Gujarat High Court
Bharatbhai vs State on 13 March, 2012
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.MA/248/2012 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 248 of 2012
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
======================================
BHARATBHAI
HARIHARBHAI BHATT - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
======================================
Appearance
:
MR
PM THAKKAR FOR MR RJ GOSWAMI for Applicant(s) : 1,
MR HL JANI
ADDITIONAL PUBLIC PROSECUTOR for Respondent(s) : 1,
MR SOEB R
BHOHARIA for Respondent(s) : 1,
VALIMOHAMMED PATHAN for
Respondent(s) : 1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/03/2012
CAV
ORDER
1. This is an application preferred under Section 439 of the Code of Criminal Procedure by the applicant, who came to be arrested in connection with CR No. I - 11 of 2010 registered at CID Crime, Gandhinagar Zone Police Station for the offences punishable under Sections 406, 420, 465, 467, 471, 201, 120(b) and 114 of the Indian Penal Code. The said complaint has been lodged by complainant named Kundanbhai Babubhai Patel.
2. It is alleged by the complainant that the applicant is an accused No.1 in the FIR along with other accused. The agreement to sell was executed on 22.4.2008 of Manjushree (Vasana) Owners Association in favour of the complainant. The complainant has parted with huge amount and the present applicant has produced false title clearance certificate of the advocate and, therefore, the FIR came to be lodged.
3. Learned senior advocate Mr. P.M. Thakkar for Mr. R.J. Goswami, learned advocate for the applicant submitted that the applicant is an innocent person and he has been wrongly arraigned in the commission of the offence. He also submitted that the alleged offences have been registered in the month of July, 2010 and the applicant has been arrested after a period of nearly one year. He also submitted that after the registration of the offence, the statement of the applicant was recorded. He also submitted that the dispute in question, is of civil nature. He further submitted that there is delay in registration of the FIR, though the original complainant came to know regarding the alleged making of false Banakhat still the FIR was not registered. The statement of the Notary is recorded and the said Notary has not stated that the complainant did not come for execution of the Banakhat, which is alleged to be forged. Therefore, this shows that there is no forgery or making of false Banakhat. Learned senior advocate further submitted that as per the charge-sheet, it is the case of the prosecution that the said original cancellation deed has been destroyed by an accused and charge under Section 201 of the Indian Penal Code is added, which shows that no forgery has been committed and complainant deliberately did not produce original cancellation deed. He also submitted that the applicant is aged about 70 years old and he is in judicial custody from 6.9.2011. Even the complainant has filed Civil Suit No.2022 of 2009 before the learned City Civil Court, Ahmedabad and with a view to extort more money, this false FIR is filed. He also submitted that if the applicant is released on bail, he will not jump the bail and he will present during the trial.
4. Learned senior advocate Mr. P.M. Thakkar relied upon the case of Ashok Dhingra Vs. National Capital Territory of Delhi reported in 2000 (0) GLHEL-SC 1704 and submitted that in the said case, the accused involved in the scam of Rs.65 Lacs and he was in custody from 5.7.1999 to 10.12.1999. The Hon'ble Supreme Court has considered the case of the accused though he involved in the scam of exceeding Rs.65 Lakhs and released on bail. In the present case, the applicant is in judicial custody since 6.9.2011 and the applicant is not involved in such a serious case and, therefore, the applicant may kindly be granted bail.
5. Learned senior advocate also relied upon the case of Dipak Shubhashchandra Mehta Vs. C.B.I. & Anr. reported in 2012 STPL (Web) 101 SC and submitted that the Hon'ble Supreme Court granted bail to the accused, who was involved in the economic offence. He also relied upon the case of BYRRAJU RAMAN RAJU Vs. STATE THROUGH THE CENTRAL BUREAU OF INVESTIGATION reported in 2011 STPL (Web) 1001 SC and in the said case, the bail was granted and that applicant was in jail since two years and eight months.
6. Learned senior advocate Mr. Thakkar relied upon the decision of Ajay Kumar Prasad Vs. State of Bihar Th. Vigilance reported in 2011 STPL (Web) 249 SC. He also relied upon the case of Maulana Mohammed Amir Rashadi Vs. State of U.P. reported in (2012)2 Supreme Court Cases 382 and submitted that in that case, the applicant was in jail since 24.8.2009 and upheld the bail order of the High Court. He also relied upon in the case of Sureschandra Ramanlal Vs. State of Gujarat and another reported in 2008(3) GLH 113, wherein the Hon'ble Supreme Court observed that the applicant of the aforesaid case, was 75 years and the applicant was suffering from severe osteoarthritis, deformity of knee, heavy diabetes, severe obesity etc. and he was granted bail. He also relied upon para 9 of the aforesaid case. He, therefore, submitted that the present applicant is of 70 years old and is suffering from the several diseases. Therefore, the applicant may kindly be released on bail by imposing suitable conditions.
7. Learned senior advocate Mr. Thakkar relied upon the decision in the case of Kishan Singh (D) Through L.Rs. Vs. Gurpal Singh reported in 2010 (0) GLHEL-SC 48795, more particularly paras 20 to 24 and submitted that in that case, there was an inordinate delay in filing FIR and also there was no explanation whatsoever for the same and the accused of that case are involved in 2G scam and the appeal was dismissed by the Hon'ble Supreme Court by confirming the order of the High Court.
8. Learned senior advocate Mr. Thakkar submitted that in the aforesaid cases, the Hon'ble Supreme Court has considered the case of the accused with regard to the issue of bail. Therefore, the case of the applicant is required to be considered for bail purpose considering the facts and circumstances of the case, age and severe disease of the accused and the span of the applicant in the judicial custody. The applicant has not played any active role in the commission of the offence and on the contrary, the complainant with a view to harass the applicant, the complaint in question, is filed by him after a lapse of considerable long period. The dispute is of civil nature and, therefore, civil suit is pending before the Civil Court and therefore, the complaint filed by the complainant is itself bogus and sham and with mala fide intention.
9. Learned APP Mr. Jani for the State submitted that the applicant is involved in the serious offences punishable under Sections 406, 420, 465, 467, 471 and 120(b) of the Indian Penal Code and therefore, discretion may not be exercised in favour of the applicant. Against the applicant, there is one complaint lodged with Vejalpur Police Station vide I C.R. No.49 of 2008 and another complaint lodged with Ellisbridge Police Station vide M. Case No.1 of 2010 for the offence punishable under Sections 406, 420, 467, 468, 471 of the Indian Penal Code. He also submitted that the applicant made new document by affixing his photograph on the Banakhant which was executed between the complainant and the applicant and the same was on the name of Manjushree (Vasna) Owners Association. Even the applicant made forged signature of the complainant and also raised false title clearance certificate on the name advocate Mr. B.R. Shah. The statement of said Mr. Shah before the police is recorded, wherein he stated that he has not made any signature in the document and the document is not given by him. The applicant has committed serious offence and he has played active role in the commission of the offence. The applicant was President of the said Association and prior to this offence, he has committed other offence. Therefore, the applicant has criminal antecedent. He also read the contents of FSL and same is against the applicant. Therefore, he submitted that considering the facts and circumstances of the case, the bail is required to be granted in favour of the applicant.
10. Learned advocate Mr. Bhoharia for Mr. Pathan for the original complainant states that from the record, it prima facie appears that the applicant has committed serious offence and it is also prima facie established against the applicant and therefore, the bail should not be granted.
11. Learned senior advocate Mr. P.M. Thakkar submitted that the applicant has been released on bail in connection of the complaint lodged with Vejalpur Police Station vide I C.R. No.49 of 2008 and another complaint lodged with Ellisbridge Police Station vide M. Case No.1 of 2010. Therefore, so far present case is concerned, the applicant may kindly be granted bail by imposing suitable conditions.
12. Perused the application along with papers and considered the submissions advanced by the learned advocates. First of all, in this matter, as per the complaint, it reflects that the complainant decided to purchase the plot No.300 admeasuring 849 Sq. Mtr. of the T.P. Scheme No.849 from the applicant, who is President of Manjushri Owners Association and for that purpose, the rate Rs.18,500/- per Sq. Mtr. was fixed by considering the total amount of Rs.1,87,22,000/-. In connection of that transaction, on 16.4.2008, the complainant paid Rs.51,000/- as a token fees to the applicant and it was ascertained to execute Banakhat on 22.4.2008 and same was executed thereafter. Before executing the said Banakhat, the complainant paid another sum of Rs.2,00,000/- in cash to the applicant. As per the conditions of the Banakhat, after vacating the stay of the Revenue Department, the complainant was to pay Rs.31,00,000/-. Also there was condition to produce the copy of the title clearance and plan. After vacating the stay, the complainant paid total Rs.40,65,000/- to the applicant and the applicant issued receipts for the same. The applicant has produced the title clearance certificate on the letter pad of advocate Mr. B.R.Shah. The complainant thereafter, approached the office of said advocate Mr. Shah, and he came to know that such certificate was not issued by him and the signature was not made by him, bearing in such certificate. The complainant came to know that there is one suit No.2448 of 2007 is pending regarding the said disputed land. The complainant felt that the applicant suppressed the fact of filing of the suit, which is pending and he took the amount in all Rs.63,65,000/-. Thereafter, complainant instituted the suit against the applicant, wherein the applicant filed written reply, which reflects the fact that the applicant has cancelled the Banakhat by affixing the photograph of complainant and by making forged signature of the complainant. Earlier, the applicant took the original Banakhat from the complainant and he did not return the same. Now, the applicant is not ready to return back the amount of Rs.63,65,000/- to the complainant. Therefore, the complaint is lodged by the complainant against the accused persons including present applicant.
13. I have also perused the affidavits-in-reply filed by the original complainant.
14. Earlier, the applicant filed bail application being Criminal Misc. Application No.14536 of 2011 before this Court and same was withdrawn on 2.12.2011.
15. Learned senior advocate Mr. Thakkar for the applicant, relied upon case of Ashok Dhingra V. National Capital Territory of Delhi reported in 2000 (0) GLHEL-SC 1704, wherein the accused of that case was in custody from 5.7.1999 to 10.12.1999 and considering the jail period of the accused, the Hon'ble Supreme Court has granted bail to the accused. Here in the present case, the applicant is in custody from 6.9.2011. Looking to the another case of Dipak Shubhashchandra Mehta Vs. C.B.I. & Anr. reported in 2012 STPL (Web) 101 SC, cited by the learned senior advocate Mr. Thakkar, the Hon'ble Supreme Court observed that in the economic offence, the bail should be granted. The well known case (Satyam Scam) of BYRRAJU RAMAN RAJU Vs. STATE THROUGH THE CENTRAL BUREAU OF INVESTIGATION reported in 2011 STPL (Web) 1001 SC relied by the learned senior advocate, wherein the accused has been released on bail. The Hon'ble Supreme Court has released the accused by considering the jail period in the case of Ajay Kumar Prasad Vs. State of Bihar Th: Vigilance reported in 2011 STPL (Web.) 249 SC relied by the learned senior advocate.
16. The case relied by the learned senior advocate Mr. Thakkar is Maulana Mohammed Amir Rashadi Vs. State of U.P. reported in (2012) 2 Supreme Court Cases 382, wherein the Hon'ble Supreme Court has not interfered with the order granting the bail considering the jail period of the accused. He also relied the case of Sureshchandra Ramanlal Vs. State of Gujarat and Another reported in 2008 (3) GLH 113, wherein the the Hon'ble Supreme Court has considered the age of the accused and also considered severe diseases suffering by the accused. Another case relied by the learned senior advocate of Ravindra Saxena Vs. State of Rajasthan reported in 2010(1) GLH 382, wherein the Hon'ble Supreme Court granted anticipatory bail under Section 438(1) of the Code of Criminal Procedure. Another case relied upon by the learned senior advocate on the case of Kishan Singh (D) Through L.Rs. Vs. Gurpal Singh reported in 2010(0) GLHEL-SC 48795, wherein the FIR was lodged at belated stage and the Hon'ble Supreme Court has observed that there was an inordinate delay in filing the FIR and there was no explanation about the same.
17. In the present case, the applicant - accused is 70 years old and is suffering from the diseases and he is jail since 6.9.2011. Also in the present case, the offences have been registered in the month of July, 2010 and the applicant has been arrested after nearly one year. I have considered the cases relied by the learned senior advocate. The Hon'ble Supreme Court has considered the age, jail period of the accused, while granting the bail. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Therefore, I am of the view that the applicant is required to be enlarged on bail by imposing some stringent conditions.
18. At this stage of bail, this Court is not discussing the evidence in detail nor going into merit of the case. This is successive bail application.
19. In the facts and circumstances of the case, the application is allowed and the applicant is ordered to be enlarged on bail in connection with CR No. I-11 of 2010 registered at CID Crime, Gandhinagar Zone Police Station, Gandhinagar on his executing a bond of Rs.1,00,000/- [Rupees one lac only] with one surety of the like amount to the satisfaction of the Trial Court and subject to the conditions that he shall:
[a] not take undue advantage of his liberty or abuse his liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender his passport, if any, to the lower Court within a week;
[d] not leave the State of Gujarat without the prior permission of the Sessions court concerned;
[e] mark his presence before the concerned police station twice in a month i.e. on every 1st and 15th day of each English Calender month at 11:00 a.m. till the trial is over.
[f] furnish the present address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of this Court;
[g] maintain law and order.
20. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or to take appropriate action in the matter.
21. Bail bond to be executed before the lower Court having jurisdiction to try the case.
22. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
23. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
(Z.K.SAIYED,J.) ynvyas Top