1 sns IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION ANTICIPATORY BAIL APPLICATION NO.706 OF 2011 1 Vidyadhar Vishwanath Patil 2 Ms Vibhavari Vishwanath Patil 3 Ms Urmila Prasen Thakur 4 Ms Vibhavi Vijay Thakur ...Applicants. v/s The State of Maharashtra ...Respondent. Mr.P.B.Shah i/by Mr. Kishor Patil, advs. For the Applicants. Mr.Rishi Bhuta adv. For the Intervenor. Mr.Y.S.Shinde, APP for the Respondent/State. CORAM : J.H. BHATIA,J. DATED : AUGUST 25,2011. P.C. 1. Applicants seek anticipatory bail in Crime No. 177 of 2011 registered at Kasturba Marg Police Station for the offences punishable under Sections 141,142,143,147, 149, 323, 427, 448, 452 and 506 of the I.P.C. on a report lodged by one Kamlesh Rajendra Gohil. 2. Heard the learned counsel for the parties. Perused the relevant documents. The first informant Kamlesh is brother of one Tejas, who claims to have 2 purchased flat no.201/202 B Wing in Benazir Tower, Thakur Complex, Kandivali (East) from the applicant no.1 Vidyadhar Patil for a consideration of Rs.60 lakh. According to him, Memorandum of Understanding (MOU) was executed on 29.5.2010 and an amount of Rs. 30 lakh was paid. The balance amount of Rs.30 lakh was to be paid at the time of registration of the sale deed. Possession was given on 6.8.2011. Tejas was called for registration of the document. On the same date, accused went to the said house and forcibly took entry, damaged the property and assaulted Kamlesh. 3. Applicants claim that no such MOU had taken place. Forged document has been prepared. Signature on the MOU is not of the applicants. Even though the complainant and his brother Tejas claim that an amount of Rs.30 lakh was paid in cash from time to time, they have not produced receipts of the same. They have produced receipts in respect of payment of Rs.15 lakhs and the receipts are also undated. According to the applicants, they do not bear 3 signatures of the applicant no.1. It is contended that false case bas been filed just to grab the property. The learned counsel for the applicants makes a statement that photocopies of the documents secured by them were sent to handwriting expert Nisha Memon and as per the Expert's report also, those documents do not bear the signatures of the applicant no.1. The learned counsel also points out that as per the provisions of Explanation 1 to Art. 25 of the Bombay Stamp Act, 1958, when possession of the property is given at the time of agreement for sale, stamp duty to be paid has to be equivalent to the stamp duty required on the conveyance deed itself. Secondly, as per the provisions of Section 34, when such document is prepared on impressed stamp paper, such stamp paper should have been purchased in the name of one of the parties to the instrument. In view of Section 17(1-A) of the the Registration Act, 1908, document should have been registered where party claims that possession was given in part performance of contract. 4 4. In the present case, the learned counsel for the applicants pointed out that MOU on which the complainant has based his claim is prepared on impressed stamp paper of Rs.100/-. That stamp paper was purchased on 25th January, 2010 by one Girdhari S. Purohit, who is not one of the parties to the instrument nor he is related to them. Even though as per the clause 5 of the MOU, the possession was handed over, document is not duly stamped as required under Article 25 of the Bombay Stamp Act nor the document is registered under Section 17(1-A) of the Registration Act, 1908. Admittedly, full payment has not been made and sale deed is not executed. In view of the provisions of Section 34, the said MOU being not properly stamped and not purchased by one of the parties to the instrument is not admissible in evidence. As per the handwriting expert's report obtained by the applicants, document does not bear signature of the applicant no.1. 5. The learned counsel for the applicants also pointed out that in September, 2010, one Shailesh 5 Malviya had lodged the F.I.R. No.188/2010 at Kasturba Marg Police Station under sections 420, 465,467, 468 of the I.P.C. against one Devmangal @ Devendra Upadhyay and his companions was registered for cheating the first informant. Record reveals that in that connection, Tejas R. Gohil, who claims to have purchased this property from the complainant and whose brother has lodged complaint in this case, was arrested on 22.3.2011. In that arrest panchanama, Tejas had shown his residential address as Himmat Mansion, Natakwala Lane, Borivali and not address of the property of the present case, though it is claimed that since May, 2010 till August, 2011, he was in possession of this property and was residing there. 6. Taking into consideration all these facts and circumstances, it appears that there are serious disputes about the actual transaction about the agreement for sale, transfer of possession, payment of consideration amount, execution of document, etc. Admittedly, applicant no.1 is owner of the said 6 property, applicant no.2 is his mother aged about 68 years, applicant nos.3 and 4 are married sisters. The applicant no.1 is working as scientific officer in BHABHA. Applicant nos.3 and 4, are also employed as accountant and teacher at different places. 7. Taking into consideration all the facts and circumstances, the case appears to be of civil nature and custodial interrogation of the applicants is not necessary. 8. Therefore, in the event of arrest in Crime No. 177 of 2011 registered at Kasturba Marg Police Station for the offences punishable under Sections 141,142,143,147, 149, 323, 427, 448, 452 and 506 of the I.P.C., applicants be released on their executing PR of Rs.15,000/- each with surety in the like amount with condition that they shall make themselves available to the police as and when required for the purpose of interrogation and investigation if need be. They shall if required, also furnish their specimen handwriting, signatures, 7 etc and shall not misuse the bail. The applicant nos.2, 3 and 4 shall be called by the police, if need be, during day time. 9. Application stands disposed off. (J.H. BHATIA,J.)