IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.289 OF 2009 APPLICATION NO.289 OF 2009 APPLICATION NO.289 OF 2009 Mr.Idris Habib Sunesara & ors.. Applicants Vs. The State of Maharashtra ... Respondents Mr.H.H.Ponda, Sr.Counsel a/w Mr.Rajiv Hingu for Applicants Ms.M.H.Mhatre A.P.P.for Respondents CORAM CORAM CORAM : V.M.KANADE, J : V.M.KANADE, J : V.M.KANADE, J DATED DATED DATED : 9th : 9th : 9th February, 2009 February, 2009 February, 2009 P.C. P.C. P.C. 1. Heard learned counsel appearing on behalf of the applicants and A.P.P. for the State. 2. This is an application for anticipatory bail. The applicants are partners of one hotel known as ’Naaz Hotel.’ One of the partners of the hotel one Usman Yusuf expired in August 2006. It is alleged that an application was made in the name of the said dead person with the Municipal Corporation for the purpose of using the open space in front of Naaz Hotel. There is a dispute between the shop-owners of the building in which Naaz hotel is situated and the tenants of the said building. The shop-owners had formed an association and similarly the tenants of the building also had formed a separate association. There is a dispute 2 between the two associations and a suit was filed by the owners of Naaz hotel and other shop-owners in respect of a notice which was issued by the Municipal Corporation of Greater Mumbai for demolition of the structure of the applicants therein. The said dispute is still pending in the City Civil Court, Mumbai. Thereafter, a complaint was filed by one of the members of the tenants’ association in which he alleged that a categorical statement on oath was made in the suit that one of the partners Usman had expired in 2006. The investigation of the application was made on behalf of the said Naaz hotel with the Municipal Corporation which revealed that two applications were made in the name of the deceased Usman Kazi. One was for extention of the use of the open space which was granted initially to the said owners of Naaz hotel and the other was for carrying out repairs in the old STD booth which was situated at the backside of the said hotel. Statement of the applicant was recorded by the police in which he explained that the work of taking permission from the Corporation and doing other work of the Corporation was handed over to one Nazir and that he had been doing the said work. He stated that the said Nazir had put his signature of the said Usman and one of the applicant namely applicant 3 no. 2 Anil Jamal Choudhary had signed as a attesting witness since he was told to do so by the said Nazir. It is the case of the present applicants that they had no knowledge as to why the said Nazir had signed in the name of a dead person. Mr.Ponda, learned counsel appearing on behalf of the applicants submitted that no wrongfull gain was caused to the applicants therein by filing the said application or any wrongful loss was caused to any other person. It is further submitted that the said application was a valuable security within the meaning of Indian penal code. He relied on judgments of the apex Court in the case of Jibrial Diwan vs State of Jibrial Diwan vs State of Jibrial Diwan vs State of Maharashtra Maharashtra Maharashtra reported in 1997 CRI.L.J.4070 reported in 1997 CRI.L.J.4070 reported in 1997 CRI.L.J.4070 in support of the said submission. He also relied on the judgment of a single Judge of this Court in the case of Sham Bhatia vs State of Maharashtra in Sham Bhatia vs State of Maharashtra in Sham Bhatia vs State of Maharashtra in Criminal Criminal Criminal Application No.605 of 1988 Application No.605 of 1988 Application No.605 of 1988 also in support of the said proposition. He further sumbitted that even a attesting witness who had attested the said signature was not liable for the offence punishable under section 407, 464 IPC and submitted that he cannot be convicted for forgery. In support of his submission, he relied on the judgment of the Gujrat High Court in the case of Gujrat High Court in the case of Gujrat High Court in the case of Motisinh Motisinh Motisinh Gambhirsinh vs.The State reported in AIR Gambhirsinh vs.The State reported in AIR Gambhirsinh vs.The State reported in AIR 4 1961 1961 1961 GUJRAT GUJRAT GUJRAT 117. 117. 117. The learned A.P.P. has filed an affidavit in which it is stated that the complainant had claimed a open space in front of hotel Naaz which belongs to all the tenants and the landlords of the said building and permission to use the open space in the front was sought on the basis of forged signatures of one of the deceased and in my view, the custodial interrogation of the applicants is not necessary. The present applicant have not forged signature of Usman Yusuf. It is an admitted position that on the death of the said Usman one of the partners should have signed on the said application form. However, since the work was looked after by the said Nazir for reasons best known to him he applied in the name of the deceased Usman who expired in 2006. It is obvious that no loss could have been caused to any person had such a permission being granted to the said applicant and on the other hand, the applicant would not stand to gain by the said permission which was granted since even otherwise they would be entitled to apply in the name of one of the partners of the said hotel and seek said permission for use of open space and repairs of the STD booth. The ratio of the judgments on which reliance has been placed by the learned counsel for the applicants 5 therefore, would squarely apply to the facts of the present case. 3. Under these circumstances, therefore, since the allegations pertains to forgery of signature of a dead person and all the documents are in possession of the police, custodial interrogation of the applicants in my view, is not necessary. The applicants are business men and are carrying on business from a long time. The applicants shall further cooperate with the police. In the event of their arrest, they be released on bail in the sum of Rs.25,000/- each with one or two sureties in the like amount. The applicants shall report to the concerned police station on 16.2.2009 and 17.2.2009 between 11 a.m. to 5 p.m. { V.M.Kanade, J } V.M.Kanade, J } V.M.Kanade, J }