Bombay High Court
Mukesh Varghees Nair vs The State Of Maharashtra on 29 October, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
Sknair 3-ba-1665-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1665 OF 2018
Mukesh Varghees Nair ... Applicant
Vs.
State of Maharashtra ... Respondent
...
Mr. Hrishikesh Mundargi for the applicant.
Ms. A.A. Takalkar, APP for the Respondent-State.
Mr. Abhijit Patil, PSI, Tuling Police Station is present.
...
CORAM : PRAKASH D. NAIK, J.
DATE : 29th OCTOBER, 2018.
P.C.
1. This is an application for bail in connection with C.R. No. I-
471 of 2018 registered with Tulinj Police Station for the offence
punishable under Sections 420, 465, 467, 468, 471, 474, read with
34 of Indian Penal Code and Section 52, 53, 54 of MRTP Act and
under Section 3,4 of MOFA Act.
2. Brief facts of the prosecution case is that complainant is
Assistant Commissioner, Vasai-Virar, Municipal Corporation, Ward
No. D, Nalasopare (East), Tal. Vasai, Dist. Palghar. On 12th May,
2017 a notice was issued to accused No.1 for 'stop work' in respect
of construction of building at Survey No. 143, Hissa Nos. 1a, 1b at
village Achole, Nalasopara. Thereafter by the inquiry conducted by
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the Department it was revealed that accused No.1 had done
unauthorized construction and had not removed the said
unauthorized construction within time. Complaint dated 18 th
January, 2018 for the offence under Sections 52, 53, 54 of MRTP
Act was filed against the accused. As per the record of the
Corporation, the CIDCO had granted commencement certificate in
favour of accused No.1 to construct building comprising of Ground
+ 7th Floors consisting of 43 flats and 33 shops. It is alleged that
accused without informing the Corporation had illegally carried
out excessive construction on the said premises. Some of the flats
were sold by the accused. In respect of some flats, the accused
No.1 had executed registered sale-deed. In one of the said sale-
deed, the complainant noticed order dated 3rd November, 2009
issued by CIDCO granting permission to accused No.1 to construct
basement + ground + 7th floor consisting of 48 flats and 104
shops. It is alleged that said letter dated 3 rd November, 2009 is a
bogus and a forged documents and therefore FIR was logded with
the aforesaid police station for the said offences.
3. Applicant was arrested on 2nd June, 2018. Investigation is
completed and chargesheet has been filed. Applicant preferred an
application for bail before the learned Magistrate at Vasai Court,
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which was rejected vide order dated 4th June, 2018 and
subsequently, application preferred before the Sessions Court was
also rejected on 18th June, 2018.
4. Learned counsel for the applicant submitted that entire
matter relates to the document. The applicant is in custody from
the date of arrest. Investigation is completed and chargesheet has
been filed. Further detention of the applicant is not necessary. It
is further submitted that applicant is not involved in the forgery of
the order dated 3rd November, 2009. It is submitted that accused
No.1 was granted permission to carry out the construction. The
applicant is not concerned with the construction activities
conducted by the accused No.1. It is further submitted that he did
not share the profits of the business. The role which has been
assigned to the applicant was to provide requisite permission etc.
It is submitted that memorandum of agreement was executed
between accused No.1 and the applicant on 9 th September, 2008
and the work which was assigned to the applicant was to provide
requisite permission for a consideration of Rs.1,50,000/- per
building. It is submitted that applicant has not played any role in
the entire transaction. It is submitted that alleged permission was
obtained on 3rd November, 2009 and the FIR has been lodged on
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3rd May, 2018 after nine years after the procurement of the alleged
document. It is further submitted that architect has been granted
anticipatory bail by this Court vide order dated 7 th September,
2018 in Criminal Bail Application No. 1810 of 2018. It is
submitted that there are no criminal antecedents against the
applicant. Further detention of the applicant is not necessary.
4. Learned APP submitted that permission dated 3rd November,
2009 was false and fabricated. Accused No.1 had entered into
agreement with the applicant and in accordance with the said
agreement, the applicant was supposed to provide the requisite
permission. It is therefore submitted that forged permission was
forwarded by the applicant/accused and his complicity is
established in the said crime. It is submitted that accused No.1
had constructed the flats and shops on the basis of false and
fabricated permission dated 9th September, 2008. Hence, it is
prayed that application be rejected.
5. I have perused the chargesheet. FIR has been lodged on 3 rd
May, 2018. Accused No.1 has alleged to have constructed the
building. It is apparent that accused No.1 was granted permission
to construct the building vide order dated 24 th July, 2009 and
allegedly false document was utilized by the accused No.1 in the
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form of permission dated 3rd November, 2009. It is pertinent to
note that said document was allegedly procured in 2009. FIR was
lodged after a period of nine years. It is alleged by the
complainant that the said permission was part of the agreement
which was executed with one of the purchaser of the flat. There
is no evidence to show that the applicant had prepared the forged
document and handed over it to accused No.1. It is necessary to
note that architect was concerned with the construction of the
building was not arrested and chargesheet was filed against him
and he was required to appear before the trial Court.
Apprehending that trial Court may take him into custody he had
preferred an application before this Court which has been allowed
vide order dated 7th September, 2018. The applicant is not
concerned with the construction activities and he was engaged in
accordance with the agreement dated 9 th September, 2009. It is
pertinent to note that chargehseet indicate that architect had
resigned on 22nd September, 2017. However, he did not inform
about the said fact to the Corporation and had abetted accused
No.1 to construct the building unauthorisedly. In the light of the
aforesaid circumstances and considering the fact applicant is in
custody from 2nd June, 2018, investigation is completed and
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chargesheet has been filed, the case for grant of bail is made out.
Hence, I pass the following order.
ORDER
i. Criminal Bail Application is allowed; ii. Applicant is directed to be released on bail in connection with C.R. No.I-471 of 2018 registered with Tulinj Police Station on his furnishing P.R. Bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
iii. Applicant shall report Tulinj Police Station once in a month on first Saturday of the month between 10:00 a.m. to 12:00 noon till conclusion of the trial.
iv. Applicant shall attend the trial Court from the date of hearing unless exempted by the trial Court for some reasons; v. Application stands disposed off. Digitally signed by
( PRAKASH D. NAIK, J. ) Sachidanand Sachidanand Kuttan Nair Kuttan Nair Date:
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