Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 700 (GUJ)

Narendra Bhikabhai Vyas v. State of Gujarat

2020-08-19

BELA M.TRIVEDI

body2020
ORDER : 1. Both the applications are arising out of the same FIR being No.11216025200211 of 2020 registered with the Santej Police Station, Gandhinagar, for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 120(B) and 114 of IPC, at the instance of the complainant Rupeshbhai Haribhai Thakkar. Therefore, they were heard together and this common order is being passed. 2. The Criminal Misc. Application No.9960 of 2020 has been filed by the applicant – accused No.15 Narendra Bikabhai Vyas, seeking anticipatory bail under Section 438 of Cr. P.C., and the Criminal Misc. Application No.10151 of 2020 has been filed by the applicant – accused No.3 Dharmesh Rajnikant Shah, seeking regular bail under Section 439 of Cr. P.C., in connection with the said FIR. 3. As transpiring from the said FIR, the complainant Rupesh Haribhai Thakkar, is the builder and also engaged in the profession of land dealings. It further transpires that the complainant initially had made an application dated 25.2.2020 to the Police Inspector, LCB Police Station, against the present two applicants and others alleging criminal conspiracy, cheating and criminal breach of trust, in respect of certain lands. On the basis of preliminary inquiry conducted by the Police Inspector, Gandhinagar, he has lodged the present complaint against the 16 accused, including the present two applicants, which has been registered as stated herein above. 4. The crux of the allegations made in the complaint is that on 29.7.2006 one MOU was entered into between the accused Dharmesh Shah as the Proprietor of Harsh Reality and one Rajeshbhai Mansukh Virani, Chairman of the Shrushti Homes Coop. Housing Society in respect of various lands, admeasuring about four lac sq. mtrs., bearing different survey numbers, situated at Village Vayna, Taluka Kalol, District Gandhinagar. The Proprietor of Harsh Reality had received Rs.2 crore by cheque from Shrushti Homes Coop. Housing Society, however, the Proprietor of the said Harsh Reality having not acted as per the terms and conditions of the MOU, the complainant was authorized by the said Society to take action against the said Proprietor for committing cheating and breach of trust. The said chunk of lands included Survey No.141, which was divided into two new Survey Nos.95 and 96. The said chunk of lands included Survey No.141, which was divided into two new Survey Nos.95 and 96. Since the Survey No.95 admeasuring 0-27-90 was in the name of Narendra Bhikabhai and the Survey No.96, admeasuring 0-91-66 was in the name of Dharmesh Rajnikant Shah in the revenue record, both of them had agreed to sell the said lands to one Bhasheerkhan Narekhan Pathan in the year 2006, however, subsequently they had cancelled the said agreement to sell and had sold out the said two parcels of land to one Mansukhlal K. Virani by executing two separate sale deeds on 21.6.2019. The complainant, therefore, has alleged that the said two persons i.e. Dharmeshbhai and Narendrabhai had committed cheating and breach of trust with the complainant as the Shrushti Homes Coop. Housing Society had authorized the complainant and one Amrishbhai Patel to take care of the said land. It has been further alleged in the said complaint that one Chandulal Jivrajbhai Shah resident of Village Mulsana, Kalol had expired in the year 1991. The name of the said Chandulal was there in the revenue record of Mulsana in respect of the Survey No.470/1 and 474, however, the accused Dharmeshbhai and his family members, as a part of criminal conspiracy, got prepared a false pedigree/panchnama and submitted a false affidavit, and thereby got their names mutated in the revenue record showing the name of their forefather as Chimanlal @ Chandulal Jivrajbhai, in respect of the said Survey Numbers vide entry No.1053 dated 29.6.2004, which was certified by the competent authority on 1.9.2004. It has been further alleged that thereafter the said Dharmeshbhai purchased a number of other agricultural lands by producing false certificate of being an agriculturist. According to the complainant, though the accused Narendrabhai B. Vyas was aware about the MOU executed with the Society, he misused his name in the revenue record, and sold out part of the land to Mansukhbhai K. Virani. Thus all the accused in collusion with each other, had committed breach of trust and cheating with the farmers and the Government by preparing false documents. 5. The learned Sr. Advocate Mr. Yogesh Lakhani for the learned Advocate Mr. Thus all the accused in collusion with each other, had committed breach of trust and cheating with the farmers and the Government by preparing false documents. 5. The learned Sr. Advocate Mr. Yogesh Lakhani for the learned Advocate Mr. Chakwawala for the applicants – accused, vehemently submitted that the complainant had no authority or locus to file the subject FIR, nor he had any concern or legal right in respect of any of the parcels of lands in question, apart from the fact that the FIR is registered after a delay of 14 to 16 years. According to Mr.Lakhani, the complaint at the instance of the complainant was a sheer abuse of process of law and has been filed with a view to pressurize the applicants to settle the long pending civil disputes with the help of the police machinery. Mr.Lakhani further submitted that even if the allegations made in the complaint are believed to be true for the sake of argument, then also none of the ingredients of the alleged offences are made out. He further pointed out that the father of the complainant Haribhai Thakkar had already initiated revenue proceedings challenging the succession entry No.1053 made in favour of the accused Dharmesh and his family members, however, the Mamlatdar and the Collector after making proper inquiry had certified the said entry and the same had become final on 4.9.2014. The so-called heirs of Chandulal are now coming forward at the instance of the complainant and they have recently filed a suit in July 2020 after remaining silent for about 16 years of the said entry, without filing any revenue proceedings or criminal proceedings. As regards the second part of the complaint, Mr.Lakhani submitted that the Civil Suit No.92 of 2010 has been filed by the Shrushti Homes Coop. Housing Society against the present applicant Dharmeshbhai and others, in which even the present complainant is shown as the defendant, seeking specific performance of the so-called MOU, the existence of which was denied by a public notice in the year 2010. Even the said Shrushti Homes Coop. Housing Society had filed a complaint in the year 2010 with regard to non-execution of the MOU before the Crime Branch, Ahmedabad against the applicant Dharmeshbhai, however, presumably the said complaint has been closed after a preliminary inquiry. Lastly, he submitted that neither the said Shrushti Homes Coop. Even the said Shrushti Homes Coop. Housing Society had filed a complaint in the year 2010 with regard to non-execution of the MOU before the Crime Branch, Ahmedabad against the applicant Dharmeshbhai, however, presumably the said complaint has been closed after a preliminary inquiry. Lastly, he submitted that neither the said Shrushti Homes Coop. Housing Society nor the so-called heirs of Chandulal have come forward to file any criminal proceedings. He also submitted that the applicants are ready to abide by any conditions that may be imposed by the Court. Mr.Lakhani had also sought to place reliance on various judgements of Supreme Court and the High Court to buttress his submissions. 6. The learned APP Ms.Moxa Thakkar for the respondent State, placing heavy reliance upon the papers of investigation, more particularly on the statements of Dakshaben and Mitaben daughters of the deceased Chandulal Jivrajbhai Shah, and of Bharatbhai and Girishbhai sons of the deceased Chandulal Jivrajbhai Shah, as also on the statements of Bhagaji Dahyaji Thakor and Kalaji Dayaji Thakore, residents of Village Mulsana, submitted that the said deceased Chandulal Jivrajbhai Shah who expired in the year 1991 was never known as Chimanbhai @ Chandulal. According to her, the accused Dharmesh Rajnikant Shah and his family members by submitting false affidavit and false pedigree had got their names mutated in respect of the lands bearing Survey No.470/1 and 474, Account No.89, which was running in the name of Chandulal Jivrajbhai Shah in the revenue record. She also submitted that the applicant – accused Narendrabhai in collusion with the applicant Dharmeshbhai had sold out two parcels of lands mentioned in the MOU in question though Civil proceedings were pending between the Shrushti Homes Coop. Housing Society and the accused Dharmeshbhai and others and Lis Pendens was registered. 7. Learned Sr. Advocate Mr. Anshin Desai appearing with learned Advocate Mr.Limbhachiya for the complainant in addition to the submissions made by the learned APP submitted that an MOU dated 29.7.2006 was executed between the applicant – Dharmeshbhai, as the Proprietor of Harsh Reality and Rajeshbhai Girishbhai as the Chairman of the Shrushti Homes Coop. 7. Learned Sr. Advocate Mr. Anshin Desai appearing with learned Advocate Mr.Limbhachiya for the complainant in addition to the submissions made by the learned APP submitted that an MOU dated 29.7.2006 was executed between the applicant – Dharmeshbhai, as the Proprietor of Harsh Reality and Rajeshbhai Girishbhai as the Chairman of the Shrushti Homes Coop. Housing Society, and that the said Society had paid Rs.2 crore by cheque to Dharmeshbhai as he had assured that all the parcels of lands would be transferred in favour of the Society after obtaining the NA permission, however, the said Dharmeshbhai and his brothers did not act accordingly, and therefore, the Society had lodged a complaint before the Crime Branch, Gaikhwad Haveli for cheating and forgery. Since the Investigating Officer had not taken any action, the Society had filed a Civil Suit, being Special Civil Suit No.92 of 2010 for specific performance before the Civil Court in July 2010. Of course, he submitted that the subject matter of the said complaint filed by the Society in 2010 and of the present complaint is distinct and different. Mr.Desai further submitted that the complainant had acquired development rights over the lands mentioned in the complaint from the Society in the year 2010, however, because of the pendency of the Civil Proceedings and because the NA Permission was not obtained, necessary documents were not executed between the Society and the complainant, nonetheless the Society has given the complainant the authority to take all necessary steps against the accused. He further submitted that despite the pendency of the Civil Proceedings and Registration of Lis Pendens, the accused Dharmesh and Narendra had sold out part of the land in question to the accused No.16 on 21.6.2019 and pocketed huge amount. 8. Though the learned Sr. Advocate Mr. J.M. Panchal appearing with the learned Advocate Tatvam Patel and the learned Sr. Advocate Mr. P.K. Jani for the learned Advocate Mr.Dhaval Vyas had requested the Court to permit them to address the Court on the ground that they were appearing for the victims i.e. the daughter and son of the deceased Chandulal Jivrajbhai Shah, the Court had not permitted them to address the Court, as they were not the parties to the proceeding. 9. After hearing the learned Advocates for the concerned parties, the Court had expressed its inclination to grant the applications and at that time, the learned Sr. 9. After hearing the learned Advocates for the concerned parties, the Court had expressed its inclination to grant the applications and at that time, the learned Sr. Advocate Mr.Anshin Desai for the complainant and the learned Sr. Advocate Mr.Lakhani for the applicants – accused requested the Court not to record reasons in the order as according to them, any observations made by this Court might come in the way of or influence the other Courts where the Civil and Criminal proceedings between the parties are pending, while deciding the said proceedings. Considering their request, the Court is not recording the reasons. Suffice it to say that having considered the submissions made by the learned Advocates for the parties at length, the Court deems it proper to grant both the applications. 10. In that view of the matter, the following order is passed :- 10.1 The applicant – Narendra Bhikabhai Vyas of Criminal Misc. Application No.9960 of 2020 is ordered to be released on bail in the event of his arrest in connection with the FIR being C.R. No. 11216025200211 of 2020 registered at Santej Police Station, Gandhinagar on his executing a personal bond of Rs.1,00,000/-(Rupees one lac only) with one surety of like amount on the following conditions; (a) that he shall cooperate with the investigation and make himself available for interrogation whenever required; (b) that he shall remain present at concerned Police Station on 06th August, 2020 between 11.00 a.m. and 2.00 p.m.; (c) that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) that he shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) that he shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) that he shall not leave Gujarat without the permission of the concerned trial court. (g) that he shall surrender the passport, if any, before the concerned trial court within a week; and (h) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; 10.2 In the event of the arrest of the applicant, he shall be released on bail subject to aforesaid conditions, and this order shall remain in force for a period of fifteen days from the date of his arrest, to enable the applicant to file application for regular bail in accordance with law. 10.3 The applicant – Dharmesh Rajnikant Shah of Criminal Misc. Application No.10151 of 2020, if is not required in any other case, is directed to be released on regular bail in connection with the FIR being C.R. No. 11216025200211 of 2020 registered at Santej Police Station, Gandhinagar on his executing a personal bond of Rs.1,00,000/-(Rupees one lac only) with one solvent surety of like amount to the satisfaction of the concerned trial court on the following conditions; [a] that he shall not take undue advantage of liberty or misuse liberty; [b] that he shall not act in a manner injurious to the interest of the prosecution; [c] that he shall not surrender passport, if any, to the concerned trial court within a week; [d] that he shall not leave Gujarat without prior permission of the concerned trial court; [e] that he shall mark his presence before the concerned Police Station between 1st to 10th day of every English calendar month between 11:00 a.m. and 2:00 p.m.; [f] that he shall furnish his mobile number and the present address of residence to the Investigating Officer and also to the concerned Court at the time of execution of the bond and shall intimate the change of the residence to the concerned police station and the trial court; 10.4 The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicant only if he is not required in connection with any other offence for the time being. 10.5 If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond shall be executed before the trial Court having jurisdiction to try the case. 10.5 If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond shall be executed before the trial Court having jurisdiction to try the case. 10.6 At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 11. Both the applications are allowed accordingly. Rule is made absolute to the aforesaid extent in both the applications. Direct service is permitted. Registry to communicate this order to the concerned Court/ Jail authority by Fax or Email forthwith.