IN THE HIGH COURT OF JUDICIATE OF ANDHRA PRADESH :: HYDERABAD THURSDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.1245 of 2005 Between: Sanala Chandraiah S/o Kotlingam, aged 63 years Retd. Sub Registrar, Ponnur, R/o D.No.23-27-136, 1st Lane, A.T.Agraharam, Guntur … Appellant And: The State of A.P., rep. By its Public Prosecutor for SPE & ACB Cases High Court of Andhra Pradesh, Hyderabad …. Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.1245 of 2005 JUDGMENT: This appeal is directed against the judgment dated 26.07.2005 in CC No.18 of 2000 on the file of the Special Judge for SPE & ACB Cases, Vijayawada, wherein, the appellant/accused was found guilty of the offence under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act 1988 [for short ‘the Act’] and was convicted and sentenced to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for three months. 2. Heard the learned counsel for the appellant. None appears for the respondent-complainant. Perused the record. 3. The case of the prosecution is that the accused-Officer worked as Sub Registrar, Ponnuru, Guntur district during the period from 01.06.1995 to 30.06.1999 and he is a public servant within the meaning of Clause [c] of section 2 of the Act and that on 08.07.1996, the accused-Officer has resorted to irregular registration of sale agreement of a vacant site bearing document No.1105/96 in an extent of Ac.1.08½ cents of Ponnuru Municipal limits in RS No.363/1,2,5,6, and 7 in Block No.22 by levying a stamp duty of Rs.5,000/- accepting the site value at Rs.1,00,000/- as mentioned by the executant without observing and taking into consideration the basic market value guidelines. It is further alleged that the value of the aforesaid site was Rs.400/- per square yard which comes to Rs.21,00,600/- and the Sub Registrar ought to have levied the stamp duty of Rs.1,05,030/- to the said site. 4. After obtaining necessary sanction, complaint was filed against the appellant and the same was taken cognizance in CC No.18 of 2000. The appellant-accused appeared before the Court and pleaded not guilty for the charge under Section 13(2) read with 13(1) (d) of the Act. 5. In support of their case, the prosecution examined PWs.1 to 6 and marked Exs.P.1 to P.10. No oral evidence was adduced by the appellant/accused but Exs.D.1 to D.6 were marked on his behalf. 6. On a consideration of the evidence available on record, the learned Special Judge held that the appellant/accused while discharging official duties as public servant abused his position and registered document with under valuation and thereby violated the provisions under Act 21 of 1995 and caused loss to the government to a tune of Rs.1,00,030/- giving pecuniary advantage to that extent to the executant of the said document illegally and thereby committed criminal misconduct. 7. Aggrieved by the said conviction and sentence recorded against him, the appellant-accused preferred the present appeal. 8. Point for consideration in this appeal is whether the allegation made against the appellant would satisfy the ingredients of the offence under section 13(1)[d) read with 13(2) of the Act? 9. As per the averments in the charge sheet, the allegation against the appellant is that he collected deficit stamp duty and allowed the document to be registered with under valuation by accepting the value at Rs.1,00,000/- and ignored the market value which was at Rs.400/- per square yard, which comes to Rs.21,00,600/- and he ought to have levied the stamp duty of Rs.1,05,030/- and thereby caused pecuniary loss to the State exchequer to a tune of Rs.1,00,030/-. 10. As per the averments in the charge sheet, the allegation made against the appellant/accused-officer is that he collected stamp duty of Rs.5000/- for an extent of Ac.1.08½ cents situate in Ponnuru Municipal limits in Block No.22 instead of Rs.1,05,030/- in respect of registration of sale agreement covered under Ex.P.1, as per the provisions of Article 42[c] of the Indian Stamp Act which have since lapsed and failed to collect proper stamp duty and registration fee in a sum of Rs.1,05,030/- as per the amended provision of Article 42(g) which amendment came into force with effect from 01.04.1995 and thereby caused pecuniary loss to the State exchequer to a tune of Rs.1,00,030/- and pecuniary advantage to himself. 11. PW.1-former District Registrar and Assistant Inspector General, deposed that during registration of Ex.P.1 document (agreement of sale) in respect of land situate in Survey No.363/1, 363/2, 363/5, 360/6/7 covering an extent of Ac.1.08 ½cents, the accused-Officer registered by levying Rs.5,000/- stamp duty. But, as per the Article 6(b) of Schedule A, which was amended through Act 21 of 1995 the market value of the property has to be taken in levying the stamp duty with effect from 01.04.1995 and as per the market value guidelines, the market value of the site situate in survey No.363-1, Block No.23 is Rs.400/- per square yard. It is in his evidence that as per the market value guidelines, the value worked out to Rs.21,00,600/- and the stamp duty has to be levied at Rs.1,05,030/-, but the accused officer collected only Rs.5000/- as stamp duty and the same was pointed out during the annual inspection conducted for the year 1997-98. In the cross-examination, he admitted that latches on the part of the accused-officer was an irregularity, which can be cured by giving notice under Section 41(A) of the Indian Stamp Act to the party. He does not know whether the accused-officer has received communication about the implementation of the amended provisions. He claims that the District Registrar conducted a meeting and oral instructions were given to all the Sub Registrars about the amended provisions. Admittedly, he has not attended the said meeting nor does he know whether any minutes were prepared. 12. As seen from Section 1(3) of the Amended Act 21 of 1995, the same shall come into force on such date as the State Government may, by notification in the Andhra Pradesh Gazette, appoint. But the said Gazette notification showing the date from which the provisions of the amended Act shall come in to force has not been placed before the Court. The prosecution has not placed any Gazette notification before the Court to show that the provisions of the Amended Act came into force with effect from 01.04.1995. In the absence of any notification published in the Gazette regarding the appointed date on and from which the amended provisions of the Act shall come into force, oral instructions if any given by PWs.1 or 2 to implement the provisions of the Amended Act are of no avail, as the said amended provisions can be given effect only from the duly appointed date as notified in the Gazette, but not before the issuance of guidelines under Ex.P.3 exhorting the Sub Registrars to implement the provisions of the Amended Act from 01.04.1995 is of no consequence, when the date on which the amended provisions were to come into force was itself not notified. In Ex.P.3, it is stated that the new rates came into force from 01.04.1995 and the Sub Registrars were asked to await Gazette publication. It is not known how the new rates as per the amended provisions came in to force without publication of the date in the Gazette as required under Section 1(3) of the Amended Act. Thus the prosecution has not placed any material on record to show the basis on which they claim that the amended provisions have come into force from 01.04.1995. In the absence of such material, there was no legal requirement or obligation on the part of the appellant to levy stamp duty and the registration fee as per the revised rates, which were yet to come into force. The contention of the appellant-accused-Officer is that he could not levy stamp duty and registration fee as per the revised rates in the absence of publication of the appointed date in the Gazette and in the absence of any communication to him of such appointed date as notified in the Gazette stands to reason. Even assuming that any oral instructions were given to collect revised rates with effect from 01.04.1995, the appellant/accused-officer could not be found fault with for non implementation of the said instructions, when the appointed date for giving effect to the revised rates was not published in the Gazette as required under the Act. Non-observance of the instructions by the superior authorities of the department may entail disciplinary action, but the same does not amount to an offence under the provisions of the Act. 13. Even otherwise Section 13(1)(d) of the Act states as follows: “A public servant is said to commit the offence of criminal misconduct 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 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.” 14. A perusal of the above provision would disclose that the offence of criminal misconduct is committed by the public servant if he by corrupt or illegal means obtains for himself or for any person any valuable thing or pecuniary advantage or by abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant he obtains any valuable thing or pecuniary advantage without any public interest. 15. In ‘R. Sai Bharathi v. J. Jayalalitha and others[1]’ the Apex Court held that ‘the guideline value has relevance only in the context of S. 47A of the Indian Stamp Act, which provides for dealing with instruments of conveyance which are undervalued’. It was further held that ‘the guideline value will only afford a prima facie basis to ascertain the true or correct market value. Guideline value is not sacrosanct, but only a factor to be taken note of if at all available in respect of an area in which the property transferred lies.’ 16. In view of the observations made by the Apex Court the contention of the appellant/accused that he could not have levied stamp duty and registration fee as per the revised rates in the absence of publication of appointed date in the gazette and in the absence of communication to him of such appointed date stands to reason. There is nothing on record to show that the accused officer was informed of the date on which appointed date was notified. There is also nothing on record to show that the accused had derived any pecuniary advantage by his act within the meaning of Section 13(1)(d) of the Act. 17. In the circumstances, the impugned judgment of the learned Special Judge finding the appellant-accused guilty for the offence under Section 13(2) read with 13(1)(d) of the Act, is held unsustainable and consequently, conviction and sentence imposed against the appellant is liable to be set aside and accordingly, is set aside. 18. In the result, the criminal appeal is allowed and the appellant-accused officer is found not guilty of the charge under Section 13(2) read with 13(1)(d) of the P.C. Act and he is acquitted thereof. The bail bonds of the appellant-accused shall stand cancelled. The fine amount, if any paid, shall be refunded to the appellant- accused. _______________________ G.V.SEETHAPATHY, J Date: 10.09.2009 BSS [1] AIR 2004 SC 692 = (2004) 2 SCC 9