MHNS010054722020

1.Sangita Jibhau Gangurde,
2.Mayur Jibhau Gangurde,
3.Sushant Jibhau Gangurde, … Applicants.

Vs.

State Through P. I., Mumbai Naka Police Station, Nashik … Opponent.

Order below Exh.1 in Cri. Bail Application No. 1839/2020
1.This is an application filed by applicant/accused no. 1 to 3 under section 438 of the Code of Criminal Procedure for grant of anticipatory bail on apprehension of their arrest in Crime No.451/2020 registered at Mumbai Naka Police Station for offence under section 405, 417, 419, 420, 427, 468, 471, 199, 200, 120B r/w section 34 of Indian Penal Code.

2.The aforementioned crime came to be registered in pursuance to directions issued under section 156(3) of the Code of Criminal Procedure on complaint alleging that complainant Dadaji Punjaji Ahire is owner of property bearing Survey No. 163/3­A, situated at Mhasrul within the limits of Nashik Municipal Corporation. It is further alleged that this property is transferred in the name of applicant no. 1 on the basis of forged special power of attorney which is alleged to have been executed on 30.07.2010
between the complainant and applicant no. 1. Complainant came to know about transfer of his property in the name of applicant on receipt of notice in RTS Appeal No. 253/2018 on 14.02.2019.

3.It is the contention of applicants that applicant no. 1 is mother of both applicants no. 2 and 3. Applicant no. 2 is a radiologist and practicing since last nine year at Nashik. Applicant no. 3 is a businessmen. Applicants are innocent and falsely implicated in the offence which otherwise is of a civil nature.

Applicants have come with the case that there is land survey no.

163/3­B adjacent to the property of complainant. Both complainant and the owner of other property executed special power of attorney on 30.07.2010 in favour of applicants which was attested before notary public. In the year 2012 complainant was willing to alienate his property. Applicants being known to him negotiations between them for purchase of the said property were conducted. Accordingly both of them alienated the properties in favour of applicants through registered sale deed for valuable consideration on 01.12.2014. Thereafter complainant executed confirmation deed on 15.12.2014 in favour of applicants. He also executed separate bharana pavati in presence of witnesses.

4. It is contended that applicants have transferred consideration of the property to the tune of Rs. 49,50,000/­ in favour of complainant through three different cheque of Rs. 16,50,000/each. Applicants entered their names to record of right and had applied for use of the land for non­agricultural purpose. Applicants found that there was some error in record of rights for which they filed appeal before revenue authority. Complainant issues notice on 19.03.2019 and demanded cancellation of sale deed. Applicants are replied the notice. However, he filed the complaint only with intention to extract more money by taking advantage of the error committed in record of rights in respect of the property. According to applicants the nature of offence is of civil dispute. It pertains to documents which the applicants are ready to produce. Applicants are respectable persons and their custodial interrogation is not necessary. Therefore they pray to allow the application.

5. Prosecution opposed the application on the ground that applicants are involved in forgery of a valuable security. They are involved in commission of serious offence wherein they used the forged document to deceive the illiterate complainant and grabbed his immovable property. Prosecution wants to investigate involvement of other persons in the offence who assisted the applicants to forge the documents and enter into transaction of valuable property.

6. Complainant appeared through advocate and submit that he is owner of land survey no. 163/3­A to the extent of 90 R situated within limits of Municipal Corporation, Nashik. He purchased the property on 30.07.2010 from erstwhile owner. It is not possible that on same day he will execute special power of attorney in favour of applicant no. 1. Applicants have forged the said documents and got the property transferred in their name on 01.12.2014. According to him no consideration of the properties came to be passed in his favour.

7.Heard Advocate Shri.M.D. Bhanose for applicants. Learned APP Smt. Gore for State and Advocate Shri. Rokade for complainant.

8.Having considered the submission of both sides at length and on going through the entire documents placed on record it is undisputed that complainant is original owner of the property in dispute. He purchased it from erstwhile owner through registered sale deed on 30.07.2010. On the same day the alleged special power of attorney is executed in the name of applicant no. 1 by the complainant. The alleged POA was used by applicant no. 1 to transfer this property in the name of herself and her two sons that is applicant no. 2 and 3 on 01.12.2014. The consideration amount was paid to the complainant through three different cheque for an amount of Rs. 16,50,000/­ each on 15.12.2014.

9.The advocate for applicants submit that the dispute is purely of civil nature. There is no need of custodial interrogation of the applicants for the purpose of investigation. The investigation can be conducted on the basis of documents which the applicants are ready to produce. They have placed on record the original copies of POA and sale deed on record for inspection. In support of his submission that the dispute has flavor of civil nature and therefore the applicants can be granted the protection from arrest placed reliance on case of M/s. Thermax Ltd. & Ors. Vs. K.M. Johny & Ors. 2011 ALL MR (Cri) 3603 (S.C.).

10.The learned prosecutor on the other hand submits that applicants are involved in commission of forgery and cheating. The investigation agency need a fair opportunity for investigation. The advocate for complainant submits that the complainant who had purchased the property on 30.07.2010 himself form the erstwhile owner had no reason to execute POA in favour of applicant no. 1 on the same day. He further submits that alleged sale deeds are executed on 01.12.2014 and the consideration is shown to have been passed in favour of complainant on 15.12.2014. According to him applicant no. 1 being special power of attorney had no right to execute sale deed in her own favour on 01.12.2014. He further submits that there is huge involvement of money and mussel power to cheat the illiterate complainant and therefore the applicants do not deserves to be released on anticipatory bail.

11.From the facts and circumstances brought on record following questions arise which needs to be considered.

Complainant himself purchased the property on 31.07.2010 and had executed special power of attorney in favour of applicant no. 1.

The special power of attorney is not registered but attested before notary public. This document is used for execution of sale deed dated 01.12.2014 of the property by applicant no. 1 in favour of herself and her two sons. The consideration amount of Rs.49,50,000/­ is shown to have been transferred in favour of complainant on 15.12.2014. The record of rights was not correctly recorded in accordance to the sale deed for which proceedings before revenue authority are pending. The government valuation of the said property is Rs.90,00,000/­ in the year 2014 which is alleged to have been purchased for consideration of Rs. 49,50,000/­ by applicant no. 1 in dual capacity of POA of vendor and vendee along with her two sons. These aspects create a shadow of doubt on the transaction alleged to have taken place between the complainant and the applicants. Though the dispute is of civil nature it involves elements of alleged criminal act of forgery and cheating. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrong doer for having committed an criminal act. In my considered opinion having regard to the nature of transaction entered into between the parties in respect of the property of complainant on the basis of special power of attorney a fair opportunity deserves for proper investigation of the matter.

The application for grant of anticipatory bail does not deserves to be allowed. In result I pass the following order :­

O R D E R
(i) The application is rejected.

(Dictated and pronounced in open court) Digitally signed by Pradeep Pradeep Bhimrao Ghuge Bhimrao Ghuge Date: 2021.01.08 11:45:31 +0530 (P. B. Ghuge) Place : Nashik. Additional Sessions Judge, Date : 07­01­2021. Nashik.