1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLICATION NO. 2129 OF 2009 Ajit Sohanlal Jain, .. Applicant Vs State of Maharashtra & anr .. Respondents Shri Adik Shirodkar, Senior Counsel with Mr Rajesh S Sharma and Sunil B. Jadhav, i/b M/s Rajesh Sharma & Associates, for the applicant. Shri Shirish Gupte, Senior Counsel, i/b Mrs Rachita Dhuru for the original complainant. Smt. S. D. Shinde, APP, for the respondent-State. CORAM : D.B.BHOSALE, J. DATE : 15/07/2009. PC: 1. Heard Mr Adik Shirodkar, learned senior counsel for the applicant, Mr Shirish Gupte, learned Senior Counsel for the original complainant and Smt. Shinde, learned APP, for the respondent-State 2. The applicant is seeking anticipatory bail in C.R.(FIR) No. T 2 I-240 of 2008 of Kasarvadavli Police Station. The crime has been registered against the applicant and one another for having allegedly committed an offence punishable under sections 420, 465, 467, 468, 471, read with 34 of IPC. 3. The aforesaid crime has been registered against the present applicant and Rashmikant Shah at the instance of Mahendra Manilal Shah. They all were Directors/shareholders of Vijay Dwellers Pvt Ltd (for short, “the company”). The company was set up to acquire lands and building in respect of the property situated at Matunga, Mumbai. Mr Vrijlal Gala was also a Director of the company. Insofar as the applicant is concerned, he was made share-holder and Director of the company by Rashmikant Shah in October/November, 2007. There were disputes between the Directors inter se, to which a detailed reference, in my opinion, is not necessary. 4. Some time in March, 2008, the complainant, Vrijlal Gala and Vinod Gala learnt that the applicant and Rashmikant Shah fraudulently diluted their majority holding into minority and, therefore, the proceedings before the Company Law Board were initiated by Vrijlal Gala. In the course of the proceedings it was discovered that Rashmikant Shah with the help of the applicant, 3 had disposed of 18 flats and misappropriated the sale proceeds of the flats into a separate fresh account at Abhudaya Bank, Kalachowki Branch, by forging resolutions. Further more, it was also discovered that out of the 18 flats, six flats could not have been disposed off in view of the fact that the company had agreed to provide accommodation to the six front companies, which were tenants in the constructed building itself, thereby, depriving them (the tenants) of their right of accommodation in the redeveloped building. Thereupon, out of the six tenants, whose flats have been disposed off, four filed suits before this court challenging the sale by Rashmikant Shah and the present applicant. These suits came to be filed around September, 2008. Notice of motion for interim and ad-interim reliefs were taken out. Rashmikant Shah, in the said suits, took up the contention that he was entitled to dispose off the flats in view of the release deeds being executed by the releaser, namely the plaintiffs in the suits in favour of the releasees, namely, the company. The release deeds purportedly sought to release in favour of the company, the rights of the tenants for alternate accommodation in the redeveloped property. The release deeds were purportedly signed by Vrijlal Gala, who denied the execution of the deeds by their affidavits filed in October and December,2008 in the suits. 4 5. It is alleged that accordingly Rashmikant Shah with the help of the present applicant sold 12 flats belonging to the company and six flats belonging to the tenants and allegedly misappropriated the sale proceeds aggregating to more than eighty crores. The applicant, thereafter, who was also defendant in the suits, filed a criminal complainant on 10.11.2008 against the plaintiffs therein, alleging offences under MOFA and section 420 of IPC. This complaint was filed before the Court of 8th J.M.F.C., Thane. The learned Magistrate took cognizance of the offence and issued process against all the accused persons. On the same day, the applicant moved an application under section 93 of Cr. P.C for search and production of the release deeds. He identified two locations to be searched, namely, the office of the Architect, who, according to the complainant, had no concerned with the project of the company and also the corporate premises of the company at Ghodbunder, Dist-Thane. According to the complainant, the office of the company situated at Ghodbunder road does not come within the jurisdiction of the J.M.F.C., Thane, however, in order to bring the complaint within the jurisdiction of the 8th J.M.F.C court, Thane, the address of the Architect of the company was also mentioned in the complaint. No search was, however, conducted at the office of the Architect. 5 6 On 27.11.2008, a purported search was carried out in the premises of the company at Ghodbunder road and purportedly two release deeds were discovered in the latrine and seized under the panchanama allegedly drawn up. Further more, on 28.11.2008, the release deeds were filed before the learned Magistrate in the complaint filed by the applicant. The applicant also filed an affidavit before this Court in the civil suits annexing copies of these release deeds. The notice of motion were listed before this Court on 2.12.2008 when it was categorically contended that these documents are false, fabricated, bogus and have not seen light of the day. On 2.12.2008 the complainant lodged the FIR with Kasarvadavli police station, Thane, alleging that these documents are false, forged, fabricated and bogus, so also for offences of cheating by misappropriation of sale proceeds of 18 flats aggregating to more than 80 crores. 7. It appears, upon filing of the FIR, the police obtained the original release deeds and forwarded them for forensic examination to the State Forensic Laboratory at Pune. On 11.12.2009, the Forensic Laboratory submitted its report, expressing an opinion that the signatures on the release deeds were not the signatures of the releasor, being Vrijlal Gala. It is 6 against this backdrop, Rashmikant Shah and the present applicant preferred an application for anticipatory bail before the Sessions Court, Thane. The learned Judge, however, rejected both the anticipatory bail applications vide common order dated 28.4.2009.Hence, the applicant is before this court. 8. I have heard Mr Shirdokar, learned senior counsel for the applicant, Mrs Shinde, learned APP, for the State and Mr Gupte, learned senior counsel for the complainant, at considerable length. The sum and substance of the submissions advanced by Mr Shirodkar, learned senior counsel for the applicant, was that there being not an iota of proof, evidence or circumstance/event connecting the applicant to the alleged offence, the applicant is entitled for pre-arrest bail. He submitted that the record does not reveal any role of the applicant to be impleaded as accused. Even if it is assumed that the documents are not genuine the applicant, according to Mr Shirodkar, has no concern with it. The search of the release deeds by Naupada police station, as a matter of fact, was not questioned or challenged in the FIR. On the other hand, the learned APP and Mr Gupte, learned senior counsel for the complainant, took me through the record in order to show the connection of the present applicant to the alleged offence. 7 9. I have perused the entire record with the assistance of the learned counsel for the parties. At this stage, I need not examine the contention, raised by the accused persons, that the release deeds are genuine. There is a report of the Forensic Laboratory, Pune, to which the documents were referred, expressing an opinion that the signatures on the release deeds were not the signatures of the releasor or of the releasee. In my view, the report of the Forensic Laboratory at this stage of the proceedings, is sufficient to prima facie hold that the documents are false, forged, fabricated and bogus. 10. It appears, as per the sanction plan, 32 flats were to be constructed and out of the same, few flats were to be allotted to the existing tenants and remaining flats were to be sold in open market. It is alleged that Rashmikant Shah sold 18 flats, including the six flats which were meant for the front companies, who were the tenants of the company. As stated earlier, the four companies (tenants) filed four suits in this court in which Rashmikant Shah filed affidavit stating that those companies executed release deeds in favour of the company and the release deeds are in his office and he will produce the same on the next date of hearing. However, he did not produce the 8 release deeds. In the meanwhile, the applicant filed a criminal complaint and obtained search warrant. In pursuance of the search warrant when the police approached the office of the company, the Project Manager Nagargoje and Sales Manager Daniel were present in the office. According to them, nothing was recovered in their presence. However, in the court, Naupada police have shown recovery of the release deeds. The release deeds were showing signatures of Nemichand Shah and Vrijlal Shah, which, according to them, they never executed and the signatures thereon were bogus and forged. Though it was contended that the applicant is absolutely innocent and he has not played any role whatsoever, either in disposing of the flats or for fabricating and forging the release deeds or in the recovery of the release deeds from the office of the company, it has come on record that the Naupada police went to the office of the company at Ghodbunder in the applicant's car. The applicant also went with them and he was present all throughout. The security guard of the company had taken photographs of the car and also of the applicant alongwith the panchas. The photographs were shown in the court. The photographs were also seen by the counsel of the applicant. According to the prosecution, in fact, the documents were not recovered from the office of the company and the recovery panchnama is false and 9 bogus. In the affidavit, the State, has gone to the extent saying that Rashmikant Shah and the present applicant in collusion, forged and fabricated the release deeds and forged the signatures of the releasor and shown those release deeds to have been purportedly recovered by the Naupada police on 28.11.2008 in pursuance of the search warrant issued under section 93 of Cr P C. In other words, according to the prosecution, the panchanama produced before the court was not genuine panchanama, showing recovery of the release deeds. At this stage, it is necessary to reproduce paragraph 8 of the reply affidavit filed by the State. “8. I respectfully submit that during the course of further investigation, statements of several witnesses, panchas were recorded and further inquiry with Government offices was carried out, in which it transpired that for conducting search on 28.12.2008 Naupada Police personnel visited the office of M/s Vijay Dwellers Pvt Ltd, Ghodbunder Road, Thane in a Scoda Car (MH-02-AX-9), registered in the name of Ajitkumar S. Jain, i.e present accused, therefore, it is clearly reflected further that on creation of forged documents and bogus recovery by prime accused and co-accused. I say that it is necessary to find out as to who has taken the police personnel in the said Scoda Car for Search Warrant as well as who planted the documents, i.e release deeds, of the tenants by forging their signatures and without custodial interrogation this information cannot be obtained. 10 During the course of investigation, it is revealed that the present applicant is a new partner of Vijay Dwellers and invested huge amount by purchasing those flats and he will be the ultimate beneficiary by forging and plating the documents. I crave leave to refer to and rely upon the copy of the related statements and other documents as and when required by this Hon’ble Court.” 11. As stated earlier, there is also a report of the Forensic Laboratory expressing an opinion that the signatures on the release deeds were not the signatures of the releasor-Vrijlal Gala or of the releasee. During the course of investigation it also revealed that a fresh account of the company was opened in Abhudaya Co-operative Bank at Kalachawki, showing Rashmikant Shah and Karan Shah as partners. Statement of the said account was placed before the court. It shows a payment of Rs. Fifty lacs was made to the applicant. The manner in which all these events have happened and looking to the investigation carried out by the police so far, prima facie, I am satisfied that the applicant is hand in glove with Rashmikant and they both have committed the offence. The applicant has played a vital role in fabricting the documents and the signatures and have illegally disposed off the flats, and have allegedly misappropriated the sale proceeds of 18 flats, aggregating to more than 80 crores. For all these reasons and for the reasons stated by the State in their reply affidavit, in my opinion, 11 custodial interrogation of the applicant would be necessary. Hence, the application is rejected. The court below, however, shall deal with the application for bail so also the trial on merits and without being influenced by the observations made in this order. At this stage, Mr Shirodkar seeks seven days time to surrender. Time, as prayed, is granted till 22.7.2009. Interim order to continue till then, (i.e. 22.7.2009). It is made clear that no extension shall be granted to surrender on any ground whatsoever. (D. B. Bhosale, J.)