ladda 1 aba-109-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.109 OF 2011 Kalpesh Jethalal Palan ..Applicant. versus The State of Maharashtra ..Respondent. Mr. Shirish Gupte, Senior Counsel with Mr Rahul Thakur, Ms Sonia Ekbote, Sujata Londhe and Samata Kakade, Advocate for the Applicant. Mr P. K. Dhakephalkar with Sachin Dhakephalkar Advocate for Original Complainant. Smt S.D. Shinde, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : 11th March, 2011 P.C. :- 1. Heard rival arguments at length on this application for anticipatory bail preferred by the applicant, original accused No.1, apprehending his arrest in C.R. No. 166 of 2010 registered by NRI ladda 2 aba-109-11 Sagari Police Station, Navimumbai on the complaint by the complainant for the offence punishable under sections 467, 468, 471, 420, 469 read with Section 34 of the Indian Penal Code. 2. Prior to discussing the rival arguments, the case as disclosed in the F.I.R. can be narrated as under: 3. The complainant, one Tukaram Pimputkar and his brother Krushnaji Trimbak Pimputkar had some immovable property at village Ulwe, taluka Panvel. Said agricultural land was acquired by the State of Maharashtra for new New Mumbai Cidco Project in the matter of Ulwe 92 unit case. In lieu of such acquisition, the complainant and his brother were allotted Plot No.22 admeasuring 900 square meters at Sector No.2 at Ulwe, somewhere on 27th November, 2007 under the lease agreement and the said plot was given in the possession of the complainant and his brother. According to the complainant, both the brothers transferred their rights over the said plot by way of Tripartite Agreement dated 26th March, 2008, wherein CIDCO is the Confirming Party. By the said agreement, rights were transferred in the name of M/s Siddhivinayak Suppliers, a Partnership firm, represented by its Partner Mr M.K. Bhoir. Said Siddhivinayak Supplier was termed as new licencee in the said agreement being party of third part. ladda 3 aba-109-11 4. According to the complainant, Tukaram Pimputkar, he received a summons from the Court of Civil Judge, Senior Division, Panvel on 15th September, 2010 in Special Civil Suit No.139 of 2010 which was filed by M/s Asha Associates, a Partnership firm, through its partner Shri Vinod Patel and Dinesh Patel. On inspection of the said case papers, it was revealed by the complainant that said suit was filed by M/s Asha Associates in connivance with present applicant and others. From the contents of the said suit, it was revealed by the complainant that the plot of land was agreed to be sold by the complainant and his brother to the present applicant under the agreement for sale, which is undated. It was also revealed that a receipt for Rs.13 lakhs, showing allegedly singed by the complainant Tukaram Pimputkar and his brother, was also filed along with the copy of the agreement for sale. On inspection of said documents, the complainant found that those were forged and fabricated documents, as he had not entered into any such agreement for sale either with present applicant or with M/s Asha Associates and that he had not received any amount either in cash or by cheque. The suit for specific performance was valued at Rs. 2,51,00,000/-. As such, the complainant rushed to the Police Station and lodged his complaint on 30th November, 2010 being C.R. No. ladda 4 aba-109-11 166/2010, as mentioned above, for taking action against the applicant and others. 5. Apprehending the arrest in the criminal complaint lodged by the complainant, Tukaram Pimputkar, initially the applicant preferred anticipatory bail application before the Sessions Court at Thane. Some interim orders were earlier passed. However, on objection of territorial jurisdiction said application was dismissed and consequently the applicant preferred another anticipatory bail application before the Sessions Court at Alibagh Raigad bearing Misc. Criminal Application No. 1035 of 2010. Said application came to be rejected by an order dated 24th December, 2010, passed by the Additional Sessions Judge, Raigad Alibagh, after hearing the rival parties. Under these premise, present anticipatory bail is preferred before this Court. 6. At the threshold, the grounds under which the present anticipatory bail application is pressed by the applicant, can be narrated in order to have the scope of the arguments in the present application, vis-a-vis the facts pleaded herein. (i) The complainant had filed criminal complaint filed in order to escape the civil liability in Special Civil Suit No. 379 of 2008 and also to avoid the liability in another ladda 5 aba-109-11 Special Civil Suit No. 139 of 2010 filed by M/s Asha Associates. (ii) The complainant had sold the said plot of land to more than three innocent purchasers taking undue advantage that unless actual physical possession is handed over by CIDCO registration of agreement pertaining to said property cannot take place. (iii) The complainant and his brother do not sign the Tripartite agreement with Darshan Enterprises though agreed by way of an agreement to sell with Darshan Enterprises. (iv) The applicant has not entered into any agreement with the complainant and his brother and, therefore, there is no question of any forgery committed by the applicant in any of the documents either for agreement to sale or the sale deed. In fact, this is the main ground emphasized in the present application and also emphasized in the application for anticipatory bail preferred before the Sessions Court at Alibagh Raigad. ladda 6 aba-109-11 7. Bearing in mind the above broad points canvassed by the applicant, now the factual position prima facie emerging from the documents on record and from the arguments of the rival parties can be narrated :- 8. According to the applicant – original complainant Tukaram entered into an agreement for sale with one Dilip Katara, proprietor of M/s Darshan Enterprises and allegedly said agreement was duly registered. Copy of the said agreement is annexed to the present petition at page Nos. 31 to 41 including the receipts for different amounts purported to have been signed by the complainant. On plain reading of the said agreement reveals that it is not at all a registered agreement, much less, it is bearing any date on any part of the agreement. According to the complainant, it is false and fabricated documents prepared by the present applicant probably in connivance with one Darshan Katara. 9. It appears on the strength of above mentioned agreement to sale, present applicant and partners of Tip Top Real Trade had entered into an agreement with said Dilip Katara for transfer the rights over the plot of land from Dilip Katara to the applicant and partners of Tip Top Real Trade. Said agreement speaks regarding the transaction between ladda 7 aba-109-11 the applicant and said Dilip Katara for sale of the said plot to the applicant for total consideration of Rs.1,35,00,000/-. On the strength of the said agreement various amounts, in lakhs, have been received by M/s Darshan Enterprises through its Proprietor Dilip Katara. 10. In view of the above and in view of the specific plea taken by the applicant and mentioned in paragraph (iv) above, it is the case of the applicant that he had no direct transaction with Pimputkar brothers sofar as sale of the said plot of land by Pimputkar brothers to him. During the argument, learned senior Counsel for the original complainant has drawn attention of this Court to the agreement, a sort of Memorandum of Understanding (MoU), copy of which was obtained by the original complainant from the record and proceedings of the civil suit filed before the Civil Judge, Senior Division, Alibagh Raigad against the complainant. On perusal of the copy of the said Agreement/MoU allegedly between the complainant and the present applicant show that said agreement does not bear any date. Moreover, the amount which was paid to the CIDCO by the complainant and his brother is also kept blank. However, said Agreement had mentioned total consideration for transfer of the said plot of land from the complainant and his brother to the present applicant and partners of Tip Top Real Trade as Rs. ladda 8 aba-109-11 63,00,000/-. Said agreement of sale / MoU does show the photographs of the complainant and his brother and also shows the signature of the present applicant. However, there is no date anywhere on the said Agreement and even under the signatures of the parties. Even signatures of the partners of the Tip Top Real Trade are not appearing on the said agreement and acknowledgment purported to have been signed by the complainant and his brother on the revenue stamp paper annexed to the said agreement mentioning that Rs.13 lakhs have been received by them from the present applicant and M/s Tip Top Real Trade. However, the said receipt does not bear the name and signature of any witnesses. This is the document which is assailed by the complainant mentioning that it is forged and fabricated document and thorough investigation by the police is required as to authorship of forgery. 11. Considering the plea of the applicant, as detailed above, in the foregoing paragraphs and specifically considering his stand that there was no any direct transaction entered into between the complainant and himself, definitely the presence of such undated and unregistered agreement for sale / MoU, allegedly showing the transaction between the complainant and his brother on one side and ladda 9 aba-109-11 the applicant and M/s Tip Top Real Trade on the other side, raises a doubt and for which in the opinion of this Court, definitely, the present applicant is answerable and under the circumstances of the present case, the custodial interrogation of the present applicant is warranted so far as this document and other documents are concerned. 12. Also, during the arguments, learned Senior Counsel for the original complainant drew attention of this Court towards the other documents i.e. a copy of Memorandum of Understanding which was obtained by the complainant from the record of the Special Civil Suit No. 139 of 2010 filed by M/s Asha Associates. Said document is again undated and shown to have been entered into between the present applicant as party of the first part, and M/s Asha Associates as party of the second part. In the internal page No.3 of the said MoU there is specific averments to the following effect :- “AND WHEREAS the Party of the First Part has represented to the Party of the Second Part that the Original Licensees (1) Shri Krushnaji Trimbak Piputkar and (2) Shri Tukaram Trimbak Piputkar, have sold and assigned their rights, title and interest upon the ladda 10 aba-109-11 said plot of land to the Party of the First Part herein, by virtue of an Agreement dated ... entered into between the Original Licensees and the Party of the First Part herein for proper consideration and as per the terms and conditions mentioned therein.” 13. Considering the above averments, in the said alleged MoU and considering the plea of the applicant and also of the original complainant, in the opinion of this Court, the interrogation with the present applicant is necessary at the hands of the police. 13. Considering the above circumstances, it would not lie in the mouth of the present applicant to say that entire transaction between the present complainant and the applicant is of a civil nature as definitely the element of fraud and cheating is required to be examined and that can be done by way of interrogation of the present applicant by the police when the applicant is not armed with any protective order of pre arrest bail. 14. From the above, it is crystal clear that there is a change of stand by the applicant. Firstly, that he had never entered into any agreement with the present complainant directly and had entered into ladda 11 aba-109-11 agreement with M/s Darshan Enterprises to the another stand that there is sale of plot and assignment of rights, title and interest to the complainant and his brother upon the said plot in favour of applicant. 15. When the above position was confronted to the learned Senior Counsel for the applicant, he submitted that such change of stand specially in criminal proceeding cannot be taken as mitigating circumstance to the defence of the applicant and that such position may not be taken as against the applicant, further argued. In the opinion of this Court, when the matter is being taken up for granting or otherwise of the discretionary relief of pre-arrest bail, the conduct of the applicant is definitely of material character. In the opinion of this Court, if the actions of the applicant are shrouded with suspicion then he is not entitled for the discretionary relief of anticipatory bail and in that event full opportunity is required to be given to the Investigating Agency for custodial interrogation of the applicant and to find out the author of forgery and to find out the relevant information when there are counter allegations amongst the parties and when there are two special civil suits as mentioned above filed for the same plot of land. 16. Needless to mention that the requirement of the custodial interrogation of the accused person is accepted under special ladda 12 aba-109-11 circumstances even though at time the matters are based on the documentary evidence when the case is of complicated nature as in the present matter. In the result, this Court is not inclined to grant the discretionary relief of anticipatory bail in favour of the present applicant. Hence the following order :- ORDER: (a)Criminal Application No. 109 of 2011 stands dismissed. (b)All interim reliefs earlier granted stand vacated forthwith. Sd/- (A.R. JOSHI, J.)