1. Application under Section 438 of the Code of Criminal Procedure has been filed by the applicant in connection with CR.No.I-48 of 2012 and CR.No.I-49 of 2012 registered with Dharampur police station for the offences punishable under Sections 408, 465, 467,468,471 and 114 of the Indian Penal Code dated 7.6.2012.
2. It is the case of the prosecution that the sale of property known as “Mohangadh” bearing Survey No.501 and admeasuring 5 Hectors and 90 Are, came to be executed on 11.5.2010 by means of power of attorney held by accused No.1. It is also the case of the prosecution that Special Civil Suit No.59 of 2012 came to be filed before learned Principal Civil Judge, Valsad by the original owner for declaring the impugned sale deed dated 11.5.2010 and power of attorney dated 28.4.2010 as null and void.
3. It is also the allegation that in yet another complaint filed being CR.No.I-49 of 2012 with Dharampur police station in respect of property situated at Block No.48, situated at Dharampur in Valsad that the said Survey No.58 of 2012 has been filed before the learned Principal Civil Judge, Valsad for setting aside the sale deed dated 9.4.2009 and for cancellation of the power of attorney dated 2.4.2009. It appears from the complaint that the complainant is the legal heir of erstwhile Maharaja Sahdevji Narhardevji of the erstwhile State of Dharampur, who owned various moveable and immovable properties, which included agricultural and non-agricultural lands in Dharampur and Kaparda taluka. The complainant stays at New Delhi and Bangaluru ( then Banglore, Karnataka State) and she was unable to look after her property situated at Valsad District. A care-taker was looking after these properties. It appears that during the life time of late father of the complainant, the estate was looked after by Shri Mohan Rao Dake. Shri Mohan Rao Dake and his family cultivated faith and reliance was placed on his son Mr.Dharmesh Mohan Rao Dake (accused No.1). A power of attorney was executed on 6.7.1998 in favour of Shri Dharmesh Dake for representing the complainant in legal proceedings, concerning grant of cottage and a second power of attorney was executed on 20.8.1998 authorising Mr. Dharmesh Dake to maintain, manage and protect four estates at Dharampur, namely, Mohan Vilas Palace, Mohangadh palace, Baldevnivas compound and Green cottage.
4. It is averred that these power of attorneys were executed at New Delhi and through these limited authority to maintain and look after the properties was given. No other rights had been given for transfer of title to the power of attorney. It is the say of the complainant that she did not sign any document at Dharampur or before any notary public. However, the present applicant and other three persons created two forged and fabricated power of attorneys, purportedly executed by the complainant in favour of accused No.1-Dharmesh Dake. It also further culls out from the record that for managing and for taking care of the properties of the complainant at Mumbai, power of attorney was notarized before the Notary public at New Delhi in the year 2008 and in the said power of attorney dated 8.11.2008, she had affixed her photographs and the photograph of original accused No.1.
5. The complainant recently came to know from the local residents of Dharampur that two of her immoveable properties were sold out to accused No.4 and it was noticed that by utilizing the forged power of attorney document, these properties were transferred. These documents were prepared in the year 2009 and 2010 respectively. Complainant preferred, as mentioned hereinabove, Special Civil Suits No.58 and 59 of 2012 for setting aside the sale deed, as also for cancelling both the power of attorneys.
6. In this factual background, present application under Section 438 of the Code of Criminal Procedure came to be filed by the purchaser inter alia urging that he is a bona fide purchaser for value without notice, who had no knowledge of any forgery. He has also raised objection to the very locus of the complainant in filing such a complaint. According to him, as per the deed of adoption executed between Shri Sahdevji Narhardevji Rana and his wife Divyadevi, erstwhile Maharaja of Dharampur, adopted Tika Sahil Verman vide the date of adoption deed dated 14.3.1997 and, therefore, properties do not belong to the complainant.
Yet another issue that has been raised concerns the letter, attested by notary and signed by the complainant dated 3.4.2012 addressed to DSP as an application. It is urged interalia that the complaint dated 7.6.2012 is not the complaint but would be an additional statement and earlier letter dated 3.4.2011 be treated as a FIR. It is also further urged for and on behalf of the applicant that on the basis of the power of attorney executed on 6.9.2009 in favour of the accused No.1, he as a power of attorney, has sold 16000 sq.feet of non-agricultural land in favour of one Shri Sanjay Arvindbhai Modi, brother of Mukesh Arvindbhai Modi, who is averred to have given information about the sale of land in question in favour of the applicant and that sale, till the date is not questioned by the complainant. It is also further averred that on 15.4.2012, PSI, Dharampur Shri P.G. Parmar summoned the applicant orally to the police station and he had gone to Dharampur police station at around 12:30 p.m with advocates Mr. Manoj Dasondi and Mr. Sanjay Patel.
Necessary documents were called for which had been furnished thereafter. The investigation was transferred to one Police Inspector Mr. Faldu. He also has further urged that Superintendent of Police Shri Dharmendrasingh B. Vaghela, by a letter under the signature and applicant was handed over a written request to reconsider the entire matter in relation to the documents submitted by the applicant and that request has not been responded to.
7. By filing an affidavit, a strong resistance appears for and on behalf of the complainant in grant of anticipatory bail to the present applicant. It is submitted that forged power of attorneys is created and executed before the Notary, who had put his seal of attestment on both the said forged documents with passport sized photographs. Complainant denied that she was present at Dharampur, when these power of attorneys were made on 8.11.2008 without her knowledge. The signature made before the Notary is also different. From the photograph on the power of attorney, document while notarizing such power of attorney, the Notary Public would be well within his knowledge that the person in the photograph on the power of attorney is not the person, who is signing the Notary Register and this fact was also known to the purchaser and, therefore, he too cannot be oblivious of such fact. It is further urged that witnesses, who purportedly have signed the forged power of attorneys have in fact not signed as witnesses on such power of attorneys Nitin Agaskar was working as a driver with the original accused No.1. It is with the help of Notary Public and advocate that the power of attorney and the present applicant are averred to have colluded in transfer of these huge parcels and valuable properties. It appears that the documents are said to have been notarized in presence of Smt. Sushila P. Sisodiya and Shri Komalsingh and both these Notary Public have given statements before the Investigating Agency that no such declaration or notes were given by them and they have also supplied their Notary Registers to the Investigating Agency, which are indicative that this is a big scam, where all the accused are involved. It is the say of the complainant that two power of attorneys purportedly notarized at New Delhi are in fact forged power of attorneys, which were notarized at Dharampur. She had never been to Dharampur to sign these power of attorneys or Notary Register.
8. Learned advocate Mr.Nirav Mishra strongly and fervently submitted before this Court that the applicant is a bona fide purchaser for value without notice. He has acted upon document of power of attorney, which led him to believe the genuineness of this document. He also further submitted that there are no criminal antecedents of the present applicant, who has been falsely involved in the entire case because of the business rivalry. Accordingly, advocate Mr. Mukesh A. Modi has already undergone 7 years of imprisonment in fake currency notes and at his instance the complainant is said to have become aware of the sale of these properties, which is apparently a false version. He also urged that there is yet another Special Civil Suit filed by one Trust, namely, Shrimad Rajchandra Adhyatmik Satsang Sadhna Kendra concerning property of Mohangadh, where the present applicant and other co-accused are made parties in the civil litigation and complainant herself being the party in that suit, she is well aware of the said sale from the year 2010, and hence, this late filing of the complaint when is not explained sufficiently, anticipatory bail to the purchaser requires to be granted. He further urged that there were many occupants in the said properties and hence property was sold at a price, which was below the price of 'Jantri' prevalent in the area, but, that can never be a case to assume that it was a fishy transaction. Learned advocate also urged that the cases pertaining to these properties are already pending before the competent Court and, therefore, on the basis of a concocted story, right of the applicant cannot be jeopardized. He also urged that there are proceedings pending before the Revenue Authority of the present complainant and the applicant and, therefore also, with such glaring facts indicating civil nature of dispute the applicant cannot be directed to undergo any imprisonment as a pre-trial punishment. There is no custodial interrogation necessary for any purpose as entire case is based on documents. According to the learned advocate, the adoption deed executed on 28.6.1985 and registered at Banglore mentions name of Tika Sahil Verman as the son of Divyadevi and as the present complainant would have no locus, applicant should be granted anticipatory bail.
9. Per contra, learned advocate Mr. Adil Mirza appearing for the original complainant has fervently and strongly register to the grant of anticipatory bail. Learned advocate urged that the request of grant of anticipatory bail should be rejected by this Court in as much as the present applicant colluded with three concerned to grab huge parcel of land of the complainant. He being a local resident and in the business of land development is in know of the fact that the complainant is residing at New Delhi as also he is also in know of the fact that the properties, worth crores of rupees could not be sold for a paltry consideration of Rs.16 lakhs respectively. He further urged that not even at the price of 'Jantri' rate, these properties are purchased by the applicant and the applicant has got a share in the properties by way of the power of attorneys, which are admittedly forged, by transferring huge parcel of lands belonging to the complainant to the present applicant himself, who is a builder and developer. He further urged that there is an additional reason to believe that he has joined hands with other three persons in attempting to cheat the complainant and creating forged documents inasmuch as during the course of hearing of anticipatory bail before the Sessions Court, he produced the certification and affirmation letters from the Notary Public based at New Delhi confirming these sales and as per the statements recorded by the Investigating Officer, these two Notary Public, clearly indicate that the documents, which he produced during the course of criminal proceedings, are purportedly forged.
10. Furthermore, according to the learned advocate for the complainant, in a Special Civil Suit No.43 of 2010 filed by the Trust, the Trust, as an independent agency, has got the document of the Notary examined by handwriting expert and it is indicative that all the signatures are forged and as there is prima facie case emerging of forgery, he urged the Court not to exercise discretion in favour of the applicant.
11. He also further pointed out that the modus operandi of advocate Mr.Dasondi and power of attorney holder was to accept the summons of local Court issued in the name of complainant and to appear for and on behalf of her without even her knowledge and therefore, it is wrong to state that she was aware of the suit of 2010 and that the complaint concerned filed belatedly. Amount of Trust the complainant had reposed in the power of attorney and a Vakaltpatra given by the complainant for the purpose of utilization in the appellate proceedings, appear to have been misused apparently. It is alleged that investigation will be hampered if the application is granted at this stage.
12. Both the sides have relied upon various authorities to substantiate their say with their respective versions. Following are the authorities which the parties have relied upon:-
1. Siddharam Satlingappa Mhetre vs. State of Maharashtra and ors. reported in AIR 2011 SC 312
2. Ravindra Saxena vs. State of Rajasthan reported in AIR 2010 SC 1225
3. Thulia Kali vs. The State of T.N. reported in AIR 1973 SC 501.
4. State of Haryana and others vs. Ch. Bhajan Lal and others reported in AIR 1992 SC 604.
5. Joseph Salvaraj A. vs. State of Gujarat and others reported in (2011) 7 SCC 59.
6. Mohammed Ibrahim and others vs. State of Bihar and another reported in (2009) 8 SCC 751.
7. Shri Gurbaksh Singh Sibbia and others vs. State of Punjab reported in (1980) 2 SCC 565.
8. Sadhu Gunvantiben w/o Rajendrakumar Kalyandas vs. Patel Ajmalbhai Vasrambhai and others decided by this Court in Criminal Miscellaneous Application No. 8285 of 2012 on 18.7.2012.
9. Champaben Chhaganji Thakore vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 8852 of 2012 on 18.7.2012.
10. Ahmed Ishap Adam Patel vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 7485 of 2011 on 6.6.2011.
11. Prabhatbhai Laxmanbhai Dangar vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 7665 of 2011 on 8.6.2011.
12. Bharatbhai Chhaganbhai Karavadra vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 7427 of 2011 on 6.6.2011.
13. Asim Niranjan Chakraborty vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 9628 of 2011 on 12.9.2011.
14. Bharatbhai Jayantilal Shah and others vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 2400 of 2012 on 11.5.2012.
13. Upon hearing both the sides and on close perusal of the record for the rejection of request of the present application of grant of anticipatory bail, reasons are as follows:-
13.1 Before adverting to the facts, it would be desirable to recapitulate the law on the subject Section 438 of the Code of Criminal Procedure provides for grant of anticipatory bail in the event of arrest under certain circumstances :
“438. Direction for grant of bail to person apprehending arrest.-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely;-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub- section(1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under sub-section(1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him for disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section(3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section(1).”
13.2 Heavy reliance is placed on the judgment of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. (supra) along with provision of Section 438 of the Code of Criminal Procedure, which is being reproduced profitably hereinafter, relevant paragraphs of Siddharam Satlingappa Mhetre's case are vital for determining this application are being reproduced as under:-
“121. No inflexible guidelines or strait-jacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438, Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
xxx xxx xxx xxx xxx xxx 127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
xxx xxx xxx xxx xxx xxx 137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under section 438, Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.”
Apex Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another reported in (2009) 8 SC 751 in quashing the petition has held that the dispute, which was essentially civil in nature cannot be permitted to be converted into criminal litigation. It further held that the criminal Court should ensure that the criminal proceedings are not misused for settling scores for pressurizing the parties to settle civil disputes. It also further stated that the civil disputes in some cases may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding that there are also civil disputes. It was a case of forgery of the document purportedly to be a valuable security and use of challenged document as genuine. He sought to rely on the following paragraphs:
“16. There is a fundamental difference between a person executing a sale deed claiming that th property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a documents conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “ false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.”
14. It must be noted at this stage that every criminal case would contain its own peculiar facts and the same shall have to be decided on the basis of the facts and circumstances, which exist on the record. No two cases are identical factually and, therefore, the Court shall have to essentially draw from the facts which emerge from the record. The applicant herein, who is one of the accused alleged to have connived with co- accused, who forged the power of attorneys to transfer valuable land to the present applicant has sought to question authority of the complainant and her entitlement as heir of the erstwhile Maharaja. Admittedly, the disputed properties stand in the name of the complainant in her capacity as an owner and, at this stage of anticipatory bail proceedings, it is not for the applicant to challenge her authority or her title of the properties.
Moreover, the Court cannot be oblivious of the fact that the issue of complaint having been filed belatedly also holds no ground. It is also not acceptable to sustain the objection of applicant that the complainant was in know of this transfer for a long time, as she had defended actually the suit of the third party that is of Srimad Rajchandra Adhyatmik Satsang Sadhna Kendra in as much as learned advocate Mr. Adil Mirza appearing for the complainant has explained in detail the modus operandi of the power of attorneys of the complainant, who not only had forged the documents, but, had also suppressed factually proceedings of different litigations in respect of these lands from the complainant. This was done by accepting the summons on her behalf and filing appearance of advocate, by obtaining her signature on the Vakalatpatra for contesting before the Revenue Authority and before those authorities which were within her knowledge. In other words, she was kept in complete dark with regard to the litigations pertaining to the land in question. Even the third party litigation was fought by the power of attorney whose request for bail has been rejected by this Court. Thus, it would not be possible for this Court to hold that the complainant conveniently chose to delay filing of the complaint and pendency of civil litigation in respect of the very same properties, would preclude her from pursuing present course of criminal litigations.
15. The Court also needs to keep in kind that prima facie outright, forgery appears to have been committed making use of her signature. Even the record of the notary, which had been sent to the handwriting expert for examination by the third party i.e. Rajchandra Adhyatmik Satsang Sadhna Kendra the opinion received is of tracing of all the signatures. This would go to suggest that both the valuable parcels of lands of complainant have been transferred to the present applicant, who is operating in the local market as the developer and contractor, who naturally may not be ignorant of the prevalent rate. It is not for this Court at this stage to evaluate as to whether the prices paid were much below the 'Jantri' price as contended. Suffice to hold at prima facie stage that these are some of the vital considerations, which would further vindicate and would further lead to indicate his collusion with power of attorneys. It is also to be noted at this stage that power of attorneys, the advocate and the notary all are found hands in gloves in this purported transfer of the property.
One of the vital aspects to be noted is that at the time of moving anticipatory bail, this applicant had produced before the sessions Court the letters of the notaries operating at New Delhi for and on behalf of the complainant inter alia stating therein that the transactions effected with this applicant are genuine, whereas, in fact, on due verification by the investigating agency, both Smt. Sushila P. Sisodiya and Shri Komalsingh have denied of having sent any such letter. This appears to be another valid ground vindicating the averments of complainant's side that this applicant has also strong nexus with the power of attorney and others and his transactions in respect of the land are not at all innocent as attempted to be made out by him.
Considering the principles of anticipatory bail and keeping mind the huge amount of money involved in the lands in question and keeping in view modus adopted, the Court is of the opinion that grant of anticipatory bail not only would embolden the elements, who eye on valuable lands at the cost of others and this Court would fail in its duty, if the applicant would be protected by way of a discretionary relief, as the entire issue requires deeper probe and may also further require custodial interrogation as well. Resultantly, this application deserves no entertainment and the same is rejected.
Rule nisi stands discharged with no order as to costs.
(Ms.Sonia Gokani, J.) sudhir