Bombay High Court
Dhaval Vijaybahi Doshi vs The State Of Maharashtra on 21 April, 2021
Equivalent citations: AIRONLINE 2021 BOM 1393
Author: Prakash D. Naik
Bench: Prakash D. Naik
3-aba-314-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO. 314 OF 2021
Dhaval Vijaybahi Doshi Applicant
Versus
The State of Maharashtra & Anr. Respondents
.....
Ms. Rekha K. Mehta, Advocate for the Applicant.
Mr. Y. M. Nakhwa, APP for the Respondent No.1 - State.
Mr. K. H. Holambe-patil, Advocate for Respondent No.2.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 21st APRIL, 2021
PER COURT:
1. The applicant is apprehending arrest in M.E.C.R. No. 01
of 2020 registered with Ghatkopar Police Station, Mumbai for
offences under Sections 467, 471 of Indian Penal Code. (for short
"IPC").
2. The case of the prosecution is that the complainant was
introduced to the applicant in 2015. He went to Dubai in 2016. He
returned from Dubai in September, 2016 and again went to Dubai for
work. He returned after one month in November, 2016. He was
working with Meena Jewellers from 4 th January, 2017 to 8th
December, 2019. In July, 2019 the complainant was called by the
Police. He was shown declaration/understanding executed on a
stamp paper. It was mentioned therein that the complainant and his
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wife through broker purchased Diamond from 11 th July, 2015 to 10th
July, 2015 valued Rs. 71,24,404/-, the document contains
photographs of complainant and his wife. The witnesses to the
documents were one Hemant Brahmbhatt and Mehul Dani. The
document also contained signatures of Advocate Shinde. It was
alleged that signatures of the complainant and his wife were forged.
The document was executed on 19 th August, 2016 and notarized. The
complainant was not in India on the date of execution of the
document. On 19th August, 2016, the complainant was at Dubai. The
complainant filed a private complaint before the Court. The learned
Magistrate by order dated 4th January, 2020 directed the concerned
Police Station to register the offence and investigate the case. In
pursuant to that M.E.C.R. was registered on 14th February, 2020.
3. The applicant preferred application for anticipatory bail
before the Court of Sessions. The application was rejected by order
dated 17th October, 2020.
4. Learned advocate for the applicant submitted that the
complaint is false. The FIR is registered on the basis of private
complaint filed by respondent No.2. The applicant was granted
interim protection by this Court vide order dated 4 th November,
2020. Custodial interrogation of the applicant is not necessary. The
applicant is diamond merchant carrying on his business in the name
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and style of Harshha Gems at Diamond Market, Bandra since more
that 20 years. He was introduced to the informant through broker
Mr. Hemant Bramhabhatt. They are members to Mumbai Diamond
Association. The applicant had conducted transactions of Diamond
with informant in the past. There were subsequent transactions with
the informant from July 2015. The payment of Rs. 71,24,404/- in
respect to these transaction was not made by the informant. The
applicant made complaint to Chirag Nagar Police Station, Ghatkopar,
Mumbai on 23rd July, 2016. The applicant learnt that informant has
not paid dues to several other persons. The members of Mumbai
Diamond Association lodged complaint against informant on 14 th
September, 2016. The wife of the informant visited the residence of
the applicant in 3rd week of August, 2016 with an undertaking dated
19th August, 2016. The undertaking mention that the payment would
be made on or before December, 2016. The informant failed to
comply the MOU. The applicant made complaint to Ghatkopar Police
Station on 15th March, 2017. Since no investigation was conducted,
the applicant filed a private complaint before the Court of learned
Magistrate at Vikhroli against the informant and his wife under
Sections 406, 409, 416, 471, 420 of IPC. The complaint was filed on
31st July, 2017. The copy of the complaint has been annexed to the
application. Learned Magistrate did not direct investigation under
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Section 156(3) of Cr.P.C. but proceeded under Section 200 of Cr.P.C.
vide order dated 4th October, 2017. During this period, the Police had
assured that the FIR would be lodged against the informant. The
applicant made an application for withdrawal of the complaint. The
said application was adjourned from time to time. The application
was dismissed on 21st September, 2019 as the applicant and
advocate were absent. The applicant persuaded his complaint with
the Police. On 19th February, 2020 the applicant received notice
dated 18th February, 2020 from Ghatkopar Police Station under
Section 41(a)(i) of Cr.P.C. Apprehending arrest applicant, preferred
an application for anticipatory bail before the Sessions Court which
has been rejected. It is submitted that the applicant has to recover
the amount from the informant. The applicant had immediately filed
complaints against the informant. The applicant is victim at the
hands of informant.
5. Learned APP submitted that the claim of the applicant
on the basis of undertaking/declaration dated 19 th August, 2016 is
false. The said document was executed on 19 th August, 2016. The
informant who had allegedly executed the document was out of
India on the date of execution. The entry in the passport of the
informant shows that he was abroad on 19 th August, 2016. The
signatures of the complainant and his wife are fabricated.
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Investigation is in progress. Custodial interrogation of the applicant
is necessary.
6. The complainant is filed in reply opposing the
application for anticipatory bail. It is submitted by learned counsel
for the complainant that the undertaking dated 19 th August, 2016 is
fabricated document. The claim of the applicant is false. The
complainant was abroad on 19th August, 2016 which is fortified by
the passport entries. In the reply it is contended that, on 21 st July,
2019 the informant and his wife were called by the Police for inquiry.
They attended Police Station. They were informed about complaint
filed by accused No.1. Their statement was recorded in Marathi.
They are not conversant with Marathi. They do not know what is
recorded in those statement. The undertaking dated 19 th August,
2016 is false and fabricated document. The signatures of the
complainant and his wife are forged. The complainant was out of
India from 16th August, 2016 till 15th September, 2016. This evident
from Immigration Departments at Airport of Mumbai as well as
Airport at Dubai on his passport. There are no initials on the 1 st, 2nd
and 3rd pages of the said undertaking. Old photographs are pasted on
the undertaking. The stamp paper bears the rubber stamp showing
that is is issued from Vasai. The accused No.1 is resident of Sion. The
stamp paper was purchased from Nalasopara. Both these rubber
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stamps are contrary. The stamp paper bears rubber stamp of Binod
Kumar, as a person who has purchased the said stamp paper. The
undertaking do not bear serial number in the register of the Notary.
The document was not signed by the complainant and his wife. The
accused prepared the undertaking containing false statements. The
undertaking create rights in favour of the accused which is in the
nature of valuable security. The complainant and his wife were
allegedly present before the Notary and signed document, although
they were not present. The Custodial interrogation of the applicant is
necessary. The forged document is in the custody of the accused.
7. The M.E.C.R. has been registered on the basis of private
complaint filed by respondent No.2. The case of the complainant is
that Hemant Bramhabhatt had introduced the complainant to
applicant about 5 years ago. In July, 2019 the complainant received
call from Ghatkopar Police Station. He visited the Police Station
along with his wife. They were shown the declaration on the stamp
paper. The undertaking mentioned that the complainant and his
wife had purchased Diamonds worth Rs. 71,24,404/- through broker
Hemant Bramhabhatt and that the said amount would be returned to
the applicant along with interest. The complainant was not in
Mumbai on 19th August, 2016. The document was fabricated. It is
pertinent to note that the applicant had forwarded the complaint to
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Senior Inspector of Police, Ghatkopar Police Station on 23 rd July,
2016, through his advocate which has been received by the said
Police Station on the same day. In the said complaint it was stated
that the applicant is in the business of Diamond. Hemant
Bramhabhatt is the broker. The Respondent No.2 purchased the
diamond. Initial transactions were cleared. Subsequent transactions
were for Diamonds worth Rs. 71 Lakhs. The Diamonds were
delivered to him. But the payment was not made. The applicant also
forwarded another complaint to the Police on 16 th March, 2017
against Respondent No.2 and his wife. The complaint provided
statement of accounts, details of transactions, the date of the
transactions and the amount due from the respondent No.2 and his
wife. The Police did not register FIR. The applicant then filed private
complaint before the Court of Magistrate at Vikhroli bearing C.C. No.
105/SW/2017 against respondent No.2 and his wife for offence
under Section 406, 409, 416, 417, 420 and 506(II), 120-B r/w
Section 34 of IPC. The said complaint was filed on 1 st August, 2017.
According to the applicant, the learned Magistrate did not direct any
investigation in the said complaint. The order was passed under
Section 200 of Cr.P.C. Letter dated 18 th February, 2020 was issued to
the applicant and Hemant Bramhabhatt by Ghtakopar Police Station
for inquiry in pursuant to the order passed by the learned Magistrate
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in the complaint of respondent No.2. M.E.C.R. was registered against
the applicant, Hemant Bramhabhatt, Advocate M. V. Shinde,
Advocate S. K. Thakur and others.
8. The case of the applicant is that pursuant to the
complaint filed by the applicant, the undertaking/MOU was handed
over by the wife of respondent No.2 to the applicant. The document
was prepared by them. It is relevant to note that the complaint was
filed first in point of time by the applicant. The respondent No.2 in
his reply admitted that he was called for inquiry along with his wife
by the Police. The Police did not take cognizance of the complaint
filed by the applicant. It is pertinent to note that the undertaking
bears the photographs of the respondent No.2 and his wife. There is
no denial about the fact that the photographs belongs to them. The
only contention which is urged is that those were old photographs.
There is no explanation as to how the photographs came in custody
of applicant if the document is prepared by accused. The claim of the
applicant that the payment towards the sale of Diamond was in
existence since 2016 which is evident from the complaint filed by
him. The complainant alleged that he was not in Mumbai on 19 th
August, 2016, when the document was executed. Whereas the claim
of the applicant is that the document come from wife of complainant.
In these circumstances, the applicant need not be subjected to
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custodial interrogation. Case for granting this application is made
out.
ORDER
(i) Anticipatory Bail Application Nos.314 of 2021 is allowed;
(ii) In the event of arrest of the applicant in connection with M.E.C.R. No. 01 of 2020 registered with Ghatkopar Police Station, Mumbai the applicant be released on bail on executing P. R. Bond in the sum of Rs.25,000/- each with one or more sureties in the like amount;
(iii) Applicant shall report investigating officer on 28 th, 29th & 30th April, 2021 between 11.00 a.m. to 1.00 p.m. and thereafter as and when called by the Investigating Officer, till filing of charge-sheet.
(iv) Anticipatory Bail Application stand disposed of accordingly.
(PRAKASH D. NAIK, J.)
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