1 CAG-3907.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPLICATION NO.3907 OF 2010 Dilpreet Singh .... Applicant Vs. The State of Maharashtra .... Respondent S/Shri Shirish Gupte, Senior Counsel with Sanjog Parab i/b M/s. Parab & Associates for the Applicant. Ms P.H. Kantharia, APP, for the State. WITH CRIMINAL APPLICATION NO.3924 OF 2010 Bharat Bhaurao Vaity .... Applicant Vs. The State of Maharashtra .... Respondent S/Shri S.R. Borulkar i/b Amit Karande for the Applicant. Shri Y.M. Nakhawa, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: OCTOBER 06, 2010 P.C: 1. These two applicants seek anticipatory bail since they apprehend arrest in C.R. No.206 of 2007, registered with the Kashimira Police 2 CAG-3907.10 Station, District Thane for the offences punishable under Sections 465, 420, 467, 468 and 471 r/w Section 34 of the IPC. 2. Learned counsel appearing for the both the applicants as well as the learned APPs have addressed me at more than adequate length. The facts unfolded from the arguments advanced are some what like this: 3. Properties bearing Survey Nos.203/5 and 204/6, situated at Ghodbunder, District Thane, belong to Bhavna and Vikram, daughter and son respectively of Kantilal Saraiya and their mother Devindra. Vikram died on 17-3-2000. The applicants claim that they were approached by one Mukhtar Vasani stating that the property belonging to Saraiya was available for sale. The applicants issued a public notice in a daily newspaper Nav Shakti on 15-9-2006 stating about their intention to purchase the said property and inviting objections, if any. Bhavna Saraiya is stated to have executed a Power of Attorney in favour of her brother Vikram Saraiya on 6-10-2006 when Vikram was already dead on 17-3-2000. On the basis of this Power of Attorney, Vikram is alleged to have executed an agreement of sale which was 3 CAG-3907.10 registered with the office of the Sub-Registrar on 20-10-2006. The applicants claim to have paid a sum of Rs.4,00,000/- to said Vikram Saraiya. The agreement was for Rs.5,00,000/-. On 22-12-2006 the applicants entered into an agreement for sale of the property in favour of M/s. Estima Trade Solutions Pvt. Limited for a sum of Rs.8,00,000/- and received the entire amount from the said M/s. Estima Trade Solutions Pvt. Limited. On 15-10-2007, Bharat Vaity, the applicant in Criminal Application No.3924 of 2010, received a telephone call from a lady claiming to be Bhavna Saraiya, questioning him as to how a board had been displayed at the property stating that Bharat Vaity was the owner of the property. On 17-10-2007 Bharat Vaity gave a written complaint to the Kashimira Police Station. On 22-10-2007 Bhavna Saraiya filed a report with the said police station. On 25-10-2007 M/s. Estima Trade Solutions Pvt. Limited filed a civil suit against the present applicants as well as the Saraiyas for specific performance of the agreement for sale. In this suit, the defendants did not file any written statement and hence the suit was eventually decreed on 31-10-2009. The police had arrested Mukhtar Vasani on 5-11-2009 and had produced him before 4 CAG-3907.10 the learned Magistrate with the request for police custody remand. However, it seems that the learned APP in charge of the proceedings stated before the Magistrate that police custody was not required and, therefore, the Magistrate took the said Mukhtar Vasani into magisterial custody. The said Mukhtar Vasani has been bailed out. 4. In the context of these facts, the question as to whether the applicants need to be arrested for investigation of the crime has to be considered. 5. Learned counsel appearing for the applicants submitted that the applicants too are, victims of the fraud played upon them by Mukhtar Vasani, who had set up some wrong person as Vikram Saraiya. They state that after issuing the necessary public notice, they had agreed to purchase the property and even valuable consideration of Rs.4,00,000/- had been paid. Ms P.H. Kantharia, learned APP, submits that the applicants are not at all victims since within two months of this sale, they made a neat sum of Rs.8,00,000/- out of the sale of the property to M/s. Estima Trade Solutions Pvt. Limited. Therefore, it is not 5 CAG-3907.10 that the applicants have suffered any loss. She submits that even after coming to know that Bhavna Saraiya had told the applicant Bharat Vaity that she was the owner of the property and had not sold the property to anyone, the applicant did not care to put any written statement in the suit filed by M/s. Estima Trade Solutions Pvt. Limited. She also submits that it cannot be a co-incidence that M/s. Estima Trade Solutions Pvt. Limited filed a suit on 25-10-2007, that is within ten days of Bharat Vaity receiving a telephone call from Bhavna Saraiya. The learned APP further submits that if the applicants had in fact met the person who claimed to be Vikram Saraiya, they should have been able to see that the person who appeared before the Sub-Registrar for executing the agreement of sale was different than the one who had executed the possession receipt in their favour. The photograph of the person taken before the Sub-Registrar shows that he was wearing spectacles whereas the possession receipt as well as all the other documents like the Power of Attorney executed by Bhavna Saraiya in favour of Vikram Saraiya show a different photograph of a person without spectacles. Since the photographs are not very clear, it would be hazardous to observe at this 6 CAG-3907.10 stage that the persons in the two photographs are necessarily different. That should be a matter of investigation. 6. Even if the contention of the learned APP, that the applicants are not victims is accepted, it is not clear as to what prompted the prosecution to let Mukhtar Vasani go away when the allegation was that Mukhtar Vasani was the person who had introduced Vikram Saraiya to the applicants. Secondly, complaint was made by one of the applicants, namely, Bharat Vaity in October, 2007 itself. Thereafter, a suit was filed and the suit was decreed. The learned Judge has observed in his judgment that the defendants were duly served but did not put in any written statement. When the police officers were made aware of such a fraud which they were investigating, it is not clear as to what inquiries were made in the year 2007 with the present applicants in respect of the transaction. This civil suit is referred to in the order passed by the learned Addl. Sessions Judge rejecting the applicants bail application. This order was passed in July, 2010. Yet, till today it seems that there is no attempt to find out as to whether the Saraiyas were in fact served in the civil suit or not. 7 CAG-3907.10 In these circumstances, the contention of the learned APP that only by subjecting the applicants to custodial interrogation the crime would be resolved, does not stand to reason. Both the applications are allowed. In the event of their arrest, both the applicants be released on bail in the afore-stated C.R. on their furnishing P.R. Bond in the sum of Rs. 50,000/- with one or more solvent sureties in the sum aggregating to Rs.50,000/-. The applicants shall make themselves available for interrogation by the I.O. as and when required and shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer and they shall not leave the country without the prior permission of the trial Court. The applicants shall appear before the I.O. on 12-10-2010 at 10:00 a.m. and thereafter, as and when called by the police. As far as the question of appearance of the applicants before the I.O. on 12-10-2010 is concerned, there is no question of any notice but thereafter whenever the I.O. requires their presence, the I.O. would take an acknowledgement from the applicants in the preceding sitting so that there are no disputes 8 CAG-3907.10 about service of notice. Both the applicants shall give their telephone and mobile phone numbers to the I.O. so that the I.O. could, in case of an emergency, send a SMS to secure their presence. This order shall remain in force till the charge-sheet is filed. The applications accordingly stand disposed of. (R.C. CHAVAN, J.)