1 CRI.APPLN.2969/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2969/2009 Suresh s/o Adappa Chakare - APPLICANT VERSUS 1) The State of Mah. & Ors. - RESPONDENTS ***** Mr.BA Dhengle, Advocate for Applicant; Mr.KM Suryawanshi, APP for State. Mrs.Madhaveshwari D.Thube-Mhase, ----- CORAM : K.U.CHANDIWAL, J. DATE : 14th January, 2011. PER COURT : 1) Heard the learned Counsel for the parties. 2) Prosecution initiated against respondent no.2 for an offence under Section 166 of the Indian Penal Code before the learned JMFC, Bhoom, vide SCC No.19/2008 and issuance of process there for, was questioned by respondent no.2 before the learned District Judge, vide Criminal Revision Application No.64/2008. 3) The learned District Judge, held that 2 CRI.APPLN.2969/2009 the prosecution against Respondent No.2 -Ganesh s/o Sambhajirao Kawale was not maintainable for want of sanction in terms of Section 197 of Cr.P.C. and no case was made out in terms of Section 166 of IPC, is questioned by the original complainant. 4) The petitioner/complainant approached the Respondent No.2 being a Sub-Registrar at the material time to get the documents registered in respect of purchase of property by the petitioner. The conveyance was presented in accordance with requisite stamp papers as per the Rules prevalent. However, at the time of presentation of the document on 23.11.2007, the Respondent No.2 collected Rs.4040/- from the petitioner, which was in excess as per the Rules of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and Section 158 thereof. The excess amount of Rs.20/- was thus collected by Respondent No.2 in spite of protests. This act of the respondent no.2 was attributed to be in breach of Section 166 of IPC. 5) The matter was conveyed/communicated by the petitioner to the superiors, Director of Registration, Maharashtra State on 28.11.2007, seeking requisite permission to prosecute the Respondent no.2, however, having not received any 3 CRI.APPLN.2969/2009 permission/sanction, he filed the above complaint before the learned JMFC. 6) The learned counsel for Respondent no.2 submits, even if the amount of Rs.20/- is recovered in excess , it has been credited by the respondent no.2 in the Government exchequer. 7) The learned counsel for the respondent no.2 submits, in terms of Section 50 of the the Stamp Act,even if there is inadequate remission on stamp or excess amount is collected, its refund is permissible, under an application by aggrieved person to the competent authority within six months. According to learned Counsel, the prosecution is not a resolution for such defiance in duty by Respondent no.2. 8) Injury, has been defined in terms of Section 44 of the Indian Penal Code, it denotes, any harm whatever illegally caused to any person, in body, mind, reputation or property. Since Rs. 20/- was collected it is also a property, the Petitioner felt infraction of Section 166 of IPC. 9) Even if the respondent no.2 contends that he has credited the amount to State Exchequer, it is his defence though receipt 4 CRI.APPLN.2969/2009 dated 23.11.2007 being No. 2171025 was issued. This be explained by the respondent no.2 at the time of trial. The overall effect of the prosecution in terms of the complaint will have to be seen and not the several defenses raised by the respondent no.2. 10) There is nothing to suggest that the prosecution is a persecution to get rid of any other controversies or a private vendetta of the petitioner with respondent no.2. The theory of want of sanction, as has been propagated, was not warranted, as the respondent no.2 was not authorized to collect excess amount and harass the petitioner at the time of presentation of the documents for registration. This is more so, Respondent No.2 was informed of excess demand. 11) The act of respondent no.2 is prima facie, against the express bar contemplated in the provision to collect the stamp in excess amount of the document presented. It cannot be said that he was unconscious to the same. It is difficult to digest that the criminal prosecution was manifestly attended with any malafide on the part of the petitioner. The order of the learned Sessions Judge, in the set of above facts, considering the affairs of trivial amount to be involved in the transaction, is an erroneous, the 5 CRI.APPLN.2969/2009 learned Judge should also not have bank upon the so-called theory of amount being credited by the respondent no.2 in the State Exchequer. 12) In the result, Criminal Application allowed. The order/directions of learned Additional Sessions Judge dated 25.6.2009 in CRA No.64/2008 set aside. ( K.U.CHANDIWAL ) JUDGE bdv/