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2019 DIGILAW 516 (GUJ)

RAJESH JIVRAJBHAI DESAI v. STATE OF GUJARAT

2019-05-01

VIPUL M.PANCHOLI

body2019
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants-accused have prayed for anticipatory bail in connection with the FIR being C.R.No.I–25 of 2019 registered with Adalaj Police Station, District Gandhinagar, for the offence punishable under Sections 406, 420, 467, 468, 471 and 120B of the Indian Penal Code. 2. It has been mainly alleged in the FIR that the accused persons having hatched a conspiracy forged the Power of Attorney and prepared a bogus affidavit with regard to the nonagricultural land admeasuring 6587 sq. meters i.e. 1/4th share of the original complainant, out of 10979 sq. meters of land bearing Survey No.594/2 Paiki Khata No.974, Final Plot No.78. Thereafter, pretending the said documents as genuine one, the same were produced before the Office of the Sub-Registrar, Gandhinagar and a Sale Deed came to be executed in favour of R.J. Buildcon and thereby the applicants have committed the offence of cheating and criminal breach of trust. 3. Heard learned Senior Advocate Mr.N.D. Nanavaty assisted by learned advocate Mr.B.S. Khatana for the applicants, learned Additional Public Prosecutor Mr.L.B. Dabhi for the respondent State and learned advocate Mr.Nisarg P. Raval for the original complainant. 4. It is submitted by the learned Senior Advocate for the applicants that applicant Nos.1 and 2 and the original complainant are the real brothers whereas applicant No.3 is the father of applicant Nos.1 and 2 and the original complainant. The business was established by applicant No.3 and the land in question was originally purchased in the year 1999 from the funds of applicant No.3. However, for the purpose of convenience, name of applicant Nos.1 and 2 as well as the original complainant were inducted as joint holders as family members. It is further submitted that applicant Nos.1 and 2 were looking after the business at Ahmedabad and Mehsana whereas the original complainant was looking after the business at Surat. Thereafter, after taking the advice, the Company was incorporated under the provisions of the Companies Act, 1956 and the original complainant is having 25% share in the said Company. It is further submitted that the dispute is with regard to the sale of 25% share of the original complainant, which was transferred on the basis of the alleged forged Power of Attorney and the affidavit of the original complainant. It is further submitted that the dispute is with regard to the sale of 25% share of the original complainant, which was transferred on the basis of the alleged forged Power of Attorney and the affidavit of the original complainant. 4.1 Learned Senior Advocate would thereafter submit that the Sale Deed is executed in favour of the Company wherein the present applicants as well as the original complainant are the Directors. At this stage, learned Senior Advocate has produced on record the Undertaking of applicant Nos.1 and 2 wherein it is stated that the land in question will not be sold or dealt with in any other manner including creating any third party rights, title or interest therein, during the pendency of the prosecution and/or without the consent of the original complainant. 4.2 At this stage, learned Senior Advocate under the instructions, submits that even the applicants are ready and willing to reverse the transaction. 4.3 Learned Senior Advocate, thereafter, contended that the applicants are ready and willing to handover the original documents in question, namely, alleged forged Power of Attorney and the affidavit of the original complainant to the Investigating Officer and in fact, they have tried to produce the same before the Investigating Officer. However, the same were not accepted. 4.4 Learned Senior Advocate further submits that for the incident of 12.04.2018, the FIR in question is registered on 13.03.2019. Thus, there is a delay in lodging the FIR. 4.5 Learned Senior Advocate would thereafter submit that after the land in question is sold to the Company, income is shown in the balance-sheet and TDS was also deducted. Learned Senior Advocate has referred the documents produced at Pages-54, 55, 104 and 107 of the compilation, in support of the aforesaid contention. It is also contended that there is no mens rea to commit an offence and dispute is between the family members with regard to the land in question and, therefore, custodial interrogation of the applicants is not required in the facts and circumstances of the present case. He further submits that applicant No.3 is aged about seventy-three years and, therefore also, this application be allowed. 5. On the other hand, learned Additional Public Prosecutor Mr.L.B. Dabhi has vehemently opposed this application and referred the affidavit filed by the Investigating Officer before the Sessions Court. He further submits that applicant No.3 is aged about seventy-three years and, therefore also, this application be allowed. 5. On the other hand, learned Additional Public Prosecutor Mr.L.B. Dabhi has vehemently opposed this application and referred the affidavit filed by the Investigating Officer before the Sessions Court. Thereafter, it is submitted that the coaccused Tarang Dave, who is a Notary, is arrested. Remand of the said coaccused was also granted. Learned Additional Public Prosecutor has referred the statement of the said coaccused and submitted that the statement of the coaccused can be considered as a clue for further investigation. 5.1 After referring to the statement of the said coaccused, it is submitted that the original complainant was not present at Ahmedabad when the alleged affidavit of the original complainant is notarized. From the call details collected by the Investigating Agency during the course of investigation, it is revealed that the original complainant was not present in Ahmedabad and he was at Surat. Even the statement of the concerned witnesses were also recorded, who have stated that the original complainant was at Surat on the date on which affidavit and Power of Attorney of the original complainant was signed at Ahmedabad. It is further submitted that the land in question is worth approximately Rs.250 crores. Learned Additional Public Prosecutor would further submit that there are antecedents of the applicants and number of cases are registered against the applicants. 5.2 Learned Additional Public Prosecutor, therefore, urged that in the facts and circumstances of the present case, custodial interrogation of the applicants is required. He, therefore, requested that this application be dismissed. 6. Learned advocate Mr.Nisarg P. Raval appearing for the original complainant has also supported the submissions canvassed by the learned Additional Public Prosecutor and referred the affidavit-in-reply-cum-objection filed by the original complainant. Learned Advocate Mr.Nisarg Raval has also referred the documentary evidence produced along with the said affidavit and, thereafter, contended that there is a primafacie case against the applicants that they have forged the Power of Attorney as well as the affidavit of the original complainant. Looking to the antecedents reported against the applicants, this Court may not exercise discretion in their favour. 7. Looking to the antecedents reported against the applicants, this Court may not exercise discretion in their favour. 7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the FIR in question is registered for the alleged offences punishable under Sections 406, 420, 467, 468, 471 and 120B of the Indian Penal Code. It is mainly alleged that all the accused hatched conspiracy and on the basis of the forged Power of Attorney and forged affidavit of the original complainant sold the nonagricultural land admeasuring 6587 sq. meters i.e. 1/4th share of the original complainant, out of 10979 sq. meters of land bearing Survey No.594/2 Paiki Khata No.974, Final Plot No.78. It is required to be noted that from the investigation papers, it is revealed that the original complainant was not present at Ahmedabad before the concerned Notary i.e. coaccused Tarang B. Dave, when the said documents were executed. The original complainant was at Surat, for which, there is sufficient material collected by the Investigating Agency in the form of CDR and the statements of concerned witnesses. On the basis of such forged Power of Attorney and affidavit of the original complainant, the land in question is sold in favour of the Company. Learned Additional Public Prosecutor, after taking instructions, has contended that the land in question is worth approximately Rs.250 crores. Thus, there is a prima-facie case against the applicants that they have hatched a conspiracy and Power of Attorney and affidavit of the original complainant are forged. 8. It is contended by the learned Senior Advocate that the applicants have tried to give a copy of the alleged forged documents to the Investigating Agency. However, the same was not accepted by the Investigating Agency. Learned Additional Public Prosecutor has specifically contended after taking instructions that the Investigating Officer was not present in the Police Station when the socalled request was made by the applicants. Even otherwise, merely by showing willingness to tender the forged documents to the Investigating Officer by the applicants, without remaining present before him, is not sufficient. In the facts and circumstances of the present case, as discussed hereinabove, custodial interrogation of the applicant is required when the land worth more than Rs.250 crores is sold on the basis of the forged Power of Attorney and affidavit of the original complainant. In the facts and circumstances of the present case, as discussed hereinabove, custodial interrogation of the applicant is required when the land worth more than Rs.250 crores is sold on the basis of the forged Power of Attorney and affidavit of the original complainant. Who has forged the document in question and at whose instance the same was forged, can be investigated by the Investigating Agency, during the course of custodial interrogation of the applicants. 9. It is further required to be noted that the reversal of the transaction of the land in question is not sufficient at this stage in view of the fact that there is a primafacie case against the applicants that they have sold the land in question on the basis of the forged Power of Attorney of the original complainant though the complainant was not present at Ahmedabad and he was at Surat. Looking to the peculiar facts of the present case, as discussed hereinabove, the said contention cannot be accepted. It appears that with a view to avoid custodial interrogation, during the course of hearing of this application, such type of submission is canvassed. 10. It is required to be noted that various FIRs are registered against the applicants. More particularly, from the material produced on record i.e. affidavit of the Investigating Officer filed before the Sessions Court, a copy of which is produced at Page-366 of the compilation, it appears that against applicant No.1, there are three antecedents, against applicant No.2, there are four antecedents and against applicant No.3, there is one antecedent. 11. At this stage, this Court would like to refer the decision rendered by the Honourable Supreme Court in the case of Siddhram Satalingappa Mhetre Vs. State of Maharashtra reported in (2011) 1 SCC 694 , wherein the Honourable Supreme Court has observed in Paragraph-122 as under: “122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 13. From the aforesaid decision rendered by the Honourable Supreme Court, it can be said that while deciding the anticipatory bail application filed under Section 438 of the Code, the antecedents of the applicant including the fact as to whether the accused as previously undergone imprisonment on conviction by correct in respect of any cognizable offence, is also required to be considered. 14. Keeping in view the aforesaid decision, if the facts of the present case are examined, it is revealed that there are antecedents reported against the applicants. Hence, this Court is not inclined to exercise discretion in favour of such applicants. Accordingly, the application stands rejected. 14. Keeping in view the aforesaid decision, if the facts of the present case are examined, it is revealed that there are antecedents reported against the applicants. Hence, this Court is not inclined to exercise discretion in favour of such applicants. Accordingly, the application stands rejected. Rule is discharged. The interim relief granted earlier shall stand vacated.