Gujarat High Court
Sunilbhai Dhirubhai Patel vs State Of Gujarat on 20 December, 2018
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/21186/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21186 of 2018
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SUNILBHAI DHIRUBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. YATIN OZA, SR. ADVOCATE with MR PRATIK Y JASANI(5325)
for the PETITIONER(s) No. 1,2
MR. Y. S. LAKHANI, SR. ADVOCATE with MR. JAY M
THAKKAR(6677) for the RESPONDENT(s) No. 1
MR. J. K. SHAH, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 20/12/2018
ORAL ORDER
1. RULE. Mr.J. K. Shah, learned Additional Public Prosecutor waives service of rule on behalf of the respondent-State.
2. This application is filed by the applicants under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of their arrest in connection with FIR registered at C.R. No.I-43 of 2018 with Bapod Police Station, District- Vadodara, for the offence punishable under Sections 120(B), 406, 417, 420, 465, 468, 469 of the Indian Penal Code.
3. Learned Senior Advocate appearing on behalf of the applicants would submit that considering the nature of offence, Page 1 of 13 R/CR.MA/21186/2018 ORDER the applicants may be enlarged on anticipatory bail by imposing suitable conditions.
3.1 Learned Senior Advocate for the applicants submitted that the applicants are the partners of one Brahmani Built Coin which had expressed a desire to purchase the land in question. However, when the applicants entered into an agreement with the Power of Attorney of the original owner (Accused-Ratilal Manilal Patel), they were given an impression that one - J. N. Corporation has some interest in the same land, as they had also invested substantial amount in it. Therefore, for extinguishing their rights, the applicants will have to make payment not only to the original owners, but also to the said J. N. Corporation. The applicants had accordingly made part payments firstly to the original owner and cheques to the J. N. Corporation. It is at that stage, the applicants firm came to know that the rights of the J. N. Corporation were already extinguished and that there was no need to make any payment to them, still the cheques were deposited by the said J. N. Corporation, which got dishonored and litigation pertaining to the same (i.e. quashing of the complaint under the Negotiable Instruments Act) had reached the Apex Court, where the proceedings under Section-138 of the Act were stayed. It is Page 2 of 13 R/CR.MA/21186/2018 ORDER submitted that the applicants have therefore on one hand, paid huge amount to the original accused No.1 and in return, have not received any clear right, title or interest in the land in question. The applicants therefore, are the victims of the fraud played by the complainant in connivance with the original owner/s who is also the accused. It is submitted that the F.I.R. of the applicants was not being registered. The complainant and the original owners were hand in glove and with great difficulty after the directions issued by this Court, the F.I.R. came to be registered against the real culprits, who are the complainants herein.
3.2 It is submitted that though the applicants had expressed their willingness to perform their part of the contract, however, it was the original owner of the land, who after receiving the substantial consideration, was not ready and willing to fulfill his part of the contract. It is submitted that the complainants initiated civil proceedings by filing a Special Civil Suit No. 103 of 2016 before the Senior Civil Judge, Vadodara against the accused No. 1 and 2 herein i.e. original owners.
3.3 It is submitted that the gist of the F.I.R. appears to be dishonor of the cheques. However, the said cheques were Page 3 of 13 R/CR.MA/21186/2018 ORDER issued only for the purpose of security which the complainants have misused but the same is now subject matter of litigation pending before the Apex Court. It is submitted that present F.I.R. Nothing, but an abuse to prevent the applicants from claiming their legitimate rights in the land and or seek refund of the huge amount i.e. paid by the applicants. It is submitted that if the entire allegations are taken into consideration, it does not constitute the offence of forgery.
3.4 Learned Senior Advocate for the applicants draws the attention of this Court to various documents, which are executed including the cancellation of deed between the original owner, Power of Attorney of original owner Ratilal Manilal Patel and J. N. Corporation (Complainant) and also the Memorandum of Understanding of the same date, where all the parties with open eyes had put their signatures. 3.5 It is lastly submitted that the hand in glove act of the accused no. 1 and 2 herein and the complainant is evident found from his conduct before this Court as the original complainant is not seriously objecting to grant of bail to accused no.1 in this very offence.
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R/CR.MA/21186/2018 ORDER 4. On the other hand, the learned Additional Public
Prosecutor appearing for the respondent-State has opposed this application and granting anticipatory bail to the applicants looking to the nature and gravity of the offence.
5. Learned Senior Advocate for the complainant opposed the grant of bail on the ground that the applicants have jointly played fraud on the complainant to defraud them of right to receive the consideration as admittedly, they had some rights created in the land in question on account of their investment of huge money. The applicants have made show of making payment to the complainants for extinguishing their rights but when cheques received towards the consideration, were deposited, the same were dishonored.
5.1 Learned Senior Advocate for the complainant draws the attention of this Court and submitted that the chronology of the dates of the cheques on which same were deposited and the dates on which notice for dishonor of cheque were served and the date on which the third entity namely Khetal Reality was created overnight and the entire right pertaining to the land in question were transferred to the Khetal Reality clearly speaks about the conspiracy between the accused persons.
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R/CR.MA/21186/2018 ORDER
5.2 Learned Senior Advocate for the complainant also
highlighted the role of the Police Inspector- Rahul Patel who had no interest in the land in question, yet jumped into as a big investor and handed over five cheques totaling to Rupees Seven Crore Sixty Eight Lakhs only from his personal accounts. It is submitted that for the purpose of bringing on record the complex transaction entered to extinguish the rights of the complainant, the custodial interrogation of the applicants is necessary.
6. I have heard the learned advocates appearing for the respective parties, perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the applicants- accused. Without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants.
6.1 The matter revolves around piece of land located at Mouje Village Sayajipura, Taluka & District-Vadodara, which was originally owned by one Govind Patel, presently residing in U.S.A. The said land was thereafter gifted to the daughter of Govind Patel namely Ina Patel. Ina Patel is wife of one of the two sons of the present applicant. The sons are also residents of U.S.A. This being so, the Power of Attorney was Page 6 of 13 R/CR.MA/21186/2018 ORDER given by Daughter-in-law; Ina Patel to the present applicant. 6.2 It appears from the record that with regard to certain parcels of land, in capacity as Power of Attorney holder, the applicant and his wife had entered into agreement to sale with one J. N. Corporation. It appears that certain consideration was fixed for the purpose of the land transaction, of which some portion was paid by J. N. Corporation towards the execution of agreement to sale. However, full amount of consideration did not pass on from J. N. Corporation to the land owners. As a result, the said transaction did not conclude. In the meantime, the applicant entered into an agreement with Brahmani Buildcon, which was also interested in purchase of land and therefore, tri party agreement was entered into as some interest has been created in favour of the J. N. Corporation. The tri party agreement was entered into between the J. N. Corporation on one side, the Brahmani Buildcon on the other side and the applicant being the confirming party as the Power of Attorney of the original owner of the land. It appears that this transaction also could not be completed, even though some amount was exchanged by J. N. Corporation initially to the applicant to protect its interest in the land. Some amount was also paid to them by R.T.G.S. and by issuing cheques. Page 7 of 13
R/CR.MA/21186/2018 ORDER However, the cheques were dishonored and therefore, transaction also did not fructify. It appears thereafter, another party namely Khetal Reality, partnership firm came into picture, which also showed interest to purchase said parcels of land, for which purpose, the said Khetal Reality also paid certain amount.
6.3 The Court has taken into consideration the investigating case papers which consist of disputed documents beginning with the agreement to sale of an open land dated 19-06-2012 to the complainant, J. N. Corporation, which came to be revised on 26-06-2013 for the purpose of measurement and also the registered sale deed dated 28-06-2013 in its favour for the part of the land, towards which the applicant has received part payment. The Court has also perused the documents executed on one single day dated 14-05-2015, which included the cancellation of agreement to sale dated 19-06-2012 and 26-06-2013 in favour of the J. N. Corporation and refund of the sale consideration. On the same day, the agreement to sale with possession was executed in favour of Brahmani Buildcon where the amount of consideration was Rs.35.08 Crores, out of which Rupees Nine Crores were paid towards the earnest money. The other documents is dated 14-05-2015 being tri Page 8 of 13 R/CR.MA/21186/2018 ORDER party agreement (Memorandum of Understanding) where the applicant has signed as confirming party. The Covenants of this Memorandum of Understanding are such wherein all the parties concerned have agreed upon that merely because on account of some dispute regarding making of payment by one party to another, the document of Memorandum of Understanding can-not be considered to be forged document. 6.4 The Court has also taken into consideration the fact that the complainant, J. N. Corporation has filed Suit No.103 of 2016 in connection with the land in question, wherein it has claimed damages of Rs.24 Crores and Rs.7.68 Crores respectively from the defendants at the interest of 12%. 6.5 Considering the fact that investigation pertains to documentary evidence, which are already in custody of the Investigating Agency, further detention of the applicant is unwarranted.
6.6 The Court finds that this set of F.I.R. appears to have been filed in connection with the same land, where the interest of three parties are involved apart from original owner. As the land appears to be a valuable piece of land with enhanced land price, the stake of which the party who Page 9 of 13 R/CR.MA/21186/2018 ORDER has invested some money, has risen dramatically which led to filing of two F.I.R. against each other and the investigation, which has consumed extra ordinary time of the Investigating Agency and at each stage, the litigation reaches the High Court as well as the Apex Court on behalf of one side or other. It is observed that the applicants herein are also complainants in another F.I.R. with regard to the same subject land whereby vide a detailed order, the complainants of the present F.I.R. have been protected by this Court against the arrest.
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 Others, reported at [2011] 1 SCC 6941, wherein the Hon'ble Apex Court has reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia and others, reported at (1980) 2 SCC 665.
7. Learned Advocate for the applicants on instructions states that the applicants are ready and willing to abide by all the conditions, including imposition of conditions with regard to the powers of Investigating Agency to file an application before the competent court for their remand. He would further submit that Page 10 of 13 R/CR.MA/21186/2018 ORDER upon filing of such application by the Investigating Agency, the right of the applicants-accused to oppose such application on merits may be kept open.
8. In the result, the present application is allowed by directing that in the event of arrest of the applicants herein in connection with FIR registered as C.R. No.I-43 of 2018 with Bapod Police Station, District-Vadodara, the applicants shall be released on bail on their furnishing a personal bond of Rs.10,000/- (Rupees ten thousands only) EACH with one surety of the like amount on the following conditions that they:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 02-01-2019 between 11.00 AM and 02.00 PM;
(c) 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 them from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall, at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; and Page 11 of 13 R/CR.MA/21186/2018 ORDER
(g) 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 the same on merits;
9. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for Police remand of the applicants. The applicants 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. It is clarified that the applicants, 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.
10. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicants on bail.
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R/CR.MA/21186/2018 ORDER
11. The application is allowed accordingly. Rule is made absolute in the aforesaid terms. Direct service is permitted.
(A.Y. KOGJE, J) MR PARESH J SOMPURA Page 13 of 13