry under the Act.<\/p>\n
12.          Section 8 of Lokayukt Adhiniyam puts restriction on the<\/p>\n
power of Lokayukt or Up-Lokayukt which reads as under:<\/p>\n
      8.     Matter not subject to enquiry.- The Lokayukt or
\n      an Up-Lokayukt shall not inquire into any matter.-\n<\/p><\/blockquote>\n
      (a)    in respect of which a formal and public inquiry has
\n      been ordered under the Public Servants (Inquiries) Act,
\n      1950 (No.37 of 1950);\n<\/p><\/blockquote>\n
      (b)    which has been referred for inquiry under the
\n      Commission of Inquiry Act, 1952 (No.60 of 1952); or
\n      (c )   relating to an allegation against a public servant, if
\n      the complaint is made after expiration of a period of five
\n      years from the date on which the conduct complained
\n      against is alleged to have been committed.\n<\/p><\/blockquote>\n
13.          Learned counsel for the petitioners argued that since the<\/p>\n
cause of action against them was the sale deed which was<\/p>\n
undervalued, no inquiry by Lokayukt could have been initiated<\/p>\n
because the said sale deed was executed in the year 2002 and the<\/p>\n
complaint in respect to said sale deed was made in the year 2009. On<\/p>\n
perusal of the complaint submitted to Lokayukt in Form-I by Smt.<\/p>\n
Rashmi Pathak, it appears that complaint referred to the acquisition<\/p>\n
of huge wealth disproportionate to the known source of income of<\/p>\n
Dev Vrat Mishra and many other matters besides the allegation that<\/p>\n
he purchased a house worth Rs.20 lacs by showing its price only Rs.<\/p>\n
7 lacs. If on verification of the complaint, it was disclosed to Special<\/p>\n
Police Lokayukt that some offence was disclosed, in our opinion, the<\/p>\n
police cannot be held to be powerless to register the F.I.R. and<\/p>\n
proceed with the investigation.\n<\/p>\n
14.          In the present case, on perusal of first information report<\/p>\n
of Crime No.2\/2010, it is revealed that it was registered against the
\n                                  (10)<\/span>
\n                                                           W.P.2431\/2010
\n                                                          M.Cr.C.848\/2010<\/p>\n
petitioners only on the accusation that they conspired to undervalue<\/p>\n
the house purchased by petitioner Dev Vrat Mishra and evaded<\/p>\n
stamp duty causing loss of Rs.29,434\/- to State and thereby they<\/p>\n
obtained pecuniary advantage by abusing their positions as public<\/p>\n
servants and cheated the Government. Perusal of the evidence<\/p>\n
collected by police further indicates that except the aforesaid<\/p>\n
allegations no other aspect was taken into consideration by it. There<\/p>\n
is nothing in the case diary to indicate that police proceeded to<\/p>\n
investigate the allegation of amassing the property or pecuniary<\/p>\n
resources by the petitioner disproportionate to his known source of<\/p>\n
income.\n<\/p>\n
15.         In section 10 of Lokayukt Adhiniyam, it has been<\/p>\n
provided that Lokayukt or Up-Lokayukt shall, in each case before it,<\/p>\n
decide the procedure to be followed for making the enquiry and in so<\/p>\n
doing ensure that the principles of natural justice are satisfied. Since<\/p>\n
in the case in hand, Special Police Establishment registered a F.I.R.<\/p>\n
and proceeded for investigation, it cannot be held that it was an<\/p>\n
inquiry by Lokayukt. Had Lokayukt proceeded to inquire into the<\/p>\n
allegations made in the complaint in Form-I by the complainant, it<\/p>\n
would have been incumbent on him to ensure that the principles of<\/p>\n
natural justice were satisfied. In our opinion merely on the ground of<\/p>\n
expiry of five years after the date on which the conduct complained<\/p>\n
against a public servant, as alleged to have been committed, it<\/p>\n
cannot be held that even on disclosure of the commission of a crime,<\/p>\n
Lokayukt or Up-Lokayukt was debarred to refer the matter to Special<\/p>\n
Police Establishment for verification. If Special Police found that a<\/p>\n
crime had been committed it was well in its power to register the<\/p>\n
F.I.R. and investigate the same. Once the first information report is<\/p>\n
registered by the police, it would be free to investigate the matter<\/p>\n
and conclude it by filing final report under section 173 of the Code of
\n                                  (11)<\/span>
\n                                                             W.P.2431\/2010
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Criminal Procedure. The jurisdiction of Lokayukt to inquire into the<\/p>\n
allegations made against a public servant on receiving a complaint or<\/p>\n
other   information   is   altogether   different.   Even   for   inquiry,<\/p>\n
investigation by police agency put at the disposal of Lokayukt can be<\/p>\n
sought. The inquiry by Lokayukt culminates into a report under<\/p>\n
section 12 of the “Lokayukt Adhiniyam” to the ‘competent authority’<\/p>\n
defined under section 2(h) of “Lokayukt Ahiniyam”.<\/p>\n
16.        Since the petitioners have challenged the registration of<\/p>\n
the first information report of Crime No.2\/2010 under sections 13(1)<\/p>\n
(d) r\/w 13(2) of the Prevention of Corruption Act and sections 420<\/p>\n
and 120-B of the Indian Penal Code, we have to evaluate only the<\/p>\n
allegations made in the F.I.R. and the material collected against<\/p>\n
them during investigation.\n<\/p>\n
17.        Crux of the first information report and the evidence<\/p>\n
collected during investigation is that petitioner Dev Vrat Mishra in<\/p>\n
conspiracy with Sub Registrar Surendra Kori undervalued the house<\/p>\n
and paid only Rs. 74,025\/- towards stamp duty and taxes etc.<\/p>\n
whereas on verification from the PWD Jabalpur, it was disclosed that<\/p>\n
constructed area of the house was not correctly shown in the map<\/p>\n
and sale deed. Dev Vrat Mishra was legally required to pay stamp<\/p>\n
duty etc. of Rs.1,03,459\/-. And Surendra Kori without making any<\/p>\n
spot inspection, accepted the valuation given by Dev Vrat Mishra and<\/p>\n
permitted him to obtain advantage of Rs.29,434\/-. They, thus, caused<\/p>\n
loss to State. It was said that at that time Dev Vrat Mishra was DSP<\/p>\n
in SPE Lokayukt and Surendra Kori was Sub Registrar, therefore,<\/p>\n
they abused their positions as public servants and cheated the State.<\/p>\n
18.        The contention of the learned counsel for petitioner Dev<\/p>\n
Vrat Mishra that at time of registration of the sale deed petitioner<\/p>\n
was not posted as DSP, Lokayukt finds support from the case diary<\/p>\n
wherein it has been indicated that on 15.4.2002 when the impugned
\n                                     (12)<\/span>
\n                                                                       W.P.2431\/2010
\n                                                                      M.Cr.C.848\/2010<\/p>\n
sale deed was executed, he was not posted in Special Police<\/p>\n
Establishment Lokayukt; he was posted as Company Commander in<\/p>\n
P.T.S.Umaria, Shahdol. This fact is substantiated by letter dated<\/p>\n
25.1.2010   addressed    to    Superintendent         of    Police,     SPE      from<\/p>\n
Superintendent of Police, Jabalpur. Thus, the allegation made in the<\/p>\n
first information report that Dev Vrat Mishra abused his position as<\/p>\n
DSP Lokayukt prima facie does not appear correct. Learned counsel<\/p>\n
for the petitioners submitted that valuation given in the document<\/p>\n
(sale deed) may be less than actual market value, but in such<\/p>\n
circumstances   matter   may        be     referred    to    the   Collector      for<\/p>\n
determination of the market value of the property and the proper<\/p>\n
duty payable thereon. Section 47-A of the Indian Stamp Act, 1899 as<\/p>\n
inserted for Madhya Pradesh provides:\n<\/p>\n
     47-A. Instruments undervalued how to be dealt with.-
\n     If the registering officer appointed under the Registration
\n     Act,   1908   (No.XVI     of    1908)     while       registering     any
\n     instrument has reason to believe that the market value of
\n     the property which is the subject- matter of such
\n     instrument has not been truly set-forth in the instrument,
\n     he may, after registering such instrument, refer the same
\n     to the Collector for determination of market value of such
\n     property and the proper duty payable thereon.
\n     (2)    On receipt of a reference under sub-section (1), the
\n     Collector shall, after giving the parties a reasonable
\n     opportunity of being heard and after holding an enquiry in
\n     such manner, as may be prescribed determine the market
\n     value of the property which is the subject-matter of such
\n     instrument and the duty as aforesaid. The difference, if
\n     any, in the amount of duty shall be payable by the person
\n     liable to pay the duty.\n<\/p><\/blockquote>\n
     (3)    The Collector may suo motu within five years from
\n     the date of registration of any instrument not already
\n     referred to him under sub-section (1), call for and examine
\n     the instrument for the purpose of satisfying himself as to
\n     the correctness of the market value of the property which
\n     is the subject-matter of any such instrument and the duty
\n                                               (13)<\/span>
\n                                                                                   W.P.2431\/2010
\n                                                                                  M.Cr.C.848\/2010<\/p>\n
      payable thereon and if after such examination, he has
\n      reason to believe that the market value of such property
\n      has not been truly set-forth in the instrument, he may
\n      determine the market value of such property and the duty
\n      as aforesaid in accordance with the procedure provided
\n      for in sub-section (2). The difference, if any, in the amount
\n      of duty, shall be payable by the person liable to pay the
\n      duty:\n<\/p><\/blockquote>\n
      Provided that nothing in this sub-section shall apply to any
\n      instrument          registered          prior       to      the      date   of   the
\n      commencement of the Indian Stamp (Madhya Pradesh
\n      Amendment) Act, 1975.\n<\/p><\/blockquote>\n
      (4)     Any aggrieved by an order of the Collector under
\n      sub-section (2) or sub-section (3) may, in the prescribed
\n      manner appeal against such order to the Commissioner
\n      who may either himself decide the appeal or transfer it to
\n      the Additional Commissioner of the Division.
\n      (5)     ……….. …………. ……….. ……… ……………..
\n      (6)     ………. ………… ……….. ……….. ……………..
\n      (7)     ……… ………… …………. ………. ……………..
\n      (8)     ……… ……….. ………… …………. …………….\n<\/p><\/blockquote>\n
19.           Learned counsel for the petitioner Surendra Kori, Sub-<\/p>\n
Registrar submitted that on 15.4.2002 itself petitioner had detected<\/p>\n
that the sale deed was not valued according to prevalent guidelines.<\/p>\n
He had recorded this fact in the Minute Book of the year 2002-03 of<\/p>\n
the Office of Sub-Registrar, Jabalpur. On page 89 of the book of<\/p>\n
15.4.2002 particulars about spot inspection of the house situated in<\/p>\n
Gulab Singh ward were recorded. This Minute Book was seized by<\/p>\n
the police on 27.1.2010. A copy of the seizure memo and the extract<\/p>\n
of the book reveals that the proposed valuation of the house was<\/p>\n
Rs.8,27,500\/-. However, according to valuation done by Special<\/p>\n
Police Establishment, Lokayukt, the valuation of the house was of Rs.<\/p>\n
10,30,488\/-, therefore, the required stamp duty was Rs.1,03,459\/-.<\/p>\n
Thus, stamp duty was paid less to the tune of Rs.29,434\/-.
\n                                                  (14)<\/span>\n<\/p>\n
                                                                                         W.P.2431\/2010
\n                                                                                        M.Cr.C.848\/2010<\/p>\n
20.            After perusal of the statements of witnesses recorded by<\/p>\n
the police during investigation and the documents collected by it, it<\/p>\n
appears that the cause of action against the petitioners was that the<\/p>\n
valuation of the house was not correctly done and stamp duty was<\/p>\n
paid less. It is true that if the property was undervalued, it resulted<\/p>\n
in loss to State Exchequer, but the question is whether the act of the<\/p>\n
petitioners constituted the offences as alleged by the police. Section<\/p>\n
13(1)(d) of Prevention of Corruption Act,1988 reads as under:-<\/p>\n
      13. Criminal misconduct by a public servant.- (1) A
\n      public servant is said to commit the offence of criminal
\n      misconduct,-\n<\/p><\/blockquote>\n
      (a) …. …           …..    ……..          ……… ………\n<\/p><\/blockquote>\n
      (b) ……. …….. ….. ……… …….. ……….. ………….. ………. …\n<\/p><\/blockquote>\n
      (c) ….. ………… ……… …………. …………… ……….. ….\n<\/p><\/blockquote>\n
      (d)      if he,-\n<\/p><\/blockquote>\n
      (i) by corrupt or illegal means, obtains for himself or for
\n      any     other       person        any       valuable          thing     or   pecuniary
\n      advantage,: or\n<\/p><\/blockquote>\n
      (ii) by abusing his position as a public servant, obtains for
\n      himself or for any other person any valuable thing or
\n      pecuniary advantage; or\n<\/p><\/blockquote>\n
      (iii) while holding office as a public servant, obtains for
\n      any person any valuable thing or pecuniary advantage
\n      without any public interest; or<\/p>\n<\/blockquote>\n
21.            It is on record in the case diary that at the relevant time<\/p>\n
petitioner Dev Vrat Mishra was not posted as DSP, SPE Lokayukt,<\/p>\n
Jabalpur, therefore, it does not appear that he could have abused his<\/p>\n
that position at the relevant time. There is absolutely no evidence in<\/p>\n
the case diary to indicate that Dev Vrat Mishra or Surendra Kori<\/p>\n
abused their positions or indulged in corrupt or illegal means to<\/p>\n
obtain the pecuniary advantage as public servants. Merely because<\/p>\n
Dev Vrat Mishra was a public servant, it cannot be inferred that he<\/p>\n
abused his position as a public servant if he sought execution and<\/p>\n
registration of sale deed wherein property was undervalued. If the
\n                                 (15)<\/span>
\n                                                          W.P.2431\/2010
\n                                                         M.Cr.C.848\/2010<\/p>\n
contention of learned counsel for the State is accepted then in every<\/p>\n
case where a sale deed is executed which is undervalued and vendor<\/p>\n
or vendee is public servant, he would be liable to be prosecuted<\/p>\n
under section 13(1)(d) of the Prevention of Corruption Act. In our<\/p>\n
opinion, it would be a preposterous proposition which cannot be<\/p>\n
accepted. In C.K.Damodaran Nair vs. Govt. of India<\/a> (1997) 9<\/p>\n
SCC 477) the Apex Court observed that “The position will, however,<\/p>\n
be different so far as an offence under Section 5(1)(d) read with<\/p>\n
section 5(2) of the Act is concerned. For such an offence prosecution<\/p>\n
has to prove that the accused “obtained” the valuable thing or<\/p>\n
pecuniary advantage by corrupt or illegal means or by otherwise<\/p>\n
abusing his position as a public servant and that too without the aid<\/p>\n
of statutory presumption under Section 4(1) of the Act.” Same<\/p>\n
proposition was reiterated by the Apex Court in R.Balakrishna<\/p>\n
Pillai Vs. State of Kerala (2003) 9 SCC 700). In the aforesaid<\/p>\n
circumstances, we are of considered view that there is absolutely no<\/p>\n
material in the case diary to indicate that petitioners abused their<\/p>\n
positions as public servants to obtain pecuniary advantage. Even if<\/p>\n
the evidence collected by the prosecution is taken as it is, it cannot<\/p>\n
be concluded that the petitioners abused their positions as public<\/p>\n
servants to obtain the pecuniary advantage.\n<\/p>\n
22.        For the offence punishable under section 420 of the<\/p>\n
Indian Penal Code, it is required to be seen whether prima facie<\/p>\n
ingredients constituting the offence are made out. Definition of<\/p>\n
“cheating” is provided under section 415 of the Indian Penal Code<\/p>\n
which reads as under:-\n<\/p>\n
      415. Cheating.\n<\/p>\n
      “Whoever, by deceiving any person, fraudulently or dishonestly<\/p>\n
induces the person so deceived to deliver any property to any<\/p>\n
person, or to consent that any person shall retain any property, or
\n                                 (16)<\/span>
\n                                                          W.P.2431\/2010
\n                                                         M.Cr.C.848\/2010<\/p>\n
intentionally induces the person so deceived to do or omit to do<\/p>\n
anything which he would not do or omit if he were not so deceived,<\/p>\n
and which act or omission causes or is likely to cause damage or<\/p>\n
harm to that person in body, mind, reputation or property, is said to<\/p>\n
“cheat”. “Deceiving” means causing to believe what is false or<\/p>\n
misleading as to a matter of fact or leading into error. Whenever a<\/p>\n
person fraudulently represents as an existing fact, that which is not<\/p>\n
an existing fact,he commits deception. The person cheated must<\/p>\n
have been intentionally induced to do an act which he would not<\/p>\n
have done, but for the deception practiced on him. The intention at<\/p>\n
the time of the offence and the consequence of the act or omission<\/p>\n
has to be considered.\n<\/p>\n
23.        It is true that offence of cheating as defined cannot be<\/p>\n
made out where there is no evidence to show that accused had an<\/p>\n
intention of causing damage or harm by his act or that his act was<\/p>\n
likely to cause damage or harm to the deceived person in body,<\/p>\n
mind, reputation or property. To hold a person guilty of offence of<\/p>\n
cheating, it is required to be shown and proved that an intention of<\/p>\n
cheating was in existence at very inception.\n<\/p>\n
24.        As far as the material collected during investigation, in<\/p>\n
the present case, it is prima facie on record that sale deed sought to<\/p>\n
be registered, did not depict the correct picture of the property and<\/p>\n
the house sought to be sold was undervalued. The valuation and the<\/p>\n
constructed area of the house described by petitioner Dev Vrat<\/p>\n
Mishra were different than the value of the house sought to be<\/p>\n
proved by the prosecution. It prima facie appears from the<\/p>\n
allegations and the material in the case diary that a loss of stamp<\/p>\n
duty of Rs.29,434\/- was caused to State by the act of petitioners. At<\/p>\n
this stage of investigation, it cannot be held that they had no guilty<\/p>\n
intention, though it has to be established by the prosecution at
\n                                   (17)<\/span>
\n                                                           W.P.2431\/2010
\n                                                          M.Cr.C.848\/2010<\/p>\n
appropriate stage of the trial. A presumption or an inference that<\/p>\n
the petitioners had no mens rea of causing loss to State, by not<\/p>\n
paying the requisite stamp duty, by undervaluing the house in<\/p>\n
question, cannot, at this stage be raised. As far as proof of<\/p>\n
conspiracy i.e. offence under section 120-B of the Indian Penal Code<\/p>\n
is concerned, there cannot be direct evidence always, it can be<\/p>\n
proved by the circumstantial evidence also. In our opinion, the<\/p>\n
evidence about the existence of conspiracy between the two<\/p>\n
petitioners cannot be appreciated at this stage.<\/p>\n
25.        The Hon’ble Apex Court while dealing with the power<\/p>\n
conferred under Section 482 of Cr.P.C. in the leading case of State<\/p>\n
of Haryana and others Vs. Bhajan Lal and others, AIR 1992 SC<\/p>\n
604 held as under :-\n<\/p>\n
      “In the backdrop of the interpretation of the various relevant<\/p>\n
provisions of the Code under Chapter XIV and of the principles of<\/p>\n
law enunciated by this Court in a series of decisions relating to the<\/p>\n
exercise of the extraordinary power under Article 226 or the<\/p>\n
inherent powers under Section 482 of the Code which we have<\/p>\n
extracted and reproduced above. We give the following categories of<\/p>\n
cases by way of illustration wherein such power could be exercised<\/p>\n
either to prevent abuse of the process of any Court or otherwise to<\/p>\n
secure the ends of justice, though it may not be possible to lay down<\/p>\n
any precise, clearly    defined    any sufficiently   channelized   and<\/p>\n
inflexible guidelines or rigid formulae and to give an exhaustive list<\/p>\n
of myriad kinds of cases, wherein such power should be exercise.”<\/p>\n
      1.   Where the allegations made in the First Information<\/p>\n
Report or the complaint, even if they are taken at their face value<\/p>\n
and accepted in their entirely do not prima facie constitute any<\/p>\n
offence or make out a case against the accused.\n<\/p>\n
                                 (18)<\/span><\/p>\n
                                                         W.P.2431\/2010
\n                                                        M.Cr.C.848\/2010<\/p>\n
      2.   Where the allegations in the First Information Report<\/p>\n
and other materials, if any, accompanying the FIR do not disclose a<\/p>\n
cognizable offence, justifying an investigation by police officers,<\/p>\n
under Section 156(1) of the Code except under an order of a<\/p>\n
Magistrate within the purview of Section 155(2) of the Code.<\/p>\n
      3.   Where the uncontroverted allegations made in the FIR<\/p>\n
or complaint any of the evidence collected in support of the same do<\/p>\n
not disclose the commission of any offence and make out a case<\/p>\n
against the accused.\n<\/p>\n
      4.   Where the allegations in the FIR do not constitute        a<\/p>\n
cognizable offence, no investigation is permitted by a police officer<\/p>\n
without an order of a Magistrate as contemplated under Section<\/p>\n
155(2) of the Code.\n<\/p>\n
      5.   Where the allegations made in the FIR or complaint are<\/p>\n
so absurd and inherently improbable on the basis of which no<\/p>\n
prudent person can ever reach a just conclusion that there is<\/p>\n
sufficient ground for proceeding against the accused.<\/p>\n
      6.   Where there is an express legal bar engrafted in any of<\/p>\n
the provisions of the Code or the concerned Act (under which         a<\/p>\n
criminal proceeding is instituted) to the institution and continuance<\/p>\n
of the proceedings and or where there is a specific provision in the<\/p>\n
Code or the concerned Act, providing efficacious redress for the<\/p>\n
grievance of the aggrieved party.\n<\/p>\n
      7.   Where a criminal proceeding is manifestly attended with<\/p>\n
mala fide and or where the proceeding is maliciously instituted with<\/p>\n
an ulterior motive for wreaking vengeance on the accused and with a<\/p>\n
view to spite him due to private and personal grudge.<\/p>\n
26.        In view of the aforesaid decision, petitioners’ case in<\/p>\n
respect to offence under section 13(1)(d) read with section 13(2) of<\/p>\n
the Prevention of Corruption Act falls in clause (3) as the
\n                                  (19)<\/span>
\n                                                          W.P.2431\/2010
\n                                                         M.Cr.C.848\/2010<\/p>\n
uncontroverted allegations made in the F.I.R. or the evidence<\/p>\n
collected in support of the same do not disclose the commission of<\/p>\n
the said offence. However, the accusation under sections 420 and<\/p>\n
120-B of the Indian Penal Code cannot be said to be without any<\/p>\n
substance.\n<\/p>\n
27.          The submission made by the learned counsel for the<\/p>\n
petitioners that the criminal proceedings were instituted maliciously<\/p>\n
on the behest of complainant Rashmi Pathak, therefore, F.I.R. and<\/p>\n
the investigation deserved to be quashed, cannot be accepted. Apex<\/p>\n
Court in the case of M\/s Zandu Pharmaceutical Works Ltd. and<\/p>\n
others vs. Md. Sharaful Haque and others<\/a>( AIR 2005 SC 9)<\/p>\n
observed that when an information is lodged at the police station and<\/p>\n
an offence is registered, then the mala fides of the informant would<\/p>\n
be of secondary importance. It is the material collected during the<\/p>\n
investigation and evidence led in Court which decides the fate of the<\/p>\n
accused person. The allegations of mala fides against the informant<\/p>\n
are of no consequence and cannot by themselves be the basis for<\/p>\n
quashing the proceedings.\n<\/p>\n
28.          In view of the above discussions, we are of the view that<\/p>\n
the commission of offence under section 13(1)(d) read with 13(2) of<\/p>\n
the Prevention of Corruption Act is not disclosed from the first<\/p>\n
information report as well as from the material collected during<\/p>\n
investigation. As such the F.I.R. as well as further investigation with<\/p>\n
respect to offence under section 13(1)(d) read with section 13(2) of<\/p>\n
the Prevention of Corruption Act is erroneous and is liable to be<\/p>\n
quashed. However, the investigation with respect to offence under<\/p>\n
sections 420 and 120-B of the Indian Penal Code cannot be quashed.<\/p>\n
29.          In the result, both the petitions (W.P.No.2431\/2010<\/p>\n
and M.Cr.C.No.848\/2010) are partly allowed. Registration of first<\/p>\n
information report and the investigation with respect to offence
\n                                       (20)<\/span>
\n                                                               W.P.2431\/2010
\n                                                              M.Cr.C.848\/2010<\/p>\n
    under section 13(1)(d) read with section 13(2) against the petitioners<\/p>\n
    is quashed.\n<\/p>\n
    30.           Before parting we make it clear that this order shall not<\/p>\n
    affect any enquiry, investigation or proceedings, if any, pending<\/p>\n
    before Special Police Establishment or Lokayukt in respect to other<\/p>\n
    allegations made by the complainant against petitioner Dev Vrat<\/p>\n
    Mishra.\n<\/p>\n<\/p>\n
      (Rakesh Saksena)                                   (M.A.Siddiqui)\n          Judge                                              Judge\nb\n (21)<\/span>\n        W.P.2431\/2010\n       M.Cr.C.848\/2010\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Dev Vrat Mishra vs The State Of Madhya Pradesh on 4 October, 2010 (1) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-80057","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nDev Vrat Mishra vs The State Of Madhya Pradesh on 4 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dev-vrat-mishra-vs-the-state-of-madhya-pradesh-on-4-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dev Vrat Mishra vs The State Of Madhya Pradesh on 4 October, 2010 - 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