1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JUTISDICTION CRIMINAL APPLICATION NO. 2446 OF 2009 Mahendra Manilal Shah .... Applicant. V/s Rashmikant Mansukhlal Shah & Anr. .... Respondents. Mr. Amit Desai, Senior Counsel a/w Mr. Tushar V. Shah a/w Mr. Ravi Kamat for the applicant – complainant. Mr. V.R. Monohar, Senior Counsel, with Mr. Adhik Shirodkar, Senior Counsel, Mr. Rajesh Sharma,Mr. C.K. Talekar, Mr. Sunil Jadhav i/b Mr. O.A. Siddiqui and Mr. Rajendra Rathod for the respondent – accused Rashmikant. Mrs. S.D. Shinde – APP for the State. ALONGWITH CRIMINAL APPLICATION NO.2447 OF 2009 The State of Maharashtra ...Applicant. V/s Rashmikant Mansukhlal Shah ... Respondent. Mrs S.D. Shinde, APP for the State Mr. V.R. Monohar, Senior Counsel, with Mr. Adhik Shirodkar, 2 Senior Counsel, Mr. Rajesh Sharma,Mr. C.K. Talekar, Mr. Sunil Jadhav i/b Mr. O.A. Siddiqui and Mr. Rajendra Rathod for the respondent – accused Rashmikant. CORAM: V.M. KANADE, J. DATE : 13TH NOVEMBER, 2009 P.C.: 1. Pursuant to the directions given by the Apex Court for early disposal of this application, application was taken up for hearing yesterday. Before I consider rival submissions, it is necessary to give brief background of this case. 2. A complaint was lodged against the accused – Rashmikant Mansukhlal Shah vide C.R. No.I/240 of 2008 dated 02/12/2008 which was registered with Kasarvadavli Police Station, Thane for the offence punishable under sections 420, 465, 467, 468, 471 read with section 34 of the Indian Penal Code. The complainant and the accused - Rashmikant alongwith two others were partners of the Company called Vijay Dwellers. The Company initially came into existence in 1996 and, at that time, complainant – Mahendra Manilal Shah, Vinod Gala, and Vrajlal Gala were partners and in the year 2002, accused – Rashmikant Shah was added as partner and it 3 was agreed that the said Company would redevelop two buildings. Accused - Rashmikant was given 25% share and the remaining partners were given 25% share each and the construction of the building started in the year 2004. Out of redeveloped flats, 18 flats were to be given to tenants and 12 flats were allotted in favour of the Company which were to be sold to flat purchasers. It was alleged that accused - Rashmikant Shah without taking permission from other partners sold 12 flats between 2007 and 2008 and out of the flats which were reserved for tenants, 6 flats were in the name of six companies since they had purchased tenancy rights from tenants. These six flats also were sold by the accused - Rashmikant according to the complainant. It is further alleged that the said four companies which had purchased flats from four tenants filed suit in this Court. Accused - Rashmikant made a statement on oath in this Court in the Civil Suit that four flats were released in favour of Vijay Dwellers and the said release deed was kept at Thane. The said release deed was not produced in the Court. A complaint was filed and the police searched the premises and, according to police, two release deeds were found in the toilet of the complainant’s office. According to the complainant, he suspected some foul play in respect of seizure of the said release deeds and, according to him, the release deeds were forged and 4 fabricated and neither he nor Nemichand Shah has signed or executed the said release deeds. He, therefore, filed the said complaint that the accused – Rashmikant had forged and fabricated the said release deeds and, thereby, had cheated the complainant to the tune of crores of rupees. Thereafter, order was passed by the learned Magistrate granting bail to the accused – Rashmikant Shah by order dated 14/05/2009 which order was challenged by the complainant in this court by filing an application for cancellation of bail and the bail, in the meantime, was cancelled by the learned Single Judge of this Court vide order dated 19/06/2009. In the meantime, accused – Rashmikant had complained of chest pain and was admitted in the J.J. Hospital. The matter went to the Supreme Court and the Apex Court passed the following order on 24 th July, 2009. “ORDER Heard learned counsel for the parties. In the facts and circumstances of this case, we deem it appropriate to grant interim bail to the petitioner for under going medical treatment, as 5 stated in the applications, for a period of two months on the following conditions :- 1. Petitioner shall execute personal bond in the sum of Rs 50,000/- with two surties of the like amount to the satisfaction of the Trial Court. 2. The petitioner shall not leave Mumbai without the permission of the Court. The Petitioner is directed to surrender after two months i.e. on or before 24.9.2009. The High Court of Bombay is requested to decide the bail application of the petitioner on merits as well as on medical grounds immediately after the petitioner surrenders before the concerned court. 6 Crl. M. Ps. are accordingly disposed of.” (Emphasis supplied) 3. It appears that though the accused – Rashmikant Shah was directed to surrender on/or before 24/09/2009, he surrendered on 05/10/2009 and the reason given for this was that on account of his ill-health, he could not surrender on the day on which the Apex Court had directed him to surrender and that he had applied for extension of time to the Apex Court. However, extension was not granted. Since 05/10/2009 accused – Rashmikant Shah, therefore, is in jail. 4. Thereafter, the Apex Court in order dated 19/10/2009, after reproducing what is stated by Dr Hemant Kumar, FRCP, Consultant Cardiologist, directed this Court as under:- “It is stated by Dr. A.M. Singvi, learned senior counsel appearing on behalf of the respondents that an opportunity has been granted to the petitioner to move the Vacation 7 Bench of the Bombay High Court and the matter is likely to come up before that Bench day after tomorrow. Looking to the indifferent health of the petitioner, we request the Bombay High Court to dispose of the bail application of the petitioner on that date.” 5. On 21/10/2009, this Court directed the Superintendent/Civil Surgeon of Thane Civil Hospital to constitute the board of three Doctors and examine the accused – Rashmikant Shah and submit a report of his medical condition and the matter was thereafter kept on 28/10/2009. On 28/10/2009, the matter was adjourned to 04/11/2009 with a direction to the team of Doctors appointed by order dated 21/10/2009 to submit medical report before the Court on 04/11/2009. Accordingly, report was tendered in this Court. The learned Counsel appearing on behalf of accused – Rashmikant Shah took time to examine the report and the matter was adjourned to 11/11/2009. 6. The learned Senior Counsel appearing on behalf of 8 accused – Rashmikant Mansukhlal Shah invited my attention to the orders passed by the Apex Court dated 24/7/2009 and 19/10/2009. He submitted that the Apex Court had directed this Court to hear the application of accused – Rashmikant for bail on merits as well as on medical grounds and, accordingly, the accused – Rashmikant submitted his grounds for releasing him on bail. He submitted that the Apex Court had directed that this Court should consider the application of accused - Rashmikant for bail on merits and on medical grounds without being influenced by the earlier order passed by this Court. He submitted that, therefore this application was to be treated as application for bail and not application for cancellation of bail as was initially urged on behalf of the State and Complainant. 7. Mr. Manohar, the learned Senior Counsel appearing on behalf of the accused – Rashmikant firstly submitted that that he was not pressing for bail on the medical grounds and was urging this Court to consider the application on merits of the case. He submitted that so far as two release deeds are concerned, prosecution has relied on these release deeds and had recorded statements of six witness which were annexed to the charge-sheet. He, therefore, submitted that there was no dispute about the fact that these two release deeds were seized 9 from the Office of the original complainant. He invited my attention to two release deeds and to the statements of six witnesses viz four police officers and two panchas. He then submitted that the prosecution had obtained handwriting expert’s opinion in which it was categorically stated that the accused – Rashmikant was not the maker of the said release deeds and that the accused – Rashmikant had not forged the said documents. He submitted that, that being the position, in view of section 363 of the Indian Penal Code, only the maker of the documents was liable to be punished. He, therefore, submitted that the charge of forgery and making of false documents, therefore, would fell qua the accused – Rashmikant. He relied upon the judgments of the Apex Court reported in AIR 1996 II SCC 622, 2009 (11) SCALE 174 [paras 224 to 233] and in 2003 CRW 4801 [para 370]. He then invited my attention to the FIR lodged by the complainant and submitted that the only allegation is of forgery in respect of the said two release deeds. He then submitted that other co-accused had been released on bail by this Court viz. Ajit Jain. He invited my attention to the said judgment and order passed by this Court and submitted that on the ground of parity accused - Rashmikant also deserves to be released on bail. He further submitted that custodial interrogation of the accused – Rashmikant was not necessary 10 since the offence which was allegedly committed by the accused – Rashmikant was forgery of two release deeds which were already in possession of the Investigating Officer. He also submitted that in Criminal Writ Petition No.2447 of 2009 filed by the accused – Rashmikant Shah, the Investigating Officer had made a statement that he no longer needed police custody of the accused – Rashmikant. He submitted that the law on the question of granting bail is quite well settled. He submitted that the accused could not be kept in jail by way of punishment and if the charge-sheet has been filed it is not necessary to detain the accused any longer. He submitted that dispute between the parties is pending in the Civil Court in which rights of the parties would be decided. 8. Mr. Amit Desai, the learned Senior Counsel appearing on behalf of the original complainant on the other hand narrated the background of the entire case and pointed out that the complaint was not restricted only to forgery of the two release deeds but was in respect of conspiracy of siphoning off monies from the Company viz Vijay Dwellers. He, therefore, submitted that the accused – Rashmikant was liable for using the said documents for his own benefits. He then submitted that the accused – Rashmikant had, by various methods, avoided the 11 interrogation at the hands of police by raising various medical grounds and, as such, Investigating Officer was not in a position to interrogate him even for a single day. He submitted that the conduct of the accused – Rashmikant was such that he was not entitled to be granted bail and he narrated sequence of events and submitted that the accused – Rashmikant tried to leave the country when further protection was not granted by this Court. However, he was detained at the Airport. He then submitted that though the Supreme Court had directed him to surrender on 24/09/2009, he had not obeyed the direction given by the Apex Court and had surrendered on 5/10/2009. He then submitted that the accused – Rashmikant had threatened the Investigating Officer Sonawane and had not cooperated with him. He submitted that on one pretext or the other, he had avoided interrogation at the hands of the Police. He then submitted that the bail could be denied to accused on various grounds and merely because the investigation was over and the charge-sheet was filed, that alone could not be a ground for granting bail to the accused – Rashmikant. He submitted that the Court also has to take into consideration gravity and seriousness of the offence. He, therefore, submitted that application for bail of the accused – Rashmikant was liable to be rejected. He invited my attention to various judgments of the Apex Court on the point of grant of 12 bail and on the other points which were urged by him. 9. The learned APP appearing on behalf of the State submitted that because of the medical condition of the accused – Rashmikant, Investigating Officer had not interrogated him though he was in jail from 05/10/2009. She submitted that further interrogation of the accused – Rashmikant is necessary to find out how the accused – Rashmikant had forged the said document and to find out the manner in which the said documents were forged. 10. I have heard the learned Senior Counsel appearing on behalf of the accused – Rashmikant, the learned Senior Counsel appearing on behalf of the original complainant and the learned APP appearing on behalf of the State at length. 11. In view of the order passed by the Apex Court, these applications are taken up for hearing immediately. In the present case, charge-sheet has been filed though investigation is now transferred to D.C.B.C.I.D at the instance of the present accused – Rashmikant who had made allegations against the Investigating Officer who has filed charge-sheet and as a result the investigation is now transferred to State C.I.D who is 13 investigating the said offence. 12. It is now a well settled position in law in view of the judgment of the Apex Court that it is not necessary to take permission of the Court for the purpose of further investigation under section 373 sub-clause (8) of the Criminal Procedure Code. It is an admitted position that in Criminal Writ Petition No.2447 of 2009 filed by the accused – Rashmikant and which was heard by the learned Single Judge (Coram: S.A. Bobde, J.), the following order was passed:- “P.C:- 1. The Petitioner has challenged the order dated 14.5.2009 passed by the J.M.F.C., Thane, which reads as follows:- “Accused be taken into MCR till 28.5.09. Option is open for seeking further P.C.R.” Admittedly, the period of 15 days contemplated by section 167 of the 14 Cr.P.C expired on 28.5.2009. There is no dispute that beyond the period of 15 days, the Investigating Officer is not entitled to seek custody remand of the accused by virtue of section 167 of the Cr.P.C. Some doubt has arisen as to the liberty granted by the trial Court by using the following words:- “Option is open for seeking further P.C.R.” 2. The investigating Officer who is present in Court has instructed his counsel to state that he will not be seeking police custody remand of the accused in respect of this case by virtue of the order dated 14.5.2009 since the period contemplated by section 167 has lapsed. Needless to say that the Investigating Officer reserves right 15 to take further steps, including those of further investigation under section 173 (8) of the Cr.P.C in accordance with law. 3. This Writ Petition stands disposed of.” (Emphasis supplied) Therefore, the question of taking the accused – Rashmikant in police custody now does not arise. When the query was made by this Court to the learned APP appearing on behalf of the State as to whether the said statement was made by the Investigating Officer in the Court, she, after taking instructions from the Investigating Officer, stated that the said statement was made in view of the judgment of the Apex Court in Anupam Kulkarni’s case and therefore it was open for the Police to interrogate the accused though he was is magisterial custody. When a further query was made as to whether from 05/10/2009 Investigating Officer had made an attempt to interrogate the accused while he was in magisterial custody, the learned APP, on instructions, fairly conceded that as the accused- Rashimkant was having medical problems the Police were waiting for recovery of the accused-Rashmikant and, therefore, no steps 16 were taken by the Investigating Officer. Mr. Manohar, the learned Senior Counsel appearing on behalf of accused – Rashmikant, on the other hand, submitted that accused – Rashmikant was ready to present himself for interrogation at any time before the Police if a direction was given by this Court. 13. It is no doubt true that the complaint which has been filed by the complainant is not restricted only to the two release deeds which were found upon search being taken by the Police at the complainant’s office and the said complaint also speaks about breach of trust and cheating by the accused - Rashmikant by selling 18 flats of the Company without consent of the complainant and other shareholders. According to the complainant, the Company initially was formed in the year 1996 and, at that time, accused – Rashmikant was not the shareholder in the said company and it was in the year 2002, he was admitted as shareholder and was having 25% share in the redevelopment of two buildings. According to complainant, two buildings were constructed by complainant and other partners who had, in all, 75% share and after tenants were accommodated in one building, accused – Rashmikant had transferred about 18 flats without consent of other members and had siphoned off monies to the account of the companies owned 17 by him and by his wife. It was further alleged that the accused - Rashmikant had diluted share of the complainant and other three partners from 75% to 0.7% and that he had also inducted several other persons in the said company. The said dispute was pending before the Company Law Board. It was submitted that even if the complainant succeeds before the Company Law Board and his share to the extent of 75% is restored, the accused – Rashmikant, in the meantime, had siphoned off the funds of the company in his own name and personal account. According to the complainant, six flats which were to be given to six tenants were assigned in favour of six companies. According to the complainant, accused – Rashmikant had sold these six flats to third parties who had filed suits in this court and had obtained interim order of appointment of Court Receiver. According to the complainant, in order to ensure that the transfer of these six flats which were purchased by six companies from the tenants become legal and valid, the accused - Rashmikant had created two release deeds which were forged and fabricated and it was shown that Directors of six companies viz. Mr. Nemichand Shah who was Director of three Companies and the present complainant who was Director of three other companies had executed release deeds in favour of Vijay Dwellers. According to the complainant, by this process, the accused - Rashimkant 18 tried to give validity to the transfer of six flats. According to the complainant, therefore, accused – Rashmikant had misappropriated the amount of Rs 80 crores. 14. In my view, since charge-sheet has now been filed and since statement has been made by the Investigating Officer that the police custody of the accused – Rashmikant is not required, further detention of the accused – Rashmikant in custody is not required since the charge-sheet already has been filed. The accused – Rashmikant Mansukhlal Shah can be directed to report to the concerned Investigating Officer for a period of one week in order to enable him to interrogate the accused – Rashmikant in respect of the documents which are allegedly forged. His handwriting and specimen signature may be taken by the Investigating Officer. The criminal case is pending and, therefore, question as to whether, in fact, there was criminal breach of trust or not would be decided at the hearing of the trial and for that purpose detention of the accused – Rashmikant is not necessary. Further, civil dispute is also pending in the Civil Court and the rival contentions of the parties would be decided in the said suit and the proceedings which are pending before the Company Law Board. In my view, at this stage, various submissions made by the learned 19 Senior Counsel appearing on behalf of complainant regarding conduct of the accused – Rashmikant would not be relevant since the Apex Court had, after taking into consideration the said fact had passed the order dated 24/07/2009 directing this Court to consider the application of accused – Rashmikant on merits. Even the fact of the accused - Rashmikant surrendering on 05/10/2009 had taken place before the order was passed by the Apex Court on 19/10/2009 on which date the Apex Court has directed this Court to decide the application for bail of accused – Rashmikant on merits expeditiously and this aspect, therefore, in my view, would not be relevant at this stage in view of the subsequent order passed by the Apex Court. 15. Accused – Rashmikant Mansukhlal Shah be released on bail in the sum of Rs 50,000/- with one or two sureties in the like amount. He shall hand over his passport to the police authorities. He shall not leave Mumbai without permission of this Court. He shall make himself available for interrogation by the police from 23 rd November, 2009 for a period of one week between 11.00 a.m & 5.00 p.m. The accused – Rashmikant shall initially furnish cash bail of an amount of Rs 50,000/- and, thereafter within a period of one week he shall furnish bail through the sureties. The accused – Rashmikant shall not 20 threaten any of the prosecution witnesses or shall not try to tamper with the evidence. He shall cooperate with the police during the said period of 7 days so far as investigation is concerned. 16. At this stage the learned Senior Counsel for the complainant seeks stay of this Order for a period of two weeks. Request is declined. The accused – Rashmikant shall attend the office of the State C.I.D., Mumbai for a period one one week from 23 rd November, 2009 between 11 A.M. & 5 P.M and thereafter twice in a month till the conclusion of the trial. 17. Both these applications are disposed of. (V.M. KANADE, J.)