Gujarat High Court
Ramanbhai Bholidas Patel vs State Of Gujarat on 28 January, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/13093/2021 ORDER DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13093 of 2021
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RAMANBHAI BHOLIDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SENIOR ADVOCATE assisted by MR ANIQ A KADRI (11256)
for the Applicant(s) No. 1
MR MITESH AMIN, ASSISTED BY MS MOXA THAKKAR, APP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 28/01/2022
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being CR No.11191045202003 of 2020 registered with Sola High Court Police Station, Ahmedabad for offence under Sections 420, 465, 467, 468, 471, 120B and 34 of the Indian Penal Code.
2. Learned Senior Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. It is submitted that the Applicant is 65 years old and is a senior citizen and suffering from several ailments. Investigation has been concluded and charge sheet has been filed. 2.1 It is submitted that the present FIR came to be Page 1 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 registered on 04.11.2020 giving a false explanation for delay of 29 years with Sola Police Station under Sections 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code, 1860. That the offences alleged in the FIR are all triable by a Magistrate. 2.2 The complainant has attempted to explain the delay of 29 years by saying that it was only after his elder brother's death that he found the papers pertaining to the land at S No. 310 and came to know regarding the transactions of 1991. It appears that this is absolutely false and misleading since the complainant along with his brother and other heirs have appeared in several revenue proceedings and civil suits themselves through their lawyers which have been concluded in favour of the society.
2.3 It is contended that allegation in the FIR that the power of attorney is dated 25.01.1994 whereas the sale deed is dated 21.10.1993. Therefore, the sale deed dated 21.10.1993 could not have been executed using the power of attorney dated 25.01.1994 and therefore it is a false power of attorney. The said allegation is on presumption because the power of attorney is actually dated 24.07.1991. The said power of attorney was thereafter affirmed before an Executive Magistrate in presence of an advocate on 25.01.1994 and the sale deed were executed on the basis of the power of attorney dated 24.07.1991. Therefore, there is only one power of attorney dated 24.07.1991 which was affirmed subsequently. The said fact is recorded in a finding recorded by the Page 2 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 Civil Court in an order dated 24.11.2006 passed below Exhibit 5 (pg 141 - 145). This order dated 24.11.2006 was challenged vide CMA No. 114 of 2006 which subsequently rejected on 30.08.2010 (pgs 146 - 157) The said fact was also confirmed by other legal heirs in their registered declaration cum indemnity annexed at (pgs 181- 192). Therefore, the allegations are false and baseless. 2.4 It is submitted that on 24.07.1991, the owners of the land at S No. 310 including the complainant herein, namely
(i)Mangaji Ramaji (ii) Dhulaji Ataji (iii) Babuji Ataji (Complainant)
(iv)Pashiben Ataji, executed a power of attorney in favour of the Applicant and one Natwarbhai Bholidas Patel (brother of the applicant).
2.5 On 29.08.1991 a true copy of the Power of Attorney dated 24.07.1991 was made by a Gazetted officer of Sardar Sarovar Nigam Limited, Gandhinagar. It is on record that, by an order dated 25.03.1992 of Asst. Collector, Viramgam Prant, the Society was granted permission to purchase agricultural land under Section 63G of the Tenancy Act. The said permission under Section 63G of the Tenancy Act was obtained using power of attorney dated 24.07.1991.Thereafter on 21.10.1993, the land was sold to the society under two Sale Deeds for which due consideration was paid vide cheque.
2.6 It is submitted that on several occasions the society has Page 3 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 published public notices in local newspapers pertaining to the land at S No. 310 for the purpose of clearing the title of the said land. Such notices were published on 14.07.96 and 25.12.99 and no objections were received.
2.7 On 09.11.1998, the society Vibhag - I which was an agricultural society was converted to a housing co-operative society by order of Asst. District Registrar, Panchayat, Ahmedabad. The society then came to be known as Someshwara Darshan Cooperative Housing Society Vibhag I. 2.8 It is submitted that on 26.12.2005, the Mandali was granted permission to sell the land at S No. 310 by an order of Asst. District Registrar, Cooperative Societies, Ahmedabad. That on 07.04.2015, a sale deed was executed by the society for the said land in favour of the accused persons. On 26.03.2009, the heirs of Jadiben (daughter of the original land owner) file an RTS Appeal No. 333/2008 challenging revenue entries pertaining to the said land. By an order dated 26.03.2009, the Dy. Collector, Viramgam dismissed this Appeal. On 26.04.2011, against order dt. 26.03.2009, revision Application No. 206/2009 was preferred before the Collector which was dismissed later. Thereafter, an application was also filed before the Ld. SSRD which was also subsequently dismissed.
2.9 It is argued that in 1982 the original land owners had Page 4 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 executed an agreement to sell in favour of one M/s Hemant Brothers for which a suit for specific performance was filed by M/s Hemant Brothers being Special Civil Suit No. 59 of 2005 on 31.03.2005. The said suit was also settled by the Society by making appropriate payment to M/s Hemant Brothers and the agreement to sell dated 28.01.1982 came to be cancelled and this Civil Suit came to be withdrawn.
2.10 It is submitted that a suit being Special Civil Suit No. 22 of 2006, came to be filed by heirs of Mangaji challenging the transfer of the land to the Society. It has come on record that the complainant has remained present through his advocate and has also submitted his written statement under his own signature. On, 12.12.2012, a Declaration Deed was registered wherein the heirs of Mangaji (Plaintiffs) accepted the Power of Attorney and the subsequent Sale deeds to be true and authentic. Despite the fact that he appeared personally through his lawyer in this civil suit and filed a written statement, he suppressed this fact and gave a false explanation of delay in the FIR as if he was not aware of any of these proceedings in this FIR. On 03.10.2020, A revision application no. 56/2020 was filed challenging the order of the Addl. Registrar Appeals dated 09.09.2020 and subsequently the same was dismissed.
2.11 That series of revenue litigations and civil litigations have been initiated before various forums and all have been Page 5 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 concluded/settled in favour of the society. That, the complainant, his brother and other heirs have appeared before several forums and have suppressed these material facts in the present FIR. The complainant, his brother and his Uncle (Mangaji) executed a common power of attorney for the said lands in favour of the Applicant. That two sale deeds were executed using the same power, one for the undivided share of the complainant and his brother and one for the undivided share of Mangaji. It is submitted that vide registered indemnity bond dated 12.12.12 the heirs of Mangaji have stated and accepted the alleged PoA to be authentic and the sale deed as valid (pg 184). Whereas, the complainant alleges that the very same PoA is forged and the sale deed for his undivided share as invalid. That, the statements of the heirs of Mangaji are conveniently not recorded during the investigation. 2.12 It is submitted that the Accused persons in the present FIR filed quashing petitions before this Hon'ble Court being SCRA No. 7370/2020 and SCRA No. 7355/2020. This Hon'ble Court was pleased to protect all co-accused persons by granting an order of no coercive steps by orders dated 11.11.2020. Thereafter, Hon'ble Court protected the Accused persons in the present FIR vide order dated 11.11.2020, the present complainant filed a special civil suit No. 296/2020 challenging the alleged power of attorney and the sale deed wherein the exact allegations as in the present FIR have been levelled against the society and the present Applicant. This Page 6 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 Special Civil Suit is pending.
3. Learned Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that there is an overwhelming prima facie case of forgery of power of attorney. 3.1 It is submitted that non-cooperation of the petitioner in the process of investigation as forged power of attorney in both the cases is either destroyed or hidden in order to save the accused persons from being subjected to scientific evidence in the nature of handwriting expert's opinion, etc. It is submitted that seriousness of offence, severity and quantum of punishment is also required to be looked into. The conduct and behavior of petitioner with regard to abusing court proceedings and also interfering with the administration of justice is also required to be looked into. 3.2 It is submitted that conduct and behavior of the petitioner as alleged and found against the petitioner and co- accused, i.e. the real brother of the petitioner, Dashrathbhai Bholidas Patel who is an accused in the FIR proceeding registered at Vastrapur Police Station vide I-C.R. No. 1399 of 2020 pertaining to intimidation and threatening of the first informant to settle the above referred FIR proceedings and also creating documents in their favour against first informant under coercion and compelling the first informant and her mother to sign such documents etc. as Page 7 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 discussed in paragraph 16 of the order dated 29.10.2021 passed by the Learned Coordinate Bench in Criminal Misc. Application No.17332 of 2021.
3.3 Considering two different forged powers of attorney which are placed in the present proceedings, one such power of attorney is placed at Page 7 to 13. On a bare examination of Page 12 (internal page 6 of this forged power of attorney), this power of attorney is found to be undated. It is also pertinent to note that though there is space kept for signing of two different donors at page 12 (internal page 6 of the document), it is left unsigned and empty. On the next page, there are some thumb impressions and only one signature. Furthermore, there is one extra thumb impression.
3.4 As submitted by petitioner this power of attorney is dated 24.07.1991. The above-referred forged power of attorney as per the petitioner is the copy of the forged power of attorney dated 24.07.1991. The petitioner is also placing another irrevocable general power of attorney, which also is a forged document, at page 43 to 49. In so far as the substance of both documents is concerned, they are verbatim; another document is dated 25.01.1994 as it appears from page 48 (internal page 6 of the document) and page no. 49 (internal page 7 of the document) shows that same is executed before learned Executive Magistrate on 25.01.1994 as per the submission of petitioner. So far as last Page 8 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 page of both the documents is concerned, it is one and the same. 3.5 Considering these two forged powers of attorney and the case registered against the petitioner of identical nature having the same modus operandi, the petitioner is in habit of forging powers of attorney for the purpose of fraudulently grabbing valuable prime lands.
3.6 It is submitted that on execution of sale deed dated 21.10.1993 in favour of Shri Someshwara Darshan Kheti Sahakari Mandali Limited, this society was divided into different divisions and further converted into a housing society. Ultimately by a registered sale deed dated 07.04.2015 for consideration amounting to Rupees 17.82 crores, the petitioner's society named Someshwara Darshan Cooperative Housing Society Limited (Division 10) is selling the complaint land to the petitioner and the other accused. Again insofar as passing of consideration is concerned, that too of a huge amount of Rupees 17.82 crores, there are no sufficient particulars mentioned in the registered sale deed to verify as to whether the consideration amount is paid and received, specifically because no adequate and required particulars of drawee bank is provided along with non-cooperation of petitioner and other accused for not providing adequate details of payment of consideration money.
3.7 It is submitted that first informant had clearly alleged Page 9 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 that in the suit proceedings bearing Special Civil Suit No. 102 of 2009, the first informant and his brother, Dhulaji Ataji Thakor, alleged donors of the forged power of attorney and the owners of the complaint land, were made defendants and their written statement which runs into 27 pages, is signed by petitioner and is neither signed by first informant nor by his brother, Dhulaji Ataji Thakor, also the co-defendant of the suit. This written statement is placed by petitioner from page no.236 to 262. On the last page i.e. running page 262 and internal page 27, there are two short running signatures in English and the very next page i.e. page no. 263, the appending affirmation to the written statement of these defendants is affirmed by way of affidavit under the same signature and also under the name of the petitioner i.e. Ramanbhai Bholidas Patel signed before Notary-Advocate Rekha M. Shah on 04.07.2009. This document itself is sufficient to overwhelmingly point out and indicate that the petitioner, after forging power of attorney is in habit of using the same in judicial proceedings in different way and manner as is convenient to him and to his benefit. This further establishes that petitioner is frequently abusing the process of Court and is also interfering with the administration of justice.
3.8 It is submitted that none of the civil proceedings has decided an act of forging of two powers of attorney; one allegedly dated 24.07.1991 as submitted by petitioner and the other as Page 10 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 submitted by petitioner allegedly executed on 25.01.1994 by passing any judgment or decree declaring this documents as truthful and genuine hence, judgment of 2010 (8) SCC 775 in the matter of Kishan Singh would not be helpful to the petitioner and reliance placed thereon pales into insignificance. 3.9 Considering the seriousness of offence along with quantum of punishment as submitted in the other case respondent- State relies on 2021 (6) SCC 191.
4. In rejoinder, learned Senior Advocate for the applicant submitted that there is only one PoA dated 24.07.1991 which is evident from the stamp on the said PoA. This PoA was used to obtain permission u/s 63 (pg 15). This is evident from the true copy mark of SSNL dated 29.09.1991. It is submitted that there is only one PoA dated 24.07.1991 which was subsequently affirmed before the Ld. Executive Magistrate on 25.01.1994 in order to get the revenue entry for the sale deeds dated 21.10.1993 certified. That it has been admitted in written statement filed by the complainant under his own signature in SCS No. 22 of 2006. That PoA was indeed executed on 24.07.1991 which was subsequently affirmed before the Executive Magistrate on 25.01.1994. This has also been recorded in an Exh 5 order passed on 24.11.2006. This has also been stated and accepted on oath by other heirs in indemnity/declaration bond dated 12.12.2012 (pg 84). Therefore, the case of the complainant that the PoA was never given cannot be Page 11 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 accepted.
4.1 It is submitted that in Special Civil Suit No. 102 of 2009, the complainant and his brother were represented by the Applicant being their power of attorney holder and the signature on the said written statements is that of the Applicant in the capacity of the power holder. It is submitted that, the Applicant has not forged the signatures of the complainant and his brother.
5. Having heard learned Advocates for the parties and having perused documents on record, it appears that the FIR came to be registered against 12 accused persons including the applicant, who is arraigned as accused No.1. The gist of allegations is that Power of Attorney was forged and created which was dated 24.01.1994 of the complainant which was produced as a genuine document at the time of registered sale deeds bearing registration Nos.23115 and 23156 dated 21.10.1993. The subject matter is an agricultural land which is now falling in Thaltej area being a premium land of Ahmedabad, which was owned by the ancestors of the complainant. Several mutations had taken place wherein name of the complainant and his family members were entered into. During the course of investigation, the complainant accidentally came to know about commission of offence when he came across case papers of Special Civil Suit No.102 of 2009 which was purportedly filed by the heirs of one Jadiben Shankarji and others being one of the legal heirs of the original land owner and Page 12 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 relative of the complainant. The complainant also came to know that merely on the basis of order dated 09.11.1998 from the office of the District Registrar, by dividing cooperative society into two divisions being Someshwar Darshan Sahakari Mandali Vibhag-1 and 2, valuable rights of the complainant and his family members on the said property were got transferred in favour of the aforesaid societies. The complainant also came to know about Power of Attorney dated 25.01.1994 which contained signatures of the complainant as well as his elder brother Dhulaji, sister Pashiben and uncle Mangaji Ramaji, which, according to the applicant, was executed before the Executive Magistrate, Ahmedabad. It also came to the knowledge of the complainant that several other parcels of lands were also entered in the name of the aforesaid cooperative society without there being any sale transaction, but based on the order of the District Registrar dated 09.11.1998. From the investigation case papers, it appears that Civil Suit No.102 of 2009, originally filed by the heirs of deceased Jadiben Shankarji came to be disposed of on the basis of compromise deed dated 23.09.2013 and subsequent Civil Suit No.22 of 2001 by heirs of deceased Mangaji Thakor came to be withdrawn by consent deed dated 12.12.2012. The investigation revealed that in aforesaid compromise also, forged Power of Attorney has been produced. It is found that in the year 2015, housing society went into liquidation and when Administrator was appointed in due course of law and there being orders of the District Registrar dated 02.02.2015 and Page 13 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 04.04.2015 respectively, even the Administrator appointed was not handed over assets of the society and by sham transaction, lands were transferred in the names of another members. In such transaction, co-accused was shown as Chairman of Someshwara Darshan Cooperative Housing Society, who executed sale deed dated 07.04.2015. In this connection, separate FIR has been filed which is under investigation.
6. From the investigation, role of the applicant appears to be that the alleged forged and bogus Irrevocable General Power of attorney is created by the applicant and Co-accused Natwarlal Bholidas Patel, in their favour, by forging signature / thumb impression of complainant as well as Dhulaji Aataji, Pashiben as well Mangaji Ramaji. The applicant as part of conspiracy has created forged irrevocable general power of attorney dated 24.1.1994, in their favour with an intention to derive wrongful gain from the property for which he subsequently used the forged power of attorney as genuine document to got execute false documents, a Registered sale deed bearing no. 23155 and 23156, both registered dated 21.10.1993. The aforesaid false documents are executed in favour of Someshwar Darshan Kheti Sahakari Mandali Ltd. The accused had knowledge that the said society did not have permission under section 63 of the tenancy act to purchase an agricultural land inspite got entered into illegal sale transaction. That no sale consideration is received by the complainant or any Page 14 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 other co-owners and thereby the applicant has committed offence of criminal breach of trust and under dishonestly got delivery of the valuable property of the complainant. The applicant has influenced the authority and had intentionally got transferred the aforesaid lands by getting it registered in the name of Housing society though no prior permission of the Collector was taken under section 63 of the Tenancy act. The control or administration of the affairs of the aforesaid societies was with the applicant, in as much as that other co-accused, who are family members of the applicant have been made members of aforesaid society. The accused persons have made false declaration before the authority and has derived benefit by claiming the false sale deeds to be genuine transaction. The applicant has designed conspiracy, in collusion with other co-accused, of first purchasing the agricultural land in the name of Kheti Sahakari Mandali and further by mere conversion of change of name from kheti to housing society, to save from clutches of law. Ultimately, from Housing Society it has returned back to the present applicant and his family members pursuant to the sham transanction dated 07.04.2015.
7. It also appears that during the course of investigation, attempts were made to search documents in original on the basis of which huge land transactions had taken place like irrevocable Power or Attorney dated 25.01.1994. However, only xerox copy could be retrieved during the course of investigation. Even the Page 15 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 investigation with the office of the Sub-registrar where sale deed dated 21.01.1993, which was executed on the basis of such Power of Attorney, did not reveal any detail regarding Power of Attorney or copy of such Power of Attorney which would have accompanied such sale deed. The Investigating Officer could only retrieve alleged irrevocable Power of Attorney from the record of Civil Suit No.102 of 2020, wherein one of the co-accused had submitted a written statement and produced along with documents such irrevocable Power of Attorney, which prima facie would indicate that though the Power of Attorney relied upon is dated 25.01.1994, the sale deed registered is 21.01.1993, which is prior to the Power of Attorney.
8. In the affidavit filed by the Investigating Officer regarding investigation carried out, it is stated on oath as under:-
"The Investigating Officer had further carried out search panchnama at the office of the present applicant situated in New York Tower, Ahmedabad, as well as Sindhubhavan Road on 30.11.2020 and the search of the residential house of the applicant was also done on 01.12.2020. Here with annexed and marked as Annexure-G is the copy of said panchnama dated 30.11.2020. Again annexed and marked as Annexure-
H is the copy of panchnama dated 01.12.2020. However, no original documents could be traced out from these places belonging to the present applicant. In this peculiar facts and circumstances, the Investigating Officer was constrained to collect the Xerox Copy of the Page 16 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 alleged power of attorney dated 25.01.1994, produced in aforesaid civil suit proceedings. It is further submitted that the certified copy of the false sale deed dated 21.01.1993, has been collected by the Investigating Officer from the office of Sub-registrar, Ahmedabad City. The investigating Officer had further inquired about the status of the Co-operative Societies whereby it is found that the audit of the aforesaid society had lastly taken place in the year 2012 and thereafter no audit has been done of the aforesaid society. The memorandum of the constitution of the aforesaid society has been collected from the office of District Registrar, Ahmedabad and on perusal of the contents of the said memorandum it is found that the present applicant is the Prayojak of the said society and the family members of the applicant have been made members of the said society. Thus, the genuineness of the constitution of the said society is under cloud. The investigating Officer has recorded statement of the Son of complainant namely Rajesh Babuji who has categorically denied about execution of any documents, Here with annexed and marked as Annexure-I is the copy of the statement of Rajesh Babuji. During course of investigation other witnesses which includes Ramaji Dhulaji and Jyantiji Dhulaji, have categorically denied about execution of any power of attorney in favour of Ramanbhai Bodidas Patel and Natvarbhai Bodidas Patel. Here with annexed and marked as Annexure-J and Annexure-K respectively are the copies of statement of witnesses namely Ramaji Dhulaji and Jayantiji Dhulaji.
9. The Investigating Officer has further stated on affidavit as Page 17 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 under:-
"9. In light of the above stated facts and material which has been collected by the Investigating Officer during the course of the investigation, prima facie points finger towards the present applicant to be the main conspirator who has created forged power of attorney. It may kindly be noted that two draft copies of alleged power of attorney in respect of land in question have been recovered from two different sources i.e. one is the copy produced by the present applicant during the course of hearing of remand proceedings which does not bear any date. Another which is recovered by the Investigating Officer from the Civil Suit Proceedings of Civil Suit No.102 of 2009, wherein dated 24.1.1994 has been written. That on bare comparison of the aforesaid two documents few discrepancies have been noted. This includes the discrepancies in the symbol attested of leamed Executive Magistrate before whom the document is claimed to have been executed on 25.01.1994 and the copy produced by the present applicant does not carry such seal of leanred Executed Magistrate nor it has endorsement 'before me'. At the same time, the other document does not even mentions any date of execution. It only carries the stamp number date which seems to have been issued way back in the yew 1991. It is therefore humbly stated and submitted that in absence of recovery of the original power of attorney, more particularly, when the accused have failed to co-Page 18 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022
R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 operate with the investigating Officer, an adverse interference can be drawn against present applicant to have created forged power of attorney and based on such power of attorney admittedly a false registered sale deed has been created by the present applicant whereby the ultimate beneficiaries are applicant and the members of the family of the applicant. It may kindly be appreciated that the applicant herein has created 45 bogus cooperative societies and under the pretext of shield of provisions of law has entered into various land deals. That similar type of different FIR's have been registered against the applicant and the applicant in fact seems to have evade income Tax wherein appropriate proceedings seems be initiated against the applicant......"
10. It appears that the applicant is a habitual offender with regard to forging documents in the nature of power of attorney, one in the present case and other in the matter of FIR proceedings initiated pursuant to FIR registered at Vastrapur Police Station for which bail application is filed vide Criminal Misc. Application No. 13068 of 2021. In both the cases of forging powers of attorney, the forged documents are used for the purpose of grabbing valuable parcels of agricultural land.
11. It is pertinent to note here that when substance of both the documents except for the handwritten dates put in the other document is same, there is no reason for the petitioner or for any Page 19 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 other accused to execute another power of attorney dated 25.01.1994, as the sale deeds were already executed prior to the forged power of attorney dated 25.01.1994 i.e., on 21.10.1993. When two registered sale deeds are executed on 21.10.1993 and when sale consideration according to petitioner is passed through two cheques, one dated 19.10.1993 and another dated 20.10.1993, no man of ordinary prudence would execute another power of attorney dated 25.01.1994 before the Executive Magistrate which admittedly, will require the physical presence of all the four donors before the Executive Magistrate, Metropolitan Area, Ahmedabad. Furthermore, upon comparing the power of attorney in another case registered at Vastrapur Police Station against the petitioner, the same modus operandi of execution of forged power of attorney before Executive Magistrate, Metropolitan Area, Ahmedabad can be deciphered, as one finds a rubber-stamp of the authority and an unidentified signature without there being a serial number placed on it as is mandatory for maintenance of the register by the Office of Executive Magistrate. Similarly, there is some unidentified endorsement and/or signatures. Moreover, if this document was actually executed on 25.01.1994, there is no whisper about there being an exchange of consideration money through cheque one dated 19.10.1993 and other dated 20.10.1993 as well as two sale deeds being already executed on 21.10.1993.
12. From the investigation, it appears that different Page 20 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 societies referred, beginning from first purchase by the society through registered sale deed dated 20.10.1993 to the last sale to the petitioner and other accused, all societies which hold the complaint land along with other parcels of land belong to petitioner and his family members as a member of different societies either Kheti Society and/or Housing society.
13. The entire investigation therefore indicates that with a sole objective to grab the land of the complainant, the applicant has resorted to collusive civil proceedings and such civil proceedings were attended by an accomplice, purportedly representing the complainant and his family members in the Civil Suit though such Power of Attorney was in fact forged and fabricated document. On the basis of such collusive civil proceedings, the applicant has sought to get a stamp of approval on the shady land deal. Therefore, mainly, the applicant and other co- accused have in their common design have also made the Court of law unknowingly part to it and that too only with an intention to grab valuable land of the complainant.
14. At this stage, it would be appropriate to refer to and rely upon decision of the Apex Court in case of Naveen Singh Vs. State of Uttar Pradesh & Anr., reported in (2021) 6 SCC, 191, wherein the Apex Court, by referring to the facts of the case, has set aside the judgment and order of the High Court releasing accused on regular bail and recorded as under:- Page 21 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022
R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 "12.1 At the outset, it is required to be noted that Respondent No.2-accused is facing the trial for the offences under Sections 420,467,468,471,120BIPC. It is also required to be noted that the FIR has been lodged by the record keeper of the court on the order passed by the District and Sessions Judge, Unnao. After the enquiry report submitted by the Learned Additional District and Sessions Judge, Unnao in which it was stated that the Court record has been manipulated and forged, the High Court directed the Learned District and Sessions Judge to look into the report and take further action and thereafter the FIR has been lodged against the respondent - accused for the aforesaid offences. If we consider the allegations, in that case, the allegations are very serious of tampering and/or manipulating the court record and Respondent no.2 has taken the benefit of such forged/manipulated court order in another case. It is also required to be noted that now after the investigation is concluded, the charge sheet has been filed against the Respondent -
accused and even the charges have also reported to be framed. Thus, a prima facie case is found against the accused for the aforesaid offences.
12.2 If we consider the impugned judgment and order passed by the High Court, it appears that High Court has not adverted itself to the seriousness of the case and the offences alleged against Respondent no.2 - accused and the gravity of the matter. From the impugned order, it appears that the High Court has released Respondent No.2 - accused on bail in a routine and casual manner and without adverting to the seriousness of the offence and the gravity of the matter Page 22 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 relating to forgery and/or manipulating the court order. From the impugned judgment and order passed by the High Court, it appears that High Court has only observed that since the innocence and complicity of the accused can be decided only after taking evidence with regard thereto, without commenting anything on merit as to the complicity, involvement and severeness of the offences, the case being triable by the Magistrate and the charge sheet having been filed and the accused is languishing in jail since 22.11.2018, is entitled to be released on bail.
12.3 However, the High Court has not at all considered that the accused is charged for the offences under Sections 420, 467, 468, 471, 120 B IPC and the maximum punishment for offence under Section 467IPC is 10 years and fine/imprisonment for life and even for the offence under Section 471IPC the similar punishment. Apart from that forging and/or manipulating the court record and getting benefit of such forged/manipulated court record is a very serious offence. If the Court record is manipulated and/or forged, it will hamper the administration of justice. Forging/manipulating the Court record and taking the benefit of the same stands on altogether a different footing than forging/manipulating other documents between two individuals. Therefore, the High Court ought to have been more cautious/serious in granting the bail to a person who is alleged to have forged/manipulated the court record and taken the benefit of such manipulated and forged court record more particularly when he has been charge sheeted having found prima facie case and the charge has been Page 23 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 framed.
12.4 Now, so far as the submissions on behalf of the accused that he has not obtained the certified copy of the judgment and order of the Learned Sessions Court dated 23.12.2002 in which there are allegations of forging and manipulation and he has not produced the same in the case against him under the Gangsters Act is concerned. From the order passed by Learned Special Court Gangsters Act, it appears that the judgment and order passed by the Learned Sessions Judge dated 23.12.2002 was produced in which Respondent No.2 - accused Mahesh was shown as acquitted. On the basis of the same, the Learned Special Court acquitted Respondent No.2 accused. Therefore, in fact, he is the beneficiary of the said forged/manipulated court order. The Special Court has taken note of the order. It is the case on behalf of the accused that it might have been produced by his brother - Pappu Singh who was doing Pairokar on his behalf. The aforesaid is neither here nor there. Once he is the beneficiary of such forged/manipulated court order and having taken advantage of such order thereafter it will not be open for the respondent- accused to contend that it might have been done by his brother Pappu Singh who was doing Pairokar on his behalf.
12.5 At this stage, it is required to be noted that Pappu Singh has died subsequently. We do not express anything further on merits and go into detail as the trial is yet to take place and any further observation on merits may affect the case of the accused. Suffice it to say that in the facts and circumstances of the case and Page 24 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 looking to the very serious allegations of forging/manipulating court order and having taken advantage of the same, the High Court is not justified in releasing Respondent No.2 on bail. Merely because the charge sheet is filed is no ground to release the accused on bail. The submission on behalf of the accused that as the record is now in the court's custody there is no chance of tampering is concerned, the allegation against the respondent accused are of tampering/forging/manipulating the court record which was in the custody of the court. Seriousness of the offence is one of the relevant considerations while considering the grant of bail, which has not been considered at all by the High Court while releasing Respondent No.2 accused on bail.
12.6 Now, so far as the submission on behalf of the respondent - accused that the appellant has no locus to file the present application for cancellation of the bail is concerned, it is required to be noted that in fact, it was the appellant who approached the High Court alleging tampering of court record by the Respondent No.2 accused and thereafter, the High Court directed the Learned Additional Sessions Judge to submit his comments and thereafter the Learned Additional Sessions Judge submitted its enquiry report and thereafter, the FIR has been lodged. Therefore, it cannot be said that the appellant has no locus to file the present application for cancellation of the bail. Even otherwise in a case like this, where the allegations are of tampering with the court order and for whatever reason the State has not filed the bail application the locus is not that much important and it is insignificant. Page 25 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022
15. Along with the present application, the applicant has also filed another application for regular bail being Criminal Misc.Application No.13093 of 2021 in connection with FIR being CR No.11191020201493 of 2020 registered with Vastrapur Police Station, Ahmedabad for offence under Sections 406, 420, 465, 467, 468, 471, 120B and 34 of the Indian Penal Code, which has been heard and disposed of along with this application by a separate order.
16. So far as submission of learned Senior Advocate for the applicant regarding other accused persons being protected in quashing petition is concerned, from the record it appears that the applicants therein were merely names of individuals and family members of the applicant whose names were only used and in that context, protection appears to have been granted.
17. The Court has also taken into consideration the fact that the applicant is also being prosecuted with other offences relating to land grabbing activity. The Court has reasons to believe that the applicant was pioneer in creating modus which encouraged collusive practices within several departments of the Government, like Revenue Department, Cooperative Department, etc. so as to facilitate the applicant to carry out his land grabbing activity in various prime localities of Ahmedabad. Hence, though the applicant is aged 65 years, the Court is not inclined to exercise Page 26 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022 R/CR.MA/13093/2021 ORDER DATED: 28/01/2022 discretion.
18. In view of the aforesaid, no case is made out for grant of the application. The application deserves to be and is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) SHITOLE Page 27 of 27 Downloaded on : Tue Feb 01 20:33:49 IST 2022