1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1518 OF 2010 Vijay s/o Chandraprakash Uplanchiwar & anr. ...Applicants VERSUS The State of Maharashtra ...Respondent ..... Shri V.I.Thole, advocate for the applicants Smt. Vaishali Shinde, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 7th May, 2010 PER COURT :- 1 Heard Shri V.I.Thole, advocate for the applicants and Smt. Vaishali Shinde, A.P.P. for the respondent. 2 This is an application preferred by applicant nos. 1 and 2 seeking anticipatory bail apprehending their arrest under CR No.I-116 of 2010, registered at Mukundwadi police station, Aurangabad, for the offence punishable under Sections 406, 420 and 34 of the Indian Penal Code. 3 It appears that the offence has been registered on the 2 complaint lodged by the complainant namely Suresh Laxmanrao Gawale on 30.3.2010. It is alleged in the said complaint that applicant nos. 1 and 2 represented the complainant that the land bearing Gat No.33/3 admeasuring about 81 Ares was owned by Amjadkhan Gulam Mohd. Khan and Abdul Rashid Abdul Ajij, who have authorised the applicants to sell the said land and showed the 7/12 extract thereof to the complainant. It is also represented by the applicants to the complainant that the said owners executed a registered power of attorney bearing registration No. 1733 of 2007 dated 29.3.2007, and thereby gave authority to sell the said land. Accordingly, after negotiations, the sale price of the said land was fixed between the applicants and the complainant at Rs.30,50,000/- and the complainant gave paper publication in that respect through his advocate namely Nitil Kamble in “Daily Lokmat” on 27.9.2008. However, since the said funds of Rs.30,50,000/- were not available with the complainant, he made (1) Sunilkumar Shankarlal Kandaniya, (2) Hariom Narymal Goyal, (3) Kailas Jagannath Yashwante, (4) Padeep Krishnrao Dhage, and (5) Rajesh Vitthaldas Bhetiya as partners to the said sale transaction and accordingly Isar Pawati was executed on 18.10.2008 before Notary Advocate Daund on Rs.100/- stamp in respect of the afore said transaction of sale of Rs.30,50,000/-. 4 It further appears that on execution of the said Isar Pawati, the complainant and his afore said partners issued different cheques amounting to Rs.9,00,000/- to applicant nos. 1 and 2 herein, as well as 3 paid cash amount of Rs. 9,00,000/- to applicant nos. 1 and 2 on 1.1.2009 on execution of Bharana Pawati on Rs.100/- stamp before Notary. It was agreed between the applicants on one part and the complainant and his partners on other part that since the said land was of Kul permission from Collector office was to be obtained as well as said land was to be measured and thereafter remaining balance amount of Rs. 12,50,000/- was to be paid by the complainant and his partners to the applicants at the time of registration of the sale deed by original owners. Moreover, the complainant contends that he repeatedly reminded the applicants to obtain permission in respect of the said land from the Collector office and gave the necessary documents to him therefor, but no compliance was made in that respect. However, a public notice was published in “Daily Citizen”, Aurangabad on 10.2.2009 by original owners namely Amjadkhan Gulam Mohd. Khan and Abdul Rashid Abdul Ajij, and thereby they cancelled the power of attorney given to applicant no.1 herein. Thereafter applicant nos. 1 and 2 called upon the complainant and demanded extra amount of Rs.5,00,000/- and stated that the balance amount of Rs. 12,50,000/- be paid at the time of registration of the sale deed. Since the original owners cancelled the power of attorney of the applicants, the applicants gave extension of two months period to the complainant therefor and handed over the possession of the said land on 8.1.2009. It is also alleged in the said complaint that the complainant made various telephone calls to applicant nos. 1 and 2 on their mobiles and requested them to obtain permission regarding the 4 said land from Collector office and accept balance amount of Rs. 12,50,000/- and also requested to call upon the original owners and execute the registered sale deed in favour of the complainant, but the applicants herein avoided to execute the registered sale deed in favour of the complainant. 5 It is, therefore, the grievance of the complainant that the applicants have accepted amount of Rs. 18,00,000/- from the complainant and his partners, but did not make the requisite compliances and did not execute the registered sale deed in favour of the complainant and his partners, even after accepting amount of Rs. 18,00,000/- towards the said sale transaction and thereby deceived and cheated the complainant and his partners. It is also the grievance of the complainant that the applicants issued notice dated 16.1.2010 to the complainant and thereby forfeited amount of Rs. 18,00,000/- paid by the complainant and his partners to the applicants. 6 On the afore said background, learned counsel for the applicants submitted that, in fact, the complainant did not adher with the terms and the conditions of the agreement, and therefore, the applicants, terminated the contract and forfeited the amount. Hence, it was incumbent upon the complainant to move the Civil Court for the relief of specific performance of the contract. However, the complainant filed the present application and sought recourse to criminal action, with a view to malign the reputation of the applicants, 5 which is unwarranted. It is also canvassed by the learned counsel for the applicants that the entire allegations are based upon the documents and necessary documents were already submitted to the police personnel, and therefore, there is no necessity of custodial interrogation of the applicants, and hence, urged to grant the present application for anticipatory bail. 7 Learned A.P.P. opposed the present application vehemently and submitted that the applicants’ power of attorney was cancelled by the original owners by giving notice in news paper “Daily Citizen” on 10.2.2009 and also by sending personal notice to applicant no.1 on 17.2.2009 through advocate Anil Sadanshive, which was received by applicant no.1, but in spite of that, the applicants demanded extra amount of Rs.5,00,000/- from the complainant. It is also canvassed by learned A.P.P. that the applicants did not execute sale deed in favour of the complainant as per the afore said agreement, and thereby committed breach of trust and deceived and cheated the complainant to the tune of Rs.18,00,000/- allegedly forfeiting the said amount. Moreover, it is also pointed out that the applicants are not available for the investigation purpose and allegedly they are absconding. Moreover, it is also specifically pointed out by learned A.P.P. that after granting interim order by learned Additional Sessions Judge, Aurangabad, the applicants did not make available themselves for interrogation purpose and even after granting interim protection in the present application also the applicants did not make themselves 6 available for interrogation purpose in spite of calling them and did not cooperate in the investigation. Hence, it is urged that present application is required to be dismissed, to carry out the further investigation smoothly. 8 On perusal of the investigation papers as well as after considering the submissions advanced by both the learned respective counsel for the parties, indisputably an agreement was entered into between the applicants and the complainant in respect of sale of land bearing Gat No. 33/2 on the basis of power of attorney executed by the original owners in favour of the applicants on 29.3.2007. However, the said original owners namely Amjadkhan Gulam Mohd. Khan and Abdul Rashid Abdul Ajij cancelled the said power of attorney given in favour of the applicants by issuance of public notice in news paper “Daily Citizen” through advocate Sadanshive for the reasons stated therein. Moreover, it is also brought to my notice that advocate Anil Sadanshive gave personal notice to applicant no.1 on 17.2.2009 on behalf of above referred two original owners namely Amjadkhan Gulam Mohd. Khan and Abdul Rashid Abdul Ajij, and thereby cancelled the power of attorney dated 29.3.2007 executed in favour of the applicants for the reasons stated therein, particularly alleging that the applicants herein accepted the consideration amounts in respect of the sale of the said land, but did not pay the said amounts to the original owners, thereby committing breach of condition of power of attorney dated 29.3.2007. Learned A.P.P. pointed out from the certificate issued by Sub-post 7 Master, CIDCO colony, Aurangabad that the said notice was delivered to applicant no.1 on 18.2.2009. However, pertinently in spite of the cancellation of the said general power of attorney dated 29.3.2007 by the original owners namely Amjadkhan Gulam Mohd. Khan and Abdul Rashid Abdul Ajij by public notice dated 10.2.2009 and personal notice dated 17.2.2009 which was delivered to applicant no.1 on 18.2.2009, the applicants have issued notices to the complainant on 5.10.2009 and 16.1.2010 through advocate and thereby cancelled the agreement between the complainant and applicants and forfeited huge earnest amount of Rs.18,00,000/- and thereby apparently deceived and cheated the complainant. 9 Having the comprehensive view of the matter, apparently it appears that there is no possibility of false implication of the applicants in the present crime, as well as it also does not appear to be the object of the complainant to malign the reputation of the applicants by filing the present application. Moreover, it is also significant to note, as pointed out by learned A.P.P., that in spite of cancellation of general power of attorney dated 29.3.2007 by the above referred original owners as afore said by public notice dated 10.2.2009 and personal notice dated 17.2.2009, which was apparently received by applicant no.1 on 18.2.2009, applicant nos. 1 and 2 have executed sale agreements in respect of various plots in the said land bearing Gat No. 33/2, Mauje Garkheda, Taluka and District Aurangabad in favour of various prospective purchasers on 16.3.2010, 20.3.2010, 26.3.2010 and 8 29.3.2010 and notarised the said agreements, and apparently thereby cheated to the prospective purchasers also, and therefore, custodial interrogation of applicant nos. 1 and 2 is necessary to investigate the said aspect thoroughly to its root. Hence, present matter does not rest only of civil nature and criminal intention to deceive the complainant as well as prospective purchasers of plots is involved therein apparently, and as such there is no substance in the arguments canvassed by the learned counsel for the applicants that the present matter is of civil nature. Besides that, huge amount of Rs. 18,00,000/- is involved in the present transaction as well as huge amounts accepted by the applicants from the prospective purchasers for the alleged sale of plots in the said land bearing Gat No.33/3, Mauje Garkheda, Taluka and District Aurangabad by way of afore said sale agreements dated 16.3.2010, 20.3.2010, 26.3.2010 and 29.3.2010 are also involved in the alleged crime, and hence, it is not advisable to grant present application, and if the present application is allowed, it would cause hindrance in the smooth progress in the investigation, and therefore, present application deserves to be rejected, for further progress in the investigation in proper perspective. 10 Moreover, it cannot be ignored that the applicants did not make themselves available for interrogation purpose during the period of interim protection, as pointed out by learned A.P.P. Hence, custodial interrogation of applicants apparently, is necessary for further progress in the investigation in proper perspective. 9 11 Considering the accusations made against applicant nos. 1 and 2 as well as nature and gravity thereof and of huge stake involved therein, it is apparent that the applicants have failed to make out a case for grant of anticipatory bail. 12 In the result, present Criminal Application No. 1518 of 2010 bears no substance and same is devoid of any merits, and therefore, same stands dismissed. Interim protection stands vacated. 13 The above observations are prima facie observations and shall be restricted to this order only and shall not be used in any other matter while deciding it on merits. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1518.10