1 6.wp.3308-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3308 OF 2010 Surendra Narayan Prasad Agarwal and another. ..Petitioners. Vs. The State of Maharashtra and others. ..Respondents. .......... Mr.Ghanshyam Upadhyay, Advocate i/b. Law Juris for the Petitioners. Mr.D.P. Adsule, A.P.P. for the State. Mr.A.V. Joshi, Advocate for Respondent No.6. .......... CORAM : A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATED : 10th FEBRUARY, 2011. P.C. 1. We have heard Mr.Upadhyay for the Petitioners at length. 2. The relief claimed in this Petition is of quashing of FIR No. 66 of 2010 registered with EOW, Unit-III, Mumbai in which the petitioners have been named as accused. 3. The case made out in the complaint, is that, one Ms.Linda Tapp had purchased Flat No.302 admeasuring 1050 sq. ft. in Vandana Apartment, Janki Kutir, Juhu Church Road, Juhu, PPD 2 6.wp.3308-10 Mumbai in 1985 from the builder. The flat purchasers of the said building later on formed a society in the year 1989-1990 of which Ms.Linda Tapp was enrolled as a member and was issued Share Certificate bearing No.6 having Distinctive Nos.26 to 30 each of face value of Rs.50/-. The said Ms.Linda Tapp, however, subsequently shifted to Canada for the good. Since it was not possible for her to manage the property and she required some finance, she decided to dispose of the flat for which she gave power of attorney in favour of one Salim Mehboob Shaikh, resident of Mumbai. The said power of attorney is executed before the Consulate General of India, Toranto, Canada. On the basis of the said power of attorney, the said Salim Mehboob Shaikh entered into a deal in consultation with Ms.Linda Tapp with one Mr.Ajit Prasad, in whose favour the flat was transferred by executing necessary documents sometime in 2007. However to their utter surprise, it was later on noticed that the Petitioners claimed right, title and interest in the same suit property. That became clear from the inspection of record of rights taken by Mr.Ajit Prasad, which revealed that the Petitioners claimed to be in 3 6.wp.3308-10 possession of the property in question on the basis of documents executed in their favour by one Mr.Niranjan Jayantilal Shah who allegedly was given power of attorney by the said Ms.Linda Tapp sometime on 14th May, 2001. That General Power of Attorney is at pages-58 to 62 of the paper book. 4. In substance, the grievance in the complaint as filed, on the basis of which FIR is registered, is that, the said Mr.Niranjan Jayantilal Shah had misused the document given by her in good faith to Shah's. Further, the documents on the basis of which the Petitioners claim right in the property were obviously fabricated and forged-for creating right in their favour in respect of the suit property. The Petitioners as well as Mr.Niranjan Jayantilal Shah were residents of the same building in which the flat in question is situated. They took advantage of the absence of Ms.Linda Tapp, who was staying abroad at the relevant time and executed the documents in question with full knowledge about its falsity and genuineness. It is on that basis the complaint has been lodged and FIR is registered for the offence punishable under Sections 420, 465, 467, 468, 471, 476, 406 & 120-B of Indian Penal Code. 4 6.wp.3308-10 5. The argument canvassed before us is to persuade the Court to appreciate the factual matrix of the case. The core question raised before us is that it is indisputable that the Petitioners have become owners of the suit property being flat No.302 situated in Vandana Apartment, Janaki Kutir, Juhu Church, Juhu, Mumbai. 6. Indeed, the Petitioners are stoutly relying on the General Power of Attorney dated 14th May, 2001 allegedly issued by Ms.Linda Tapp, but are not in a position to demonstrate that the said Ms.Linda Tapp who is stated to have executed the said Power of Attorney was available in India during that time to execute the said document. If the Petitioners were able to even prima facie establish the presence of Ms.Linda Tapp in India during May 2001, it would be possible to entertain their argument that the General Power of Attorney relied by them was in fact executed by Ms.Linda Tapp with intention to authorize Mr.Niranjan Jayantilal Shah to deal with the flat. Notably, this General Power of Attorney is neither registered nor notorised; unlike the General Power of Attorney in favour of Mr.Salim Mehboob Shaikh executed before the Consulate General of India. It is not in dispute that 5 6.wp.3308-10 Ms.Linda Tapp had already shifted to Canada for the good since 1992. It is significant to notice that the keys of the flat were entrusted by Ms.Linda Tapp to the mother of Mr.Niranjan Jayantilal Shah in good faith, being occupant of the neighbouring flat No.301. 7. The fact remains that the execution of General Power of Attorney dated 14th May, 2001 which is the foundation for executing subsequent documents by Mr.Niranjan Shah in favour of the Petitioners is questionable. That is a matter for investigation and trial. As is seen from the complaint, the case of the complainant is that no General Power of Attorney much less dated 14th May, 2001 was ever executed in favour of Mr.Niranjan Shah to deal with flat No.302 in Vandana Apartment, Janaki Kutir, Juhu Church, Juhu, Mumbai owned by her. The Power of Attorney was executed in favour of Mr.Salim Mehboob Shaikh on 29th January, 2007 who in turn with her consent sold the flat to Mr.Ajit Prasad in the year 2007 itself. Considering the above, we fail to understand as to how the FIR can be quashed on the basis of such disputable factual matrix. 6 6.wp.3308-10 8. Our attention was invited by the Counsel for the Petitioners to affidavit of Ms.Linda Tapp dated 27th September, 2007 to contend that she has taken different stand in different proceedings. We have perused the said affidavit in particular paras-4, 5 & 6. In our opinion, the factual position stated therein is in no way inconsistent with the case made out in the complaint. 9. According to the Petitioners, the Court ought to keep in mind that the Petitioners are bonafide purchasers of the suit flat for consideration. This argument is based on the strength of the power of attorney dated 14th May, 2001 allegedly executed in favour of Mr.Niranjan Shah. However, the genuineness thereof itself is a matter of investigation and trial. If the said power of attorney is held to be tainted document, the edifice of the argument of the petitioners would fall to the ground. Suffice it to observe that in the fact situation of the present case, the question of quashing of FIR does not arise. Indeed, Counsel for the petitioners wanted us to consider the reported decisions, compilation whereof has been circulated to us in advance. As mentioned earlier, the controversy that needs to be addressed at 7 6.wp.3308-10 this stage, is whether it is a fit case for quashing of FIR. From the material available on record we have no hesitation in taking a view that the issues raised by the Petitioners, perhaps, may be worthy of consideration at the appropriate stage much less after the investigation is completed, but, cannot be the basis to quash the FIR in question. In this view of the matter, interference in exercise of writ jurisdiction to quash the FIR in question does not arise. 10. When the Court indicated its mind about the outcome of the argument of the Petitioners, learned Counsel submitted that he would like to argue further on other points. However, we are of the considered opinion that the reasons already recorded are good enough to decline to exercise our discretionary jurisdiction at this stage. To this, learned Counsel for the petitioners submitted that the Court should transfer the case to some other Bench and should not proceed to pronounce the order. We reject this submission. To observe sobriety we hold that this suggestion is irresponsible and unacceptable. 11. The second relief claimed in the Petition is to transfer the 8 6.wp.3308-10 investigation of the case to another investigating agency such as CBI or State CID. In the first place, the Petitioners are accused. At the instance of accused, the question of transferring the investigation does not arise. Insofar as the cross criminal case registered by the Petitioners is concerned that being separate cause of action any relief pertaining to the said case will have to be proceeded independently and cannot be mixed up with the cause which is brought before us for quashing of FIR No.66 of 2010. This order is no expression of opinion either way with reference to the said remedy available to the Petitioners. 12. For the aforesaid reason, we see no merit in the present Petition. Petition is summarily dismissed, subject to above. (A. R. JOSHI, J.) (A. M. KHANWILKAR, J.)