MHNS010050552022 Order below Exh. 1 in Criminal Anticipatory Bail Application No. 1180/2022.

1.This is an application for anticipatory bail under Section 438 of the Cr.P.C. in C.R.No. I­158/2022 registered against applicants (1) Subhash Tulshiram Birari, (2) Sanjay Madhukar Birari, (3) Vijay Madhukar Birari, (4) Kailas Madhukar Birari and (5) Gorakh Vaman Katale at Sarkarwada Police Station for the offence punishable under sections 420, 465, 468, 471 r/w section 34 of the Indian Penal Code.

2.In short, the case of the prosecution is that, applicant along with six others got the layout sanctioned in connivance with each other in Survey No. 226/1/1 to the extent of 61R consisting of DP road and colony road. Even when the complainant has not sold document has been executed to show that for DP road and colony road without consideration amount 1128 sq. meter area is handed over to the corporation by forging the signature of the complainant. On the basis of forged and fabricated agreement final layout was sanctioned for grabbing 16.50R area from the possession of the complainant. Hence, this complaint.

3.Applicants have sought pre­arrest bail on the ground that deceased Pandurang Kaskar who is the father of the complainant along with others had executed the sale deed with respect to the above mentioned property ad­measuring 81R out of Survey No. 226/1/1. Complainant sold the property on the eastern side of Survey No. 227, however, at that time Kaskars did not show 18 meter DP road or the existence of easementary road in the sale deed. Misrepresentation has been made by the complainant in the complaint to that behalf. Applicants no. 2 to 4 were seized with the possession of the property so they executed power of attorney in favour of Mohan Metkar who sought profession help of arcitect Gorakh Katare. It was then realize that there exists 18 meter DP road and easementary road which was not disclosed by the complainant. They got tentative lay out plan after due consultation with the complainant.

4.Power of attorney Metkar left 18 meter DP road and easementary road out of the sold property and the complainant gave extra area as he realized that he has committed error. Complainant furnished ULC return and got an order from ULC wherein he showed DP road of 18 meter out of the property which was sold to the applicants. This document reflects they have no intention to cheat or forge the signature of the complainant. As complainant acted not as per the sale deed but as per the understanding. Not only complainant acted upon the understanding but also gave his signature in the form of consent on final approve layout plan. Applicant no. 1 is the witness to the said layout and he is not the person who prepared it.

5.Applicant no. 5 is Architect who only work as per the directions. There is delay of 25 years from the date of ULC return and 17 years from the date of final layout plan about the forgery. Applicants have executed agreement with Sanjay Kalaskar and Chabubai Kalaskar, Chandrkant Hire. Applicants have filed Special Civil Suit which has been allowed. Execution proceeding is pending. Complainant continues to hold property in Survey No. 226 and he is aware about the development of the property which were executed in the year 1991. Out of greed and that the rates have rocketed he has filed complaint belatedly. They are ready to cooperate the investigation and abide by the terms and
conditions. Hence, prayed that application be allowed.

6. Say was called of the Investigating Officer. He has objected this application on the grounds that tentative layout is not obtained by following the rules of Government and he has to inquire about it. The final layout does not bear the signature of Joint Director, Town Planning Department. He has to obtain the original layout. Accused no. 5 and 7 are to be investigated. He has to inquire about the forged signature on twenty rupees stamp paper were the complainant has handed over 1128 sq. meter area without consideration for DP road. He has to obtain signature of the complainant and accused for verification to handwriting expert. Subhash Birari has sign as witness on the Rs.20 stamp paper whereby Uttam Mate and Ramesh Talware are giving half­half share for 18 meter DP road. The said stamp paper was purchased by Subhash Birari which reflects that he was aware that DP road was passing through survey no. 226 and 228 in the year 1996 itself. Accused have submitted agreement without consideration to hand over area in survey no. 228 which is not joint property for which detail investigation is necessary.

They have to inquire as to why condition no. 9 of the final layout plan is not complied. They have to inquire about 16.15 R area which has been grabbed. If accused are released on bail they will threaten the witnesses. Offence u/s. 420 of IPC is pending against applicant no. 4. Hence, prayed that application be rejected.

7. Much arguments were made by the Advocate for the accused and the Ld. APP who was assisted by the complainant. At the outset it was submitted by the Advocate for the accused that there unexplained delay in lodging the complaint even after the complainant were aware of the litigation pending between the parties. He also contends that as the rate of the property has increased false complaint has been filed. It is pertinent to state that complainant had contended that after the measurements were conducted in the year 2021 complainant realize that applicant nos. 1 to 4 were in possession of 97.50 R land instead of 81R land and they were in possession of extra 16.15R which has been used by them illegally. In such circumstances it cannot be said that there was intentional delay on the part of the complainant in filing the complaint as he was aware in the year 2021 about the excess area.

8. It is the contention of the complainant that Madhukar Birari with his three sons along with their power of attorney and their Architect have submitted tentative and final layout for their profit by executing forged document on Rs.20/­ stamp paper with forged signature of the complainant. It is contended by the Ld. Advocate for the applicants that on the basis of xerox documents complainant has obtained report of the handwriting expert to hold that applicants have forged the signature of the complainant which cannot be conclusive proof. However, it is the part of the trial to consider the evidential value of the forged signature, however, at this stage mini trial is not accepted.

9.Though it is contended by the Advocate for the accused that there was mutual understanding between them and complainant about the existence of DP road and easementary road. However, applicants have not executed any documents to that behalf. It is pertinent to state that sale deed was executed in the year 1991. Tentative approval of layout plan was obtained in the year 1996. At the same time applicant No. 1 has purchased stamp of Rs.20/­ for executing consent letter on behalf of Uttam Mate and three others in the year 1996 itself. In such circumstances when the applicants could furnish consent letter of Uttam Mate and others he could have also obtained documentary evidence for the mutual understanding between them and the complainant. However, the same was not executed.

10.It is pertinent to state that number of layout plans were filed by both the parties, however, at this stage without investigation it cannot be determined about them. No doubt that rate of land has rocketed, however, it is apparent that applicants are in possession of excess land which is currently valued near about two crore which is not a meager amount to waive it. I.O. has submitted that he has to inquire about the signature on the agreement executed on stamp of Rs.20/­. He has to inquire as to why the complainant had handed over the area for DP road without consideration. When the document was required to be submitted by the complainant, Uttam Yashwant Mate and Ramesh Talwar what was the requirement for the applicant no. 1 Subhash Birari to obtain the stamp paper. When the sale deed was executed for 81R only however the report of measurement of survey no. 226/1 by T.I.L.R. reflects that there is excess area of 16.50R in survey no. 226/1/1. Grounds are justified to conduct investigation with respect to the above. Hence, I am not inclined to grant this present application. Nothing has been brought to reflect that applicants have been falsely implicated in the crime. Thus, considering the nature of allegations, prima­facie case is not made out by applicants for grant of pre­arrest bail. Hence, I pass the following order :­

ORDER

Application is hereby rejected.

Digitally signed by VAISHALI VAISHALI S S MALKALPATTEREDDY MALKALPATTEREDDY Date: 2022.10.07 12:05:51 +0530 Nashik. (V.S.Malkalpatte­Reddy) Date : 06/10/2022. Additional Sessions Judge, Nashik.