Vivek Keshavrao Dongre vs The State Of Maharashtra on 7 January, 2021

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Bombay High Court

Vivek Keshavrao Dongre vs The State Of Maharashtra on 7 January, 2021

1. Apprehending arrest in connection with the Crime No. 79 / 2020 dated 25th August, 2020 registered with Mahad City Police Station for the offences punishable under Sections 304, 304-A, 337, 338 read with 34 of the Indian Penal Code, 1860, applicants are seeking pre-arrest bail.

2. Applicant - Vivek Dongre (Dongre for short), is a Civil Engineer and proprietor of M/s Vertical Architect and Planners; whereas Gaurav Shah is an Architect. Since both were in the same field, they had executed few development projects, jointly. On 5th April, 2011, a proposal was submitted to Mahad Municipal Council (Planning Authority), seeking permission to construct a building consisting 40 flats, office and a pump-house in accordance with the prevailing 2/16 Cri.ABA St.2630&3219-2020.doc Development Control Rules. Proposal was submitted on the letterhead of M/s Vertical Architect and Planner, a proprietary concern of Mr. Dongre, through Gaurav Shah, who had signed as its' Architect. Construction permission, was sought on behalf of M/s Kohinoor Developers, a proprietary concern of co-accused, Farookh Kazi. The plan was approved and M/s Kohinoor Developers commenced the construction on 8th October, 2011.

3. On, 3rd January, 2012, M/s Vertical Architect and Planner certified, that building was constructed as per the sanctioned plan. This certificate was signed by Gaurav Shah as its' Architect. Thus, on the basis of certificate issued by Gaurav Shah, on 19 th October, 2013, Municipal Council issued a building completion certificate; building "Tareek Garden".

4. On 24th August, 2019 at about 18.15 hours, the 'Tareek Garden', crumbled down and in the unfortunate incident, 16 residents lost their lives and 09 were injured. Shortly after that, authorized Officer of the 3/16 Cri.ABA St.2630&3219-2020.doc Municipal Council, lodged the complaint and crime was registered against, Farookh Kazi, proprietor of M/s Kohinoor Developers; Gaurav Shah, Architect (applicant); Chief Executive Officer of the Municipal Council and Yunus Shaikh, a supplier of building material under Sections 304, 337, 338 of the Indian Penal Code, 1860 and later against Vivek Dongre (applicant).

5. Applicant - Dongres' case : Learned Counsel for the Applicant - Dongre, would contend that though construction permission was sought on the letter-head of his proprietary concern, the relevant papers required for seeking the permission were signed by Architect, Gaurav Shah. It is submitted that in 2011, Gaurav Shah had approached him with the present project and since applicant - Dongre and Gaurav Shah shared a good relationship, Gaurav Shah requested Dongre to execute the project in the name of his proprietary firm. It is argued that Gaurav Shah did not want to disclose receipts from the present project, to the Income Tax and thus, requested the applicant - Dongre to allow him to execute the present project in the name of M/s 4/16 Cri.ABA St.2630&3219-2020.doc Vertical Architect and Planner (a proprietary concern of Dongre). It is contended that Gaurav Shah assured Dongre, that he would complete the project in accordance with the Development Control Rules and keep him indemnified from and against all losses / claims, which may arise from and upon execution of the project. Believing Gaurav Shah, it is Dongres' case, that he permitted and allowed him to execute the subject project in the name of M/s Vertical Architect and Planner. Thus submitted, the plans of the building were drawn, signed submitted by Gaurav Shah to the Municipal Council, all alone and Dongre has had no connection and / or, interest in the project of the building "Tareek Garden". In short, it is applicants' case that Gaurav Shah being a friend of the applicant, he had allowed him to use the name of his firm in "good faith" and believing the representation made by him. On these grounds pre-arrest bail is sought.

6. Applicant - Shahs' case : So far as, a case of Gaurav Shah is concerned, Mr. Thakare learned Senior Counsel refuted, contentions of Dongre and submitted that Gaurav Shah had not signed any proposal 5/16 Cri.ABA St.2630&3219-2020.doc or sought a permission to construct a building "Tareek Garden" but someone had forged his signature. Mr. Thakare, learned Senior Counsel, further submitted that Gaurav Shah has submitted his passport and such other documents, bearing his signature to the Investigating Officer, to enable him to verify the signature on the building permission proposal (questioned document), allegedly submitted on the letter-head of M/s Verticle Architect and Planner. Mr. Thakare further submitted that Gaurav Shah was not appointed as an architect either by M/s Vertical Architect and Planner or by M/s Kohinoor Developers. He therefore, denied involvement of Gaurav Shah in the subject project. Mr. Thakare, learned Senior Counsel, in support of his contentions has relied on the charge-sheet filed, against one of the accused persons and taken me through the statements of witnesses. Referring to a statement of Shivpal Yadav, he would submit, neither Yadav nor other witnesses said that Gaurav Shah had visited the building site or was supervising the project during the period, when a construction was on-going. Mr. Thakare also submitted that the charge-sheet does not disclose or even 'suggest' that he was paid 6/16 Cri.ABA St.2630&3219-2020.doc remuneration by developer for the services allegedly rendered by him. On the contrary, he submits, the investigation has revealed, the monetary transactions between Farookh Kazi, co-accused and proprietor of M/s Kohinoor Developers and Dongre. Mr. Thakare also relied on the statement of Marathe, who said that Dongre through RCC consultants, M/s Shrawni Consultant submitted, RCC plan to M/s Kohinoor Developers for constructing the building. Mr. Thakare therefore, submitted that there is no material on record which would disclose applicants' complicity in the crime. It is contended by Mr. Thakare that since Gaurav Shah, has submitted documents like passport bearing his signature, prosecution can verify applicants' signature on questioned documents, with specimen signature and therefore Shahs' custody is unwarranted.

7. Contradicting the submissions of both the counsel, Mr. Solkar learned Special Counsel for the State has taken me through the charge- sheet filed against the co-accused and in particular a statements of Shivpal Yadav, Santosh Girkar, Devendra Morkhandekar; transcript of 7/16 Cri.ABA St.2630&3219-2020.doc a telephonic conversation between Santosh Girkar and Dongre dated 25th August, 2020 its panchanama alongwith certificate under Section 65-B of the Evidence Act, mail received from HDFC bank with KYC form bearing signature of applicant - Shah, monetary transactions between Farookh Kazi, proprietor of M/s Kohinoor Developers and Dongre. Mr. Solkar submitted that primary evaluation of these documents clearly disclosed involvement, participation and complicity of both the applicants in the subject crime.

8. Before adverting to the aforesaid evidence, it may be noted that the file containing building permissions, approved plans of building 'Tareek Garden' and relevant data is missing from the office of Municipal Council. Mr. Solkar submitted that the original approved plan of the building is neither found, nor it is available in the office record, and a digital record maintained by the Municipal Council. In other words, Mr. Solkar would submit circumstances suggest the attempts were made to cause a disappearance of primary evidence. In support of this submission, Mr. Solkar has relied on the correspondence 8/16 Cri.ABA St.2630&3219-2020.doc with the Municipal Council and a statement of Devendra Morkhandekar (employee of the Council).

9. Building 'Tareek Garden' collapsed within seven years, wherein sixteen innocents lost their lives. Material on record shows one Shivpal Yadav was a 'centering work' contractor, and Farookh Kazi, is a proprietor of M/s Kohinoor Developers. In past Shivpal Yadav had worked on projects of Farookh Kazi. In this case, Bhahubali Dhamne (co-accused) was RCC consultant. Shivpal Yadav was awarded the centering work contract of the Tareek Garden by Farookh Kazi, in 2011. Shivpal Yadav disclosed, that in 2011, before awarding 'centering work contract' to him, document was executed by and between Farookh Kazi and himself, which was witnessed by Dongre. His statement suggests Dongre was architect of the building and he was supervising the construction throughout. Repeatedly, he stated that architect Dongre was supervising and getting the centering work done from him. However, this witness told police that a copy of approved plan given to him by Dongre, was not available with him fore up. 9/16

Cri.ABA St.2630&3219-2020.doc Therefore, Shivpal Yadav, admits presence of Dongre, on the site, while construction was on-going. It suggests his participation in the project and prima facie dispels his contentions.

10. Another statement, Mr. Solkar relied upon, is of Girkar. His statement was recorded on 28.10.2020. He was working as a Liaison Officer with another Architect from 1997 till 2000. From on and onward year 2000, he independently started liaising work in relation to building permissions. He stated, while doing liaising work, he became acquainted with Gaurav Shah and Dongre (applicants herein). He told police that, in 2006, he introduced Gauarav Shah to Dongre and thereafter Gaurav Shah was Architect of two projects floated by Dongre at Kharghar, District-Thane. Girkar further told that, he stopped beneficial relationship with Dongre since 2006. He told, when at native place, on 25.08.2020, he had received a call from Dongre, who told him that, building "Tareek Garden" had collapsed on preceding night i.e. 24.08.2020. Girkar, as it appears from his statement, had recorded telephonic conversation and thereafter stored data in the 10/16 Cri.ABA St.2630&3219-2020.doc pendrive. This pendrive was seized under panchanama dated 28.10.2020. The conversation was transcribed in the presence of two panchas on 28.10.2020. Strong reliance has been placed by Mr. Thakare, learned Senior Counsel appearing for Gaurav Shah to contend that, this transcript spells out a fact that, Dongre had forged signatures of Gaurav Shah on all letters since inception of project i.e. seeking building permission till issuance of completion certificate.

11. I have perused the statement of Girkar and transcript panchanama dated 28.10.2020. It suggests that, Dongre told Girkar that, he had signed all letters/proposals/certificates while seeking construction permission till issuance of completion certificate and not Gaurav Shah. Transcription further suggest that, Dongre advised Girkar to tell Gaurav Shah that, he had authorised Dongre to sign on his behalf on all letters, proposals and correspondence with Municipal Council in relation to building, "Tareek Garden". Thus, Mr. Thakare, would contend that, prima-facie, Girkars' statement and 'transcript' suggests that, Dongre had signed/forged fake signatures on all letters, 11/16 Cri.ABA St.2630&3219-2020.doc proposals and certificates.

12. The primary evaluation of the statements of Shripal Yadav (Center Work Contractor), Santosh Girkar, evidence in form of bank entries between Farooq Kazi, (developer) and Dongre and such other material indicates/discloses, presence of Vivek Dongre on a construction site since inception of the project and his complicity in the crime. His exact role, is required to be ascertained by in-depth interrogation. One of the statements of the witnesses, also suggests, Dongre was throughout instructing the supervisors on the construction site and once had also rejected the RCC design made by RCC Consultant in order to reduce the cost of construction. Application of Dongre is therefore, rejected.

13. Now, so far as, Gaurav Shah is concerned, it may be stated that, Gaurav Shah was an Architect in past of the projects, floated by Dongre. Admittedly, the building permission in question, was sought by Gaurav Shah as an Architect, through a proprietary concern of 12/16 Cri.ABA St.2630&3219-2020.doc Dongre, as it bears his signature. Gaurav Shah has denied this fact and alleged someone had forged his signature. Gaurav Shah, therefore submitted documents like, passport to the Investigating Officer to verify his signature on disputed document with his specimen signature on the passport. However, report of Handwriting Expert is awaited.

14. A fact cannot be overlooked that, original building sanction plan is not forthcoming, in as much as, neither witnesses nor arrested accused produced it, on the pretext that it was lost or torn out. The plan assumes importance because, prosecution alleges, as per sanction plan, 14 tenaments were to be constructed; however investigation has revealed, 43 tax assessment documents. It means the approved plan was departed. It is also the prosecution's case that, RCC design was modified/changed to reduce the cost of construction. Thus, it is alleged by the prosecution, not only inferior quality of material was used in construction to reduce the cost, but construction was not carried out as per the approved plan. On this backdrop, a fact cannot be overlooked, that the file containing approved plan and related 13/16 Cri.ABA St.2630&3219-2020.doc permissions and even digital evidence in relation to this construction project is "missing". Therefore, attendant circumstances suggest, collective efforts were made by the accused to cause disappearance of the evidence. If such evidence is not collected and brought on record, it will lead to serious consequences. Thus, to unearth the truth and to collect dependable evidence, custodial interrogation of Gaurav Shah is necessary.

15. So far as, signature of Gaurav Shah on building permission proposal is concerned, to verify the signature, Investigating Officer sought KYC details from HDFC Bank, where Gaurav Shah maintains his accounts. Officer who verified the signature on KYC form with disputed documents, found signature on disputed documents resembles the signature on KYC documents.

16. It is contended by Mr. Thakare, learned Senior Counsel that, not even single prosecution witness has disclosed Gaurav Shah's name in their statement, attributing role to him nor there is other evidence to 14/16 Cri.ABA St.2630&3219-2020.doc connect Gaurav Shah to the present project. However, the fact remains that, Municipal Council accepted the Certificate purportedly signed by Gaurav Shah and granted completion certificate. Though the transcript of telephonic conversation suggests that, Dongre had forged Gaurav Shah's signature but it may also be noted that, though conversation was allegedly recorded by Girkar on 25.08.2020, panchanama of the transcript was done nearly after two months. . Firstly, why Girkar recorded the conversation and secondly in which circumstances, are the two facts-in-issue. Besides, why and under which circumstances, Girkar produced, pendrive to police and that too after two months, is another issue to be gone into; but not at this stage. Therefore, in the present proceedings, I refrain myself from relying on and or analysing the transcript. Thus, not only approved plan of the building is coming forth, but entire file and electronic evidence in relation to building "Tareek Garden" is missing from the office of the Municipal Council. This building crumbled within seven years resulting into death of 14 residents and left many residents seriously injured. The circumstances on record, clearly suggests 15/16 Cri.ABA St.2630&3219-2020.doc someone is attempting to tamper the evidence. In these circumstances, possibility of further tampering and influencing the prosecution evidence cannot be ruled out. In consideration of the facts and circumstances of the case, in my view, applicants are not entitled to pre-arrest bail. Both the applications are rejected.

17. In the facts and circumstances of the case, office of the Chief State Examiner of Documents, is directed to produce the report within three weeks from today to the concerned Investigating Officers.

18. Both the applications are rejected and disposed off accordingly.

19. In consideration of the facts of the case and reasons stated, request for continuing the interim pre-arrest protection is declined and rejected accordingly.

(SANDEEP K. SHINDE, J.) NAJEEB// 16/16

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