1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5175 OF 2009 1. Nalin S. Sharma 2. Suresh M. Patkar 3. Vijay J. Kadu .. Applicants V/s State of Maharashtra .. Respondent Mr. A.P. Mundargi, Senior Advocate with Mr.Ganesh Gole for the applicants. Mr. Mohan Tekavde with Mrs. Swati M. Tekavde, Mr. Sachin V. Dere, Mr. Pramod S. Sonawane and Ms. Jayshree Gade for the original complainant. Mr. J.P. Kharge, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 29TH JANUARY 2010 P.C. : 1. By this application, the applicants seek pre-arrest bail in connection with C.R. No.I-109 of 2009 registered at Kharghar Police Station, District Raigad for an alleged offence punishable under 2 sections 406, 420, 467, 468, 470 read with 34 of the I.P.C. 2. The facts which unfold an offence are that one Mr. Kapse, who was then a Deputy Commissioner of Police, promoted a society by name “Shanti Sagar Co-operative Housing Society Ltd. (proposed)” for police employees. He approached the government for allotment of plots on the ground that the plots would be used for providing houses to the constables and other ranks in the police department. With the blessings of the government, the proposed society was allotted two plots by CIDCO, a corporation owned by the government, at Kharghar, Navi Mumbai in the year 1996. A premium of Rs. 1 crore was paid to CIDCO from and out of the money collected from the constables who were members of the proposed society. The society did not carry out any construction and therefore in the year 2002, an additional premium/fine of Rs.27 lakhs was levied by CIDCO which was also paid through the funds of the proposed society. Thereafter on 7th March 2002, without obtaining any approval from the General Body (and according to the prosecution clandestinely), Mr. Kapse as the Chief Promoter entered into two development agreements dated 7th March 2002 and 8th September 2003 with M/s Sai Developers. The present applicants are the partners of M/s Sai Developers. Under the said 3 development agreements, Mr. Kapse proposed to transfer the development rights to the applicants. The prosecution case is that thereafter the names in the list of members of the proposed society were changed, again without the knowledge and consent of the members, and the applicants and their nominees were shown/added as the members. Name of the society was also changed to Chaturbhuj Cooperative Housing Society Ltd., though the change is stated to have been made at the behest of CIDCO. Society in the new name was then registered of the new members. It is the case of the prosecution that forged applications, affidavits, etc. of the original members, namely police constables, were used for the purpose of registration of the society with the new members. This is alleged to have been done by Mr. Kapse in collusion with the present applicants. 3. Applications made by Mr. Kapse for anticipatory bail were rejected by the Sessions Court as well as this Court. Thereafter Mr. Kapse was arrested and has since been released on bail. 4. Mr. Mundargi, learned Senior Advocate appearing for the applicants, submitted that the applicants are in no way concerned with the alleged misdeeds of Mr. Kapse. They are builders and promoter of 4 repute. They are bonafide purchasers for value without notice. They had no knowledge of the alleged irregularities committed by Mr. Kapse and use of any forged documents for the purpose of registration of the society with new members and therefore they have not committed any offence and they have been wrongly roped in. Per contra, Mr. Tekavde, learned counsel appearing for the original members as interveners as well as learned A.P.P., submitted that all the formalities of registration of the society were completed by the present applicants. They had used the forged documents including the forged applications, affidavits, etc. of the original members for the purpose of registration of the society with the names of new members. 5. There is prima facie material on record to show that the present applicants had taken active part in registration of the society with new members. The society has been registered in November 2003. Long prior to its registration, the present applicants became the members of the proposed society. Not only that, Mr. Suresh Patkar – applicant no.2 herein replaced Mr. Kapse as the Chief Promoter. Further correspondence with CIDCO and the registration department was made by Mr. Suresh Patkar as the Chief Promoter. Letter dated 23rd October 2003, a copy of which is annexed as Exhibit-J to the application by the 5 applicants themselves, does show that the letter was addressed by CIDCO to Mr. Suresh Patkar as the Chief Promoter. Same is the case in respect of another letter dated 6th November 2003 written by CIDCO. Names of the members, with whose names the society was to be registered, was approved by CIDCO vide letter dated 23rd October 2003 addressed to Mr. Suresh Patkar. It is on this basis that new names were substituted and their list was submitted to the Registrar of Cooperative Societies for registration of the society. Prima facie, the applicants were concerned with the society and they took steps for registration of the society by use of forged documents, including applications, affidavits, etc. of the original members – police constables. 6. Learned A.P.P. for the State submitted that the custody of the applicants is needed for the purpose of interrogation and further investigation. Custodial investigation is necessary to ascertain as to who prepared forged applications, affidavits, etc. of the original members and whether the applicants were aware of the forgery when they used the forged documents for the purpose of registration of the society. In my view, the submission of the learned A.P.P. deserves to be accepted. 6 7. For these reasons, the application for pre-arrest bail is rejected. 8. After this order was pronounced, learned counsel for the applicants submits that the applicants wish to challenge this order in appeal and therefore some time may be granted to them to enable them to file an appeal and to surrender in case the appeal is not admitted. The applicants are granted two weeks’ time to surrender. (D.G. KARNIK, J.)