Ladda 1 aba-71-11.doc 25 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 71 OF 2011. Ashok s/o Motilal Saraogi ... Applicant. Versus The State of Maharashtra ...Respondent. ...... Shri H.H.Ponda, Sr. Counsel, with Shri A.P.Mundargi, Sr. Counsel, and Shri S.V. Marwadi, Advocate and Sushant Karandikar, Advocate i/by Shri R.R.Varma, Advocate for the Applicant. Mr P.M. Vyas, Advocate with Shri Hitesh P. Vyas, Advocate, for the Complainant-Intervener. Mrs S.D. Shinde, A.P.P.for the State. CORAM:- A.R.JOSHI, J. DATED:- 15th March, 2011. P.C. 1. Yesterday rival arguments were heard and matter was adjourned when the arguments of learned A.P.P. were yet to be heard for want of time. 2. Today, the matter is again taken up for further arguments. Mrs Ladda 2 aba-71-11.doc Shinde learned A.P.P. for the State raised certain points objecting for the grant of anticipatory bail in favour of the applicant. Said points shall be dealt with, at appropriate place hereinbelow, after analyzing the arguments advanced on behalf of the applicant and also on behalf of the original complainant. 3. Prior to discussing the rival submissions and prior to ascertaining- whether, in the fact situation of the present case, a discretionary relief of anticipatory bail can be granted in favour of the present applicant, certain factual position as narrated in the F.I.R. can be given in order to have the perspective of the matter from the view point of the original complainant. 4. Apparently, the F.I.R. was lodged on 3rd August, 2010. However, prior to that attempts were made by the original complainant for redressing his grievances against the main accused No.1, one Mr Michael Susai and against the present applicant, who is an Advocate by profession, and allegedly conspired with the main accused for cheating the original complainant and induced the complainant to pay the total amount of Rs.3,50,50,000/- out of the total consideration of Rs. 4,20,00,000/- for some plot of land, admeasuring about 3000 square meters. 5. Apparently, the original complainant was in need of some landed Ladda 3 aba-71-11.doc property for the purpose of his business and as such his Manager one Sapankumar introduced the complainant to one Michael Susai and the present applicant. The said Michael Susai is the Trustee of the Trust, by name ‘New Jerusalem Church’. The immovable property situated at Charkop was shown to the complainant and it was approved by the complainant and in lieu of purchase of the said property, from time to time, total amount of Rs.3,50,50,000/- was given by the complainant to original accused No.1 i.e. Trustee of the Trust, New Jerusalem Church. In fact, as mentioned in the F.I.R., Manager Sapankumar had introduced the complainant to one mediator by name Dhirenkumar and as such through such mediation; it was decided to purchase the said plot of land, admeasuring 3000 square meters, which is open plot of land. Then, apparently, New Jerusalem Church of which accused No.1 Michael Susai was one of the Trustees and present applicant being Advocate was the legal Consultant of the said Trust. 6. It is further mentioned in the F.I.R that the complainant along with his Manager Sapankumar and said agent Dhirenkumar had visited the plot and ascertained that there was no any encroachment and the plot was vacant. As such, the complainant decided to meet accused No. 1 Michael Susai and also the present applicant. Accordingly, the first meeting was held at the office of the present complainant on 25th Ladda 4 aba-71-11.doc January, 2007 when accused No.1 was already present in the office of the Advocate- present applicant. Now, the main allegations are imputed against the present applicant as to his role of introducing the main accused Michael Susai as Trustee of New Jerusalem Church and that all the rights of transfer and alienation of the property of the Trust had been given to said Mr Susai. In fact, some documents were also shown to the complainant. During said talk, it was also represented by the present applicant that he had assisted the Trust in getting the possession of the said plot of land through Court litigation, being the Legal Advisor of the Trust. It was also represented by the applicant that if at all there is any difficulty then the applicant will deal with the same and if there is no objection of the complainant, he will act as an Advocate for the Trust and also for the complainant. Apparently, on such assurance given by the applicant, the complainant decided to proceed further with the said transaction and as such accordingly on the same day i.e.on 25th January, 2007 a cheque of Rs.10,00,000/- was given to Mr Michael Susai and his acknowledgment was obtained. 7. Thereafter, there was second meeting in which admittedly, according to the complainant, present applicant was not present. Said meeting was held on 1st February, 2007 at the house of one Sarang Dev Pandit, appointed as an Associate of the present complainant. At that Ladda 5 aba-71-11.doc time, there was talk amongst the parties and mainly the talk was with Michael Susai, the Trustee of the Trust, and it was decided that the entire plot shall be purchased by the complainant for total consideration of Rs.4,20,00,000/-. Though in the complaint the rate is mentioned at the rate of Rs.1,400/-per square meter, considering the total area of the plot as 3000 square meters, the total consideration does not come to Rs. 4,20,00,000/-. However, during the argument, learned counsel for the applicant submitted that apart from such information quoted in the F.I.R. total consideration was fixed for Rs.4,20,00,000/-. There might be some discrepancy in the rate. However, the admitted position as per the documents subsequently produced, the total consideration was Rs. 4,20,00,000/-as can be seen from the first Memorandum of Understanding (MoU) which was prepared. 8. In the F.I.R., it is mentioned that the first MoU must be prepared after the complainant and other went to the office of the present applicant on 2nd February, 2007, after 5:00 p.m. Again that time, the original accused No.1 Mr Susai was present. 9. Now, the crucial allegations regarding the factual position as to preparation of the said document, termed as MoU starts and it is specifically mentioned that said MoU was typed down on the computer on the stamp paper of Rs.100/- and signatures of the complainant and Ladda 6 aba-71-11.doc said original accused Michael Susai were obtained. Signatures of the witnesses i.e. Sapankumar, (Manager of the complainant) and one Sarang Dev Pandit (associate of the complainant) were also obtained. As per the said MoU, the entire process was to be completed within 365 days. As against this, what is, now, available with the Investigating Agency, during the investigation and as produced by the original complainant, is the MoU which is on the paper which was already prepared and subsequently a franking was done on the stamp of Rs. 100/- and that franking is admittedly done at 11.01 hours and it was done at the office of Bank of India, Mumbai Main Branch. 10. During the argument, learned A.P.P., Mrs Shinde pointed out from the investigation papers that it has been ascertained by the Investigating Agency that said document was produced by one Michael Susai for franking and it was done at 11.01 hours. 11. During the argument, the discrepancy was brought to the notice of this Court that as per contents of the F.I.R. the MoU was prepared on the hundred rupees stamp paper, prepared at the office of the present applicant, purported to be after 5:00 p.m. and what is in fact produced by the original complainant in the Arbitration proceedings, in the MoU, which is having franking of hundred rupees stamp paper and that also at 11.01 hours. On this discrepancy, it is only the submission on behalf Ladda 7 aba-71-11.doc of the original complainant that whatever document available with the complainant was produced by him before the Arbitrator and, however, still there is no explanation as to the query raised by this Court, when there is allegation in the F.I.R.that hundred rupees stamp paper agreement was prepared that also after 5:00 p.m., what had happened to that original stamp paper, whether it was handed over to the complainant or not. The complainant is silent on this aspect. Whether such stamp paper (document) had been given to him. However, still it is argued that, what is with the complainant, is the agreement, which is having the franking of hundred rupees stamp. 12. Again, on this aspect of the contents of MoU, the learned A.P.P. drew attention of this Court to the first two pages of the said MoU and states that these two pages bear only signature of Mr Michael Susai and the signatures of the present complainant are not appearing on the said pages. It is further brought to the notice of this Court that second page ends with the line “----authorized by the said Trust to sign the present docu---” After this second page, the third page starts with the wording “whereas the party of the first part”. By pointing out this, it is brought to the notice of this Court that definitely the first folio is either changed or some manipulation has been done. However, it is yet to be ascertained, as to who has done the said manipulation. In fact, it is Ladda 8 aba-71-11.doc important to ascertain whether in order to investigate this aspect, the custodial interrogation of the present applicant is essential or not. This aspect is also to be determined after discussing various other details, which are hereunder explained. 13. Again, on this aspect, said MoU which is produced along with the present application for anticipatory bail, is allegedly obtained by the applicant from the documents which are produced by the original complainant in the Arbitration proceedings. It is also the submission on behalf of the complainant that this was MoU produced by him in the Arbitration proceeding for obtaining the relevant order and in fact copy of the said MoU was annexed to the application preferred by the complainant for the relief as per Section 17 of the Arbitration and Conciliation Act, 1996. Again, at this stage, it is important to note that the said document, which is filed along with the present application from page No.157 to 186 is in fact bearing page Nos. 1 to 10 and the last page No.10 is an independent ‘Receipt’. However, the said receipt is dated 25th January, 2007 and under the signature of Mr Susai, acknowledging the receipt of Rs.10,00,000/- by cheque from the complainant. This fact is in consonance with the allegations made in the F.I.R. by the complainant as to after the initial talk of 25th January, 2007 an amount of Rs.10,00,000/-was given to the original accused Mr Ladda 9 aba-71-11.doc Susai, probably as a token amount for proceeding further with the transaction. It is the document coming from the original complainant and came to be filed in the arbitration proceeding between the Trustees and original complainant concerning the transaction for the plot of 3000 square meters. 14. Again, at this juncture, it may be mentioned that factually the present applicant was the Arbitrator apparently appointed by consent of both parties i.e. the representative of the Trust, on one side and the original complainant on the other side. In fact, an application under Section 17 of the Arbitration and Conciliation Act, 1996 was preferred before the present applicant and in which the prayers are asked for directions to injunct the Trust from alienating all the properties of the Trust, including the property which is the subject matter, i.e. 3000 square meters plot, agreed to be sold to the complainant. It is the factual position that an Award has also been passed by the Arbitrator, i.e.the present applicant, rejecting the prayer for granting the injunction on all the properties, except for the property which is the subject matter of the transaction between the disputing parties. In other words, the application under section 17 of the Arbitration and Reconciliation Act, 1996 was allowed by the present applicant, then acting as an Arbitrator, insofar as granting the injunction against the Trust from alienating and Ladda 10 aba-71-11.doc creating any third party interest with respect to the plot of land which is the subject matter in the present transaction. 15. Now, coming back to the allegations in the F.I.R. it is further alleged by the original complainant that though the time of 365 days was the essence of the MoU, between the Trust and the original complainant, no action was taken by the Trust to transfer the said land in the name of the complainant. However, as on 1st March, 2008 total amount of Rs.2,24,50,000/- by cheque and also by cash was given to Mr Susai for and on behalf of the Trust. It is further alleged that on various occasions the complainant tried to contact said Mr Michael Susai and also the applicant. However, they avoided answering and ultimately present applicant assured him to extend the term of the said MoU and as such second MoU was executed on 6th March, 2008 with same terms and conditions as in the earlier MoU. This MoU was again prepared on hundred rupees stamp paper and in which it is specifically mentioned that a sum of Rs.2,10,00,000/- has already been given to the Trust. It is further alleged in the said F.I.R. that though such amount was written in the said MoU, in fact, according to the complainant he had given by that time total amount of Rs.2,24,50,000/-. Again, said MoU was signed by Susai and the present complainant and the same witnesses Shri Sopankumar and Sarangdev had signed. It is further Ladda 11 aba-71-11.doc alleged that the present applicant had assured that the transaction can be completed as early as possible and believing the word original complainant gave further amounts i.e.totally Rs.1,26,00,000/- by the end of 14th August, 2009 by way of cash and also by way of cheque in the Bank Account of Mr Michael Susai. 16. It is further mentioned in the F.I.R. that even after the expiry of said period of 180 days of second MoU, transaction was not completed and original accused No.1 and the present applicant did not give any documents for transfer of the said plot in the name of the original complainant. However, on 19th November, 2008 a General Power of Attorney was prepared and in fact the physical possession of the plot was given in the custody of the present original complainant and as such he took over the possession and kept his one watchman, by name Sandipkumar. Lastly, it is mentioned in the F.I.R. that when said Watchman was staying in the room, built on the said property, there were certain allegations imputed against the watchman and also against the present complainant, by the wife of said Mr Susai for outraging her modesty. Due to all these circumstances, it is ascertained by the complainant that said Mr Susai and also the present applicant conspired together and they have cheated the complainant and as such prayed for the appropriate action at the hands of the police. Ladda 12 aba-71-11.doc 17. Insofar as these allegations are concerned, various exceptions are taken on behalf of the applicant as to factual position which is narrated in the F.I.R. as well as what is brought before the Senior Inspector of Police, Kandivali Police Station vide letter dated 4th January, 2010 and also certain factual position brought before Commissioner of Police vide letter dated 29th June, 2010. It is a factual position that first time there are allegations against the present applicant vide letter dated 29th June, 2010 written to the Superintendent of Police, Mumbai, as to conspiracy between the applicant and Accused No.1 Michael Susai. Prior to that there are no such allegations, though apparently according to the complainant, what was given to him as first MoU was produced by him before the present applicant when acting as an Arbitrator. In fact, there is no grievance made by the complainant as to the first page of the said MoU not tallying with the contents of the other pages. Moreover, as mentioned above, the entire case of the complainant is that of the preparation of MoU on the stamp paper of Rs.100/-, whereas MoU which is apparently filed by the complainant before the Arbitrator and the original of which is received by the Investigating Officer from the complainant himself is showing the document which is having the franking of Rs.100/- at 11.01 hours. 18. Second exception is taken on behalf of the applicant that the Ladda 13 aba-71-11.doc contents of the letter addressed on behalf of the original complainant to the Superintendent of Police, Mumbai on 29th June, 2010 do not show correct information. Contents mentioned in the internal page No.3 of the said letter are reproduced herein for the sake of ready reference. “Thereafter, Advocate Saraogi drafted the MoU and a Power of Attorney in favour of my client and obtained on the said document signatures of both parties on second day on February, 2007 in his office and asked my client to pay Mr Susai Rs.10,00,000/- also.” 19. During the arguments, learned counsel for the applicant, placed much reliance on the contents of the said averments and brought it to the notice of this Court that nowhere it is the case of the complainant, except what is mentioned in the said letter dated 29th June, 2010 that the power of Attorney was drafted and the signature of both parties were obtained on it on 2nd February, 2007. In fact, the copy of the said Power of Attorney is produced along with the present application and which is from page Nos. 198 to 203. According to the applicant, said copy was obtained by him from the documents produced by the original complainant in the arbitration proceeding. Said Power of Attorney is on the stamp paper which is purchased on 17th November, 2008 and in fact, Ladda 14 aba-71-11.doc the date of Power of Attorney is 19th November, 2008 and having only the signature of the original accused No.1 Michael Susai. in the presence of one witness, Sapankumar, Manager of the original complainant. When this discrepancy was brought to the notice of the learned counsel Shri Vyas appearing for the original complainant, during the arguments, he submitted that no such Power of Attorney was in fact executed but it was only drafted by the applicant. However, the specific wording used in the letter dated 29th June, 2010, as reproduced herein, show that the said document i.e. MoU and also the Power of Attorney were signed by both the parties on 2nd February, 2007. As such, the explanation given on behalf of the original complainant is difficult to accept when the present matter is for the purpose of granting or otherwise of the relief of anticipatory bail in favour of the present applicant. 20. During the arguments, learned A.P.P. Mrs Shinde for the State raised three points, firstly that the document i.e. the first MoU is having the franking of hundred rupees stamp and that it is not a document on hundred rupees stamp paper and that the said document has been produced by the complainant to the Investigating Agency. She further submitted that considering the discrepancy as detailed above as to the contents in the F.I.R. regarding the manner in which the said MoU was Ladda 15 aba-71-11.doc executed and the contents of the MoU which is produced by the complainant, it is necessary that the interrogation of the present applicant is must. In the considered opinion of this Court, such argument cannot be accepted for the simple reason that the said document is coming from the custody of the original complainant and earlier no such grievance has been made by the complainant regarding first two pages of the said document having been altered. Moreover, according to the present applicant, the copy of the said document has been obtained by him from the papers which were produced by the original complainant during the arbitration proceedings. 21. Second point raised on behalf of the State is that custodial interrogation of the present applicant is necessary on another aspect as to some alteration in the letter dated 29th June, 2010 i.e. the letter sent by the original complainant to the Superintendent of Police, Mumbai for taking action against the original accused No.1 and the present applicant. On this aspect, it is brought to the notice of this Court by showing the original of the said letter that in the last paragraph on the fourth internal page of the said letter name of the present applicant is mentioned by hand as ‘Mr Saraogi, Advocate’. 22. Learned A.P.P.also pointed out that original notice, which is taken from the custody of the complainant, shows on the last page of the said Ladda 16 aba-71-11.doc notice the mention to the effect that “copies of the said letter were given to various authorities, such as, (1) Shri R.R.Patil, Hon’ble Home Minister, (2) Additional Commissioner of Police, (3) A.C.P.Zone II and (4) Senior P.I.Charkop Police Station”. 23. By pointing out the above endorsements and the name of the present applicant appearing in the notice dated 29th June, 2010 addressed to the Superintendent of Police by the original complainant, it is submitted that the copy of such notice produced at page Nos.34 to 38 in the present application for anticipatory bail do not contain the name of the applicant and also do not mention that the copies were sent to the above referred Dignitaries. By pointing out this discrepancy, it is submitted that the custodial interrogation of the present applicant is must. 24. When this argument was confronted to the learned Counsel for the applicant, he submitted that the said copy of the notice was obtained from the documents produced by the original accused No.1 Mr Michael Susai and annexed to the writ petition No.2807 of 2010 filed by him before the Division Bench of this Court. In the said writ petition, the said document is appearing at page No.169 as “Exhibit E”. Even such mentioning of page number and “Exhibit E” is also appearing in copy of the said notice produced by the present applicant in the present Ladda 17 aba-71-11.doc application. As such, even on this aspect the submission on behalf of the State may not be accepted for custodial interrogation of the present applicant for this reason. 25. Lastly, it is submitted on behalf of the State that the applicant has not co-operated with the Investigating Agency though after the interim relief was granted in his favour and directions were given to him to attend the concerned Police station. Though he had attended, but with the accompaniment of other Advocates and also he remained present along with the tape recording instrument. In the opinion of this Court, such type of method adopted by the applicant cannot be taken as non co-operation with police. 26. During the argument, learned counsel for the original complainant – Intervener brought attention of this Court towards the contents of the affidavit filed when matter was before this Court on the last date. According to him, certain amount has already been paid to the applicant to the tune of Rs.1,50,000/- out of which Rs.50,000/- were paid by cash and Rs.1,00,000/- were paid by cheque and the cheque was in favour of one named Junior working with the present applicant. For that purpose, a Bank statement is also produced at page No.9 annexed to the said affidavit dated 5th February, 2011. Apart from this allegation, there is another allegation imputed in paragraph No.18 Ladda 18 aba-71-11.doc of the said affidavit, in the internal page No.7, making serious allegations against the applicant, so far as his conduct is concerned. It is mentioned that two complaints are pending against the present applicant. This mention in the affidavit sworn by the original complainant is brought to the notice of this Court in