Gujarat High Court
Dilip vs State on 29 December, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.MA/14916/2011 18/ 18 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14916 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
======================================
DILIP
@ DINESH SHIVABHAI PATEL & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
======================================
Appearance :
MR
PM THAKKAR FOR M/S THAKKAR ASSOC. for Applicant(s) : 1 - 2.
MR HL
JANI ADDITIONAL PUBLIC PROSECUTOR for Respondent(s) : 1,
MR SV
RAJU for Respondent(s) : 1,
MR CHETAN K PANDYA for Respondent(s) :
1,
MR. BHADRISH S RAJU for Respondent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/12/2011
CAV
ORDER
1. This is an application preferred by the applicants under Section 439 of the Code of Criminal Procedure, for enlarging them on regular bail in connection of the FIR being C.R. No.104 of 2011 registered with Vaghodia Police Station for the offences punishable under Sections 406, 420, 114, 188, 465, 467, 468 and 471 of the Indian Penal Code.
2. As per say of the complainant, on 3.2.2011, one Banakhat was executed in favour of the complainant by the applicants Nos. 1 and 2 for the land situated of Survey No.164. Prior to that both the applicants executed Banakhat and sale deed in favour of other persons. When the complainant had issued a public notice in newspaper with regard to said property, no objection was raised. Though original accused N.3 was knowing this fact, he prepared Banakhat of backdate for the land of Survey No.164 on stamp paper of Rs.50 and executed a sale deed on 3.5.2011. Accordingly, in violation of the order of learned Civil Judge passed in Special Civil Suit No.372 of 2008, accused nos.1 and 2 have executed sale deed and thereby committed such alleged offence.
3. Learned senior advocate Mr. P.M. Thakkar of M/s. Thakkar Associates appearing for the applicants submitted that from the contents of complaint, it is not established prima facie that both the applicants have committed the alleged offence. He submitted that the dispute is with regard to the suit land in respect of which learned Civil Judge has directed the parties to maintain status-quo. He also submitted that the petitioners are owners of land of Survey No.164 of village-Sakira, Taluka-Vaghodia, District-Vadodara. He submitted that as per the case of the complainant, Banakhat in respect of the suit land was executed in favour of the complainant on 3.2.2011. He further submitted that one Special Civil Suit No.509 of 2011 is also filed by the complainant against the applicant no.1 and accused No.3 for specific performance with regard to Banakhat dated 3.2.2011. He also submitted that since the complainant was having some grievance against the applicants that they are not executing sale deed, he filed a complaint before DSP, Vadodara (Rural), on 31.5.2011, which was registered as a Chapter Case and the applicants were released on bail in respect of said case. He also submitted that since the complainant was not happy with the outcome of Special Civil Suit or the Chapter Case he has filed present complaint on 1.8.2011. He also submitted that applicant no.1 had executed a declaration agreement on 2.1.2007 in favour of one Natvarbhai Shivabhai Patel and one Jagdishbhai Natvarbhai Patel, son of Natvarbhai Shivabhai Patel has filed Regular Civil Suit No.372 of 2008 for specific performance of said agreement and vide order dated 28.2.2011, the parties are directed to maintain status quo. He read the contents of the Banakhat wherein one Mr. Bharatbhai Govindbhai Bharwad is stated to be co-purchaser along with the complainant and submitted that the applicants are ready to return the amount of earnest money amount. He also read the contents of Panchanama and submitted that the possession is of the land in question not handed over to the complainant. He also read the order passed in Special Civil Suit No.509 of 2011 and reply filed by defendant No.2 - Dineshbhai Vitthalbhai Chauhan wherein it is mentioned that the Banakhat is without possession. He further read reply and submitted that just to suppress the fact that the Banakhat is without possession, the receipt of Rs. 105/- for registration is not produced. He drew attention of the Court to the para 8 of the reply and submitted that co-purchaser of the land, is Bharat Govindbhai Bharvad, who was alleged to have been detained under PASA.
He also submitted that the Banakhat executed in favour of accused No.3 clearly shows that possession of the land is given to him on 10.6.2010. He also submitted that as per the complaint about forged documents, it is mere allegation and the same is not covered within the meaning of the forgery as per Sections 465 and 467 of the Indian Penal Code.
4. He also submitted that Sections 188 and 195 of the Indian Penal Code are required to be considered and submitted that how the complaint can be filed by the Court and Court take cognizance. Sections 188 and 195 of Indian Penal Code are reproduced hereunder:
"Section 188 : Disobedience to order duly promulgated by public servant.- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to causes a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
"Section 195 : Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment :
Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force in (India) is not capital, but punishable with (imprisonment for life), or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished."
He also read Section 405 which can be read as under:
"Section 405 : Criminal breach of trust Whoever, being in any manner, entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits " Criminal breach of trust".
5. He submitted that main ingredients of this Section 405 are dealing with the aspect of entrustment and dominion over the property and read the contents of Banakhat and submitted that the since the property is not handed over to the complainant, ingredients of Section 405 are not established. He submitted that so far as amount of earnest money of the land is concerned, the applicants are ready to pay and/or return the same. He also submitted that this is simply a civil dispute and the complainant has adopted arm twisting method and a short cut to throttle the civil proceedings. He further submitted that the applicants are falsely implicated in the offence and there is no material to indicate the involvement of the applicants. He also submitted that the applicants will be available as and when their presence is required. He further submitted that this is a case of documentary evidence and all the documents are already seized, therefore, there is no question of tampering with the evidence. He submitted that in view of all these facts, the applicants may be released on bail.
6. Mr. Thakkar, learned senior advocate relied upon the decision in the case of Gurubaksh Singh & Ors. Vs. The State Of Punjab reported in (1980) SCC 565, and submitted that present bail application cannot be refused in light of observation made by the Hon'ble Supreme Court in that case. He also read paras 10 and 11 of the order passed by the learned trial Judge and submitted the learned trial Judge has not passed any reasoned order in that bail application. He further submitted that considering the role on the part of the applicants, the applicants may be released on bail. He also read the list of witnesses and submitted that the trial will take its own time and the applicants may be released on bail. He also submitted that Regular Civil Suit No.372 of 2008 is filed by one Jagdishbhai Natvarbhai Patel in respect of the land in question is filed against the applicant and the order of status quo is already granted, therefore, no criminal offence as alleged can be said to have been made out and the applicants may be released on bail.
7. He also submitted that Sections 406 and 420 cannot go together and this is a case of magistrate triable. He also submitted that as per Section 188 of the Indian Penal Code, no cognizance is taken and the Court has not filed any complaint. He further submitted that complainant is not a party in that suit and the land which is purchased by the father of the complainant and, therefore, ingredients of this Section are not established against the applicants. Even the offence under Section 188 is bailable offence. He also read the provisions of Section 468 and it is not a case of forged Banakhat. He also read the provisions of forged documents as per the provisions of Sections 464, which is as under:
"Section 464 Making false document [ A person is said to make a false document or false electronic record -
First
- Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record on part of any electronic record.
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature;
with the intention of causing it to be believed that such document or part of document, electronic record, or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed sealed, executed or affixed; or Secondly
- Who, without lawful authority, dishonestly or fraudulently by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly
- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind of intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
8. Learned advocate for the applicants further submitted that in respect of Banakhat dated 10.6.2010, a sale deed was executed on 30.5.2011 by the applicants in favour of accused No.3. As per the submissions of the learned senior advocate Mr. Thakkar, there is no dispute even about signature put by the accused. He further submitted that the applicants are not likely to jump the bail, if they are granted bail. The applicants have not been previously convicted for two or more occasions. He also submitted that as per the provisions of Section 437(2) of the Code of Criminal Procedure, the applicants are required to be released on bail. He also read para 21 of the decision of Gurucharansingh (Supra) and submitted that this is not a case, which may result into sentence of death or life imprisonment.
9. Learned senior advocate Mr. S.V. Raju for the complainant, strongly opposed the bail application of the applicants and submitted that the bail application is not required to be granted in favour of the applicants considering the seriousness of the offence, in which they have been involved.
10. Learned senior advocate Mr. Raju read the case of Gurucharansingh (Supra) and argued that so far as provisions Sections 437 and 438 are concerned, they deal with the cases where there appears to be reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. Therefore, facts of cited case are not applicable to the facts of present case. Mr. Raju, learned senior advocate read para 21 of the said decision and submitted that the principle laid down for the offence punishable under Section 467 is made out prima facie against the applicants. He also submitted that the charge-sheet is filed in the present case for the said offence. He also read the decision in the case of Chandraswami and Another Vs. Central Bureau of Investigation reported in (1996) 6 Supreme Court Cases 751 and submitted that in that case, the provisions of 7 years punishment is prescribed under Section 420 of the Indian Penal Code. He has read one another decision in the case of Mohammad Ibrahim and others Vs. State of Bihar reported in 2009 (8) SCC 751 and submitted that the Hon'ble Supreme Court has dealt with the provisions of Section 467 of the Indian Penal Code in that case. He read the provisions of Section 464 (h) and submitted that the facts of the said case is applicable to the facts of the present case. He also submitted that when in the present case, the offence punishable under Section 467 of the Indian Penal Code is made out then no question for bail can arise as the offence is punishable with sentence of life imprisonment.
"Section 464 (h) : A sells and conveys an estate to Z.A. afterwards, in order to defraud Z of estate, executes a conveyance of the same estate to B dated six months earlier than the date of the conveyance to Z intending it to be believed that he had conveyed the estate to B before the conveyed it to Z. A has committed forgery. "
11. Learned Senior advocate Mr. Raju drew the attention to the case of Bharat Hiralal Sheth and others Vs. Jaysin Amarsinh Sampat and another reported decision in 1997 Cri. L.J. 2509 of Bombay High Court, more particularly para 9 and submitted that prima facie the case of forgery is made out against the applicants. He also submitted that since both the applicants have committed the offence punishable under Section 420 and 467 of the Indian Penal Code, bail is not required to be granted.
12. Learned senior advocate Mr. Raju drew the attention to the case of Ravindra Saxena Vs. State of Rajasthan reported in 2010(1) SCC 684 and submitted that, in that case, the Hon'ble Supreme Court has dealt with the provisions of the offence punishable under Sections 420, 467, 468 of the Indian Penal Code and submitted that offence under Section 467 is punishable with the sentence of imprisonment of life. He also read the contents of press note which is a part of charge-sheet and submitted that looking to the conduct of the present applicants, there is a possibility of tampering with the evidence, if the applicants are granted bail. He also submitted that original documents are not recovered and therefore, xerox copies can be considered as a secondary evidence, therefore also, the applicants may not be released on bail. He also submitted that as per Rule 11 of the Code of Civil Procedure, no notice is given for discovery or inspection. In view of the above submissions, he prayed to dismiss the application of the applicants.
13, Learned APP Mr. Jani for the State also strongly opposed the application for bail of the applicants and submitted that the Special Civil Suit No.372 of 2008 filed by Jagdishbhai Natvarbhai Patel and in the said suit, present applicant has filed reply and in order dated 28.2.2011 passed in Special Civil Suit No.372 of 2008, it is stated on record that the applicant is not owner of Revenue Survey Nos.174 and 164. Mr. Jani, learned APP stated that when the ownership is not there, then how the applicants can executed Banakhat. He has read the contents of reply filed by the applicant in the said Suit. He further submitted that after Banakhat, straightway sale deed was executed in back date. He also submitted that looking to the conduct of the present applicant, the principle of "mens rea" is required to be applied in favour of the prosecution. He also submitted that the complaint has published public notice, which is not objected. He read the public notice published in "Divya Bhaskar" dated 1.3.2011 from which it is clear that this is a case of forgery and also read the provisions Section 468 and in the said provision, the sentence prescribed for the said offence is 7 years life imprisonment. Mr. Jani,learned APP relied upon the case of Ashok Mishra from the set of decisions produced by learned senior advocate Mr. P.M. Thakkar and submitted that in view of provisions of Section 406 as per the case of Sanjay Chandraswami (Supra), the sentence prescribed is imprisonment for life. Mr. Jani, learned APP also read the provisions of Sections 464 and 467. He read provisions of Section 464 and stated that as per above provisions, it is established that both the applicants have committed forgery and therefore, they may not be released on bail.
14. He read the statement of witness Mr. Shashikant dated 30.8.2011 and statement of notary as well as statement of Officer, Sub-Registrar, Sumitraben dated 6.8.2011 in support of his submissions. He stated that from the documentary evidence as well as statement of witness, it is prima facie established that the present applicants have committed serious offence which falls under the provisions of Section 467, 468 and 471 of the Indian Penal Code and sentence for the said offence is life imprisonment. He further stated that now-a-days, in the society, such type of offences are committed by persons like applicants, with a view to gain some monetary benefits. Therefore also, it may be viewed seriously and the applicants may not be granted bail.
15. Heard at length the learned advocates appearing on behalf of the parties and perused the application along with papers. It is true that though the learned senior advocate Mr. Thakkar has submitted that contempt petitions are pending before this Court and prima facie the ingredients of alleged offence are not made out against the present applicants, on perusal of the oral as well as documentary evidence produced on record by way of statements recorded by the police, said submission does not support the case of the applicants. Learned senior advocate Mr. S.V. Raju for the complainant, has read the judgment of Hon'ble Supreme court of India which is produced on record by the learned Senior advocate Mr. Thakkar, which are as under :
(1) 2011 STPL -WEB 1006 SC Sanjay Chandra Vs. CBI (2G Spectrum) (2) 2011 STPL-WEB 1001 SC Byraraju Ramaa Raju Vs. CBI (Satyam Scam) (3) 2011 (1) SCC 694 Siddharam Satlingappa Mhetre Vs. State of Maharashtra (4) 2010 (1) SCC 684 Ravindra Saxena Vs. State of Rajsthan (5) 2008 (16) SCC 501 Anwarli Ali Vs. State of Chhattisgarh (6) 2008 (7) SCC 591 Sureshchandra Ramanlal Vs. State of Gujarat (7) 2000 (9) SCC 533 Ashok Dhingra Vs. NCT of Delhi.
(8) 1996 (6) SCC 751 Chandraswami Vs. CBI (9) 1978 (1) SCC 188 Guruchanran Singh Vs. State (10) 2011 (0) GLHEL_ HC 225926 Asim Niranjan Chakraborty Vs. State of Punjab (11) 1980 (2) SCC 565 Shri Gurubaksh Singh and Others Vs. State of Punjab (12) 2009 (8) SCC 751 Mohammad Ibrahim and Others Vs. State of Bihar (13) 2005(11) SCC 569 Babba Alias Shankar Raghuman Rohda Vs. State of Bihar.
(14) 2000 (9) SCC 383 Mahesh Kumar Bhawsinghka Vs. State of Delhi.
(15) 2000 (9) SCC 443 Vivek Kumar Vs. State of U.P.
16. It is submitted that in the said judgments, the question regarding punishment of life imprisonment is considered by the Hon'ble Supreme Court of India while granting bail and the Hon'ble Supreme Court has granted bail in favour of the accused. In present case, I have perused decisions produced by the learned Senior advocate Mr. Raju, rendered in the case of Bharat Hiralal Sheth (Supra) by Bombay High Court and I have perused Sections 464(h) of Indian Penal Code. It is true that for the alleged offence, the punishment is prescribed under the same provisions is of life imprisonment. I have perused the decisions produced on record by the learned advocate Mr. Thakkar, which are read over by the learned advocate Mr. S.V. Raju and Learned APP Mr. Jani. I have perused the contents of the present case and from the perusal of the contents of the FIR as well as papers produced on record, pram facie, it appears that the applicants have committed the alleged offence.
17. Learned APP Mr. Jani submitted that the principle of "mens rea"
is required to be applied. I have perused the papers of charge-sheet and it is established beyond reasonable doubt that mens rea on the part of the applicants is established. I have perused the contents of present application and contents of the written statement filed before the Civil Court and denial of their possession and ownership over the land indicate the consciousness of guilty mind of the applicants. It is proved that mens rea is set of mind under criminal law and is considered as "guilty intention" and when it is established that the accused with guilty mind committed the crime then no question can arise to consider that principle of mens rea will not apply. It is established law by the Hon'ble Supreme Court in the case of Medchl Chemical & Pharma (P) Ltd. Vs. Biological E Ltd., reported in AIR 2000 SC 1869.
18. Learned APP Mr. Jani also submitted in his argument that the conduct of the present applicants is required to be considered because, prima facie, it appears from the record, that the present applicants have committed such offence. I have perused Section 8 of the Evidence Act and I have also perused ingredients of said Section. I have also perused the contents of written reply filed before the Civil Court in which the applicants stated that they are not owners of that land and yet said land is sold out, so conduct also prima facie show that the applicants have committed serious offence. Even though it is argued that the contempt petitions are pending, but that question can not come for consideration of this bail application. It is required to consider whether prima facie case is made out or not and in result when it is established that the alleged offences are committed by the applicants.
19. In view of the above discussion and observation and submissions made by the parties and from documentary evidence produced on record, it appears that present applicants have committed serious offence and I am also in agreement with the submission of the learned senior advocate Mr. S.V. Raju that there is a genuine reason to say that if the present applicants may be released on bail, then they will tamper with the evidence. It is a case documentary evidence. Therefore, I am of the view that the bail application of the applicants is required to be dismissed. Hence, dismissed. Rule is discharged.
(Z.K.SAIYED,J.) ynvyas Top