Cri.B.A.No.1068/2022 Order below Exh.01 in Cri.B.A.No.1068/2022 CNR No.MHNS010046042022

(Uttam Ambadas Kalal vs. State)

Uttam Ambadas Kalal has preferred this application praying therein that in the event of his arrest, in connection with CR.No.I­229/2022 registered with Upanagar police station for the offence punishable under Sec.420, 383, 384, 385, 406, 409, 499, 500 and 501 of IPC, he may be released on anticipatory bail.

2.The aforesaid crime number is registered as per directions given by Ld. JMFC under provisions of Sec.156(3) of Cr.P.C. on the basis of application filed by Vijay Mahadev Mirajkar.

3.Bail application is filed on the ground that the applicant is innocent and has been falsely implicated in the case. That on 28.05.1987, Smt.Manikbai Bhalerao executed development agreement with respect to S.No.47/7 admeasuring 0 Hect 93R [herein after referred to as ‘said property’] in favour of Vijay Mirajkar, Surendra Wavre, Uttam Kalal and Mrs. Ulka Mirajkar.

That thereafter, some dispute arose between original land owners and developers and Vijay Mirajkar has filed various civil suit as well as execution proceedings, who has taken amount for the same from the applicant. As per Sulenama, decree has passed and the name of Vijay Mirajkar, Surendra Wavre and applicant appears on the other rights column of 7/12 extract of said property. That thereafter, original land owners created third party interest in the said property and those people encroached upon the property. That Vijay Mirajkar, Surendra Wavre and applicant filed Spl.C.S.No.534/2001 which was decreed and execution proceeding filed so as to remove encroachment. It was not possible for developers to remove encroachment in spite of order and they decided to allot the work of removal of encroachment to third party and accordingly agreement was executed with Ajit Bane and Rajanesh Rathod. As the Nashik Municipal Corporation failed to remove encroachment, Vijay Mirajkar on behalf of other developers has filed contempt proceeding before Hon’ble High Court, Bombay. In the month of July 2020, applicant came to know that Memorandum of Understanding dated 11.3.2020 came to be executed between Vijay Mirajkar and encroachers and Vijay Mirajkar has taken Rs.10,000/per head from all 80 encroachers and accepted amount into his account maintained with Business Bank without informing the same to the applicant and Surendra Wavre. Therefore, applicant issued a public notice in Daily Deshdoot on 3.8.2020 and also filed complaint at Upanagar police station, accordingly, CR No.490/2020 registered under Sec.420, 409 of IPC and charge­sheet bearing RCC No.475/2021 is filed. That present complaint is filed only to counterblast to the said complaint. That the entire case revolves around documentary evidence for which custodial interrogation of the applicant is not required. That the applicant is senior citizen, suffering from various health issues. There are no criminal antecedents against applicant. He will not tamper with prosecution evidence. That the applicant is ready to co­operate Investigating machinery and is ready to abide by conditions if any imposed by the Court. On these main grounds and others have prayed for bail.

4.Notice was issued to State. State appeared through Ld. APP Mr. Kotwal and filed say resisting for grant of application on the grounds that FIR is lodged on the directions given by Ld. JMFC under sec.156(3) of Cr.P.C. The name of the applicant is stated in FIR. The offence is serious one. On these main grounds and others have prayed for rejection of the bail application.

5.Ld.Adv.Mr. Kale caused his appearance on behalf of the informant to resist the bail application.

6. Heard Ld. Advocate Mr.Bhanose for applicant. Perused bail application. Heard Ld. APP Mr.Kotwal. Perused police papers and say filed by Upanagar police station. Also, perused written notes of argument filed on behalf of the informant by Ld.Adv. Mr.Kale.

7. Ld.Adv.Mr.Bhanose reiterated all the grounds mentioned in bail application. Whereas Ld. APP Mr.Kotwal reiterated all the grounds mentioned in the say filed by Investigating Machinery. Ld. Adv. Mr.Kale argued vehemently that the informant has initially entered into development agreement with Suka Bhalerao in the year 1981 to develop the land measuring 1 Hect 13 R. He developed 2000 sq mtrs. which was retained land. The rest of the land was encroached. At that time, the present applicant approached him and on the assurance that he will vacate the encroachers and even spent time and money to fight litigation, incorporated his name in the revenue record. Even expenses of further litigations were taken care of by the informant. In fact, the applicant does not have any right, title or interest in the said land. The encroachers threatened Vijay Mirajkar of false implication, in the offence punishable under the protection of The Schedule Caste, Schedule Tribes (Prevention of Atrocity) Act, therefore, under compelling circumstances, he entered into the agreement with the encroachers. However, thereafter, the present applicant issued public notice and started demanding huge amount. According to the Ld. Advocate, the development agreement of the year 1987 is hollow in nature.

8.On perusal of FIR as well as case papers, it is apparent that Vijay Mirajkar had entered into sale­deed dated 28.2.1981 with Suka Bhalerao with respect to survey No.47/7/2/1/6 admeasuring 1 Hect 13 R. It is case of the complainant that the present applicant under false pretext, that he will remove the encroachment, got his name entered into the revenue records. The documents placed on record further shows that on 28.5.1987, Vijay Mirajkar [informant], Surendra Wavre, Uttam Kalal [present applicant], Ulka Mirajkar entered into development agreement with respect to said property. On the basis of this agreement, the name of the present applicant came to be recorded under the column of other rights.

9.The FIR is silent about the development agreement dated 28.5.1987. In fact, this agreement was also used in civil litigation i.e. civil suits bearing No. 1315/1995, 1317/1995, 1318/1995 instituted by the informant and applicant on one side against the encroachers. So also, Vijay Mirajkar, Shri.Uttam Ambadas Rai @ Kalal and Surendra Wavre filed Special Civil Suit No. 534/2001 for declaration and injunction with respect to the said property in their possession against Nashik Municipal Commissioner
and others, praying to remove the encroachment, which was decreed. Today after so many years, the complainant is contending that this agreement dated 25.8.1987 is hollow in nature. In fact, this issue has to be dealt by the Civil Court, subject to the law of limitation.

10.As far as contention in the FIR that the applicant published public notice and is demanding extortion amount is concerned, the allegations with this respect are vague in nature as it does not disclose the amount demanded. At the most, this will stretch to attempt of the offence of extortion. It is to be borne in mind that Mirajkar is 75 years of age, whereas the present applicant is 74 years of age. The allegations of attempt to extortion at this age is not a digestible to prudent man. Even the present applicant has, earlier in point of time, filed FIR against Mirajkar for the offence of cheating and criminal breach of trust. After investigation, police machinery has filed charge­sheet in JMFC Court.

11.The dispute between the parties is civil in nature. From the report filed by Investigating Officer, it can be gathered that nothing is to be recovered or discovered at the instance of present applicant. Custodial interrogation is not at all required. Hence, I proceed to pass following order :

ORDER

(1). Application is allowed.

(2). In the event of arrest of the applicant Uttam Ambadas Kalal in connection with CR.No.I­229/2022 registered with Upanagar police station for the offence punishable under Sec.420, 383, 384, 385, 406, 409, 499, 500 and 501 of IPC, on the basis of directions given by Ld. JMFC under provisions of Sec.156(3) of Cr.P.C. on the basis of application filed by Vijay Mahadev Mirajkar, the above named applicant be released on bail, on furnishing a PR and SB of Rs. 15,000/­ ( Rupees Fifteen Thousand only), with one surety of like amount on following conditions.

(a). He 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 them from disclosing such facts to the Court or to any police officer.

(b). Violation of any of the above mentioned condition, would result in cancellation of bail.

(3). Inform concerned police station accordingly.

VARDHAN Digitally signed by VARDHAN PRATAPRAO PRATAPRAO DESAI DESAI Date: 2022.09.20
17:39:28 +0530 Nashik. ( V. P. Desai) Date : 20.09.2022 Additional Sessions Judge, Nashik.