1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Criminal Application (ABA) No. 208 OF 2011 Sanjay s/o Rajendra Jain ..Vs.. State of Maharashtra, through P.S.O. Gondia City. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. J.M. Gandhi, Adv. for applicant. Mr.D.B. Patel, APP for the State. Mr. V.R. Mundra, Adv. to assist APP. CORAM : M.N. GILANI J. DATE : 07.07.2 011 . 1. This is an application for grant of anticipatory bail. The applicant is an accused in Crime No. 118/2011, registered at the Police Station Gondia (City)on 21.5.2011 for the offences punishable under sections 420, 468 and 471 of I.P.C. 2. The land bearing kh. no. 189/3, admeasuring 0.30 HR at mouza Fulchur, District Gondia (in short disputed land) was purchased by the applicant on 20.1.2004. On 29.3.2006, by executing registered sale deed he transferred ownership of disputed land in favour of his wife Smt. Seema. On 19.1.2010, he entered into a transaction of sale of disputed land for consideration of Rs. 27,00,000/- with Vijaykumar Chourasia and Dhanraj Sukhdas Shivlani. Amount of Rs. 2 6,75,000/- was accepted as an earnest money. It was decided that within a period of six months the disputed land would be measured and after accepting the balance amount a sale deed would be executed. On 21.5.2011 Dhanraj Sukhdas, the complainant lodged report at the Police Station, Gondia (City) alleging that persons by name Govind Sathawane and Parasram Shahare are raising dispute about the disputed land. He further alleged that the applicant although had transferred the land in favour of his wife on 29.3.2006, represented to them that he was the real owner and accepted from them earnest amount of Rs. 6,75,000/- and thus committed offence of cheating. He also alleged that when the complainant wanted to discuss the issue with the applicant, the latter threatened them. The fact that one more offence bearing Crime no.81/04 under section 420 and 468 of I.P.C. registered against the applicant was also brought to the notice of police. 3. After offence was registered, the applicant filed anticipatory bail application no. 207 of 2011 which came to be decided by the Additional Sessions Judge, Gondia. The learned Judge rejected the application by holding that case of cheating and forgery has been made out and custody of the applicant is necessary for interrogation. 4. The learned counsel for the applicant contended that 3 when the agreement was executed on 19.1.2010, it was made clear to the complainant and other co-purchaser about the sale deed dated 29.3.2006 of the disputed land executed by him in favour of his wife. He had also informed that again his wife had agreed to resale the disputed land to him vide agreement dated 8.10.2009. Although he was ready to perform his part of the contract, the complainant and his other co-purchaser did not show any interest and because of that he issued them notice calling upon them to get the sale deed executed after paying balance amount of Rs.20,25,000/-. According to him, the transaction is of civil nature. He relied upon decisions in case of Jagannath Ramchandra Biyani Vs. State of Maharashtra 1981 Mah. L.J. 791, in Nageshwar Prasad Singh alias Sinha Vs. Narayan Singh and another AIR 1999 Cri. L.J. 598 and in the case of Ravindra Saxena Vs. State of Rajasthan I(2010)CCR 62 (SC) . 5. In the case of Nageshwar Prasad Singh Vs. Narayan Singh (supra) it was found that the dispute between the parties was of civil nature. Suit for specific performance by the complainant was already filed and was pending before the civil court. 6. In Ravindra Vs. State of Rajasthan (supra), the application for anticipatory bail was rejected without considering the case of the appellant and solely on the 4 ground that chalan was filed. Their Lordships observed that - “High Court is required to exercise its discretion upon examination of facts and circumstances and to grant anticipatory bail “if it thinks fit”. 7. Further reliance was placed on the decision in the case of Joginder Kumar Vs. State of U.P. and others AIR 1994 S.C.1349. In this case, Their Lordships made a reference to The Third Report of the National Police Commission and enumerated the circumstances in which the arrest is imperative or desirable. 8. Relying upon aforesaid decisions, the learned counsel for the applicant contended that the personal appearance of the applicant is not necessary. He would abide by any reasonable condition which this court may choose to impose. 9. After considering the material placed on record what is emerged is thus : i) After transferring ownership rights in the year 2006 in favour of his wife, the necessary mutation was not carried out and as a result of this the name of the applicant continued as owner in 7/12 extract. This could be because of the fact that the applicant wanted to continue the same position or it can be stated to be an inaction on the part of the revenue authority. 5 ii) Taking advantage of it, he represented himself as owner of the disputed land. iii) The complainant and co-purchaser believed that the applicant is an owner and paid him Rs.6,75,000/- and agreed to pay him balance amount of Rs. 20,25,000/-. iv) In the agreement, the applicant has categorically mentioned that the disputed land is solely owned by him. He has further mentioned that he is owner on the basis of the sale deed dated 20.1.2004 registered in his favour. v) In the said agreement, he declared that before entering into the transaction dated 19.1.2010, he had not transferred or alienated the disputed land in any manner to any person. vi) After the first information report was lodged i.e. on 21.5.2011, he issued notice dated 21.7.2010. vii) In the said notice, again he reiterated his ownership and further mentioned that he was ready to execute the sale deed on 17.7.2010. 10. Thus, there are series of misrepresentations right from using old entry in the 7/12 extract, making false declaration in the agreement of sale and again asking the complainant and his co-purchaser to pay the balance amount. There is a reason to 6 believe that all these representations were false to his knowledge. Despite he being not the owner, he made the complainant and his associate to part away with huge amount of Rs.6,75,000/- and even wanted the balance amount. 11. The contention of the applicant is that the fact of he having had executed sale deed in favour of his wife and the wife again executing agreement of sale was brought to the notice of the complainant and the co-purchaser. This appears to be an afterthought. Nothing would have prevented the applicant to make mention of all these facts in the agreement of sale. At least in the notice he could have explained that he is ready to execute sale deed despite the sale deed dated 29.3.2006 in favour of his wife. Till date the applicant is not a owner. Notice which is issued is also false to his knowledge in the sense that because of he already having had divested of the ownership of the disputed land on 29.3.2006, he could not have executed sale deed on 17.7.2010. The claim made in the application that he learnt about lodging of the first information report from newspaper is without any foundation. The notice issued by him on 27.7.2010 is also after lodging of the first information report. 12. This is not merely a case of breach of promise to perform part of the contract. As mentioned above, there are series of lies. There are allegations in the first information report that when the complainant and his co-purchaser confronted the 7 applicant about his ownership over the disputed land, he picked up quarrel and started threatening them. The complainant in his first information report alleged that - “ tc vtZnkj ds lHkh iz;kl foQy gks x;s rc vtZnkjus fnukad 19-5-2011 dks xSjvtZnkj ls nLr,Sot dh izek.k lfgr ckrfpr djus dh dks’kh’k dh rks xSjvtZnkj ;g vtZnkj dks /kedkus yxk dh eS rqEgkjh fldk;r rgflynkj bUde VSDl vf/k foHkkx o esjh iRuh ds ekQZr QkStnkjh dsl es ,slk Qlk;waxk vkSj my>kmxk dh rqe c;kuk dh jde dks Hkqydj eq>s vkSj :i;k nsdj esjs pDdj yxk dj eq>ls o esjs iRuh ls ljs vke ekQh ekaxksxs eS i=dkj ijh”kn cqykdj esjh iRuh ds }kjk rqeij oks bYtke yxkmxk dh ‘kgj dh iksyhl Hkh esjs bl dk;Z ls rqEgkjk lkFk ugh nsxh blds igys Hkh eSus ,sls dgh dke fd;s gSA blfy;s rqEgkjh bl fx/kG /kedh ls esjk dqN fc?kMus okyk ugh gSA eS rks ckyk?kkV ls vkSj ukxiwj ls xaqMs cqykdj rqEgkjk dke reke Hkh djok ldrk gsA eSus esjs lekt ds jkts’k tSu vkSj mudh iRuh dks tks dh cgksr iSlsokys gSA mldks ugh NksMk rks rqe mlds lkeus cdjh ls de ugh gks A ” 13. Considering the nature of the accusation and subsequent conduct of the accused, I am of the view that the discretion of giving direction under section 438 of Cr. P.C. cannot be exercised. Application is rejected. 14. It is made clear that the observations made herein above shall be deemed to have been made for the purpose of deciding this application only. JUDGE Hirekhan.