Gujarat High Court
Vipulbhai Devjibhai Patel (Chovadiya) vs State Of Gujarat on 8 April, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/5122/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5122 of 2019
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VIPULBHAI DEVJIBHAI PATEL (CHOVADIYA)
Versus
STATE OF GUJARAT
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Appearance:
MR SV RAJU, SENIOR ADVOCATE WITH MS TRUSHA PATEL AND MR BN
LIMBACHIA(3454) AND MS ZEAL SHAH for the Applicant(s) No. 1
MR JK SHAH, APP(2) for the Respondent(s) No. 1
MR YATIN OZA, SENIOR ADVOCATE WITH MR ANKIT SHAH for the
original complainant.
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 08/04/2019
ORAL ORDER
1. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code' for short) for releasing the applicant on regular bail in connection with C.R.No.I-18 of 2019 registered with Bopal police station for the offence punishable under Sections 406, 420, 409, 506(2) read with Section 114 of Indian Penal Code.
2. Heard learned senior counsel Mr.S.V.Raju assisted by learned advocates Ms.Trusha Patel, Mr.B.N.Limbachia and Ms.Zeal Shah for the applicant, learned Additional Public Prosecutor Mr.J.K.Shah for the respondent-State and learned Page 1 of 12 R/CR.MA/5122/2019 ORDER senior counsel Mr.Y.N.Oza assisted by learned advocate Mr.Ankit Shah for the respondent- complainant.
3. Learned senior counsel Mr.Raju for the applicant referred to the allegations made against the applicant in the FIR in question and contended that the original complainant has suppressed the material fact while filing the FIR. It is alleged in the FIR that as per the agreement, 11 flats, details of which are referred in the FIR are agreed to be sold to the complainant, however, the applicant has not executed the sale deed in favour of the complainant. It is further alleged in the FIR that so far as the flat no.D-503 is concerned, though it is mentioned in the agreement that it is to be sold to the complainant, the applicant has executed sale deed in favour of one Snehaben Jitendrakumar Bhavsar and Jitendrakumar Sudhakar Bhavsar. It is, therefore, alleged by the complainant that the applicant and other co- accused have committed the offences punishable under Sections 406, 420, 409, 506(2) and 114 of the Indian Penal Code.
3.1. Learned senior counsel Mr.Raju thereafter referred to the agreement entered into between the applicant and the complainant and Page 2 of 12 R/CR.MA/5122/2019 ORDER thereafter pointed out that flat no.D-503 is not referred in the said agreement and therefore the complainant has suppressed the said fact while filing the FIR. It is further contended that though it is alleged by the complainant that 11 cheques each worth Rs.14,00,000/- are given to the applicant towards the amount of consideration of sale transaction but the sale deeds are not executed in favour of the complainant. However, the said allegation is not correct because all the cheques are undated and only photocopies of such cheques are given for preparation of the sale deed. The original cheques are not handed over to the applicant. Learned senior counsel has referred to the copy of the cheques which are produced at page nos.52 to 55 of the compilation. After referring to the said cheques, it is contended that flat no.D-503 is also not referred in the said cheques. Learned senior counsel, therefore, urged that no prima facie case is made out against the applicant and the complainant has converted civil transaction into criminal prosecution and without filing civil suit for execution of the sale deed, FIR in question is filed. Therefore, it is nothing but an abuse of the process of the Court.
3.2 Learned senior counsel Mr.Raju, thereafter, contended that Sections 406 and 420 Page 3 of 12 R/CR.MA/5122/2019 ORDER of Indian Penal Code cannot go together as per the decision rendered by this Court. Learned senior counsel has referred to the decision rendered by this court in the case of Rajnikant Ambalal Patel V/s State of Gujarat and another, reported in 1987(2) GLR 1152 and also to the decision of this Court in the case of Arvindbhai Maganlal Master and Ors. V/s State of Gujarat and Ors., reported in 2015(1) GLH 149.
3.3 Learned senior counsel Mr.Raju, thereafter, would submit that the alleged offences are punishable with seven years imprisonment and triable by the Court of Magistrate. Further, looking to the allegations levelled against the applicant and when the applicant is in jail since 3.3.2019, this Court may enlarge the applicant on regular bail. Learned senior counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Mohan Singh V/s Union Territory,Chandigarh reported in 1978(2) SCC 366 as well as the decision rendered by the Hon'ble Supreme Court in the case of Gurucharan Singh and others V/s State (Delhi Administration) reported in 1978(1) SCC 118, in support of the aforesaid contention.
3.4 Learned senior counsel Mr.Raju for the
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R/CR.MA/5122/2019 ORDER
applicant, thereafter, under the instruction of the applicant, contended that the applicant will not dispose off the 11 flats in question if civil proceedings are filed by the original complainant with regard to the aforesaid flats within a period of two months. He, therefore, urged that looking to the facts and circumstances of the present case, this Court may not exercise discretion in favour of the applicant.
4. On the other hand, learned Additional Public Prosecutor Mr.Shah has opposed this application and pointed out that on 23.7.2018, the agreement was executed between the applicant and the complainant wherein flat no.D-503 is mentioned. However, subsequently, the said flat number is deleted. It is, therefore, contended that in the present case, offence of forgery is also committed by the present applicant.
4.1 Learned Additional Public Prosecutor Mr.Shah, thereafter has submitted that there are antecedents against the applicant and one FIR being C.R.No.I-355 of 2012 is also filed against the applicant before the Naroda police station for the offences punishable under Sections 406, 420 and 465 of Indian Penal Code. It is, therefore, contended that when the applicant is having antecedents, this Court may not exercise Page 5 of 12 R/CR.MA/5122/2019 ORDER discretion in favour of such an applicant. He, therefore, urged that this application be dismissed.
5. Learned senior counsel Mr.Oza appearing for the original complainant has also vehemently opposed this application and referred to the allegations levelled against the applicant in the FIR. It is contended that though the complainant has paid Rs.72,50,000/- for the 11 flats in question and though 11 cheques each of Rs.14 lacs are issued in favour of the applicant, he has not executed the sale deeds for the 11 flats in question. Therefore, the ingredients of the alleged offences are prima facie made out. He, therefore, urged that this Court may not entertain this application.
5.1 Learned senior counsel Mr.Oza, thereafter, has placed on record two written complaints recently given on 2.4.2019 and 3.4.2019 by one Puja Tejas Shah and Vidit Chetan Adani against the applicant. In the said written complaints which are given to Police Inspector, Changodar police station, the concerned applicants/complainants have made allegation against the present applicant that he has committed the offences punishable under Sections 409, 420 and 120B of the Indian Penal Code. He, Page 6 of 12 R/CR.MA/5122/2019 ORDER therefore, contended that looking to the conduct of the applicant, this Court may not exercise discretion in his favour. Another FIR being C.R.No.I-19 of 2019 is also registered against the applicant at Bopal Police Station, Ahmedabad Rural.
6. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the FIR in question is filed for the alleged offences punishable under Sections 406, 420, 409 and 114 of Indian Penal Code against the applicant and another accused. The complainant has mainly alleged that for 11 flats, he has given an amount of Rs.72,50,000/- to the applicant and 11 cheques each of Rs.14 lacs are also given to the applicant towards remaining amount of consideration. Thus, total amount of consideration is paid by the complainant but the applicant has not executed the sale deed for 11 flats. It is alleged that flat no.D-503, though referred in the agreement entered into between the parties, the applicant has sold the said flat in favour of one Snehaben Jitendrabhai Bhavsar and Jitendrabhai Sudhakar Bhavsar. However, from the material produced on record, it is revealed that the agreement was entered into between the applicant and complainant on 23.7.2018 wherein Page 7 of 12 R/CR.MA/5122/2019 ORDER initially flat no.D-503 was mentioned. However, thereafter, on 1.9.2018, another notarized agreement is entered into between the parties wherein flat no.D-503 is not mentioned. The said agreement is executed for 11 flats, the details of said flats are mentioned in the agreement. It is also not in dispute that 11 cheques each of Rs.14 lacs are not deposited by the applicant and all the said cheques are undated cheques. It is specifically contended by learned counsel appearing for the applicant that all the 11 original cheques are not given to the applicant but photocopies of such cheques are given with a view to see that sale deed is prepared. Even otherwise, if the applicant has not executed the sale deed in favour of the complainant as per the agreement entered into between the parties, remedy lies before the civil Court, however, prima facie, it appears that by suppressing the fact that flat no.D-503 is not mentioned in the agreement, the FIR in question is filed against the applicant and other co-accused.
7. It is also required to be noted that applicant is in jail since 3.3.2019. Remand period is over. The investigation is almost concluded qua the applicant. Further, the case is triable by Court of Magistrate and therefore in the facts and circumstances of the present case, Page 8 of 12 R/CR.MA/5122/2019 ORDER I am inclined to exercise discretion in favour of the applicant.
8. It is contended by learned advocate for the complainant as well as learned Additional Public Prosecutor that another FIR being C.R.No.I-355 of 2012 is registered with Naroda Police Station against the applicant, however, after taking instruction, learned senior counsel Mr.Raju appearing for the applicant has submitted that summary is filed in the said FIR. The said aspect is also verified by the learned Additional Public Prosecutor. It is also contended that another FIR being C.R.No.I-19 of 2019 is registered with Bopal Police Station, Ahmedabad Rural which is pending against the applicant, however, in the said case, the applicant is already released on bail.
9. So far as the other two written complaints are concerned, it is prima facie clear that after hearing of this application was adjourned, on 2.4.2019 and 3.4.2019, two written complaints are given before Changodar police station. This Court has specifically instructed learned Additional Public Prosecutor to inquire about the said complainants and it is contended by learned Additional Public Prosecutor, after taking instruction, that prima facie, it appears Page 9 of 12 R/CR.MA/5122/2019 ORDER that the present complainant was in touch with the persons who have filed written complaints. Thus, looking to the conduct of the complainant also, it is clear that the complainant wants that the applicant shall remain in jail.
10. I have kept in view the decisions upon which the reliance is placed by learned senior counsel Mr.Raju appearing for the applicant while passing the present order.
11. It is contended by learned counsel Mr.Oza appearing for the original complainant that till date, they have not filed any civil proceedings before the competent civil Court for the flats in question. However, the complainant is inclined to file the civil proceedings within a period of two months. If such proceedings are filed within a period of two months, in view of the over all facts and circumstances of the present case, learned senior counsel Mr.Raju has specifically contended, after taking instruction, that the applicant will not dispose off the 11 flats in question till the civil proceedings are filed by the complainant against the present applicant.
12. I have also considered the said submissions canvassed by learned senior counsel Page 10 of 12 R/CR.MA/5122/2019 ORDER appearing for the applicant. It is clarified that as and when the civil proceedings are filed, the concerned civil Court shall decide the issue in accordance with law, without being influenced by any of the observations made in the present order.
13. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.I-18 of 2019 registered with Bopal Police Station, Ahmedabad Rural on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave India without prior
permission of the Sessions Judge
concerned;
[e] mark presence before the concerned
Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 Page 11 of 12 R/CR.MA/5122/2019 ORDER a.m. and 2:00 p.m.;
[f] furnish the present address of
residence to the Investigating
Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
14. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
15. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
16. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(VIPUL M. PANCHOLI, J) SRILATHA Page 12 of 12