Kanakalatha v. The State of Kerala and Sreekumaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943 CRL.MC NO. 370 OF 2015** **CC 470/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II,** ## **NEDUMANGAD, THIRUVANANTHAPURAM** **PETITIONER/ACCUSED NO. 1:** **KANAKALATHA AGED 55 YEARS D/O.KRISHNAMMA, VI/213,LATHA BHAVAN, AMMANKOVIL THERUVU, NEDUMANGAD DESOM, NEDUMANGAD VILLAGE, THIRUVANANTHAPURAM DISTRICT** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** ## **RESPONDENT/DEFACTO COMPLAINANT:** **1 THE STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM FOR THE SUB INSPECTOR OF POLICE, ARUVIKKARA POLICE STATION, THIRUVANANTHAPURAM(RURAL)695001 2 SREEKUMARAN NAIR AGED 64 YEARS S/O.VELAYUDHAN NAIR, DEVIPRIYA, NEAR PALKULANGARA DEVI TEMPLE, PALKULANGARA DESOM, PETTAH VILLAGE, THIRUVANANTHAPURAM(DEFACTO COMPLAINANT)** **R1 BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR R2 BY ADVS.SMT.INDIRA RAVEENDRAN SRI.P.RAVEENDRAN PILLAI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **07.09.2021, THE COURT ON 13.10.2021 PASSED THE FOLLOWING:** Crl.M.C.No.370 OF 2015 2 ## **ORDER** Petitioner is the first accused in C.C. No. 470/2013 on the file of the Judicial First Class Magistrate Court – II, Nedumangad which was taken on file on the final report laid in Crime No. 32/2012, of Aruvikkara police station. In the final report, the petitioner along with two others face allegations for offences under Sections 120B, 422, 423, 424 and 188 read with 34 of the Indian Penal Code and also under Sections 81 and 82 of the Registration Act, 1908, hereinafter referred to as the 'Act'. That crime was registered on the basis of a private complaint preferred by the second respondent, as the complainant before the Additional Chief Judicial Magistrate’s Court, Thiruvananthapuram. At first, the complaint was forwarded to the Vanchiyoor police station where a crime was registered. Later, since the cause of action had arisen at Karakulam within Aruvikkara police station limits, records were transmitted to that police station where a fresh crime was registered, as Crime No. 32/2012; after investigation, charge sheet was laid before the Judicial First Class Magistrate Court - II, Nedumangad. Crl.M.C.No.370 OF 2015 3 2. Admittedly, at the relevant time i.e., on 04.07.2009, the petitioner was the Sub Registrar of Karakulam Sub Registry. In that capacity, she had registered Annexure R2(b) sale deed No. 1530 of 2009 executed by the second accused in favour of the third accused. The alleged date of sale was on 04.07.2009. The facts are these:- The second accused in the crime owed an amount of Rs. 8,30,000/- to the second respondent. In order to realise the amount the second respondent filed a suit as O.S. No.376/2009 before the Munsiff’s Court, Nedumangad and obtained an ex-parte order of attachment before judgment against the second accused and thus thirty cents of property which is the subject matter of Annexure R2(b) sale deed was attached by the court. That attachment was effected and the order was duly communicated to the Sub Registrar under Section 89A of the Act. The order was communicated to the Sub Registrar on 19.03.2009. While so on 04.07.2009, the said sale deed was executed by the second accused in favour of the third accused ignoring the attachment before judgment. The allegation is that such a document was executed to defeat the creditor, that everything was the outcome of conspiracy Crl.M.C.No.370 OF 2015 4 hatched among the three accused. Thus the second respondent preferred a complainant before the court against the Sub Registrar who is the petitioner, the second accused who is the vendor and owner of the property and the third accused who is the vendee. On that basis, that crime was registered and later, on conclusion of investigation, the charge sheet was laid. 3. Now the petitioner has moved this Court for quashing the proceedings against her on the contention that no sanction has been obtained under Section 197(1) of the Code of Criminal Procedure Code, so that the entire proceedings against her are bad. She is a public servant as provided under Section 84 of the Registration Act, she had acted in good faith and therefore, without sanction, such a prosecution cannot sustain. The Investigating Officer did not apply for sanction and therefore, the court ought not to have taken cognizance of the offence. It was also submitted that, even if the entire allegations are correct, no offence under the Indian Penal Code or any other provision of law is brought out. Registration of transfer of property which is under attachment before judgment is not barred under the Act, that there is no court order prohibiting registration of the sale deed with respect to the Crl.M.C.No.370 OF 2015 5 property under attachment. When such a property is sought to be assigned, the Registrar cannot deny registration and therefore, an offence will not lie. Under Section 89A of the Registration Act, every Registration Officer shall endorse the court attachment order in Book No. 1. But failure to do so is not a criminal offence and no punishment is provided for it under the Act, so that, entire proceedings are sought to be quashed. 4. I heard the learned counsel for the petitioner and the learned Senior Public Prosecutor representing the first respondent and the learned counsel for the second respondent. A counter affidavit was filed by the second respondent. 5. According to the second respondent, failure to endorse the attachment before judgment by the petitioner is purposeful and it was the result of a conspiracy hatched among the accused persons for which sanction is not necessary. According to the learned counsel, the petitioner was aware of the two subsisting court attachments which were in vogue at the time of registration of the sale deed. But she consciously refrained from entering the factum of attachment in the respective books, it is also grossly undervalued. According to the learned counsel, so long as a Crl.M.C.No.370 OF 2015 6 criminal conspiracy is patent on the face of records, which is not directly or reasonably connected with the official discharge functions of the petitioner, sanction need not be sought. Besides offence under Sections 120B, 422, 423, 424, 188 of the Indian Penal Code offences under Sections 81 and 82 of Act are also alleged against the petitioner and others. So the second respondent has opposed this petition for quashing the proceedings. 6. There are undisputed facts. The sale deed was executed on 04.07.2009. At that time, the petitioner was the Sub Registrar of Karakulam Sub Registry. Annexure R2(b) sale deed was registered by her. The vendor in the property is the second accused and the vendee is the third accused. It has come out that the vendee is no more. He had filed Crl. M.C. No. 4466/2015 for quashing the proceedings against him, but on reporting that he has passed away, that Crl. M.C. stands closed as the case against him stands abated. 7. The moot question is, for prosecuting the petitioner in the backdrop of the facts, prior sanction under Section 197(1) of the Cr.P.C. is necessary and whether the prosecution is bad for such a sanction. 8. I have no doubt that there is substance in the contention Crl.M.C.No.370 OF 2015 7 of the learned counsel for the petitioner that there is no court order interdicting such a transfer. Of course, an order under Rule 5 of Order 38 of the Code of Civil Procedure cannot interdict the right of the title holder under Section 7 of the Transfer of Property Act to transfer the property. It does not prohibit transfer; it is the settled proposition that by the transfer made in respect of a property attached before judgment, such transfer is not void. The effect of such an attachment before judgment is only on the amount that is claimed in the suit and it does not affect the corpus of the property as such. That is why it is said that if the property under attachment is sold, the sale is not void. Moreover, such an attachment runs with the land, it only creates a charge over the property. It is open to the second respondent to claim the amount charged over the property under attachment. 9. In other words, effect of attachment is that it creates only a charge and there is no legal bar in transferring the property. In such a case, when the property is sought to be sold and when the Registrar is approached for registering the sale deed, whether he could legitimately deny the same ? No doubt, the answer is in negative. In this connection, the learned counsel also invited my Crl.M.C.No.370 OF 2015 8 attention to two decisions of the Madras High Court, where the court held that for the mere reason that there are attachments on a property, the Sub Registrar on that guise cannot deny registration of sale deed. The learned counsel also placed reliance on the decision in **Thomson Press (India) Ltd. v. Nanak Builders & Investors P. Ltd. and Others [AIR 2013 SC 2389]** . The learned counsel also relied on various authorities and pointed out that there must be reasonable connection and also contended that if the purported act or omission on the part of a public servant had a reasonable connection with the discharge of duties, that is not an offence and in that case he can be prosecuted only with sanction. Here, according to the learned counsel, there is reasonable connection with the act and the offence alleged against the petitioner and therefore, he could be prosecuted only after getting sanction under Section 197(1) of the Cr.P.C. On the other hand, the learned counsel for the second respondent contended that there is no reasonable connection, so that sanction is not warranted. According to him, invocation of offence under Section 82 of the Act itself indicates that, that was done purposely. Moreover, there are materials to suggest that the petitioner had obtained the attachment Crl.M.C.No.370 OF 2015 9 order passed by the civil court in her own hand, still the sale deed was registered as though there is no attachment outstanding against the property, which is illegal. According to him, there is no reasonable connection with the offence alleged with her discharge of duties and therefore sanction under Section 197(1) of the Cr.P.C. cannot be insisted. 10. The specific case of the prosecution is that on 19.03.2009, the attachment before judgment passed by the civil court was tendered to the Sub Registrar, the petitioner, but she purposely omitted to record the same in the appropriate register and later when the second accused had moved the Sub Registrar for transferring the property by executing a sale deed in favour of the third accused, she purposely suppressed the attachment and thus she is guilty of the offences alleged against her, that a case of malafide intention of the petitioner has to be inferred and it is here that the criminal conspiracy alleged among the accused persons assumes importance. 11. After hearing counsel on both sides and rushing through the materials, I have no doubt that the offences alleged against the petitioner do not have any reasonable connection with Crl.M.C.No.370 OF 2015 10 the act supposed to be discharged by her. Section 81 of the Act provides that every registering officer appointed under the Act and every person employed in his office for the purposes of the Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the IPC to any person, shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both. 12. As noticed earlier, it is the specific case of the prosecution that attachment before judgment was duly served on the Sub Registrar on 19.03.2009. But Annexure R2(b) sale deed was executed by the second accused in favour of the third accused as if no attachment is outstanding. In the charge sheet, CW2 who is the successor Sub Registrar of the petitioner in Karakulam Sub Registry has stated that there was no prohibition in effecting transfer of the property. If it was a mere transfer, the offence would not have been attracted. But the sale deed has been executed as Crl.M.C.No.370 OF 2015 11 though there is no attachment existing in the property which is factually incorrect. In other words, the factum of attachment which was reported on 19.03.2009 has not been incorporated. CW2 has stated, after gathering information from records, that two attachments were outstanding against the property, but the sale deed was executed as if no attachment was outstanding. The specific allegation of the prosecution is that everything was done after hatching conspiracy among the accused persons. At least at this stage, we cannot say that it is incorrect. There is specific allegation that on 19.03.2009, the order of attachment was made available to the petitioner, the Sub Registrar but she purposely did not record it in the register concerned nor insisted to incorporate in the sale deed. 13. It is also important to note that the petitioner does not have a case that she did not get any such order of attachment. In other words, if it was a case of ignorance or bonafide omission, it would have been necessary for the prosecution to obtain sanction. But here, she has no such case. Of course, as rightly pointed out by the learned counsel for the petitioner, there is no interdiction in transfer of the property. In that case, when the property is sought to Crl.M.C.No.370 OF 2015 12 be transferred, the Sub Registrar cannot deny registration. At the same time, she should have insisted to incorporate the attachments made against the property in the document which was duly brought to her notice. The immediate successor of the petitioner has confirmed that there were two attachments which cannot be gathered from Annexure R2(b) sale deed. A conspiracy is alleged against the petitioner for having omitted to incorporate such attachments in the sale deed which is bad. As stated earlier, such an omission or the alleged conspiracy are not form part of discharge of functions. Therefore, the embargo under Section 197(1) of the Cr.P.C. cannot be attracted and I am of the view that previous sanction, in the facts of the case, is not warranted and the Crl. M.C. is liable to be dismissed. Dismissed. **Sd/K.HARIPAL JUDGE** **DCS/12.10.2021** Crl.M.C.No.370 OF 2015 13 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** **ANNEXURE A** **THE CERTIFIED COPY OF THE FINAL REPORT IS CC NO 470/2013 ON THE FILE OF THE JFMC II, NEDUMANGAD, THIRUVANANTHAPURAM** ## **RESPONDENT'S ANNEXURE** **ANNEXURE R2(A) COPY OF THE ORDER IN I.A. NO. 1972/2009 IN O.S. NO. 376/209 OF THE SUBORDINATE JUDGES COURT, THIRUVANANTHAPURAM ANNEXURE R2(B) COPY OF THE DOCUMENT NO. 1530/2009 OF KARAKULAM SUB REGISTRY** Crl.M.C.No.370 OF 2015 14