S.Balasundaram v. State Rep. By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :21.09.2023 Pronounced on: 09.10.2023 Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN Criminal Appeal No.715 of 2015 [Crl.A.No.715 of 2015 against Spl.C.C.No.4 of 2003] S.Balasundaram, M/A 63 yrs, S/o.Sinnathambi, No.1, 1st Cross Street, Kuppampet, Kombakkam, Villianur, Puducherry - 605 110.
... Appellant/Accused /versus/ State Rep. by, The Inspector of Police, Vigilance and Anti-Corruption Police Unit, Pondicherry.
... Respondent/Complainant Prayer: Criminal Appeal has been filed under Section 374 of Cr.P.C., pleased to call for the records in Spl.C.C.No.4 of 2003, on the file of Special Judge (Under the Prevention of Corruption Act), Principal Sessions Judge at Puducherry, and set aside the judgment passed by the Learned Special Judge (Under the Prevention of Corruption Act) Principal Sessions Judge at Puducherry, dated 28.10.2015 and allow the Criminal Appeal. Page No.1/15
For Appellant :Mr.G.Krishnakumar, For Respondent :Mr.K.S.Mohan Dass, P.P (Pondy) Assisted by Mr.N.Danalachoumy
J U D G M E N T
On 27.06.1998, the Inspector of Police, Vigilance and Anti Corruption, Puducherry, registered a case in Crime No.3 of 1998 against Thiru.S.Balasundaram, and four others, based on the complaint received from Thiru.Veeraraghavan, District Registrar, Register Office, Pondicherry, addressed through Superintendent of Police, Vigilance and Anti-Corruption Unit, Pondicherry, the case was taken up for investigation.
2. The complaint disclosed that, Inter Department enquiry conducted had brought to light that, Balasundaram presently working as Assistant in the Office of Deputy Director of Education (Women), Pondicherry, while he was serving as Sub-Registrar at Karaikal, on deputation from 14.07.1994 to 20.08.1997, knowingly had registered deeds/documents improperly and irregularly for pecuniary advantage and extraneous consideration received from the parties. The findings of the preliminary enquiry are as follows:- Page No.2/15
Section 47-A of Indian Stamp Act, 1899 says that:- "If the registering Officer while registering an instrument of conveyance, exchange, gift, release of benami right or settlement has reason to believe that the market value of the property which the subject matter of conveyance, gift,release of 'benami right or settlement has not been truely set forth in the instruments, he may after registering such instrument, refer the same to the Collector for determination of the market value of such property and the proper stamp duty payable thereon". In the order No:723 of the Tamil Nadu Registration Manual Volume II, it has been stated that "47-A of the Stamp Act provides for a reference from the Registering Officer to the Collector only in respect of deeds of conveyance, exchange and gift".
3. Contrary to Section 47-A of Indian Stamps Act, 1899 had under valued the property below the guideline value or over valued the property above the guideline value and thereby, caused unlawful gain to the Land Promoter Thiru.Oumar Farook in connivance with the Document Writer Thiru.K.L.Kesavelu and Thiru.S.Iqbal.
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4. The substance of the charge is as below:- "The accused S. Balasundaram, the then SubRegistrar of Karaikal Sub-Registry was entrusted with the dominion of the Sub Registry, Karaikal for the period from 14-9-1994 to 20-8-1997.
During the period of his tenure as Sub Registrar, the accused used to take bribe by abusing his position as Sub Registrar from the document writers and the land promoters in particular and the parties to the documents in general to show some favour to them in the discharge of his official functions resulting in wrongful loss to the government.
During the financial year 1996-1997 at the Sub Registrar Office, Karaikal, the accused S. Balasundaram had registered 46 documents i.e. 620/96, 626/96, 635/96, 681/96, 730/96, 731/96, 760/96, 784/96, 793/96, 815/96, 830/96, 832/96, 864/96, 874/96, 895/96, 901/96, 902/96, 914/96, 1056/96, 1639/96, 1640/96, 1643/96, 1648/96, 1652/96, 1662/96, 1678/96, 1679/96, 1718/96, 1764/96, 1866/96, 291/97, 116/97, 117/97, 155/97, 156/97, 157/97, 171/97, 175/97, 176/97, 177/97, 178/97, 179/97, 180/97, 292/97, 413/97 and 414/97 of sale/gift without taking into consideration the correct and true market value in accordance with the Guide Line Register issued by the government and had handed over the documents, thus Page No.4/15
registered under a lesser stamp duty, to the parties to the documents without any adjudication to the Deputy Collector (Revenue), Karaikal to find out the correctness of the stamp duties paid by the parties and thereby caused registration under lesser stamp value for gratification and thereby caused loss of Rs.1,84,735/- towards stamp duty and Rs.9,805/- towards registration fees to the government by showing favour to the parties to the documents and the document writers in the discharge of his official function and thereby committed criminal breach of trust to the Government and criminal misconduct to meet his personal end which are punishable u/s 409 IPC and 13 (1) (a) r/w 7 of Prevention of Corruption Act 1988."
5. The trial Court framed the charges under Section 409 of I.P.C and 13(1)(a) r/w Section 7 of Prevention of Corruption Act, 1988.
6. To prove the charges, the prosecution examined 10 witnesses (P.W.1 to P.W.10) and marked 84 Exhibits (Ex.P.1 to Ex.P.84). On the side of the defence, one witness (D.W.1) was examined and one exhibit (Ex.D.1) was marked.
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7. The trial Court, on appreciation of evidence held that the accused had caused loss of revenue to the Government during the financial year 1996-1997, when he was Sub-Registrar, Karaikal Sub-Registry Office to an amount of Rs.1,94,540/- (stamp duty Rs.1,84,735/- and registration fees Rs.
9,805/-) for 46-documents namely 620/96, 626/96, 635/96, 681/96,730/96, 731/96, 760/96, 784/96, 793/96, 815/96, 830/96, 832/96, 864/96, 874/96, 895/96, 901/96, 902/96, 914/96, 1056/96, 1639/96, 1640/96, 1643/96, 1648/96, 1652/96, 1662/96, 1678/96, 1679/96, 1718/96, 1764/96, 1866/96, 29/97, 116/97, 117/97, 155/97, 156/97, 157/97, 171/97, 175/97, 176/97, 177/97,178/97,179/97, 180/97, 292/97, 413/97 and 414/97 by registering the same without taking into consideration the correct and true market value in accordance with the guideline register issued by the Government and had handed over the documents, thus registered under a lesser stamp duty, to the parties to the documents without any adjudication to the Deputy Collector (Revenue), Karaikal, to find out the correctness of the stamp duties paid to the parties and thereby caused loss of Rs.
1,84,735/- towards stamp duty and Rs.9,805/- towards registration fees to the Government by showing favour to the parties to the documents in discharge of his official function and thereby committed criminal misconduct to meet his personal ends and criminal breach Page No.
of trust to the Government.
8. The trial Court convicted the accused and sentenced him to undergo imprisonment as below:- Accused Offences under Section Conviction and Sentence passed by the trial Court.
Balasundaram 13(1)(a) r/w Section 7 of P.C Act, 1988.
To undergo 2 years R.I and to pay fine of Rs.3000/-, in default to undergo 6 months R.I. 409 of I.P.C To undergo 2 years R.I and to pay fine of Rs.3,000/-, in default to undergo 6 months R.I. The period of sentence ordered to run concurrently. The period already undergone by the accused ordered to be set off under Section 428 of Cr.P.C.
9. Aggrieved by the conviction and sentence passed by the trial Court, the appellant/Balasundaram has preferred Crl.A.No.715 of 2015.
10. The Learned Counsel appearing for the appellant submitted that sanction to prosecute is defective and not in accordance with law. The Sanctioning Authority has not applied his mind before according sanction. His competency to give sanction also questionable. According to the appellant, he was in the Registration Department on deputation. The Joint Secretary Page No.7/15
(Revenue), Government of Puducherry, is not the authority competent to remove him from service since his parent department is not the Revenue Department. Granting sanction is not an empty formality, the Competent Authority should apply his mind before according sanction. Whereas Ex.P.1 the sanction order suffers non-application of mind. First the District Registrar issued sanction to prosecute and in supersession of the earlier order, P.W.1 Uddipta Ray, the then Joint Secretary (Revenue) of the Government has accorded sanction. P.W.1 having admitted that, he had not verified all the 109 suspected sale deeds but had only referred the illustrative documents. It is also contended that, there was no loss to the department and no departmental action initiated against this appellant either to impose penalty or recovery of alleged loss. A preliminary enquiry was conducted within the department and the appellant was found innocent. The preliminary enquiry report deliberately suppressed by the prosecution.
11. P.W.8 Raja Kirubakaran admits that, there is no evidence to show abuse of official position or obtainment of pecuniary advantage by the appellant. The Investigating Officer admits that, there was no proof against the appellant to show that, he manipulated/fabricated documents and there is no Page No.8/15
improper registration of documents during his tenure. While so, the valuation of the property which depends upon various other factors besides the guideline value fixed by the Government cannot be a criteria to suspect the appellant for any breach of trust. The Auditor report conducted by the District Registrar had not indicated any violation or loss to the Government.
12. The Learned Public Prosecutor appearing for the U.T of Puducherry submitted that, the appellant while on deputation as Sub-Registrar, Karaikal committed the offence. The District Registrar is the Authority Competent to remove Sub-Registrar from service, since, in this case, the District Registrar was a key witness for prosecution. The Joint Secretary (Revenue), who is Superior to District Registrar had accorded sanction and the said sanction is by the person competent to remove Sub-Registrar. P.W.1 Uddipta Ray, being the District Magistrate as well as Joint Secretary (Revenue), is the competent person to accord sanction for prosecuting the Appellant/Sub-Registrar. The offence committed by the appellant while he was working as Sub-Registrar on deputation in the Revenue Department, hence competency of the P.W.1 is not questionable. P.W.1 had applied his mind and on perusal of the records after prima faciely satisfied, he has accorded sanction Page No.9/15
and there is no error or illegality. Furthermore, the trial Court, after perusing the record had taken cognizances of the offence in view of the overwhelming material available to frame charge. The loss to the Government during the financial year clearly constitute an offence punishable under Section 13(1)(a) of P.C Act.
13. Heard the Learned Counsel for the appellant and the Learned Public Prosecutor for the respondent/U.T of Puducherry. Records perused.
14. In the final report, led to registration of Special C.C.No.4 of 2003, it is alleged that the appellant has registered 46 documents with lesser value than the guideline value and consequentially collected lesser stamp duty and registration charge thereby, caused loss to the Government. The details of the 46 documents are as below:- Sl.
No Doc.
No Date of execution/ Value given in the document (Rs.) Value as per GLR Stamp duty paid (Rs.) Actual stamp duty that should have been paid (Rs.) Regn Fee collected (Rs.) Regn.fee that should have been collected (Rs.) Total loss to Government (Rs.) registration (Rs.) 620/96 10 4.96/10 4.96 75000 133800 12730 626/96 15.4.96/15.4 96 150000 190000 14250 18050 635/96 12.9,96/16.4.96 45000 681/96 20.4.96/6.5.96 107200 160800 10220 15295 730/96 10.5.96/13.5.96 15500 21425 Page No.10/15
731/96 10.5.96/13.5.96 15500 21425 760196 16.5.96/20.5.96 82000 103800 784196 27.5.96/28.5.96 60000 67600 793/96 3.6.96/3.6.96 110000 137500 10500 13063 815/96 5.6.96/5.6.96 205000 219247 19500 20853 830/96 6.6 96/10.6.96 147000 167450 14050 15913 832/96 10.6.96/10.6.96 50000 93000 864/96 17 6.96/17.6.96 18300 874/96 18.6.96/18 6.96 23000 25524 895/96 19.6.96/19.6.96 53000 87270 901/96 20 6.96/20 6 96 184000 265000 17500 25175 902/96 21.6.96/21.6.96 90000 100000 914/96 24.6 96/24.6 96 24500 30075 1056/96 22.7 96/22.7.96 116314 11353 10878 1639/96 25.10.96/25.10.96 80000 137800 13110 1640/96 25.10.96/25.10.96 70000 113500 10830 1643/96 25.10.96/25.10.96 50000 255000 24225 20500 1648/96 25.10.96/28.10.96 75000 114000 10830 1652/96 26.10.96/28.10 96 80000 11400 10830 1662/96 28.10.96/28.10.96 70000 118200 11258 1678/96 3010.96/30.10.
96 15500 20040 27 1679196 30 10.96/30.10.96 15500 20040 1718/97 6.11.96/6.11 96 25500 41750 1764/97 14.11.97/15.11.96 50000 119420 1866/96 10.12.96/11.12.96 30000 159600 29600 15200 12950 29/97 8.1.97/8.1.97 157500 175297 15000 16700 116/97 27.1.97/27.1.97 15700 117/97 27.1.97/27.1.97 25500 41750 155/97 5.2.97/5.2.97 40000 49250 156/97 5.2.9715.2.97 100000 122500 116338 157/97 5.2.97/5.2.97 50000 56700 171/97 7.2.97/7.2.97 16200 175/97 7.2.97/7.297 200000 653500 19000 62083 45353 176/97 7.2.97/7.2,97 50000 89000 177/97 7.2.97/7.2.97 50000 42000 178/97 7.2.97(7.2.97 20000 33600 179/97 7.2.97/7.2.97 20000 33600 180/97 7.2.97/7.2.97 20000 33600 292/97 26.2.97/26.2.97 55000 67300 413/97 18.3.97/19.3.97 10000 31500 414/97 18.3.97/19.3.97 10000 30750 Page No.
15. Ex.P.3 to Ex.P.71 are the 46 documents and the corresponding guideline value. The comparison of the guideline value and the value shown in the document clearly reveals that the documents were registered for the value less than the guideline value and less stamp duty collected. In such cases, it is the duty and the responsibility of the Sub-Registrar to collect the due before the releasing the document or initiate proceedings under Section 47-A of Stamp Act and refer the document to the Deputy Collector for further course of action. Without disclosing the under valuation, the documents were released and thereby caused loss to the Government. As excuse for such inadvertence, the accused blame the Government for not furnishing the latest guideline value register.
However, from the witness, it is clearly established that, every SubRegistrar Office is not furnished with the latest guideline value of the property in their jurisdiction or if they are not having the copy of the guideline value, the Sub-Registrar is supposed to collect it from the Deputy Collector Office. The annual inspection of the document and clean chit given to the appellant by not noticing the irregularity is not bar for initiating the criminal prosecution where gross violation leading to financial loss to the Government is unearthed. Page No.
16. P.W.6 Thiru.Dayalan Rasaiyan had explained the functions of Sub-Registrar and his duty. When a document with under value is present, the District Registrar should ensure appropriate stamp duty is collected orelse the document must be referred to Deputy Collector under Section 47-A of Stamp Act.
17. P.W.7. M.V.V.Satynarayana had deposed about the guideline value and the procedure to be followed by the Sub-Registrar when document with less value than the guideline value presented. 115 documents with less value than the guideline value accepted by the accused for registration during his tenure and none of these documents were referred for under valuation, to take action under Section 47-A of Stamp Act. The sale deeds and the guideline value for the corresponding land expose the misconduct of the appellant which attracts punishment under Section 13(1)(a) r/w 7 of P.C Act and 409 of I.P.C.
18. In the result, this Criminal Appeal is dismissed. The judgment of the trial Court passed in Spl.C.C.No.4 of 2003 on the file of Special Judge, Puducherry is hereby confirmed. The trial Court is directed to secure the accused and commit him to the prison to undergo the remaining period of Page No.13/15
sentence. The period of substantive sentence shall run concurrently. The period of imprisonment already undergone by the accused shall be set off under Section 428 of Cr.P.C.
09.10.2023 Index :Yes/No.
Internet :Yes/No.
Speaking order/non speaking order bsm Copy To:- 1.The Learned Principal Sessions Judge, Puducherry. 2.The Inspector of Police, Vigilance and Anti-Corruption Police Unit, Pondicherry.
3.The Public Prosecutor (Pondicherry), High Court, Madras. Page No.14/15
DR.G.JAYACHANDRAN,J.
bsm Pre-delivery judgment made in Criminal Appeal No.715 of 2015 09.10.2023 Page No.15/15