IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 WP(C).No. 25570 of 2007(R) -------------------------------- PETITIONER: ------------ T.T.JUDA THADEVUS, S/O. THOMAS THACHUTHARA, BUSINESS, AGED 43, THACHUTHARA HOUSE, VADUTHALA, KOCHI-23. BY ADV. SRI.P.F.THOMAS (SR.) SRI. SHIJU VARGHEESE SRI.C.S.YESUDAS RESPONDENTS: ------------- 1. SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, S.R.M.ROAD, ERNAKULAM, KOCHI-18. 2. INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY TO THE GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI. P. SUKUMARAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C). No. 25570 of 2007 ========================== Dated this the 22nd day of January, 2008. JUDGMENT In this writ petition filed under Article 226 of the Constitution of India, the petitioner who was the plaintiff in O.S. No. 387/2002 on the file of the Sub Court, Ernakulam, seeks a direction to the Superintendent of Police, Vigilance and Anti Corruption Bureau, Ernakulam to investigate into Ext.P4 complaint alleging commission of offences punishable under Sections 166, 167, 464, 466, 193, 195, 196 and 197 r/w Section 34 IPC said to have been committed by T.G. Chandrasekharan Nair, the then Sub Registrar, Kochi, Ligy Vincent who was the defendant in O.S No. 387/2002 and Felix who is the purchaser of the property belonging to Ligy Vincent as per Sale Deed dated 05.10.2003. 2. The case of the petitioner can be summarised as follows:- He was the plaintiff in the suit referred to above which was a suit for money on the basis of a promissory note executed by W.P.(C) NO. 25570/2007 : 2 : the defendant Ligy Vincent. In that suit the petitioner had obtained an order of attachment before the judgment with regard to an extent of 4.286 cents of land with a residential building thereon belonging to the said defendant Ligy Vincent. The said property is comprised in Survey No. 300/2 of the Rameswaram Village within the jurisdiction of the Sub Registry Office, Kochi. The attachment for judgment was obtained as per order passed on I.A. No. 2225/2002 in the above suit. The attachment was effected on 28.08.2002. Even though the suit was subsequently dismissed by the trial court on 27.06.2003, the petitioner had filed an appeal before the District Court, Ernakulam as A.S.No. 284/2003 and had obtained a re-attachment of the property as per the order dated 17.09.2003 in I.A. No. 2557/2003. But in flagrant violation of the order of attachment Ligy Vincent, the defendant in the suit, sold the property to one Felix for a total consideration of Rs.2,70,000/- as per sale deed dated 05.10.2003 registered on 06.10.2003 as document No. 4634/2003 before the Sub Registry Office, Kochi. One Isidore, the brother of the said Felix who was the power of attorney W.P.(C) NO. 25570/2007 : 3 : holder of the purchaser, filed a claim petition before the District Court as I.A No. 3382/2004 seeking release of the attachment on the ground that he is the owner in possession of the property including the building. To the said application the petitioner filed a counter affidavit disputing the title of the applicant and alleging that a fraud was made on the court by producing an encumbrance certificate of the property issued by the Junior Superintendent exercising the powers of the Registering Officer, Kochi showing that there was no encumbrance on the property. Getting suspicious, the petitioner verified the records and found that the document was registered by the Sub Registrar T.G. Chandrasekharan Nair at a time when the order of attachment was in force. The petitioner accordingly applied for an encumbrance certificate of the property showing the liability and other encumbrance thereon for the period from 01.04.2002 to 30.04.2004. The encumbrance certificate which the petitioner obtained on 05.12.2005, a copy of which is produced as Ext.P2, showed that there was an attachment of the property in O.S. No. 387/2002 which was released only on 19.12.2003. If so, the sale W.P.(C) NO. 25570/2007 : 4 : effected on 05.10.2003 and the registration effected on 06.10.2003 was during the subsistence of the attachment. By issuing Ext.P1 encumbrance certificate on 04.08.2003 without showing the attachment effected by the trial court in O.S. No. 387/2002, a fraud was played on the plaintiff as well as the court by the Sub Registrar, Kochi and the staff attached to the said office. That was why the petitioners submitted Ext.P4 complaint before the Superintendent of Police, Vigilance and Anti Corruption Bureau, Ernakulam alleging the aforementioned offences. But, no investigation worth its name is being conducted in the matter. Hence this writ petition. 3. On behalf of the 1st respondent a statement has been filed on 06.09.2007 to the effect that on receipt of Ext.P4 complaint the same was forwarded to the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram and thereafter the Director forwarded the complaint to the Inspector General of Registration (who is the Head of the Department of the Registration Department) for conducting a departmental enquiry into the allegations in the said complaint and to forward a report W.P.(C) NO. 25570/2007 : 5 : with his recommendations for necessary action. The 1st respondent would say that after the forwarding of the said complaint to the Head of the Department, the 1st respondent had nothing to do with Ext.P4 complaint unless and until an order had been passed by the Government to conduct a vigilance enquiry into the matter. 4. On behalf of the 2nd respondent, the Inspector General of Registration a counter affidavit has been filed contending inter alia as follows:- Pursuant to Ext.P4 complaint submitted by the petitioner, the District Registrar, Ernakulam conducted an enquiry and submitted a report to the 2nd respondent IG, Registration to the effect that there was an omission on the part of K.S. Raja U.D. Clerk in not noting the attachment order of the court in the certificate of encumbrance and the District Registrar also reported that the examiner P.J. Peter U.D. Clerk had put his signature on the certificate in the bona fide belief that K.S. Raja had verified all the documents before preparing the certificate of encumbrance. On the basis of the aforesaid report, charge W.P.(C) NO. 25570/2007 : 6 : memos were issued against both the U.D. Clerks and punishment was imposed on K.S. Raja and P.J. Peter by barring one increment without cumulative effect as per Exts. R2 (b) and R2 (c) orders. Since the Sub Registrar, Koch was not informed of any order extending the attachment before the judgment originally ordered on 28.08.2002 and also since the order of attachment before the judgment is not a bar from registering a document with respect to the same property unless the Sub Registrar is specifically prohibited by an order of injunction, the act of registration of the document cannot be treated as a violation of the order of attachment. An attachment order against the land owner concerned is not a direction to the Registering Authority prohibiting registration. This position has been clarified by the Government as per Ext.R2(d) Circular. But the omission to include the entry relating to the court attachment in the encumbrance certificate issued on 26.08.2003 was a lapse on the part of the officers concerned who were departmentally proceeded against. There is no manipulation or violation of the statutory obligation as alleged by the petitioner. W.P.(C) NO. 25570/2007 : 7 : 5. During the course of arguments Sri. P. Sukumaran, the learned Public Prosecutor submitted that since Ext.P4 complaint alleged only commission of offences punishable under the Indian Penal Code and there was no allegation of any offence punishable under the provisions of the Prevention of Corruption Act, 1988, the Superintendent of Police, Vigilance Department has no obligation to register a crime or conduct any investigation into those offences under the Indian Penal Code. But that was not the stand taken by either the 1st respondent or the 2nd respondent in the statement as well as the counter affidavit filed by them. Respondents 1 and 2 seem to be content with the departmental action which has taken against the two erring members of the Sub Registery Office, Kochi. But, it is not discernible as to whether the omission to show the attachment order of the court in the encumbrance certificate was a bona fide omission or a culpable lapse. The omission itself is a serious omission since the encumbrance certificate will be the solitary document on which a willing purchaser would be relying upon to find out whether there is any encumbrance or other liability on the property proposed to W.P.(C) NO. 25570/2007 : 8 : be purchased. Merely because the erring officials have been proceeded against departmentally, that has no ground at all to explore the possibility of prosecuting those persons for the offences, if any, committed by them. With regard to the offences made mention of Ext.P4 complaint, the proper forum for the petitioner would have been either the local police where a complaint could have been lodged or the Magistrate where a private complaint could have been instituted. Departmental action will not render the delinquent officers immune to criminal prosecution if offences under the penal law have been committed by them. The petitioner did not approach the appropriate forum for redressal of his grievance. Hence, this writ petition is disposed of without prejudice to the right of the petitioner to either lodge a complaint before the local police or file a private complaint before the concerned Magistrate and requesting the same to be forwarded to the police for investigation under Section 156(3) Cr.P.C. V. RAMKUMAR, JUDGE. rv W.P.(C) NO. 25570/2007 : 9 :