CRI. BA 1084/2022
1
ORDER
MHCC020060932022
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
AT MUMBAI
CRIMINAL BAIL APPLICATION NO. 1084 OF 2022
( CNR NO.:MHCC020060932022 )
Kausar Hussain Yahya Bhojani
Address A104, Lotus
Cooperative Housing
Society Ltd, Military Camp,
Kalina, Santacruz (E),
Mumbai 400 029
V/s.
The State of Maharashtra,
(At the instance of Economic
Offences Wing (E.O.W.) vide
C.R.No.68 of 2017)
…Applicant/Accused
…Respondent/State.
Appearance:
Advocate Taraq Sayed, for the applicant/Accused.
Smt. Seema Deshpande, Ld. Addl. P.P.,for the State/respondent.
CORAM : H.H. THE ADDL. SESSIONS JUDGE
ANAND PANDURANG KANADE (C.R.60)
DATE : 04.07.2022.
ORDER
1.
Vide present application under Section 439 of Code of
Criminal Procedure, the applicant requested to release him on bail in
Crime No. 68 of 2017 registered at Economic Offences Wing (E.O.W.)
for offences punishable under Sections 417, 420, 423, 427, 447, 448,
465, 466, 467, 468, 471, 474, 34, 120B of Indian Penal Code.
CRI. BA 1084/2022
2.
2
ORDER
In substance, the prosecution case is as under:
Francis Manuel Coleho is resident of flat No.153/D/39,
Kadam Highway Complex, Komba De Aarlem, South Goa. In the year
1983, complainant was proprietor of JF construction. He constructed
the 4th storey building at Kalina at Vile Parle. Landed property
admeasuring 607 Sq. ft. to bearing Survey No.312, Hissa No.9, CTSN
4880, Sundar Nagar (Kalina), Santacruz (E), Kole Kalyan was owned by
Melvin D’Souza and his family. On 26.10.1985 vide Sale Agreement
complainant purchased that property and vide Conveyance Deed dated
20.08.1987, the said property was purchased by their proprietary firm
of the complainant named M/s. JF Construction. According to the
complainant, he is the owner of the said property. The complainant
thereafter, had initiated the construction of building premises on the
said landed property, after meeting requisite permission and licenses. In
the year 1991, the complainant was forced to stop the construction due
to the health reasons and went to his native place in Goa. Since then, no
construction work has taken place on the said land. According to the
complainant, on 24.07.2014, he entered into Conveyance Deed with
Kunal Chotalia for property and MK building Spaces and also executed
the power of attorney in favour of Kunal Chotalia to register the said
conveyance deed. According to the complainant, when the title search
was taken it displayed that Conveyance Deed in respect of the said land
was already registered in the name of applicant/accused. It is the case
of complainant that he has not executed any document in favour of the
applicant/accused. On the other hand, applicant/accused created
various fabricated documents and the government record. The applicant
has tried to show that he has got executed the power of attorney dated
14.01.1989 and sale agreement dated 14.01.1989. According to the
complainant, those documents are prepared by the applicant and those
CRI. BA 1084/2022
3
ORDER
are bogus and fabricated documents. On the basis of those fabricated
documents, applicant got executed Conveyance Deed dated 15.07.2014
and Rectification Deed dated 23.07.2014 in his favour. According to the
complainant, he has never met with the applicant/accused and never
met the Notary who has notarized the above mentioned documents nor
he has met the advocate who has identified him. The complainant
further denies his meeting with applicant and received money from the
applicant. The complainant also denied the possession of applicant on
the above property. In substance, it is the case of complainant that the
applicant committed forgery and prepared fabricated documents with
power of attorney dated 14.01.1989, and by using that forged
documents, he executed Conveyance Deed dated 15.07.2014 in his
favour and claiming possession over the above property. Hence,
complainant
lodged
report
against
the
applicant/accused.
The
complainant has loss of Rs. 10,00,00,000/ due to applicant.
3.
On the aforesaid grounds, complainant lodged report
against the accused with Vakola Police Station. On that basis, crime No.
423 of 2017 has been registered against the applicant/accused. The
investigation of the crime transferred to E.O.W. and crime No.68 of
2017 has been registered against the accused. During the course of
investigation,
I.O.
arrested
the
present
applicant/accused
on
27.03.2022 and he is remanded to judicial custody till 04.04.2022.
Since then, accused is in judicial custody.
4.
The applicant/accused has filed the present application to
enlarge him on bail. The applicant/accused raised grounds that he has
been falsely implicated in the present matter. He is the true and rightful
owner of the property in dispute situated at Kalina which he had
CRI. BA 1084/2022
4
ORDER
purchased that property from complainant vide agreement dated
14.01.1989. Since then, he is in possession of the said property. The
complainant has filed commercial suit against the applicant/accused in
the court of the Hon’ble High Court, Bombay and that suit is pending.
The instant matter is of purely civil disputed property which has been
given colour of criminal act. The ingredients to constitute the offence of
cheating and forgery as alleged by the complainant are absent in toto.
The entire transaction is based on documentary evidence and the police
personnel have seized the necessary documents. The applicant/accused
is in custody since more than two months. His further custody is not
necessary. There is delay of 3 years in lodging the FIR. On the aforesaid
grounds, applicant prayed to enlarge him on bail.
5.
The I.O. and Ld. Addl. P.P. have filed their Say on record.
The complainant also filed intervention application on record. Heard
arguments at length. I have gone through the police papers and written
notes of arguments filed on record.
6.
It
is
submitted
on
behalf
of
the
applicant
that
applicant/accused is the owner of the disputed property and is in
possession since 1989. Present informant came into picture in 2015.
Since 2017, investigation is going on. One civil case is pending before
Hon’ble High Court. Entire dispute is of civil nature. Applicant/accused
cooperated with the investigation since 2017. Accused is ready to abide
by the terms and ready to furnish the bail. On the other hand, Ld. Addl.
P.P. submits that nature of offence is very serious one. Complainant was
the original owner of disputed property. Applicant/accused has
prepared one bogus power of attorney in his favour and on the basis of
which Conveyance Deed has been executed in favour of applicant. The
CRI. BA 1084/2022
5
ORDER
power of attorney prepared and registered by advocate and notary
public are not alive. Said documents are highly suspicious documents.
The possession over the disputed property is of informant. There is
possibility of absconding of accused and tampering the prosecution
evidence and repetition of crime in future. Hence, it is prayed to reject
the bail application.
7.
After going through the papers on record, it reveals that
after completion of investigation chargesheet is filed against the
applicant/accused. It also reveals that during the course of investigation
I.O. collected various documents. It also reveals that one civil suit is
pending before the Hon’ble High Court between the complainant and
the
applicant/accused.
It
also
reveals
that
since
04.04.2022
applicant/accused is in judicial custody. After going through the papers
on record, it is crystal clear that I.O. has collected material documents
during his investigation. Chargesheet is submitted against the
applicant/accused. No justified ground is made out for the further
detention of the applicant/accused. Considering the above facts, I am of
view that applicant/accused is entitled to be enlarged on bail but on
certain conditions. Hence, following order.
:ORDER:
1.
The Criminal Bail Application No.1084 of 2022 is allowed as
under.
2.
The applicant accused namely Kausar Hussain Yahya Bhojani be
released on bail on executing personal bond of Rs.1,00,000/ and one
or two solvent sureties of the same amount in Crime No. 68 of 2017
registered at Economic Offences Wing (E.O.W).
CRI. BA 1084/2022
3.
6
ORDER
Cash security of Rs.1,00,000/ is permitted provisionally for the
period of 1 month in lieu of the surety bond.
4.
The accused shall not leave territorial limits of Mumbai and
India without prior permission of the court.
5.
The accused shall submit a list of atleast 3 blood relatives with
their detailed residential addresses and also the addresses of their place
of work if any, and documentary proof of showing the correctness of the
details provided by them.
6.
The accused and the surety shall inform the police authorities as
well as the trial court, the change of their residential address while the
accused is on bail.
7.
The accused shall submit copies of at least 2 documents amongst
the Pan Card, Adhar card, Ration card, Electricity Bill, Voter ID card
issued by the election commission or the documents in respect of
immovable properties owned by him.
8.
After submission of the documents as mentioned above, the
Investigating Officer shall conduct physical verification of the residential
address so as to confirm the address appearing on those documents.
9.
The accused shall not make any inducement or threat to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police officer or tamper with
the evidence.
CRI. BA 1084/2022
10.
7
ORDER
The accused shall not commit any offence similar to the offences
of which he is accused in the present matter.
11.
Conditions No. 5 to 8 shall be complied with simultaneous to the
furnishing of the cash security or the surety bond whichever is earlier.
12.
Bail before the Court of Metropolitan Magistrate.
Anand
Pandurang
Kanade
Digitally signed
by Anand
Pandurang
Kanade
Date:
2022.07.11
16:39:12
+0530
(Anand P. Kanade)
Addl. Sessions Judge
Sessions Court,
Mumbai. C.R. 60
Dictated on
Transcribed on
Date of sign
: 04.07.2022
: 05.07.2022
: 08.07.2022
CRI. BA 1084/2022
8
ORDER
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11/07/2022
, 5.00 p.m.
UPLOAD DATE AND TIME
Mr. Prasad S. Pednekar
NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ Anand P. Kanade,(C.R.No.60)
Addl. Sessions Judge.,City Civil &
Sessions Court,
Date of pronouncement of /Order
04.07.2022
Order signed by P.O. on
08.07.2022
Order uploaded on
11.07.2022