Gujarat High Court
Dineshbhai Jayrajbhai Vegad vs State Of Gujarat on 14 March, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/17535/2021 ORDER DATED: 14/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 17535 of 2021
With
R/CRIMINAL MISC. APPLICATION NO. 20998 of 2021
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DINESHBHAI JAYRAJBHAI VEGAD
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SR. ADV WITH MR MANOJ SHRIMALI(2331) for the
Applicant(s) No. 1,2,3
MR VITHALBHAI R PANSALA(10838) for the Applicant(s) No. 1,2,3
MR.HARDIK B SHAH(3751) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 14/03/2022
COMMON ORAL ORDER
1. Both these applications arises out of one FIR and are being disposed of by this common order.
2. By way of present applications under Section 438 of the Code of Criminal Procedure, 1973, the applicants - accused have prayed for anticipatory bail in connection with the FIR being C.R. No. 11210050211814 of 2021 registered with Rander Police Station, Dist.:
Surat city for the offences under Sections 406, 420, 114 and 120B of IPC.
3. Facts and circumstances giving rise to file present applications is that the applicants are facing the charge of cheating, criminal breach of Trust and criminal conspiracy for the sale transaction of agricultural land situated at Jhangirpura at Surat, which they have purchased by way of registered sale deed paying market price at Rs.5,21,83,000/-. The Page 1 of 7 Downloaded on : Wed Mar 16 00:37:00 IST 2022 R/CR.MA/17535/2021 ORDER DATED: 14/03/2022 disputed land was originally owned by grandfather of the informant. He passed away in the year of 1997. After sad demise of grandfather, his 4 sons, namely (i) Dhansukhbhai, (ii) Maganbhai, (iii) Jaswantbhai and (iv) Babubhai, jointly became owners of the land. It is not in dispute that, in the year of 1989, the land in question was sold to one Ahmed Ismail by way of agreement to sale and thereafter, the deal with him would not materialize further as he was suffering jail sentence. The aforesaid 4 brothers decided to sale the disputed land to the present applicants and accordingly, on 15.10.2009, registered sale deed was being executed. The seller i.e. present applicants have paid full amount of consideration by account payee cheque to individual brother. The applicants herein are developers and doing construction business. The scheme in the name of 'Pavitra Residency' launched by the applicants and it was completed in the year 2012. Out of 4 brothers, the informant herein is the son of Dhansukhbhai, who died on 19.03.2020. It is alleged by the informant in the FIR that the accused nos. 1 and 2, in connivance with the present applicants opened 9 bank accounts, to deposit the consideration received from sale transaction and took blank signed cheques of deceased Dhansukhbhai, under the pretext to pay the amount, the original purchaser Ahmed Ismail and being a real brother, his father signed the blank cheques. It is further alleged in the FIR that the applicant nos. 1 and 2 committed an offence of cheating and criminal breach of trust by withdrawing the 1/4th share of his father, amounting to Rs.1,30,00,000/- and did not return it. In this background facts, present FIR came to be registered against in all 7 persons. Out of 7 persons, the accused nos. 3 to 7 are the purchasers of the land, whereas, accused no. 6 is passed away.
4. This court has heard Mr. Shalin Mehta, learned Senior Advocate assisted by Mr. Manoj Shrimali, learned advocate for the applicants, Mr. P.P. Majmudar, learned advocate for original informant and Mr. Manan Mehta, learned APP for the respondent Stated.
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5 Learned Senior Counsel Mr. Shalin Mehta, contended that:
(i) The impugned FIR has been filed with malafide
intention as the sale deed in question came to be registered on 15.10.2009, whereas, the father of the informant passed away on 19.03.2020 and FIR alleging false allegations being registered on 14.09.2021 viz., after considerable delay of 12 years, the informant herein invoked the criminal machinery in motion with a view to extort money from the applicants herein, who have nothing to do with the dispute amongst the brothers with respect to alleged consideration paid by the applicants.
(ii) Referring to registered sale deed, the learned Senior Counsel would submit that the applicants herein paid total Rs.5,21,83,000/- towards sale consideration to the 4 brothers including the father of the applicant Dhansukh Patel. It is submitted that so far 1/4th share of the deceased is concerned, he got Rs.1,20,00, 000/- approximately by way of account payee cheque drawn in his name and accordingly, credited in the account. It is submitted that during the life time of Dhansukhbhai i.e. till 19.03.2020, he never uttered a word or lodged an FIR against the applicants for the alleged non- payment of his share, which itself speaks that the informant herein after sad demised of his father, raising family dispute, involving the applicants falsely with ulterior motive.
(iii) It is submitted that the applicants have nothing to do with the inter-se family dispute. Whole case is based on documentary evidence. It is not the case of the informant that the alleged sale transaction is bogus and there is a fraud Page 3 of 7 Downloaded on : Wed Mar 16 00:37:00 IST 2022 R/CR.MA/17535/2021 ORDER DATED: 14/03/2022 committed by the applicants herein. The sale transaction is in black and white and as agreed by the owners of the land, the amount being paid by account payee cheques only.
In the aforesaid facts, learned Senior Counsel would submit that the false FIR, so far present applicants are concerned has been filed by the informant. The applicants having roots in the society and they have cooperated in the investigation. Thus, therefore, case is made out for pre-arrest bail and it may be allowed by imposing appropriate terms and conditions.
6. Learned counsel Mr. Hardik Shah for the original informant reiterating the contents of the affidavit, contended that the accused nos. 1 and 2, who are uncle and cousin brother of the informant respectively, committed an offence of criminal breach of trust and cheating as deceased Dhansukhbhai, father of the informant was not paid any amount of consideration, received from the applicants herein. It is submitted that the accused nos. 1 and 2 after withdrawing the amount of the deceased from his bank account, invested the same in the construction projects of the applicants, and therefore, for effective investigation, the custodian interrogation of the applicants is necessary. Thus, therefore, he urged that no case is made out for pre-arrest bail.
7. Learned APP Mr. Manan Mehta, would submit that considering the role attributable to the applicants herein and the allegations made against them, no case is made out for discretionary relief and application, being devoid of merits, deserves to be dismissed.
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8. This Court has heard at length the learned counsels appearing for the respective parties and perused the materials placed on record.
9. It is not in dispute that the alleged sale transaction being entered into between the parties on 15.10.2009. The father of the informant and 3 brothers received Rs.5,21,83,000/- as per the schedule mentioned in the sale deed at page Nos. 56 to 58 of this application. The father of the deceased Dhansukhbhai paid individually approximately Rs.1,20,00,000/- towards his share by way of account payee cheque and same was credited in the account. Deceased Dhansukhbhai passed away on 19.03.2020. During his lifetime, he never raised the dispute against the applicants towards non-payment of his share by his brothers. Record indicates that, main dispute is being raised against the accused nos. 1 and 2, who are uncle and cousin brother of the informant, as, according to allegations alleged in the FIR, they withdrew the share of the deceased Dhansukhbhai from his bank account.
10. In the aforesaid facts, this Court is prima-facie considered view that there is no any reasonable ground to believe that the applicants have committed the alleged offence. The case is based on documentary evidence. The applicants are available at the time of investigation and trial and they have cooperated throughout the investigation. Thus, therefore, the applicants herein make out a special case for exercise of powers to grant anticipatory bail.
11. For the foregoing reasons, considering the factors and parameters, necessary to be considered for adjudication of the anticipatory bail under section 438, without commenting on Page 5 of 7 Downloaded on : Wed Mar 16 00:37:00 IST 2022 R/CR.MA/17535/2021 ORDER DATED: 14/03/2022 merits of the case, this is a fit case to grant pre-arrest bail. I find no reason to decline pre-arrest bail to the applicants. In the result, the present applications are allowed. The applicants are ordered to be released on bail in the event of their arrest in connection with a FIR being C.R. No. 11210050211814 of 2021 registered with Rander Police Station, Dist.: Surat city on their executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety each of like amount on the following conditions:
(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 21.03.2022 between 11.00 a.m. and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
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12. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
14. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(ILESH J. VORA,J) P.S. JOSHI Page 7 of 7 Downloaded on : Wed Mar 16 00:37:00 IST 2022