*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3898/2009 Ajit Sohanlal Jain. ..Applicant -VERSUS- The State of Maharashtra. ..Respondent ............... Mr.V.R.Manohar, senior counsel a/w Mr.Rajesh S. Sharma & Mr.C.K.Talekar, Advocates i/b Rajesh S. Sharma & Associates, for the Applicant. Mr.J.P.Yagnik, APP for the Respondent/State. Mr.Amit Desai, Senior Counsel i/b Mr.Tushar Shah, Advocate for the original Complainant. ............... CORAM: A.P.DESHPANDE, J. Dated 30th September, 2009. PC:- 1 This is an Application moved under Section 439 of the Code of Criminal Procedure for bail by the original Accused No.1 in Crime No.I-240/2008 registered with Kasarvadavali Police Station, district Thane on 02.12.2008 under Sections 420, 465, 467, 468, 471, 406, 193, 353, 186, 504, 506 and 34 of the Indian Penal Code. 2 According to the Applicant, the crime has been registered in the following facts:- (1) M/s Vijay Dwellers is a private limited company incorporated in the year 1996. The said Company by two Deeds of assignment acquired leasehold rights in *2* Plot Nos.476 and 477 of Matunga Division with structures standing thereon being buildings known as “Raghdev Bhavan” and “Africa House”. The Company proposed to redevelop the same under DCR No.33(7) scheme. While acquiring the said property the Company also acquired the tenancy rights of some flats in the said property in the name of 6 “Front Companies” of M/s Vijay Dwellers. The consideration paid for acquiring the tenancy rights was paid by lending of amounts to them by M/s Vijay Associates a partnership firm of M/s Vijay Group. (2) Rashmikant Shah the co-accused was appointed as the Managing Director of M/s Vijay Dwellers on 23.10.2007. The Company was desirous of selling flats in the building named “Babylon” (previously named “Africa House”). The present Applicant being interested in purchase of six flats in the redevelopment project, an MOU was entered by and between the Applicant and the said Company viz. M/s Vijay Dwellers executed by Rashmikant Shah (co-accused), the Managing Director for and on behalf of the Company. As the construction of the building was not complete, in order to secure the interest of the Applicant, he was to be made a Director in the said Company. On 13.11.2007 the said M/s Vijay Dwellers executed an Agreement for sale of six flats in “Babylon” building with six companies of the Applicant. The Applicant paid agreed consideration of Rs.6 Crores *3* to M/s Vijay Dwellers and the agreements for sale were duly registered with the Sub-Registrar of Assurances. To safeguard the Applicant’s rights in the flats purchased by his group, the Applicant was allotted one lac shares in the said Company and was also made Director of the Company on 01.11.2008. Besides the sale of six flats to the Applicant, ten flats were sold to “Balaji Group” and two flats to “Bhanushali Group”. (3) Several civil suits were filed in the High Court by the front companies of M/s Vijay Dwellers and so also by the Gala Group challenging the sale of flats to the purchasers including the present Applicant. The Plaintiffs claimed tenancy rights in the flats. Vrijlal Gala Group of which Mahendra Shah is also a part filed Company Petitions in the Company Law Board challenging the said cessation, change in the pattern of shareholding and ousting of the erstwhile directors i.e. Gala Group from the Company. In the said suits and proceedings, interim orders are passed which protects the rights and interest of the Complainant. The Court Receiver of the High Court is also appointed as receiver in respect of the six flats. In the said suits, Rashmikant Shah filed affidavits dated 06.10.2008 and 24.10.2008 stating therein that the Plaintiffs have executed the agreements/ release deeds in the year 2003 admitting the release of flats and that the said agreements/ release deeds were in the custody of Vrijlal Gala Group at the *4* corporate office at Thane. Vrijlal Gala Group, in the said suits, has contended that no such agreements were in existence. (4) In view of the civil disputes and the restraining orders passed against the flats purchased by the Applicant, the Applicant sensed that his investment of Rs.6 Crore in the flats would be stuck up. The Applicant realized that the two agreements/ release deeds were vital to perfect the Applicant’s title to the flats. Hence, the Applicant through one of his companies filed a Regular Criminal Case No.692/2008 in the Court of J.M.F.C., Thane against Rashmikant Shah and his Group, so also against Gala Group under Sections 3, 4 and 13 of the M.O.F.A. and under Sections 420 and 34 of the Indian Penal Code. In the complaint, the Applicant alleged that the Directors of Vijay Dwellers have colluded with each other and recked up some dispute interse to deprive the Applicant of his flats. In purchase of the said flats, the Applicant has not been benefited in any manner, on the contrary, his investment of Rs.6 Crore has been blocked. (5) In the said criminal case the Applicant applied for issuance of search and seizure warrant of the agreements/ release deeds purported to have been executed by the six front companies of Vijay Dwellers and allegedly in possession of Vrijlal Gala Group in the corporate office of the Company. The search and seizure was asked at the office of the Architect and at the *5* Company’s office. When the Police visited the Architect’s office it was closed, hence, a Panchanama was drawn up and thereafter, the Police party had gone to the corporate office of the Company. During the search, the agreements/ release deeds are allegedly recovered from the bathroom of the office. Independent Panchas are stated to be present at the time of search and seizure. The Manager by name Daniel Mathew Desoza was present but he declined to sign. (6) On hearing of the seizure of the agreements/release deeds the complainant Mahendra Manilal Shah approached Kasarvadavali Police Station and lodged FIR No.I-240/2008 on 02.12.2008 under Sections 420, 465, 467, 468, 471 and 34 of the Indian Penal Code. In the said FIR, the present Applicant and Rashmikant Shah have been arrested and are in custody. 3 According to the learned senior counsel for the Applicant, the role attributed to the present Applicant is filing of complaint, applying for search and seizure warrant and execution of warrant. Except this, the Applicant is not concerned with any act allegedly constituting the offence. There is no evidence either direct or circumstantial which goes to connect the Applicant with the crime. 4 It will not be out of place to state at this juncture that the learned APP so also the learned senior counsel for the Complainant have admitted that there is no direct evidence against *6* the Applicant that he has either forged the release deeds or has caused the same to be prepared. Hence, it can be prima facie said that there is no direct evidence of “making a false document” against the Applicant. 5 According to the learned APP and the learned counsel for the Complainant, there exists one clinching piece of evidence and the same is in the form of opinion of the handwriting expert. The agreements/ release deeds which were seized were sent to the expert and the expert has opined that the signatures on the said documents are not of the Complainant/ executor. Taking support from the same, the submission is that only two persons are basing their claim on the release deeds, one is the present Applicant and the other is Rashmikant Shah and as such, in all probabilities the agreements/ release deeds must have been prepared and forged by them. It is also submitted that the agreements/ release deeds were planted at the office of Company. Suffice it to state that at this stage it is not possible to opine as to whether the documents were seized from the premises of Company or the same were planted. 6 Per contra, according to the Applicant, the agreements/ release deeds had not seen the light of the day. It is only when Rashmikant Shah stated about the existence of the same by filing affidavits in the civil suit and about the custody of the documents with the Company Vijay Dwellers at its office, the Applicant had done his best to search and seize the documents and bring it before the Court. This act of the Applicant goes to show that he believed that legally enforceable release deeds exist, hence, tried to bring it before the Court. On the one hand, the Applicant is claiming that *7* Rashmikant Shah and the Complainant and other directors of Vijay Dwellers are acting in collusion and have cheated the Applicant whereas on the other hand, the Complainant is claiming that Rashmikant Shah is acting in collusion with the present Applicant. The role played by Rashmikant Shah is altogether different from the one attributed to the Applicant. The Applicant is in no way benefited. The Applicant has paid Rs.6 Crore and the flats purchased by him are now the subject matter of litigation. Prima facie, it appears that Rashmikant Shah is the beneficiary and he is the one who asserted the existence of the agreements/ release deeds by filing affidavits in the pending suits. 7 At this stage, it can be prima facie assumed that the release deeds are forged, as the handwriting expert has opined that the signatures are not of the executors, though it is a weak piece of evidence. However, prima facie there is absolutely no material on record to connect the present Applicant with “making of the false document”. Possibility of the Applicant himself being a victim of cheating also cannot be ruled out as the Applicant has paid Rs.6 Crore and duly registered agreement of sale has been executed in his favour purporting to transfer right, title and interest in the flats. The Applicant was in police custody initially and thereafter, is in judicial custody. Having regard to the totality of the facts and circumstances, it can be safely said that there is no likelihood of the Applicant fleeing from justice as he has roots in Mumbai on account of his business and permanent residence along with his family members. There also does not appear any possibility of the Applicant tampering with the evidence and hence, in my opinion no *8* purpose would be served by further detention of the Applicant in custody. 8 Hence, I pass the following order:- (a) The Applicant shall be released on bail on executing a personal bond in a sum of Rs.50,000/- with one or two sureties in the like amount. (b) The Applicant shall not leave India without prior permission of the Court. (c) In case the Applicant possesses the Passport, he shall deposit the same with the Investigating Officer within a period of 03 days from the date of his release. (d) The Applicant shall attend the concerned Police Station once a week on every Saturday in between 6:00 to 8:00 pm in the evening for a period of three months from his release and thereafter, as and when directed by the Investigating Officer. (e) The Application is allowed and disposed of accordingly. -sd- (A.P. Deshpande, J) 9 At this stage, the learned counsel for the Applicant seeks permission to deposit the bail amount in cash for a period of one week during which period the Applicant would arrange for the sureties. Permission to deposit bail amount in cash is granted for a period of one week, during which time the Applicant shall furnish surety. 10 The learned counsel for the original Complainant seeks stay of this order. The prayer is rejected. 11 Parties to act on an authenticated copy of this order. -sd- (A.P. Deshpande, J)