Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 744 (GUJ)

Shyamal Upendrabhai Thakar v. State Of Gujarat

2020-09-04

ASHOKKUMAR C.JOSHI

body2020
JUDGMENT : 1. The applicant has filed this application under Section 439 of the Code of Criminal Procedure for enlarging him on regular in connection with the F.I.R being CR. No. I- 63 of 2018 came to be registered with the Varnama Police Station, District Vadodara Rural, for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 474 and 120-B of the Indian Penal Code. 2. Heard learned Senior advocate Shree Yogeshbhai Lakhani for learned Advocate Mr. Dhruvin P. Bhuptani for the applicant and with prosecution learned Advocate Mr. D. K. Puj for the complainant and learned APP Ms. Moxa Thakkar on behalf of the Respondent State of Gujarat through video conference. Factual Matrix of the case: 3. The case of the prosecution in nutshell is that allegations are made in the FIR that with an common intention to cheat the complainant by taking away the land situated at Khatamba Village, ad measuring 2-77-22 Hectar Sq. Meter, having market value of Rs. 40,26,91,000/-. Accused Nos. 1 and 2 took in the complainant and other owners of the land by showing interest in purchasing the land and ultimately entered into Agreement to sell with the complainant and other owners and even entered into a Memorandum of Understanding and even took signatures of the Karta of Hindu Undivided Family and thus after obtaining signatures on necessary documents the accused Nos. 1 and 2 refused to purchase the land and when the complainant and other owners demanded the documents back which were prepared between the owners and the accused Nos. 1 and 2, the accused Nos. 1 and 2 refused to give back the documents and in turn the accused No. 3, by preparing a forged power of attorney, sold the land on basis of those documents for sale consideration of Rs. 2,75,00,000/- and thus committed offence and for the above referred facts an F.I.R being CR. No. I- 63 of 2018 came to be registered with the Varnama Police Station, District Vadodara Rural, for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 474 and 120-B of the Indian Penal Code against the accused persons. Submission of the Parties 4. Learned Senior Advocate Shree Yogeshbhai Lakhani for learned advocate Mr. No. I- 63 of 2018 came to be registered with the Varnama Police Station, District Vadodara Rural, for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 474 and 120-B of the Indian Penal Code against the accused persons. Submission of the Parties 4. Learned Senior Advocate Shree Yogeshbhai Lakhani for learned advocate Mr. Dhruvin P. Bhuptani for the applicant has submitted that in the present case, earlier when the offence was registered and the charge-sheet was filed on 26.10.2018, at that time, the present applicant was shown as witness No. 19 and subsequently, the supplementary charge-sheet filed on 12.09.2019, wherein once again the present applicant was shown as witness No. 25. Further it is submitted that charge against all the accused have been framed and trial is also commenced, not only that but accused Nos. 1 and 2 who have played crucial role, they are also on anticipatory bail. Learned Senior Advocate Shree Yogeshbhai Lakhani also submitted that co-accused has also been enlarged and the person who has filed affidavit in favour of the complainant Rahulbhai Barot and the person who has made bogus Power of Attorney who has also been enlarged by Sessions Court and the person in whose name Power of Attorney is executed has also been enlarged by this Court (Coram: A. Y. Kogje, J) in Criminal Misc. Application No. 16890 of 2018 by an order dated 03.10.2018, therefore, parity may kindly be given. 5. Per contra, learned advocate Mr. D. K. Puj for the original complainant with prosecution has vehemently opposed this bail application, when the present applicant is prime conspirator. Learned advocate Mr. Puj further drawn attention of this Court towards Page Nos. 11, 16, 18 wherein the signature of witnesses are very well there. Further sale deed was executed without consideration, therefore, it shows that the present applicant is also beneficiary. Further, it is contended that land valued at Rs. 40 Crores, further so called 1,00,000/- is never deposited on 23.07.2019 and land is transferred to third party without consideration, it shows that applicant was having mala-fide intention and therefore, bail is not required to be granted. 6. Learned APP Ms. Moxa Thakkar for the Respondent State has also opposed the bail application and submitted that charge-sheet is not filed yet. 6. Learned APP Ms. Moxa Thakkar for the Respondent State has also opposed the bail application and submitted that charge-sheet is not filed yet. Anticipatory bail of Kiritbhai is rejected and Power of Attorney is lying with the FSL and present applicant is master mind in the conspiracy so, here is strong prima facie case upon the present applicant. She further submitted in the last that sale deed consideration was not paid, it shows the malafide intention of the applicant and therefore this application is required to be dismissed. 7. In-Re, learned Senior Advocate Shree Yogeshbhai Lakhani for the applicant has submitted before this Court that two Civil Suits are also pending for the same disputed land and therefore, discretion may kindly be exercised being nature of offence is of civil type. 8. Pursuant to the FIR, the present accused is named with co-accused that present accused applicant has intention to cheat the complainant by taking away the land situated at Khatamba Village, ad measuring 2-77-22 Hectar Sq. Meter, having market value of Rs. 40,26,91,000/-. Further, accused Nos. 1 and 2 were taking into confidence, the complainant and other owners and by showing interest in purchasing the land entered into agreement to sell with the complainant and other owners and even took signatures of the Karta of Hindu Undivided Family and after obtaining signatures on necessary documents the accused Nos. 1 and 2 refused to purchase the land. When complainant and the other owners demanded the documents back which were prepared between the owners and the accused Nos. 1 and 2, the accused Nos. 1 and 2 refused to give back the documents and in turn the accused No. 3 by preparing a forged Power of Attorney and sold the land on basis of those documents for a price of Rs. 2,75,00,000/- and thus committed offence under Sections 406, 420, 465, 467, 468, 471, 474 and 120- B of the Indian Penal Code. 9. Pursuant to the dates and events of the matter in nutshell, it transpires that 19.05.2017, the application by Anirudhsinh Gohil – Accused No. 3 to Deputy Collector, Stamp Valuation Department, Vadodara for calculating the market price of the land so to pay necessary stamp duty on power of attorney. On 02.05.2017 Deputy Collector passed order deciding Rs. 2,42,56,800/- as marker price of the land and Rs. On 02.05.2017 Deputy Collector passed order deciding Rs. 2,42,56,800/- as marker price of the land and Rs. 11,88,581/- towards stamp duty to be paid on Power of attorney. On 29.07.2017 accused No. 3 deposited Rs. 11,88,581/- towards registration of Power of Attorney. On 07.10.2017 Registered Sale Deed No. 1386 of 2017 in favour of petitioner and another by original owners through Power of Attorney. On 01.03.2018, RCS No. 142 of 2018 filed by petitioner and another before competent Civil Court at Vadodara praying to declare Sale Deed as valid and with other prayers including for issuance of mandatory injunction upon defendants to accept the consideration amount. Suit is pending. On 01.07.2018, original owners filed Special Civil Suit No. 198 of 2018 before the competent Civil Court at Vadodara praying for cancellation of aforesaid sale deed. Suit is pending along with operation of temporary injunction to maintain status quo. On 23.07.2018, Petitioner and another executed registered Sale Deed No. 1234 in favour of one Saileshbhai Kuberbhai Patel and Nimeshkumar Bhikhabhai Katariya. Further present FIR is filed on 26.07.2018, at that time petitioner was not arraigned as an accused in the FIR. Further this Court has taken into consideration that initially applicant was not arraigned as an accused but he was arraigned as witness. Further, it is also undisputed fact that in supplementary charge-sheet also he was shown as witness, therefore, twice the applicant was shown as witness. Not only that but two Civil Suits are also pending amongst the parties with regard to disputed land and therefore, prima facie it transpires that without going into merits of the case, even if the transaction was made with or without consideration and even if there is mala-fide intention of present applicant in that case it can be safely observed that as such there is no registration of offence under Section 467 of the IPC, wherein punishment is upto life imprisonment. On the contrary, offence registered upon present applicant is under Sections 406, 420, 465, 467, 468, 471, 474 and 120-B of the Indian Penal Code, wherein punishment is upto 7 years and therefore, when two civil suits are pending, as such there is no antecedent upon the present applicant, upon such premises and looking to the totality of facts and circumstances of case, this Court is of the opinion that there should not be pre trial punishment to present applicant. Further, as per the decision of Sanjya Chandra wherein bail is rule. Merits of the Case: 10. This court has considered the following aspects: (a) That even if it is a prima facie case, then also as such there are no antecedents. (b) Further as per catena of decisions of Hon’ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant-Accused at the time of trial and tampering and hampering with the witnesses by the accused. (c) That the learned Advocate for the Applicant has submitted that the Applicant-Accused are not likely to flee away. (d) That the Applicant Accused are in custody since 09.07.2020. (e) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40 wherein it is held that bail is a rule and jail is an exception. (f) This court has also considered the judgment in the case of Arnesh Kumar v. State of Bihar reported in (2014) 8 SCC 273 , wherein the Hon’ble Apex Court has observe that whenever there is punishment of 7 years, then the court would be liberal to exercise the discretion. 11. Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant-accused, the present Application deserves to be allowed and accordingly stands allowed. The Applicant Accused namely applicant – Shyamal Upendrabhai Thakar is ordered to be released on regular bail in connection with F.I.R being CR. No. I- 63 of 2018 came to be registered with the Varnama Police Station, District Vadodara Rural, upon executing a personal bond of Rs. 25,000/- with surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall: (a) 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 any Police Officer or tamper with the evidence. (b) maintain law and order and not to indulge in any criminal activities. (b) maintain law and order and not to indulge in any criminal activities. (c) furnish the documentary proof of complete, correct and present addresses of his residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court. (d) provide their contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court. (e) file an affidavit stating their immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any. (f) not leave India without prior permission of the Trial Court. (g) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect. (h) shall maintain all the rules and regulations framed by the Municipal Corporation regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing. 12. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for. 13. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being. 14. Rule is made absolute. The Registry is directed to communicate this order by Fax/by E-mail to the concerned Court/Authority. Application allowed.