Gujarat High Court
Ashishbhai Mansukhbhai Ramoliya vs State Of Gujarat on 26 September, 2022
R/CR.MA/7254/2022 ORDER DATED: 26/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7254 of 2022
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ASHISHBHAI MANSUKHBHAI RAMOLIYA
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA, ADVOCATE WITH MS BELA A PRAJAPATI(1946) for
the Applicant(s) No. 1
MR RR MARSHALL, SENIOR COUNSEL WITH MR DAIFRAZ
HAVEWALLA(3982) for the Respondent(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 26/09/2022
ORAL ORDER
Rule returnable forthwith. Mr. Pranav Trivedi, learned A.P.P. waives service of notice of Rule for and on behalf of the respondent - State of Gujarat.
[1] By way of this Criminal Miscellaneous Application under Section 439 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the applicant - original accused seeks regular bail in connection with an F.I.R. being C.R. No.11210015200088 of 2020 registered on 10 th October 2020 with D.C.B. Police Station District : Surat city for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code.
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R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 [2] The case of the prosecution in brief, as stated in the F.I.R., is as under:
"As a part of the criminal conspiracy, under the pretext of availing the bank loan, Rajeshbhai Ravjibhai Karkar obtained power of attorney from my father on 21 st July 2020 and on the same day, fraudulently executed agreement to sale in the name of Lalji Kanubhai Radadiya. Moreover, a person named Sanny Madas asked us to contact him if we need to avail loan and in collusion with other persons, he prepared agreement for sale and power of attorney. Thereafter, on 21/08/2020, a notice was published that if anyone had objection about selling the land, then the same shall be informed within 7 days. Upon learning about the said notice, we objected to it in public on 27 th August 2020. However, on the next day i.e. 28th August 2020, fabricated sale deed was executed in favor of Ashwinbhai Rameshbhai Pansheriya which is pending on account of dispute at the office of the Sub-registrar. The cheques of consideration have not been deposited in complainant's account or in the account of his father. Parth Santoshkumar Zaveri, Ghanshyam Parsottambhai Desai and Hasmukh Manubhai Tagadiya have signed as witnesses in the said power of attorney, agreement for sale and fabricated sale deed. In order to release the fabricated sale deed and to usurp the land, fabricated affidavit bearing signature and thumb impression of my father, was executed before notary. They submitted this fabricated affidavit as the authentic affidavit. My father has not executed any such affidavit. All the accused persons have played active role in the criminal conspiracy and thus committed offense."
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R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 [3] In connection with the aforesaid F.I.R., since the applicant was
apprehending his arrest, he approached the learned 3rd Additional Sessions Judge, Surat by way of Criminal Miscellaneous Application No.5288 of 2020, which came to be rejected by the learned Sessions Judge, vide its order dated 21st November 2020.
[4] Thereafter, the applicant has approached this Court seeking, inter alia, anticipatory bail by way of Criminal Miscellaneous Application No.18846 of 2020, wherein, initially, vide order dated 4 th December 2020, as an interim relief, the applicant was protected from his arrest. Thereafter, the Coordinate Bench of this Court, after hearing of the parties, granted anticipatory bail with condition vide order 8 th March 2021. As per one of such conditions No.6(b), the applicant was to remain present on 15th March 2021 between 11.00 a.m. to 2.00 p.m. However, due to some lack of communication, the applicant could not appear before the concerned police station, as directed by this Court, thereby, Criminal Miscellaneous Application No.1 of 2021 in Criminal Miscellaneous Application No.18846 of 2020 came to be preferred for extension of time and the said application, vide order dated 30 th March 2021, came to be allowed and accordingly, the applicant was directed to remain present before the concerned police station on 10 th April 2021 Page 3 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 between 11 A.M. to 2.00 P.M. [5] It appears that in the interregnum period, one another F.I.R. came to be lodged with Dumas Police Station, Surat city and in connection thereof, though the name of the applicant was not mentioned in the F.I.R., the applicant was apprehending his arrest and did not remain present before the concerned police station on 10 th April 2021. Therefore, on account of breach of condition, anticipatory bail granted to the applicant came to be cancelled.
[6] The applicant, thereafter, came to be arrested on 12 th November 2021, therefore, Criminal Miscellaneous Application No.6948 of 2021 came to be filed by the applicant before the learned District and Sessions Court, Surat, seeking, inter alia, regular bail, which came to be rejected on 1st December 2021. Thereafter, the applicant approached this Court by way of Criminal Miscellaneous Application No.565 of 2021, however, during the pendency of the said application, chargesheet came to be filed and therefore, the applicant withdrew the said application and accordingly, this Court, vide its order dated 14th February 2022, disposed of the said application as withdrawn with liberty to approach the concerned Court afresh.
[7] The applicant, thereafter, approached the learned District and Page 4 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022
Sessions Judge, Surat by way of Criminal Miscellaneous Application No.1276 of 2022, which came up for hearing before the learned 10 th Additional Sessions Judge, Surat, who, vide its order dated 19 th March 2022, rejected the said application.
[8] Being aggrieved by the aforesaid order of rejecting his bail application, the applicant has again approached this Court by way of present Criminal Miscellaneous Application under Section 439 of the Cr.P.C. seeking, inter alia, regular bail on any suitable conditions. [9] It would be relevant to note certain facts with regard to the bail applications of the other co-accused persons.
[10] So far as the accused No.4 - Parth Santoshkumar Zaveri is concerned, he is one of the witnesses of the notorized document of Satakhat dated 21st July 2020 and is already enlarged on anticipatory bail by the Coordinate Bench of this Court vide order dated 8 th March 2021 passed in Criminal Miscellaneous Application No.19082 of 2020. [11] So far as the accused No.5 - Ghanshyambhai Parshottambhai Desai is concerned, he is the witness in the registered power of attorney dated 21st July 2020 and has been enlarged on regular bail by the Sessions Court, Surat vide its order dated 6 th February 2021 passed in Page 5 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 Criminal Miscellaneous Application NO.593 of 2021. [12] So far as the accused No.6 - Hasmukhbhai Manubhai Tagadiya is concerned, he is the witness of sale deed and has been enlarged on anticipatory bail by the Coordinate Bench of this Court vide order dated 8th March 2021 passed in Criminal Miscellaneous Application No.19084 of 2020.
[13] So far as the accused Nos.1 - Rajeshbhai Ravjibhai Karkar and accused No.3 - Sanny Ambadas Madas are concerned, the Coordinate Bench of this Court, vide its order dated 8 th July 2021 passed in Criminal Miscellaneous Applications Nos.9463 of 2021 and 9428 of 2021, enlarged on regular bail. However, the complainant has challenged the said order by way of Special Leave to Appeal (Criminal) Nos.5364 - 5365 of 2021, whereby the Hon'ble Supreme Court, vide its order dated 29 th September 2021 cancelled the bail of the accused Nos.1 and 3 and directed them to surrender, however, it is reported that till today, they have not surrendered and still absconding.
[14] So far as the accused No.7 - Ashwinbhai Rameshbhai Pansheriya is concerned, he is still absconding and not arrested so far. [15] So far as the accused No.2 - Laljibhai Kanubhai Radadiya is Page 6 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 concerned, after rejection of his anticipatory bail application by the Coordinate Bench of this Court, he approached the Hon'ble Supreme Court by way of Special Leave to Appeal (Criminal) No.7226 of 2022, wherein vide order dated 17th August 2022, the Hon'ble Supreme Court granted protection to the accused No.2 against his arrest during the pendency of his appeal.
[16] Thus, out of total eight accused persons including the applicant herein, three accused persons (accused Nos.4, 5 and 6) are on bail, two accused persons (accused Nos.1 and 3) whose bail applications came to be cancelled are still absconding, one accused person (accused No.2) is protected and the accused No.7 is still absconding. [17] I have heard Mr. B. M. Mangukiya, learned advocate for the applicant, Mr. Pranav Trivedi, learned A.P.P. for the respondent - State of Gujarat, and Mr. R. R. Marshall, learned Senior Counsel assisted by Mr. Daifraz Havewalla, learned advocate for the original complainant. [18] Mr. Mangukiya, learned advocate for the applicant has made the following submissions:
The present applicant is in jail since 12 th November 2021 and the investigation is over and the chargesheet has been filed. Mr. Mangukiya further submitted that the entire offence is based Page 7 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 on documentary evidence and all the relevant documents have been collected during the course of investigation by the Investigating Agency, and thereby, no further recovery or discovery is required to be made from the present applicant and therefore, custodial interrogation is not required. Mr. Mangukiya further submitted that considering the alleged offence, all the offences are triable by the Court of Magistrate and thereby, trial is not likely to be concluded in the near future and thereby, it will be too harsh to keep the present applicant in jail during the pendency of trial.
Mr. Mangukiya also submitted that the name of the present applicant is not mentioned in the F.I.R., however, his name came to be disclosed during the course of investigation. Thus, considering the entire investigation papers, role of the present applicant, at the best, if can be attributed, then only as that of a facilitator / land broker. According to him, the present applicant has not derived any monetary benefit from the entire transaction. Mr. Mangukiya further submitted that the possession of the land is with the original complainant and as such no loss can be said to have been caused to the original complainant.
Mr. Mangukiya submitted that the genesis of entire crime is the Page 8 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 handwritten document called "Soda Chitthi" dated 18 th July 2021 between the original complainant and accused No.2 - Laljibhai Kanubhai Radadiya and the another document is the registered irrevocable power of attorney dated 21 st July 2020 duly executed by the original complainant in favour of the accused No.1 - Rajeshbhai Ravjibhai Karkar and notorized "Satakhat / agreement to sale" dated 21st July 2020 executed between the accused No.2 - Laljibhai Kanubhai Radadiya and the original complainant. According to Mr. Mangukiya, these are the three documents, by which, the alleged offence said to have been committed. Mr. Mangukiya further submitted that so far as these three documents are concerned, admittedly, the present applicant has not played any role.
Mr. Mangukiya, by heavily relying upon the cash receipts produced on record from page Nos.67 to 71, submitted that the complainant has accepted Rs.2.50 Crore from the accused No.2 - Laljibhai Kanubhai Radadiya.
Mr. Mangukiya has vehemently submitted that the power of attorney is the registered document, for which, at the time of execution before the Registrar, a complete videography was done, wherein the present complainant has, in clear terms and with Page 9 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 open eyes, executed the said power in favour of the accused No.1
- Rajeshbhai Ravjibhai Karkar.
To substantiate his submissions, Mr. Mangukiya has also relied upon the statement of the Registrar recorded during the course of investigation, wherein, the said Registrar has also corroborated the execution of power of attorney.
In view of the aforesaid, Mr. Mangukiya has vehemently submitted that the allegations made by the original complainant that the accused No.3 - Sanny Ambadas Madas fraudulently and misleading got executed the aforesaid document under the pretext of loan are nothing, but a false and concocted story only with a view to extort more money from the accused No.7 - Ashwinbhai Rameshbhai Pansheriya, who is the registered sale deed holder. Mr. Mangukiya submitted that in the entire aforesaid transaction, the present applicant is not involved, however, the allegation attributed to the present applicant as that of a backstage player. The present applicant came to be arraigned as accused only on the basis of surmises and conjectures and merely because the accused No.7 - Ashwinbhai Rameshbhai Pansheriya who is the sale deed holder is a distant relative of the present applicant. Mr. Mangukiya submitted that the applicant, being a land broker Page 10 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 by heavily relying upon the registered power of attorney, has sought to sell the land in question to one Mr. Sumeet Goenka, for which, one another "Soda Chitthi" came to be executed between the present applicant and Mr. Sumeet Goenka. However, later on, upon insistence of Mr. Goenka, the said "Soda Chitthi" came to be cancelled and another "Soda Chitthi" came to be executed between Mr. Sumeet Goenka and the accused No.1 - Rajeshbhai Ravjibhai Karkar, by virtue of it, Rs.21 Lakh in cash was paid to the accused No.1 - Rajeshbhai Ravjibhai Karkar. To substantiate his submissions, Mr. Mangukiya has heavily relied upon the written complaint filed by Mr. Sumeet Goenka to the Police Commissioner, Surat, wherein, Mr. Goenka has in no uncertain terms stated that a sum of Rs.21 Lakh was paid to the accused No.1 - Rajeshbhai Ravjibhai Karkar and in the said complaint, role of the present applicant was as that of witness in the "Soda Chitthi" dated 5th August 2021 between Mr. Sumeet Goenka and the accused No.1.
Mr. Mangukiya further submitted that thereafter, an advertisement for title clearance certificate came to be published in the local newspaper on 21 st August 2020, to which the complainant, by way of public notice dated 27 th August 2020, has Page 11 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 disputed the power of attorney as well as the agreement to sale executed in favour of the accused No.1 and accused No.2 respectively, and accordingly, said Mr. Sumeet Goenka has stepped out from the deal. Mr. Mangukiya further submitted that thereafter, accused No.1 - Rajeshbhai Ravjibhai Karkar, in his capacity of power of attorney holder, executed sale deed in favour of the accused No.7 - Ashwinbhai Rameshbhai Pansheriya. Mr. Mangukiay further submitted that the present applicant has not played any role for the said transaction and it is completely between the accused No.1 and accused No.7 and his name came up only because the accused No.7 happens to be his distant relative and because of he sought to facilitate the land deal with the accused No.1 and Mr. Sumeet Goenka.
Mr. Mangukiya further submitted that in the entire chargesheet, except the statement of Mr. Sumeet Goenka, the name of the present applicant is not figured.
By making the above submissions, Mr. Mangukiya has prayed this Court to grant regular bail to the present applicant. [19] Per contra, Mr. R. R. Marshall, learned Senior Counsel assisted by Mr. Daifraz Havewalla for the original complainant has made the following submissions:
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R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 Mr. Marshall, learned Senior Counsel submitted that the present applicant is one of the main accused, who has played the entire role as backstage player.
Mr. Marshall, learned Senior Counsel submitted that the present applicant is the habitual offender and involved in total three F.I.Rs. of the same nature. He further submitted that the present applicant is having criminal mentality and thereby, he has an intention to mislead the Court even the forged covid certificate came to be produced in the police station and thereby, the present applicant has got no respect for rule of law and he is having habit of creating forged document.
Mr. Marshall, learned Senior Counsel further submitted that the present applicant, with the aid of other co-accused persons, committed a systematic fraud and spoiled the title of the valuable land of the original complainant.
Mr. Marshall, learned Senior Counsel further submitted that the applicant was arrested on 12th November 2021 i.e. after a period of seven months from the date of automatic cancellation of his anticipatory bail and remained absconding. According to Mr. Marshall, if the present applicant is enlarged on bail, the applicant would flee from the justice and thereby, Mr. Marshall has Page 13 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 vehemently opposed the present application for grant of bail to the applicant.
Mr. Marshall, learned Senior Counsel has heavily relied upon the statement of Mr. Sumeet Goenka which came to be recorded on 5th November 2020 during the course of investigation, wherein the witness stated that the amount of Rs.21 Lakh was paid to the present applicant. Accordingly, Mr. Marshall has vehemently submitted that role of the present applicant is active in nature and thereby, this Court may not exercise its discretionary power under Section 439 of the Cr.P.C.
Mr. Marshall, learned Senior Counsel submitted that so far the accused No.1 - Rajeshbhai Ravjibhai Karkar and the accused No.3
- Sanny Ambadas Madas are concerned, despite their bail order came to be cancelled by the Hon'ble Supreme Court, they have not surrendered and still absconding.
Mr. Marshall, learned Senior Counsel further submitted that so far as the accused No.7 - Ashwinbhai Rameshbhai Pansheriya, who is the registered sale deed holder, is not arrested and is still absconding, thereby, according to Mr. Marshall, when the other co-accused persons are still absconding, at this stage, it would not be desirable to grant regular bail to the present applicant and if Page 14 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 the applicant is released on bail, there is likelihood of hampering or tampering with the investigation and/or evidence or he is likely to flee from the justice.
Mr. Marshall, learned Senior Counsel submitted that because of the offence alleged to have been committed by the present applicant with the aid of other co-accused persons, the title of the land of the original complaint is jeopardize and because of the forged documents, the third party interest is created and ultimately, the entire land has gone to litigation and for which, even the civil suit has been filed.
Mr. Marshall, learned Senior Counsel submitted that the applicant is the key conspirator who is involved in the commission of the offence from the inception. The same is borne out from the statement of the co-accused Rajesh Karkar as well as the statement of the applicant himself. It is further submitted that from the statement of absconding accused Rajesh Karkar, it is reveled that the present applicant gave him an amount of Rs.2 Lakh to flee away from the city. This goes to show that the applicant herein was running the entire show and is the kingpin of the entire conspiracy.
Mr. Marshall, learned Senior Counsel further submitted that the Page 15 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 applicant is the one who had promised the other accused to give share from the profit. The same goes to show that he was the main key conspirator, and on his instructions, all the accused were playing the given role.
Mr. Marshall, learned Senior Counsel further submitted that it was the applicant herein who went to sell off the land of the complaint's family to one Mr. Sumeet Goenka and who pocketed the amount from Mr. Sumeet Goenka. He submitted that the disputed power of attorney and Satakhat were executed on 21 st July 2020 in favour of accused Rajesh Karkar and accused Lalji Radadiya respectively and the sale deed was executed in favour of one Mr. Ashwin Pansuriya on 28 th August 2020, but in the meantime i.e. on 2nd August 2020, the applicant herein attempted to sell the said land to Mr. Sumeet Goenka. The same shows the involvement of the applicant from the inception. Mr. Marshall, learned Senior Counsel laid much emphasis during the course of his submissions on the fact that the power of attorney and Satakhat were registered and the first informant had stated yes to the answers. To answer the same, the complainant submits that firstly the accused have plotted the entire scam knowing that the complainant is a semi literate person and he Page 16 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 trusts the words of the person who had lured him to get a loan. That on the day prior to the execution of the Satakhat there was a deposit of Rs.11 Lakh in the complainant's account. It is submitted that he was made to understand that the same was towards the loan and therefore, relying upon the same, he had said yes while execution of power of attorney. It is also submitted that the investigation has revealed that no amounts have travelled to the account of the complainant upon execution of the sale deed in favour of absconding accused Ashrin Pansuriya. The investigation has also revealed that the bank account of absconding accused Ashwin Pansuriya contained only a few lakhs and the cheques given by him were in excess of Rs.2.5 crore. The same shows that the cheque and sale deed were just a sham.
Mr. Marshall, learned Senior Counsel submitted that on 21 st August 2020, Mr. Sumeet Goenka gave a public notice which is also borne out from his statement, for title clearance and he invited objections pertaining to the transaction he was entering into within a period of seven days. He submitted that the complainant immediately tendered his objections in three news paper on 27th July 2020 and a genuine person like Sumeet Goenka on coming to know about the objections backed out from the Page 17 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 transaction. He submitted that accused persons were left with no option but to execute the sale deed in favour of absconding accused Ashwin Pansuriya on 28th August 2020, which is the 7th day from 21st August 2020. They did not even wait for seven days to get over. He submitted that the sale deed was executed by just mentioning details of cheque and making false statement that the same were handed over to the complainant.
Mr. Marshall further submitted that if the accused had actually paid the amount to the complainant as alleged by them, then they would have filed a complaint of cheating against him or they would file a suit for specific performance on the basis of the power of attorney. But as they wanted to any how grab the land of the complainant, they executed the sale deed.
Mr. Marshall also submitted that on 26 th August 2020, on the date of the execution of the sale deed itself, the complainant had objected to the same by tendering an application. He also submitted that if the accused were genuine, they would not have executed a sale deed and would have initiated legal action against the complainant.
Mr. Marshall, learned Senior Counsel submitted that almost two years from the F.I.R., the accused have not taken any steps to get Page 18 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 possession.
Mr. Marshall, learned Senior Counsel further submitted that even after canvassing all the arguments by the accused with regard to the so-called power of attorney and Satakhat, the Hon'ble Apex Court directed the accused persons to show their bona fides by depositing Rs.2.68 Crore before the Trial Court. It is submitted that non-compliance of the same has resulted into cancellation of their bail.
Mr. Marshall, learned Senior Counsel submitted that the accused persons initially agreed to sell the land to Mr. Sumeet Goenka for a consideration of a huge amount of Rs.18 Crore and the said deal struck on 2nd August 2020. It is submitted that surprisingly, after the same very same transaction could not take place owing to the objections raised by the complainant in his notice dated 27 th August 2020, on the very next day i.e. on 28 th August 2020, the same parcel of land was sold to absconding accused Ashwin Pansuriya for a consideration of Rs.2.68 Crore only and the same goes not show that a fraud played upon the complainant and his father to grab away their valuable land.
By making the above submissions, Mr. Marshall, learned Senior Counsel has prayed this Court to dismiss the present application. Page 19 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022
R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 [20] Mr. Pranav Trivedi, learned A.P.P. for the respondent - State of Gujarat, while adopting the submissions of Mr. Marshall, learned Senior Counsel for the original complainant, has made the following submissions:
Mr. Trivedi has vehemently opposed the present application of the applicant by relying upon the statement of the accused No.1 - Rajeshbhai Ravjibhai Karkar and contended that from the statement of the accused No.1, conspiracy of all the accused persons including the present applicant is established. Mr. Trivedi has also relied upon the statement of Mr. Sumeet Goenka, inter alia, stating that the applicant herein has played active role in the alleged offence.
By making the above submissions, Mr. Trivedi, learned A.P.P. has prayed this Court to dismiss the present application. [21] I have heard the submissions of the learned advocates for the respective parties and have gone through the materials produced on record in details. No other and further submissions have been canvassed by the learned advocates for the respective parties, except what are stated hereinabove.
[22] Having considered the submissions of the rival parties and having Page 20 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 gone through the investigation papers, in my prima facie view, the applicant herein deserves to be enlarged on bail for the following brief reasons:
(i) The applicant is in jail since 12 th November 2021. The investigation has already been over and the chargesheet has been filed. The entire offence is based on documentary evidence and all the documents have been duly collected by the Investigating Agency, thus, nothing further requires to be recovered or discovered from the present applicant. Thus, his custodial interrogation is not required.
(ii) Considering the alleged offence, all the offences are magistrate triable and keeping in mind the pendency of cases in the Magistrate Court, in my view, trial is not likely to be concluded in the near future, thereby, no fruitful purpose would be achieved by keeping the applicant in jail during the pendency of the trial.
(iii) According to this Court, following documents are alleged to have been forged and/or created fraudulently:
(a) handwritten "Soda Chitthi" dated 18th July 2021 between the father of the original complainant and accused No.2 - Laljibhai Kanubhai Radadiya.
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(b) Registered irrevocable power of attorney dated 21 st July 2020 executed between the father of the original complainant in favour of the accused No.1 - Rajeshbhai Ravjibhai Karkar.
(c) Registered Agreement to Sale deed dated 21 st July 2020 executed between the father of the original complainant and the accused No.2 - Laljibhai Kanubhai Radadiya.
(d) The Registered Sale Deed dated 28 th August 2020 executed by the accused No.1 - Rajesh Ravjibhai Karkar in favour of the accused No.7 - Ashwinbhai Pansuriya.
In the entire version of F.I.R. as well as the chargesheet papers, neither the prosecution nor the counsel for the complainant could able to point out that the present applicant has played any role in forging and/or concocting the aforesaid documents, except the allegation that the present applicant has acted as a backstage player.
(iv) Over and above the aforesaid, this Court has also considered the fact that while execution of the aforesaid documents such as registered power of attorney and registered agreement to sale, the Page 22 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 procedure prescribed by way of Government Resolution was followed and the necessary videography was done. The said fact also fortified from the statement of the Registrar recorded during the course of investigation.
(v) This Court has, prima facie, observed that in the entire offence, the role of the present applicant, prima facie, appears to have been such as working as a facilitator of the land deal, who introduced the accused No.1 believing him to be the real and genuine power of attorney holder to Sumeet Goenka. Sumeet Goenka, prior to his statement before the Investigating Officer, independently, filed a written complaint against the present applicant, wherein, in no uncertain terms, it is stated that a sum of Rs.21 Lakh was paid by him to the accused No.1 - Rajeshbhai Ravjibhai Karkar. However, in the statement before the Investigating Officer, a different version came to be recorded. Thus, prima facie, this Court believes that the statement of Sumeet Goenka is self-contradictory in nature.
vi) This Court has noted that except on the basis of the statement of the co-accused, one another person namely Sumeet Goenka has also given the statement, wherein the name of the present Page 23 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 applicant came to be figured out. While considering the said statement of Sumeet Goenka, it is relevant to note that Sumeet Goenka, in his written complaint made to the Police Commissioner, Surat, had in no uncertain terms stated that a sum of Rs.21 Lakh was paid by him to the accused No.1 - Rajeshbhai Ravjibhai Karkar, who was holder of the power of attorney and the present applicant appears to have been working as a facilitator of the land deal, who introduced the accused No.1 to Sumeet Goenka. The statement of Sumeet Goenka recorded before the Investigating Agency and the complaint given by him are both contradictory in nature. Be that as it may, prima facie, this Court believes that the name of the present applicant only implicated because he sought to sell the land in question to Sumeet Goenka through the accused No.1, who is the power of attorney holder. However, ultimately, that deal did not materialize and Mr. Sumeet Goenka has kept out from the transaction because the objections raised by the present complainant by way of public notice in the newspaper. Therefore, role of the present applicant if can be seen as that of only he attempted to sell the land, which, in fact, has never got materialized.
(vii) So far as the execution of the sale deed between the accused Page 24 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 No.1 and the accused No.7 is concerned, the prosecution and/or counsel for the complainant could not be able to point out from the investigation papers as regards the active involvement of the present applicant. From the entire investigation papers, no cogent evidence shown to this Court, which suggests that the present applicant is financially benefited.
[23] Over and above the aforesaid, this Court has also noted that the present applicant was already granted anticipatory bail by the Coordinate Bench of this Court vide order dated 8 th March 2021 passed in Criminal Miscellaneous Application No.18846 of 2020 on merits, after hearing the learned Senior Counsel, who the then appeared on behalf of the complainant. It is further pertinent to note that said anticipatory bail order was never challenged any further. However, because of the default in one of the conditions on the part of the present applicant, the said anticipatory bail order was automatic cancelled. Thus, this Court is of the opinion that once the Coordinate Bench of this Court granted anticipatory bail on merits and the same was automatic cancelled because one of the breach of conditions, in that event, while considering regular bail, there cannot be any other aspect to be gone into. Of course, the anticipatory bail was cancelled because of non-appearance of the present applicant before the Investigating Officer within the stipulated Page 25 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 time, therefore, this Court, while enlarging the present applicant on regular bail, shall ensure the presence of the present applicant by putting appropriate conditions.
[24] This Court has also taken into consideration the fact that the accused No.4 - Parth Santoshkumar Zaveri, who is the witness of the agreement to sale, has already been enlarged on anticipatory bail by the Coordinate Bench of this Court vide order dated 8 th March 2021 passed in Criminal Miscellaneous Application No.19082 of 2020; the accused No.5 - Ghanshyambhai Parshottambhai Desai, who is the witness of the power of attorney, has already been enlarged on regular bail by the learned Sessions Court vide its order dated 6 th February 2021 passed in Criminal Miscellaneous Application No.593 of 2021, and the accused No.6 - Hashmukhbhai Manubhai Tagadiya, who is the witness of the registered sale deed, has also been enlarged on anticipatory bail by the Coordinate Bench of this Court vide order dated 8 th March 2021 passed in Criminal Miscellaneous Application No.19084 of 2020, and so far as the accused No.2 - Laljibhai Kanubhai Radadiya, whose anticipatory bail application came to be rejected by the Coordinate Bench of this Court, is concerned, the Hon'ble Supreme Court vide order dated 17 th August 2022 passed in Special Leave to Appeal (Criminal) No.7226 of 2022 has Page 26 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 granted interim protection against his arrest. In the case on hand, the present applicant, who has not signed any of the aforesaid documents, in my considered opinion, could be said to be having lesser role than the other accused persons. Under the circumstances, the present applicant deserves to be enlarged on regular bail on the ground of parity as well. [25] In view of the aforesaid discussion and the exposition of law regarding grant of bail explained by the Hon'ble Supreme Court in numerous decisions, some of them would be apt to refer hereinbelow. The Hon'ble Supreme Court in the case of Dataram Singh v. State of Uttar Pradesh [(2018) 3 SCC 22] was pleased to reiterate the law of bail in the following words:
"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
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R/CR.MA/7254/2022 ORDER DATED: 26/09/2022
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [(2018) 11 SCC 1] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] in which it is observed that it was held way back in Nagendra v. King-Emperor [AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson [AIR 1931 All 356] wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."
[25.1] In P. Chidambaram v. CBI [(2020) 13 SCC 337], the Hon'ble Apex Court reiterated the following principles for grant of bail:
"21. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:
(i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;
(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;
(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence;
(iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and similar other considerations."
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R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 [25.2] In a recent decision in the case of Satender Kumar Antil v.
Central Bureau of Investigation [2022 SCC OnLine SC 825], the Hon'ble Apex Court has summarized and reiterated the law regarding grant of bail in economic offences, as laid down in its earlier decisions, in the following words:
"66. What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in the case of P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field:--
Precedents
-P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791:
23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial Page 29 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused.
One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial.
-Sanjay Chandra v. CBI, (2012) 1 SCC 40:
"39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds : the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of Page 30 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022 R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
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46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
(emphasis supplied) [26] In the result, the present application is allowed. The present applicant is ordered to be released on regular bail in connection with F.I.R. being C.R. No.11210015200088 of 2020 registered on 10 th October 2020 with D.C.B. Police Station District : Surat city on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall:
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R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week; [d] not leave the India without prior permission of the concerned trial court;
[e] mark presence before the concerned Police Station between 1 st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;
[27] The authorities shall adhere to its own Circular relating to COVID- 19 and, thereafter, will release the applicant only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. Page 32 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022
R/CR.MA/7254/2022 ORDER DATED: 26/09/2022 [28] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. [29] Rule is made absolute to the aforesaid extent. Direct service is permitted.
[30] The Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.
(NIRAL R. MEHTA,J) CHANDRESH Page 33 of 33 Downloaded on : Wed Sep 28 21:27:48 IST 2022