Bombay High Court
Rajesh Kumar vs The State Of Maharashtra on 6 February, 2019
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.2038 OF 2018
Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL APPLICATION NO.1213 OF 2018
IN
CRIMINAL BAIL APPLICATION NO.2038 OF 2018
Vijaykumar Hegde Intervenor
In the matter between :
Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.291 OF 2019
Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL APPLICATION NO.179 OF 2019
IN
CRIMINAL BAIL APPLICATION NO.291 OF 2019
Vijaykumar Govind Hegde Intervenor
In the matter between :
Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.292 OF 2019
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Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.293 OF 2019
Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL APPLICATION NO.181 OF 2019
IN
CRIMINAL BAIL APPLICATION NO.293 OF 2019
Vijaykumar Govind Hegde Intervenor
In the matter between :
Rajesh Kumar Applicant
versus
The State of Maharashtra Respondent
ABA No.2038 of 2018 :
Mr.Raja Thakare with Mr.Vikrant Negi and Mr.Pratik Thakkar I/by
DSK Legal for applicant.
Mr.S.V.Marwadi for intervenor in APPP.No.1213 of 2018.
Mr.R.M.Pethe, APP, for State.
Mr.Salunkhe, Police Inspector, present.
ABA No.291 of 2019 :
Mr.Niranjan Mundargi with Mr.Vikrant Negi and Pratik Thakkar I/by
DSK Legal for applicant.
Mr.Rishi Bhuta with Ujjwal Gandhi and Bhumika Khandelwal for
intervnor in APPP No.179 of 2019.
Mr.R.M.Pethe, APP, for State.
Mr.Rajput, Police Sub Inspector, present.
ABA No.292 of 2019 :
Mr.Gaurav Parkar with Mr.Vikrant Negi and Pratik Thakkar I/by DSK
Legal for applicant.
Mr.Rishi Bhuta with Ujjwal Gandhi and Bhumika Khandelwal for
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intervnor in APPP No.180 of 2019.
Mr.R.M.Pethe, APP, for State.
Mr.Mone, Assistant Police Sub Inspector, present.
ABA No.293 of 2019 :
Mr.Niranjan Mundargi with Mr.Vikrant Negi and Pratik Thakkar I/by
DSK Legal for applicant.
Mr.Rishi Bhuta with Ujjwal Gandhi and Bhumika Khandelwal for
intervnor in APPP No.181 of 2019.
Mr.R.M.Pethe, APP, for State.
Mr.Lahane, Assistant Police Sub Inspector, present.
CORAM : PRAKASH D. NAIK, J.
DATE : 6th February 2019
PC :
1. The applicant in all these applications is seeking anticipatory
bail under Section 438 of Code of Criminal Procedure, 1973.
Criminal Anticipatory Bail Application No.2038 of 2018 is preferred
apprehending arrest in connection with CR No.262 of2016 registered
on 8th October 2016 with Kherwadi Police Station, Mumbai, for
offences punishable under Sections 465, 467, 468, 471 r/w 34 of
Indian Penal Code and under Sections 43, 72-A of Information
Technology Act, 2000.
Criminal Anticipatory Bail Application No.291 of 2019 is
preferred in respect to CR No.206 of 2017 registered with Goregaon
Police Station, Mumbai for offences under Sections 420, 465, 468,
471 r/w 34 of Indian Penal Code. The FIR has been registered on
21st May 2017.
Criminal Anticipatory Bail Application No.292 of 2019 is
preferred in respect of CR No.1163 of 2018 registered with Ulhas
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Nagar Police Station for offences under Section 420 r/w 34 of Indian
Penal Code. The FIR was lodged on6th July 2018.
Criminal Anticipatory Bail Application No.293 of 2019 is
preferred in respect of CR No.303 of 2018 registered with Borivali
Police Station for offences under Sections 420, 511 r/w 34 of Indian
Penal Code. The FIR was lodged on 19th June 2018.
2. The applicant had preferred applications for anticipatory bail
before Sessions Court, which were rejected by respective Courts and
hence the applicant has preferred present applications.
3. CR No.262 of 2016 registered with Kherwadi Police Station
was registered on the complaint of the intervenor alleging that the
wife of complainant is in relationship with the applicant. The
complainant found documents, such as, Aadhar Card showing name
of the father of the applicant as Babasahib; the application made to
Income Tax Authorities for change of applicant's father's name on
PAN card from Kundomal Dulhanomal to Babasahib; birth certificate
showing names of parents of applicant as Babasahib and
Ammasahib; verification certificate issued by Corporator Surendra
Bagalkar verifying that the applicant has residential address at
Zawbawadi, Girgaum, Mumbai, which is address of his employee
etc.. It is alleged that the applicant being foreign national, is not
permitted to purchase immovable property in India and yet he has
purchased the property at Bandra, Mumbai. On making inquiry with
Ulhas Nagar Municipal authorities, it was learnt that there is no
record of the applicant's birth in the register of birth maintained by
them.
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4. In CR No.206 of 2017 which is subject matter of ABA No.291
of 2019, it is alleged that the applicant has obtained a forged birth
certificate from Ulhas Nagar Municipal Corporation in collusion with
other co-accused and on the basis of same, he had obtained PAN and
Aadhar cards. In CR No.1163 of 2018 which pertains to ABA No.292
of 2019, it is alleged that the applicant's intention is to usurp trust
property by forging documents/identification proofs, as his spiritual
parents are expired and they have no legal heirs. In respect to CR
No.303 of 2018 which pertains to ABA No.293 of 2019, it is alleged
that the applicant has attempted to change his name pursuant to
death of his spiritual parents.
5. The applicant was represented by respective advocates. The
complainant has intervened by preferring intervention applications in
all these anticipatory bail applications to oppose the reliefs sought by
applicant-accused.
6. Learned counsel for applicant Mr.Thakare submitted that the
applicant has been falsely implicated in these cases on account of
enmity. It is submitted that the dispute is primarily between the
complainant and his wife. The complaint is lodged against applicant
out of vendetta and to cause harassment to him. It is submitted that
custodial interrogation of the applicant is not necessary as the matter
relates to documents. The applicant is a businessman by profession
and one of his business venture is in the field of garments and for the
said business he often visits India and from time to time in the initial
months of 2013 he was looking for commercial premises at Mumbai
and at that time the applicant met the complainant and he was
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introduced to him as an advocate and by way of profession.
Although the applicant is US citizen, he remains person of Indian
origin. By virtue of Regulation-4 of Foreign Exchange Regulations,
2000, such persons are permitted to acquire and sell residential and
commercial properties. It is submitted that other accused were
arrested and on completing investigation charge sheet is filed against
them. The applicant has been dragged into prosecution by the
complainant. It is submitted that no offence is made out against
applicant. He is willing to co-operate with investigation. The
applicant was the follower of spiritual Guru Pujya Babasahib and
Pujya Ammasahib, who over a period considered the services of
applicant and treated him as their son; and therefore the applicant
always wanted his name to be associated with them. The applicant
had taken professional help from the complainant and he was
advised that he should officially change his name. As he desired to
associate his name with his spiritual Gurus and as per the advise, the
applicant got his name changed by publishing the same in official
gazette. He had also applied to got his name changed on PAN card
on the advise of his Chartered Accountant. It is submitted that after
changing his name, he was introduced to one Santosh Suryawanshi,
who promised that he would do the needful and in good faith the
applicant had paid him substantial amount. The said person had
obtained signatures of applicant on several documents. The
applicant then learnt that Mr.Suryawanshi has obtained his birth
certificate showing that he was born at Ulhas Nagar and his birth
was registered with Ulhas Nagar Municipal Corporation on some
unknown date of July-1970., and the said birth certificate was issued
on or about 4th October 2012. The complainant developed dispute
with his wife. She has been granted anticipatory bail. It is submitted
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that the applicant had initiated proceedings in the High Court
seeking appropriate reliefs. The applicant had also approached
Hon'ble Supreme Court of India seeking reliefs. It is submitted that
the Hon'ble Supreme Court by order dated 14 th January 2019
granted stay to the look out notice on the undertaking of the
applicant before the Court to join and continue with the on-going
investigation within four weeks and directed that the application for
anticipatory bail be decided independently.
7. Learned counsel Mr.Mundargi appearing in ABA No.291 of
2019 and ABA No.293 of 2019 submitted that the concerned FIRs are
lodged against the applicant with a view to harass him. The offences
as alleged are not made out against applicant. In addition to the
submissions advanced by learned counsel Mr.Thakare, it is submitted
that the applicant is an ardent devotee of Babasahib and Ammasahib.
They had played influential role in his life. In December-2014 he
met Mr.Suryawanshi for the first time, who suggested that he can get
the name changed of the applicant in every statutory identification
proof and publish the same in official gazette in 2014. However,
Mr.Suryawanshi procured fake birth certificate which was dated 4 th
October 2012 and issued by Ulhas Nagar Municipal Corporation,
where his fathers name is mentioned as Babasahib and mother's
name is mentioned as Ammasahib. The birth certificate of the
applicant was issued by Ambernath Municipal Council in the name of
Rajesh Kundomal Dudhanomal Manghwani. He had filed complaint
against Mr.Suryawanshi and FIR was registered vide CR No.1408 of
2016. The applicant after learning about registration of FIR had
forwarded letters to police and indicated them about the actual facts.
The complainant has filed various complaints against his wife and
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the applicant at different police stations. The applicant was
threatened by the complainant and in that regard non-cognizable
complaint was filed. It is submitted that the applicant had filed
Criminal Writ Petition No.4688 of 2018 seeking to quash non-
bailable warrant and proclamation u/s 82 of Cr.P.C issued by learned
Magistrate. The applicant had given an undertaking that he shall
appear before police and co-operate with them. The undertaking
was accepted and non-bailable warrant as well as proclamation
notice was stayed. The writ petition was disposed off by order dated
22nd January 2019. The complainant had preferred petition before
Hon'ble Supreme Court challenging the order dated 30 th October
2018 passed by this Court. The said petition was disposed off by
order dated 26th November 2018 and the applicant was directed to
appear before the Chief Judicial Magistrate within fifteen days.
Thereafter applicant preferred Miscellaneous Application No.3102 of
2018 before Hon'ble Supreme Court for recalling order dated 26 th
November 2018. The Hon'ble Supreme Court granted extension to
the applicant to appear before the Magistrate. It is submitted that
vide order dated 14th January 2019, the look-out notice was stayed
by Supreme Court on the undertaking of applicant to join and
continue with on going investigation within a period of four weeks.
Miscellaneous Application No.3102 of 2018 was disposed off. It is
submitted that the applicant is willing to co-operate with
investigation. It is submitted that the complaint filed by the
complainant is only with a view to get the applicant arrested on false
authorities which is counter blast to FIR registered by applicant. It is
submitted that the applicant has given an undertaking that he shall
appear before the investigating officer which has been acknowledged
by this Court as well as Hon'ble Supreme Court.
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8. Learned advocate Mr.Parkar appearing in ABA No.292 of 2019
for applicant reiterated the submissions advanced by learned counsel
appearing in other applications. The wife of complainant had filed
company petition before NCLT making grievance of oppression and
mis-management against complainant. On 22 nd September 2016 the
NCLT passed an order in I.A.No.48 of 2016 filed on behalf of
complainant and his company Tanvi Constructions Private Limited,
appointing retired Judge of Hon'ble Supreme Court as an
independent Chairman, who had filed report in connection with
management of the company indicting the role of complainant. It is
submitted that on account of vendetta, several complaints are filed
with different police stations by the complainant.
9. Learned APP submitted that there is sufficient evidence against
the applicant collected during the course of investigation. The
applicant is involved in fabricating documents. His custodial
interrogation is necessary. It is submitted that the letter dated 4 th
November 2016 issued by Ambarnath Municipal Council,
Department of Birth and Death to the Senior Police Inspector,
Kherwadi Police Station, it is stated in respect to verification of birth
certificate of the applicant, that the birth registers of Ambernath
Municipal Council was inspected for the period from 1967 to 1970
and there appears no entry of date of birth of Rajesh Kundomal
Manghwani as on 2nd May 1967. He pointed out the birth certificate
mentioning the date of birth of the applicant as 2 nd May 1967 issued
by Ambarnath Municipal Council, which is apparently false in
accordance with the letter referred to hereinabove. Learned APP also
pointed out the birth certificate issued by Ulhas Nagar Municipal
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Corporation which bears registration number CL-47 and date of
registration as 7-1970 purported to have been issued in the name of
Rajesh Babasahib Kumar. The date of birth is shown as 19-7-1967.
The name of mother is shown as Amma.
10. Mr.Marwadi and Mr.Bhuta, learned counsel representing the
intervenors/complainants, vehemently opposed the applications for
anticipatory bail. It is submitted that the applicant has been giving
assurances to attend the investigation but beyond promises he has
not taken any steps to participate in the investigation. It is submitted
that the submissions advanced by learned counsel for applicant
denote that the applicant would appear before the investigating
machinery pursuant to order of Hon'ble Supreme Court only if
interim protection is granted to him. It is submitted that the
applicant is involved in preparing fraudulent documents and is not
entitled for protection u/s 438 of Cr.P.C.. It is submitted that the
applicant is not of Indian origin because for acquiring various Indian
documents, such as, Aaadhar card, PAN card etc, he has given
different addresses. The address mentioned in the petition, official
gazette, Trust Deed registered at Delhi, second application for fresh
PAN card dated 10th May 2014, Aadhar Card, third application for
PAN card, first birth certificate, second birth certificate, US Passport
and for flat purchase in Mumbai, differs from each other. It is
submitted that the applicant has not produced any documents to
show that he is of Indian origin. It is further submitted that the letter
dated 13th September 2017 issued by passport authorities indicate
that Passport No.9249646 claimed to be issued by Indian Passport
Authorities, was not issued to him. It is further submitted that the
birth certificate bearing No.81435 purportedly issued by Ulhas Nagar
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Municipal Corporation bears registration number as C1-47. It is
submitted that birth register of Ulhas Nagar Municipal Corporation
mentions the name of child and parents in connection with
registration no.C1-47 as Pandit, father's name as Sadanand Krishna
and mother's name as Vilasini. It is submitted that the Sessions
Court has rejected the application for anticipatory bail by assigning
reasons. The intervenors have filed intervention applications with
documents in support of objections for grant of anticipatory bail.
11. I have perused the documents on record. The FIRs in question
are lodged at respective police stations. The case of prosecution
relates to fabrication of documents. The applications for anticipatory
bail were rejected by Sessions Court by assigning cogent reasons. The
offences of cheating and forgery are registered against applicant. It is
the case of prosecution that the applicant has obtained birth
certificate by giving false information and by using forged documents
as genuine he has procured Aadhar Card and PAN Card. It appears
that the applicant had acquired U.S.citizenship in 2002 by giving
false information. He has procured birth certificates from Ambarnath
Municipal Council and Ulhas Nagar Municipal Council. It is the
contention of applicant that false documents are provided to him by
one Suryawanshi. Learned counsel for intervenors, however, pointed
out that the FIR lodged by the applicant against Mr.Suryawanshi was
investigated and `A' summary report was granted to the said
proceedings and the person named Suryawanshi was not found to be
in existence. It is alleged that on the basis of false information and
bogus documents, the applicant had procured Aadhar Card and PAN
Card in India. He has also purchased properties in India. The
applicant was declared as proclaimed offender and warrant was
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issued against him which was subsequently stayed by this Court. The
investigation reveals that the applicant has utilized false birth
certificates viz birth certificate allegedly issued by Ambernath
Municipal Council and birth certificate dated 4 th October 2012 issued
by Ulhas Nagar Municipal Corporation. It is also revealed that in the
first birth certificate allegedly issued by Ambernath Municipal
Council, the name of applicant is mentioned as Rajesh Kundomal
Dulhanomal Manghwani. It is stated hereinabove above that records
speak otherwise. The UTI Infrastructure Technology and Services
Limited by letter dated 26th October 2016 addressed to Senior
Inspector of Police, Kherwadi Police Station, provided documents
submitted by the applicant to UTI along with his PAN application.
The NSDL E-Governance Infrastructure Limited by letter dated 18 th
October 2016 revealed that it had received three applications from
applicant requesting for a new PAN card or changes or corrections in
PAN card bearing different addresses. According to prosecution the
applicant got his name changed in official gazette for the period from
17th to 23rd April 2013 from Rajesh Kundomal Dulhanomal Kumar to
Rajesh Babasahib Kumar allegedly to get the property of the trust. It
is also the prosecution case that the applicant got a certificate issued
by Corporator of Gorai certifying the name of father of applicant as
Kumar Babasahib with residential address of Pune. It appears that in
CC No.157/PW/2018 the Trial Court has issued non-bailable warrant
and proclamation against applicant. The applicant filed Criminal
Writ Petition No.4688 of 2018. By order dated 30 th October 2018 the
non-bailable warrant and proclamation have been stayed. The first
informant challenged the order of High Court by filing SLP before
Supreme Court, which was dismissed. As per order dated 26 th
November 2018, the applicant was to produce himself before the
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learned Magistrate within two weeks. Thereafter by order dated 10 th
December 2018 the Hon'ble Supreme Court extended time by fifteen
days to enable the applicant to appear before the Magistrate. The
applicant did not appear. The Hon'ble Supreme Court then by order
dated 14th January 2019 stayed the look out notice on his
undertaking before the Court to join and continue with the on going
investigation within a period of four weeks from 14 th January 2019.
The applicant has not appeared before the investigating officer so far.
While rejecting the application for anticipatory bail the Sessions
Court had observed that in order dated 28 th January 2019 that while
considering pre-arrest bail it has become necessary to ascertain
whether the applicant would be available before the investigating
officer for interrogation and investigation. One of the allegation is
that the applicant had attempted to change his name on the PAN
card. It is also the case of prosecution that the applicant has
submitted affidavit by showing false address. He had collected
documents from different places. The applicant is not available for
interrogation since long. It is alleged that the applicant along with
co-accused for purpose of making changes in the father's name in the
PAN card obtained verification certificate from Corporator Ganpat
Edke of Ulhas Nagar Municipal Corporation and submitted the same
in the NSDL for issuing renewed PAN card. For the purpose of said
verification certificate he gave false residential address as Room
Nos.15-17, Krishna Nagar, Sindhi Colony, Bail Bazar, Kalyan (W).
For obtaining verification statement for the purpose of making
changes in the father's name in the PAN card, the applicant made
false affidavit on 23rd December 2014 before Executive Magistrate,
Bhiwandi wherein it is stated that his name as Rajesh Babasahib
Kumar and he is residing at Kalyan and he does not have any proof
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of date of birth. The wife of informant had preferred writ petition
before this Court for quashing CR No.262 of 2016. The applicant
and Kamal Wadhwani had also preferred Writ petition for quashing
the FIR in respect to CR No.303 of 2018. All these petitions were
disposed off vide order dated 27th June 2018. While rejecting the
application for anticipatory bail, the Sessions Court has assigned
reasons and need for custodial interrogation.
12. Considering the aforesaid circumstances, nature of offences
allegedly committed by the applicant, investigation conducted by
police, custodial interrogation of applicant is necessary and hence no
case for grant of relief as prayed in these applications is made out.
Hence, all applications are required to be rejected.
13. Hence, I pass following order :
ORDER
(i) Criminal Application Nos.1213 of 2018, 179 of 2019 and 181 of 2019 for intervention are allowed and disposed off;
(ii) Criminal Anticipatory Bail Application Nos.2038 of 2018, 291 of 2019, 292 of 2019 and 293 of 2019 are rejected.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:58:53 :::