Gujarat High Court
Savjibhai Haribhai Patel vs State Of Gujarat on 2 May, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/7948/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7948 of 2018
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SAVJIBHAI HARIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MALAV M MULANI(8844) for the PETITIONER(s) No. 1,2
MR Y. S. LAKHANI, SENIOR ADVOCATE with
MR DIGANT M POPAT(5385) for the PETITIONER(s) No. 1,2
MR ADIL R MIRZA(2488) for the RESPONDENT(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR(2) with
MS KRINA CALLA, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 02/05/2018
ORAL ORDER
[1] By way of present application under Section 438 of the Code of Criminal Procedure, the applicants have prayed to release them on anticipatory bail in the event of their arrest in connection with FIR registered as C.R. No. I26 of 2018 with Bhilad Police Station, Dist: Valsad on 14.03.2018 for the offences punishable under Sections 406, 420, 465, 467, 468, 471 114 and 120(B) of the Indian Penal Code.
[2] The brief facts emerge from the record are as under: [2.1] That one Jigneshbhai Bharatbhai Rathod lodged an FIR on 14.03.2018 against in all three persons alleging that all three persons had approached the complainant and assured that they have good contacts with officers of Page 1 of 7 R/CR.MA/7948/2018 ORDER Gujarat Industrial Development Corporation (hereinafter referred to as the "GIDC"a Government of Gujarat undertaking) and would be able to get 16 plots in Sarigam GIDC at a cheap rate. The complainant agreed to purchase the 16 plots, admesuring about 32,400 Sq. mtrs to the tune of Rs.1,50,00,000/ and an agreement to sale was executed by the parties in the year 2010. The said agreement to sale was signed by all the accused including the applicants.
[2.2] The complainant paid an amount of Rs.80,00,000/ to the applicantsaccused persons. The complainant received an allotment letter of plots at the instance of the accused in the name of GIDC. Since the possession of the plots was not handed over to the complainant, he inquired with the applicants time and again. Ultimately, the accused entered into Memorandum of Understanding making false promise to the complainant that the complainant would be made a partner in a land situated at ThaltejAhmedabad area. It was further declared by one of the applicant in the MOU that the property of ThaltejAhmedabad shall be sold and the amount shall be paid. If the said property is not sold within six months, the amount paid by the complainant towards consideration for 16 plots would be returned by cheque. As per the agreement to sale and thereafter MOU, neither the complainant was made a partner nor possession of 16 plots were handed over to the complainant, nor any amount agreed was paid to him. The complainant demanded about the implementation of either agreement to sale or the MOU time and again, but there Page 2 of 7 R/CR.MA/7948/2018 ORDER was no response from any of the applicants. Thereafter when he inquired about both the transaction i.e. about the 16 plots of GIDC as well as making the partner in a land situated at ThaltejAhmedabad area. Upon inquiry, he found that the plots, which were assured by the applicants, to be handed over to the complainant were not of GIDC, as well as the land, for which the complainant was to make a partner, was not of the ownership of any of the accused persons and the assurance given by the applicants about the said land is also, false it was also found that the allotment letters issued in the name of GIDC were also fabricated. Having come to know about the same, FIR came to be filed.
Upon becoming aware about the registration of FIR, the applicants had filed an application under Section 438 of the Code of Criminal Procedure before the Learned Sessions Judge, which came to be dismissed, vide order dated 13.04.2018, passed in Criminal Misc. Application No.991 of 2018. Hence this application.
[3] Pursuant to the notice issued by this Court, the learned Public Prosecutor appeared and opposed the grant of relief, as prayed for, and produced the papers of investigation so far carried out.
[4] Mr. Adil Mirza, learned advocate for the original complainant has also appeared and opposed the grant of relief, as prayed for, and he has filed affidavit in reply opposing the grant of bail.
Page 3 of 7R/CR.MA/7948/2018 ORDER [5] Mr. Yogesh Lakhani, learned Senior Advocate assisted by Mr. Digant Popat, learned advocate for the applicants, has vehemently argued that the FIR itself is false and frivolous. The same refers about the transaction, which took place in the year 2010 and 2011. He would submit that the applicants had been called by the investigating officer subsequent to lodgment of FIR on 15.03.2018 and had appeared before the Investigating officer and cooperated with the investigation. He would submit that the allegations with regard to the forgery are not tenable since the applicants have not committed any forgery in the crime. He would further submit that the complainant himself had agreed to settle the issue in the year 2011 by executing the MOU and when the MOU is not now executable in view of law of limitation of filing Civil proceeding, the present FIR is filed to harass the applicants. Therefore, the present application may be allowed. He would further submit that the MOU had been signed only by the applicant No.1 and applicant No.2 is not signatory of MOU, and therefore, he would submit that the present application be allowed. He alternatively submitted that the applicants are ready to deposit some amount to show their bonafide.
[6] On the other hand, Mr. Mitesh Amin, learned Public Prosecutor vehemently opposed the present application and submitted that subsequent to lodgment of FIR, when the premises belonged to the applicants and their person named Dharmen at Rajkot (who have their permanent Page 4 of 7 R/CR.MA/7948/2018 ORDER resident at Rajkot) was searched, certain documents in connection with different GIDC application forms were found and from other accused some CDs in connection with showing details of various lands were also found, which are under investigation. He would submit that when the allotment letter was sent for verification to GIDC, it was replied that neither such letter was issued by GIDC, nor the plots, which are referred therein, belong to GIDC. He would submit that even the land, which is referred in MOU, does not belong to the applicants, and therefore, the intention of the applicants were of cheating and by committing forgery with regard to the documents of Government Corporation which established serious offence against the present applicants. He would submit that adopting same methodology, other five persons have been cheated, which could be traced at this initial stage. Therefore, he would submit that there are all possibilities that more and more persons might have been duped of Government Corporation lands might have been sold by the applicants by cheating forged documents. Therefore custodial interrogation would be necessary in the present case. Therefore, he would submit that the present application be dismissed.
[7] Mr. Adil Mirza, learned advocate has appeared for the original complainant. He has produced the agreement to sale with regard to the land of GIDC of 16 plots, wherein, both the applicants had signed though, the land does not belong to GIDC. He would submit that though the applicants have no share in the properties which are Page 5 of 7 R/CR.MA/7948/2018 ORDER referred in MOU, the applicant was assured that he has been made partner in the land. He would submit that none of the applicants are shareholders of the property referred in the MOU as the revenue record suggests, which is produced along with reply of the complainant. Therefore, he would submit that the application be dismissed.
[8] I have heard learned advocates appearing on behalf of the respective parties. Primafacie it is found that for the land in question, Satakhats were executed in the year 2010, which has been signed by both the applicants. The 16 plots, for which, the agreement to sale was executed at the instance of both the applicants do not belong to GIDC. The letters of possession issued to various persons including the complainant are primafacie found to be forged. In view of the response from GIDC, the land, for which sathakhats were executed, itself do not belong to GIDC. The land which referred in MOU does not belong to the applicants. It is also pertinent to note that some allotment letters, and other blank papers of GIDC have been found from the premises belonging to the applicants and other accused which is situated at Rajkot and other places, whereas the land in question is situated in Valsad district. It is also pertinent to note that when the MOU was executed the accused was aware that they have no share in the land however, they have again cheated the complainant. Therefore, primafacie it appears that the intention of the applicantsaccused from beginning was to cheat the people by committing forgery of documents of Government Corporation. It is also pertinent to note that the Page 6 of 7 R/CR.MA/7948/2018 ORDER investigating Agency could gather some information about other persons similarly cheated by the applicant and therefore the readiness and willingness to deposit some amount would not help to establish bonafide. The Court has not gone in details by scrutinizing the case at present stage as advised by the Hon'ble Apex Court.
[9] Considering the above facts and circumstances, however, without going into details of the present case, I am of the opinion that in such cases custodial Police interrogation is required. Hence, this application is dismissed. Adinterim relief is hereby vacated. Rule is hereby discharged.
(A.J.DESAI, J) Lalji Page 7 of 7