1 ABA-786-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 786 OF 2011 Maruti Nivrutti Navale .... Applicant vs. 1. State of Maharashtra ) (through Deccan Police Station, ) Pune in C.R.No.168/11) ) 2. Chainsukh Sobhachand Gandhi ).. Respondents Mr. A.P.Mundargi, Senior Counsel, a/w Vineet B.Naik i/b. Sukand R.Kulkarni,Advocates, for the applicant. Mr.Y.M.Nakhwa, APP for the respondent No.1 - State. Mr. Sachindra Shetye, Advocate, for respondent NO.2 - complainant. CORAM: J.H.BHATIA,J. DATE : 19th September, 2011. P.C. 1. The applicant seeks anticipatory bail in Crime No.168/2011 registered with Deccan Police Station, Pune, for the offences under Sections 465, 468, 471 and 420 read with Sec. 34 of IPC on a report lodged by the respondent No.2. 2. Prosecution case, in brief, is that the complainant/respondent No.2 had established Pavan Gandhi Charity Trust (for brief, "the Trust") in the memory 2 ABA-786-11.sxw of his soon and this Trust had also land on which a building was constructed for running school. The applicant claims to be Founder President and Managing Trustee of Sinhgad Technical Education Society (for brief, "the Society). The Trust had held land bearing Survey No.154/6/1 admeassuring 57 Ares on which a building in the area of 650 sq. mtrs was constructed. An English Medium School was started in that building in the year 2005 known as Loyalla School. In March 2008, some negotiations took place and it is offered to lease out the said school building for a period of 87 years and also to sell other larger property of the Trust to the Society. Accordingly, two separate Memorandum of Understanding (MOU) were signed between the parties. However, according to the complainant, on 13.5.2008, a lease deed of the School building for the period of 35 months with effect from 10.4.2008 was executed and registered between the parties and the parties agreed not to act upon the two MOUs. The lease period was to end on 9.3.2011 and as per the agreement, the Society was to hand over possession of the building and the land to the Trust on expiry of the lease period. as there was breach of certain conditions of the lease and as the Trust did not want to continue the lease beyond the lease period, on 19.2.2011, a notice was issued to the Society informing them to hand over possession on expiry of the lease period on 9.3.2011. The notice was replied on 7.2011 wherein the Trust desired that there was breach of conditions. 3 ABA-786-11.sxw 3. According to the prosecution, the present applicant made forgery in the MOU pertaining to the agreement for 87 years lease deed and got both the MOUs which parties agreed no to act upon, notarized o 7.3.2011 in absence of and without consent of the complainant. Not only this, on 7.3.2011 he also made forgery by making additions and alterations in the original draft agreement for lease which was prepared at the time of executing the MOU and got it franked. That document was notarized in the year 2008 and in that notarized document the forgery was made. On the basis of the forged documents, the applicant asserted his claim over the property,gave public notice to that effect and thereby the apploicant had committed several offences and therfore the offence came to be registered. 4. The learned Senior Counsel for the applicant vehemently contended that no forgery was made and the two MOUs were also to be acted upon. According tot he learned Counsel, as the sale could not take place or the property of the Trust could be leased out for a period more than 3 years, without permission of the Charity Commissioner, the lease deed for a period of 35 months was executed and registered as a stop-gap arrangement with understanding that the Trust would approach the concerned Asstt. Charity commissioner for necessary permission and thereafter the lease deed for a period of 87 years about the school 4 ABA-786-11.sxw building and sale deed about the larger property cold be executed and registered. It is contended that the draft lease deed which was prepared at the time of MOU needed certain modifications because of th value of the property and the stamp duty which was required to be paid at the time of it registration in the year 2011. That document was only franked, but was never tendered for registration and therefore, it was not acted upon. The learned Counsel also contended that the dispute is purely of a civil nature and the Society ha field two separate suits, one for specific performance of contract for sale of the land and another for specific performance of the lease agreement for 87 years after obtaining necessary permission from the Charity Commissioner. Both the suits are now pending. The learned Senior Counsel also pointed out that the applicant had filed a petition to quash the FIR. However, the Division Bench of this Court dismissed that petition and now the applicant has taken the matter to Supreme Court for the purpose of quashing the FIR. The matter is pending before the Supreme Court now. The learned Senior Counsel also contended that taking into consideration the nature of the dispute, custodial interrogation of the applicant is not at all required and, therefore, anticipatory bail may be granted. 5. On the other hand, the learned APP and the learned Counsel for the respondent No.2/complainant vehemently contended that custodial interrogation 5 ABA-786-11.sxw of the applicant is necessary because he has forged several documents and has also submitted false information to the Education Department while obtaining permission for running school. It is contended that he has also produced copies of false documents, original of which must be with the applicant. Unless custodial interrogation of the applicant is taken up,. it will not be possible to seize all those documents from him and to go to the root of the case. Learned APP contended that the applicant has committed not only the offence of forgery in respect of the private documents but also he has made false misrepresentations and committed offence of cheating by giving false information to the Education Department on the basis of certain documents with him and thus he has committed offence against the State and public at large. 6. After the learned Counsel for both the parties had taken me through several documents. First and foremost document in which th value appears to have been added is the document to the title. Further lease deed dated 7.3.2011. Admittedly, this document was a draft lease deed which was signed by the parties on 10.5.2008 at the time of executing the two MOUs. This draft lease deed was also got franked in 2008. However, in the draft only year 2008 was mentioned. There wee several blanks which were yet to be filled in. They included the date, period, amount involved. In this document which was signed on 10.5.2008, along 6 ABA-786-11.sxw with MOU, the year 2008 was struck off and the date 7th March 2011 was put in the title. In clause 1, the period of lease deed from 8.3.2011 to 7.4.2098 was added. In para 8(c), the reference to Ready Reckoner 2008 was changed to Annual Ready Reckoner 2011 and in para 8(d) besides the changes in the year of Annual Ready Reckoner, the amount showing the value of the property and the stamp duty were also changed. This document was got franked on 7.3.2011 as if the complainant was part of the changes which took place o 7.2011. The learned Counsel for the respondent No.2 produced the document to show that from 7th March to 9th March, the respondent No.2/complainant was not available in Pune as he had left Pune early morning on 7th March and had gone to Delhi for medical treatment. 7. The learned Counsel for the respondents also pointed out that in the MOU about th sale of the larger property, additions were made later on to show that a cheque bearing No.928858 dated 12.5.2008 drawn on Oriental Bank of Commerce was handed over to the complainant. It is contended that the number of the cheque, date as well as the name of the Bank were handwritten and initialled by the applicant, but not initialled by the complainant. This addition was also made to support the claim in the suit filed by him for this purpose. There is dispute between the parties as to whether the two MOUs were to be acted 7 ABA-786-11.sxw upon or not. According to the applicant, the execution and registration of the lease deed or 35 months was a stop-gap arrangements and the two MOUs were to be acted upon after obtaining necessary permission from the Charity Commissioner. While according to the complainant, when the party came to conclusion that they could not act upon the MOUs prepared on 10.5.2008, the lease deed for 35 month was executed and registered on 13.5.2008. The learned Counsel for the respondent No.2 pointed out that there is no document to show that the said lease deed was a stop-gap arrangement. Neither in the lease deed there is any mention of the MOU nor in the MOU there was any mention that till the permission was obtained, the lease deed for 35 months would be executed and registered. The applicant appears to have issued a public notice-cum-declaration that on 8.3.2011, the Trust had executed further lease deed in favour of the society. This declaration is clearly based on the forged document. The learned APP produced certain documents to show that the applicant had made certain statements and declarations before the Education Authorities for the purpose of obtaining permission for opening the school. It is contended that in the said application, he had given false information in several respects. He had shown that the Society was owner of about 82,000 sq. ft. area which is totally false. even as pr the lease deed, the constructed area of the building is 650 sq. mtrs. equivalent to about 6990 sq. ft. There is no document about remaining land in favour of the Society. 8 ABA-786-11.sxw The building was leased for a period of 35 months and not as owner. The applicant also produced a certificate from an architect to th effect that the Society had put a slab on which the building was constructed as per the parameters fixed by the Supreme Court and the National Code. It is contended that the said certificate is also false because the Society does not own or possess 5 acres of land. 8. If the matter would be only in respect of suits pertaining to lease agreement and agreement for sale, it would be said that it was a civil dispute, but prima facie, it appears that the applicant had in fact forged certain documents to support his claim and having forged the documents, he made public declarations in newspapers and also before the concerned authorities about his possession over the property on the bass of the forged documents. Not only this, in view of the false information given by him and he documents produced by him before the Education Authorities, the dimension of the investigation of the case has been enlarged. It appears that prima facie, not only the applicant committed forgery, but also made false representations and cheated the public authorities i.e. the Education Officer for obtaining necessary permissions., Before the Education Officer, he must have produced only copies of the documents, original of which must be with him. For securing those documents, custodial interrogation appears 9 ABA-786-11.sxw to be necessary. Therefore, in my opinion, it is not a fit case to grant anticipatory bail. 9. In the result, the application for anticipatory bail stands rejected. 10. At this stage, learned Senior Counsel for the applicant makes a request to extend the protection given by the trial Court till today. In fact that protection was given by the trial Court while rejecting the application for anticipatory bail so that the applicant could approach this Court. As ow this Court has also found that anticipatory bail cannot be granted, I do not see any valid reason to extend the protection. The request is turned down. (J.H.BHATIA,J.)