IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4597 OF 2008 CRIMINAL APPLICATION NO. 4597 OF 2008 CRIMINAL APPLICATION NO. 4597 OF 2008 Shubh Arya Gupta ...Applicant vs. The State of Maharashtra ...Respondent WITH CRIMINAL APPLICATION NO. 4598 OF 2008 CRIMINAL APPLICATION NO. 4598 OF 2008 CRIMINAL APPLICATION NO. 4598 OF 2008 Shailesh D. Thakkar ...Applicant vs. The State of Maharashtra ...Respondent WITH CRIMINAL APPLICATION NO. 4599 OF 2008 CRIMINAL APPLICATION NO. 4599 OF 2008 CRIMINAL APPLICATION NO. 4599 OF 2008 Mrs.Vaishali Pange ...Applicant vs. The State of Maharashtra ...Respondent WITH CRIMINAL APPLICATION NO. 4658 OF 2008 CRIMINAL APPLICATION NO. 4658 OF 2008 CRIMINAL APPLICATION NO. 4658 OF 2008 Narinderpal Singh Hundal ...Applicant vs. The State of Maharashtra ...Respondent WITH CRIMINAL APPLICATION NO. 4663 OF 2008 CRIMINAL APPLICATION NO. 4663 OF 2008 CRIMINAL APPLICATION NO. 4663 OF 2008 Ashok Dhondu Gotad ...Applicant vs. The State of Maharashtra ...Respondent WITH CRIMINAL APPLICATION NO. 4668 OF 2008 CRIMINAL APPLICATION NO. 4668 OF 2008 CRIMINAL APPLICATION NO. 4668 OF 2008 Jatinderpal Singh Hundal ...Applicant vs. The State of Maharashtra ...Respondent WITH CRIMINAL APPLICATION NO. 4670 OF 2008 CRIMINAL APPLICATION NO. 4670 OF 2008 CRIMINAL APPLICATION NO. 4670 OF 2008 Murlidhar Govind Rane ...Applicant vs. The State of Maharashtra ...Respondent Appearance in above matters :- Appearance in above matters :- Appearance in above matters :- Mr.A.P. Mundargi, Sr.Counsel with Mr.V.K. Narkar for the Applicants in Cri.Application Nos.4597 and 4598 of 2008. Mr.H.S.S. Murthy i/b. Mr.S.P. Patankar for the Applicant in Cri.Appln. No.4599/2008. Mr.Laxman Kanan with Mr.Mahesh Wavswar i/b. Mr.H.T. Pawar with Mr.R.R. Naik for the Applicant in Cri.Appln Nos.4658, 4663, 4668/2008. Smt.Manjula Rao for the Applicant in Cri.Appln. No.4670/2008. Mr.Jaspal Singh Kohli, Complainant present in person. Mr.D.P. Adsule, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : FEBRUARY 17, 2009 DATED : FEBRUARY 17, 2009 DATED : FEBRUARY 17, 2009 P.C. :- P.C. :- P.C. :- 1. The respondent-complainant who is appearing in person submits that he would like to argue his case and he has given discharge to his Advocate. Accordingly, the Advocate appearing on behalf of the respondent is discharged. At this stage, a suggestion was made by this Court that since the main civil dispute is pending for sometime, whether the parties to the civil dispute - 3 - are willing to refer a dispute for mediation. This offer is not accepted by the party who is appearing in person. Hence, I propose to hear the matter on merits. I have already heard the Counsel for the applicants at length on the last date and also Advocate for the respondent at length. Party in person, however, would like to address this court in person even after the arguments were advanced for sometime by his Advocate. In the interest of justice, therefore, I am permitting the party in person to make his submission. 2. All the above applicants have filed an application for anticipatory bail. Applicant in Criminal Application No.4668/2008 is Jatinder Pal Singh Hundal who is accused no.1, applicant in Criminal Application No.4670/2008 is Murlidhar Govind Rane who is accused no.2 who was the Secretary of the Society, applicant in Criminal Application No.4599/2008 is Vaishali Pange who is accused no.3 who was a clerk in the society at that time, applicant in Criminal Application No.4658/2008 is Narindarpal Singh Hundal who is accused no.4 who is a witness in the said case and applicant in Criminal Application No.4597/2008 is Shubh Arya Gupta who is accused no.5 and applicant in Criminal - 4 - Application No.4663/2008 is Ashok Dhondu Gotad who is accused no.6 who was witness who has allegedly signed the transfer form and applicant in Application No.4598/2008 is Shailesh D. Thakkar who is an Advocate appeared on behalf of accused no.1. Brief facts in a nutshell are as under :- 3. One Pratap Singh Kohli was the owner of a plot of land situated in a society and a share certificate was issued in his name by the society. Initially, one Gurbux Satnam Singh was the original owner of the said plot of land and after the death of the original owner, his wife became the owner of the said plot and she informed the society to transfer the said plot in the name of Pratap Singh Kohli. There was some dispute between the said Pratap Singh Kohli and wife of Gurbux Singh which was pending in the City Civil Court, however, the said suit abated on the death of the said lady Harbans Kaur which was finally disposed of in the High Court. It appears that the Power of Attorney was executed by Pratap Singh Kohli in favour of Jatinder Pal Singh Hundal on 30th June, 1992. Thereafter, according to Jatinder Pal Singh Hundal, agreement of sale was executed by the said Pratap Singh Kohli and it was - 5 - agreed that plot of land would be sold for a total consideration of Rs.9,51,000/- out of which an amount of Rs.40,000/- was paid. A dispute was raised by the original complainant Jatinder Pal Singh Hundal and proceedings were initiated under Section 145 of the Cr.P.C. Those proceedings were pending for sometime and thereafter, a civil suit was filed by the said Jatinder Pal Singh Hundal in the City Civil Court vide S.C.No.233/1995. In the said suit, the complainant herein - Shri Jaspal Singh Kohli contended that the agreement for sale was forged and fabricated document. The said document was, therefore, taken into custody by the City Civil Court. The written statement was filed by the complainant herein and finally, the suit filed by Jatinder Pal Singh Hundal was dismissed. Against the said judgment and decree passed by the City Civil Court, the original complainant Jatinder Pal Singh Hundal filed an appeal in this court which was admitted and the appeal is pending in this court. The civil application for stay which was filed by the original complainant was dismissed. Thereafter, on 8th April, 2008, a complaint was filed by the complainant herein in the court of Metropolitan Magistrate Court at Andheri in which it was alleged that the applicants herein had forged and - 6 - fabricated various documents. It was alleged that the agreement of sale was forged. It was also alleged that the transfer form which was submitted to the society for transferring the plot of land in favour of the original plaintiff was also forged. It was also alleged that the three letters which were written on the letterhead of the society were forged. Similarly, it was alleged that correspondence with the society was forged by the said Secretary of the society and the clerk who was working for the society in connivance with the other applicants herein. On the said complaint being filed, an order was passed by the learned Magistrate under Section 156(3) of the Cr.P.C. directing the police to investigate the said offence. The application, therefore, was filed by the applicants for anticipatory bail in the Sessions Court. Interim order was initially granted and later on, the application for anticipatory bail was rejected. 4. Shri Mundargi, learned Senior Counsel submitted that there was gross of delay in filing this complaint. He submitted that the documents were very well in the custody of the City Civil Court and a complaint would have been filed earlier, however, only after the said suit filed against the complainant was dismissed and - 7 - appeal which was filed by the original plaintiff was admitted in this court, thereafter, this complaint has been filed. Secondly, it was submitted that there is no material on record to indicate that the signature on the agreement of sale of the complainant’s father was forged. It is submitted that the trial court had proceeded to put the cart before the horse and had considered various other suspicious circumstances such as affixing of the adhesive stamps and other allegations made by the complainant and on that basis, came to the conclusion that prima facie case is not made out by the applicants. He further submitted that it was only after the death of father of the complainant, the present complaint had been filed. It is submitted that this complaint had been filed an after thought falsely implicating the original plaintiff, his Advocate and the members of the society. He submitted that all documents have been seized by the police. The original agreement of sale is in the custody of the court and therefore, the custodial interrogation of the applicants is not necessary. 5. Counsel for the Complainant-Shri Holembe-Patil had submitted that on account of advice given to the - 8 - complainant that complaint in respect of forgery of documents would not be maintainable during the pendency of the trial, this complaint was not lodged by the complainant during the pendency of the case. He submitted that in view of the law prevailing at that point of time, the complainant was advised not to file the said complaint. He further submitted that the agreement was forged and fabricated, correspondence were prepared in connivance with the Secretary and the Clerk, of the society to show that there was some correspondence between the society and the complainant’s father in the said suit. He submitted that in fact, these documents were created subsequently in the year 1995 and were showed to be of previous date. He also submitted that the transfer form also was fabricated. The signature of one of the witnesses which was not appearing earlier was subsequently obtained and it was shown that the entire consideration had been received by the complainant’s father. In fact, the agreement of sale merely disclosed that an amount of Rs.40,000/- is received by the complainant’s father in cash. He invited my attention to the letterhead on which the said letters were written by the Secretary of the society and pointed out that the telephone number which was shown on - 9 - the said letterhead had come into existence in August 1992 and the letters were written sometime in February 1992. It was, therefore, submitted that this is a clear instance indicating the fabrication of the correspondence at the instance of the Secretary and the clerk, of the society. He further submitted that the Inward number and Outward number which was mentioned on this correspondence also did not tally with the Inward Register and the Outward Register. He invited my attention to the contents of the Inward Register and Outward Register and more particularly, the number which was mentioned and submitted that against the said Inward number, some other correspondence was indicated. It was further submitted that the adhesive stamp which was fixed on the said agreement of sale was affixed in the office of the Advocate and such a practice was not followed by the stamp office. In support, he showed me the letter received from stamp office, on inquiry being made by the complainant Under the Right to Information Act, that adhesive stamp was affixed only at the office. He submitted that therefore, the seal which was affixed on the said adhesive stamp also was forged, fabricated as also the stamp which was put on the said document. He submitted that there was clearly a conspiracy on the - 10 - part of the applicants to defeat the claim of the complainant. 6. Counsel for the applicants in Rejoinder pointed out that in the year 1992, similarly there was number of documents which were stamped in this particular manner and therefore, it could not be said that the adhesive stamps and seal was forged and fabricated. He invited my attention to some of the documents on which a seal was put on adhesive stamp. 7. I have heard the learned Counsel for the applicants and respondent and also the complainant in person at length. In my view, prima facie case is made out by the applicants for grant of anticipatory bail for the following reasons :- 8. Firstly, in my view, there is a gross delay in filing the complaint. The complainant was aware of the document which was tendered in the court and was in custody of the court atleast since 1995. However, no attempt was, however, made by the complainant to file a complaint in respect of the said document. It is no doubt true that the said documents have not been - 11 - accepted by the trial court for marking for identification and the application made by the complainant for taking action against the applicants and the plaintiff under the provisions of Section 195 of the Penal Code, was not granted since the said document had not been exhibited. Against that order, no appeal was filed. The said order was not challenged by the complainant. Be that as it may, the fact remains that the said document was in the custody of the court and the complainant would have very well filed the compliant at the relevant time, however, he chose not to do so. Even after the suit filed by the plaintiff was dismissed, no action was taken by the complainant, however, when the appeal against the said judgment and decree of the City Civil Court was filed and admitted in this court and interim application filed by the applicant was rejected, thereafter, the present complaint had been filed. The gross delay, therefore, in my view, has not been sufficiently explained as more than 14 years have lapsed after the document was filed in the custody of the court. Though it is argued that the complainant came to know about the existence of the said document in the year 2006, the fact remains that in the written statement, a specific plea has been raised - 12 - by the complainant that the document is forged. Therefore, the plea about the complainant being made aware of the tampering in 2006, cannot be accepted. So far as the other documents are concerned viz. the correspondence between the society and the father of the complainant is concerned, the said correspondence indicates that ’No Objection Certificate’ which was sought by the plaintiff from the society for transferring the said share certificate in his name was not granted. Therefore, no prejudice, in fact, was caused to the complainant herein since the request for granting NOC was rejected by the society. What has been sought to be argued by the complainant and his counsel is that these documents have been prepared at a later stage and are antedated and in support, reliance has been placed on the fact, firstly, that the outward number which is shown on the said letterhead had not come into existence. Secondly, reference is made to the deposition given by the MTNL officer who has stated that the said number which is shown on the letterhead had come into existence in August 1992 and also the other evidence of the witnesses to that effect and inward number and outward number of the said letters. In my view, all these aspects can be taken into consideration - 13 - by the Investigating Officer. Admittedly, the Secretary of the society and the clerk who was working in the society or the society itself was not benefited in any way in the dispute between the complainant and the plaintiff or the dispute between the complainant’s father and the wife of the original owner. No personal gain was received by the Secretary or the said Clerk, of the society. 9. Counsel appearing on behalf of the Secretary and the Clerk has pointed out that the fact that this particular number was to be changed by the MTNL had been announced earlier and accordingly, the letterheads were also typed. Therefore, in my view, noting really tallies on the said telephone number which has been shown on the said letterheads. In either case, this is an aspect for which custodial interrogation of the Secretary of the Society or the clerk who was working in the said office of the society, is not necessary. 10. So far the transfer form is concerned, though there is much substance in the submission made by the Counsel for the complainant that at no time the complainant’s father had received the entire - 14 - consideration and that it was mentioned in the said transfer form that the entire consideration, in fact, was received by the complainant’s father. However, the Secretary, the Clerk working in the office of the society or the Advocate and the plaintiff were not really concerned in the said transfer form and the question of existence of the transfer form also becomes immaterial because the society, in fact. did not transfer the plot in the name of the plaintiff on the basis of the said transfer form. The said aspect, therefore, also cannot be investigated by the Investigating authority since much a time has elapsed from the date on which suit was filed and the pleadings between the parties are completed, at this stage, taking the applicants in custody, in my view, no useful purpose would be served. Further one aspect which cannot be lost sight of dispute between the parties, the complainant did not file any counter claim in the said suit or also did not file a suit claiming ownership of the said property and after the suit of the plaintiff was dismissed, possibly, this complaint had been filed after having realised that the civil remedy which was available to the complainant, possibly it became time barred and therefore, the possibility of the complaint - 15 - being filed as a armed twisting technique also cannot be ruled out. Under these circumstances, in my view, the applicants are entitled to get anticipatory bail. 11. In the result, in the event of the arrest of the applicants, the applicants be released on bail in the sum of Rs.25,000/- each with one or two sureties in the like amount subject to certain conditions being imposed. The applicants shall co-operate with the police and shall report to the police station twice in a month between 11 a.m. to 2 p.m. The original plaintiff and the other witnesses in the suit who were made accused shall give their specimen signature to the police and shall co-operate with the police in the investigation of the case. They shall report to Meghwadi Police Station. The Investigating Officer shall complete the investigation, expeditiously, within a period of three months from today and submit a report to the learned Magistrate and the Magistrate shall also take such steps in accordance with law, expeditiously. Liberty to apply. 12. The application is disposed of, accordingly. - 16 - 13. At this stage, the complainant submits that this order should be stayed. It is not possible to accept this request because if this order is stayed, it would amount to denial of anticipatory bail which has been granted by this Court. Request is declined. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)