SRJ 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1389 OF 2010 Shri Sameer V. Gaikwad .. Applicant V/s. Shri Narendra S. gaikwad & Another .. Respondents Shri Prakash Naik, for Applicant. Shri A.P.Mundargi, Sr.Counsel with Vineet Naik with Sukand Kulkarni, for Respondent No.1. Shri S.N.Gawade, for State-Respondent. CORAM : A.R.JOSHI, J DATED : AUGUST, 17th 2010. P.C. 1. Heard rival submissions for sometime on this application for cancellation of anticipatory bail preferred by the present Applicant- Original complainant. The order dated 2nd March, 2010 passed by the learned Additional Sessions Court, Pune granting anticipatory bail in favour of present Respondent No.1 is challenged in the present application. SRJ 2 2. Prior to discussing the factual position lead to the filing of anticipatory bail by Respondent No.1 certain dates are significant which are referred as under. 3. A private complaint was lodged by the present Applicant being R.C.C.No.4711 of 2009 before the concerned Judicial Magistrate First Class at Pune for taking action against three accused persons for the offences punishable under sections 465, 466, 468, 471 and 474 r/w 1220(b) of Indian Penal Code. Said private complaint was lodged on 15th October, 2009. Present Respondent No.1 is the accused No.1 in the said complaint. The learned J.M.F.C., Pune passed orders under section 156(3) of Criminal Penal Code asking concerned Police Station to investigate the matter. Notices were issued to the accused persons including present Respondent No.1. Apprehending arrest, at the hands of the police as the accused were asked to attend the police station for recording the statement etc., an anticipatory bail application was preferred before the concerned Additional Sessions Judge, Pune on 20th February, 2010. Police filed reply, objecting grant of anticipatory bail. Said reply is dated 25th February, 2010. Learned Additional Sessions Judge, Pune allowed anticipatory bail SRJ 3 by an order dated 2nd March, 2010. This is the order which is impugned in the present application. 4. The original complainant is the co-owner of the property bearing Survey No.126, Hissa No.2-C along with him other persons are the joint owners of the suit properties. The property belonging to the present Respondent and other Accused No.2 is bearing Survey No. 126, Hissa No.2-B. Admittedly, the present applicant and Respondent No.1 are distant relatives and the respective properties mentioned above are adjacent to each other. Some time in the year 1998-99, steps were taken by the present Respondent and other co-accused No.2 for development of their properties bearing Survey No.126, Hissa No.2-B. For that purpose, necessary documents including measurement report and lay out plan were obtained from Taluka Inspector and were also produced before the Pune Municipal Corporation. Said documentation was produced by original accused no.3 who is an Architect. Based on the said documents, Pune Municipal Corporation issued the commencement certificate for the property of present Respondent No.1 i.e. Survey No.126, Hissa No.2-B. After said sanction, by the Pune Municipal Corporation, a Hotel was constructed and the business was started. SRJ 4 5. It is also a factual position that some time in the year 2002, present complainant filed a Civil Suit for injunction before the competent authority at Pune and various other reliefs were also sought. Injunction was refused by the Trial Court and the matter was taken up to the District Court level till the year 2009 but without any success in favour of the present complainant. Thereafter, according to the complainant, some time in March 2009, he knew about the forged and fabricated measurement plan produced by the accused persons and on the strength of the said documents, the sanctioned plan was obtained. According to the Complainant, he knew this position somewhere in March, 2009 and, thereafter, filed private complaint on 15th October, 2009 as mentioned above for taking action against present Respondent No.1 and other two co-accused including Architect for the offences of the forgery and using fabricated documents and cheating etc., and for conspiracy. 6. During arguments, learned Senior Counsel for present Respondent No.1 submitted that prima facie, role of present Respondent No.1 is not established from the documents even if it is considered that the plans obtained from Taluka Inspector were forged one in as much as the said plans specifically mention the name of another co-accused and not the name of present Respondent SRJ 5 No.1. It is further submitted that even in the year 2002, present complainant was aware of the alleged encroachment on his property and as such preferred the Civil Suit, however, could not get any relief or injunction and even in the year 2009, he did not get any relief when the matter reached to the District Court level. By pointing out this and the observations made by the Trial Court while rejecting the injunction application in the Civil Suit, it is submitted that since the year 2002, complainant was aware of said encroachment. However, in order to have some amicable settlement by pressurizing method, he had chosen to lodge a Criminal complaint belatedly in the October, 2009. On this aspect, it is further submitted by learned Senior Counsel that even for the same cause of action, the Civil Suit was also instituted by the Complainant, however, considering the nature of allegations in the present matter, it was rightly held by the Additional Sessions Judge, Pune while granting anticipatory bail to the present Respondent No.1 that the matter did not require custodial interrogation. 7. When this Court is seized off the matter for cancellation or otherwise of the anticipatory bail granted in favour of Respondent No.1, it is to be ascertained whether the order impugned in the present SRJ 6 application is of such a perverse nature as is required to be undone. 8. Considering the factual position as nattered above, as to pendency of civil litigation and the knowledge of the Complainant, since the year 2002, still if it is accepted that certain documents were obtained by forgery and used to sanction the plan from Municipal Corporation, it could not be said that such type of matter requires custodial interrogation of Respondent No. 1 at said belated stage. 9. In that view of the matter, the order granting anticipatory bail to Respondent No.1 does not appear to be a perverse in nature. In other words, considering the factual position mentioned above, there is no need to change the said order, so as to set it aside. In the result, present application is disposed off with the following order:- (a) Criminal Application stands rejected. (A.R.JOSHI,J.)