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2023 DIGILAW 70 (GUJ)

Hasmukh Khimabhai Gojia v. State of Gujarat

2023-01-09

GITA GOPI

body2023
ORDER : 1. This application has been filed under section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in connection with the FIR No. 11202057200362/2020 registered with Sikka Police Station, Jamnagar for offences punishable under sections 120B, 406, 420, 465, 467, 468, 471 of IPC. 2. Ms. Shivangi Vyas, learned advocate for the applicant submits that by an order dated 5.11.2020, this Court had protected the applicant by directing the police not to take any coercive steps and the said interim relief continued till today. Ms. Vyas submits that reply filed in Regular Civil Suit no.1236 of 2019 and further, the reply which had been given to the legal notice clarifies that the complainant of the present FIR has never named the present applicant in the Suit while all the allegations were against Jitendra Ramshibhai Goriya. 3. Countering the arguments, learned advocate Mr. Daxay Patel for learned advocate Mr. B.T. Rao states that the present applicant had forged the signature on the payment receipt and entire money of the sale transaction has been usurped by him and both the present applicant and Jitendra Ramshibhai Goriya are distant cousins and there has been a conspiracy from their side. 4. Mr. Dhawan Jayswal, learned APP submits that the present applicant has not cooperated with the investigation and there is allegation of forgery and cheating of the large sum of money and thus, urged to reject the application. 5. The FIR which has been filed is with the allegation that the accused no.2 – Nehaben Chiragbhai Karia was interested in purchasing the agricultural land of Village Bed bearing revenue survey No.76, old survey No.181 paiki 4, admeasuring 0-93-28 Hector almost about 6 Vighas and the said land was purchased by way of sale deed in the year 2016 by sale deed no.338/2016 from Rasik Chhaganlal Patel and since then, the possession of the property was with the complainant. It has been alleged by him that the present applicant who is the brother-in-law of Jitendra Ramshibhai Goriya had informed the complainant that the person through whom he had made the understanding for the sale of land is not proposing to purchase it and converse with him to cancel the said agreement and it was informed that Hasmukh Khimbhai Gojiya was initiating the process for cancellation of the agreement but the same was not canceled and it is alleged that Hasmukh Khimbhai Gojiya, Nehaben Chiragbhai Karia and Anand Jasvantbhai Modi had given a public notice dated 19.7.2019 in the newspaper through an advocate and therefore, he had called Hasmukh Khimbhai Gojiya in connection with the notice and he had inquired from him about the possession receipt dated 30.9.2016 where he had raised the grievance that it was not by his signature and that the said signature is forged and thus, Hasmukh Khimbhai Gojiya who is the present petitioner informed him that the said signature was done by him and that he has to be rest assured that there would not be any further issues. It is alleged by the complainant that under such assurance, the applicant had committed breach of trust and had misused the said bogus possession receipt and on that basis, the applicant along with Nehaben Chiragbhai Karia and Anand Modi by power of attorney dated 8.8.2019 has conspired to usurp this property and therefore, filed Regular Civil Suit no.1236 of 2019 in the month of August, 2019. 6. The present applicant had not been made party to the Suit nor any allegation has been made of any forged receipts while complainant has denied any transaction with the plaintiff and has explicitly stated that his transaction was with Jitendra Ramshibhai Goriya and all the monetary transactions were with him. The learned advocate Ms. Shivangi for the applicant submits that the present applicant- Hasmukh Khimbhai Gojiya is not the party to the transaction nor any money is stated to have been received by him and the same fact gets clarified in the reply of the complainant to the legal notice which was issued by Nehaben Karia. The learned advocate Ms. Shivangi for the applicant submits that the present applicant- Hasmukh Khimbhai Gojiya is not the party to the transaction nor any money is stated to have been received by him and the same fact gets clarified in the reply of the complainant to the legal notice which was issued by Nehaben Karia. Learned advocate for the applicant submits that notice was given in July, while the written complaint to police is of September, 2019 and the Suit was filed in December, 2019 and thus, states that in the Suit, no allegation is made of any conspiracy or forgery. 7. The FIR is with regard to agricultural land. The FIR suggest agreement to sell and the Suit filed by the proposed purchaser where no allegation is made against the present applicant of taking sale consideration amount. The FIR is of sale transaction, which is a civil dispute. Taking this fact into consideration, discretion is exercised in favour of the applicant. 8. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565 . This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State of (NCT of Delhi) and Another, reported in (2020) 5 SCC 01. 9. In the result, the present application is allowed. Vs. State of Punjab, reported at (1980) 2 SCC 565 . This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State of (NCT of Delhi) and Another, reported in (2020) 5 SCC 01. 9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the FIR No. 11202057200362/2020 registered with Sikka Police Station, Jamnagar on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that the applicant : (a) shall cooperate with the investigation and make available for interrogation whenever required; (b) 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 from disclosing such facts to the court or to any police officer; (c) 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; (d) 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; (e) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and 10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 11. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.