Gujarat High Court Case Information System
Print
CR.MA/14205/2008 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14205 of 2008
With
CRIMINAL
MISC.APPLICATION No. 14206 of 2008
=========================================================
MANGLABEN
K UNADKAT & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YN OZA, SR. ADVOCATE for MR. NISHANT LALAKIYA for
Applicant(s) : 1 2. IN CRI. MISC. APPLICATION NO.14205 OF 2008
MR
ND NANAVATI, SR. ADVOCATE for MR YAS NANAVATI for Applicants in
CRI.MISC.APPLICATION NO.14206 of 2008
MR
SP HASURKAR, APP for Respondent(s) : 1 in both the
matters,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/12/2008
ORAL
ORDER
1. Rule.
Learned A.P.P. Mr. S.P. Hasurkar waives service of Rule on behalf of
the respondent State in both the applications. Senior Advocate
Mr. Prakash Thakkar appeared on behalf of the original complainant.
2. Since
both the applications are arising from the same Crime Register, they
are disposed of by this common order.
3. Present
applicants of both the Criminal Miscellaneous Applications have filed
these applications under Section 438 of the Code of Criminal
Procedure (for short Cr.P.C.) for anticipatory bail in connection
with Criminal Case No.23 of 2005 filed before the learned Chief
Judicial Magistrate, Rajkot, on 10.2.2005. Applicants of Criminal
Misc. Application No.14205 of 2008 are accused Nos.4 & 5 and
applicants of Criminal Misc. Application No.14206 of 2008 are accused
Nos.1, 2 & 3 of aforesaid criminal case.
4. In
short, the fact of the case is that the complainant Smt. Kusumgauri
Gulabrai Doshi is Non-Resident Indian lady. She is the owner of land
admeasuring 2857.03 sq. yds. since the year 1967. It is alleged in
the complaint by her that the applicants have prepared forged, bogus
and duplicate documents and title deed in respect of her land, and
the applicants have deposited the said documents as security for
mortgage purpose in which she was cited as guarantor and her address
was wrongly shown and accordingly loan was obtained from the Bank.
Due to failure in payment of loan amount, litigations were filed by
the Bank before the Debt Recovery Tribunal (D.R.T.). The D.R.T.
issued notice to the complainant, but due to incorrect address shown
by the applicants the said notices were not served upon the
complainant. Thereafter when the Notice was affixed at the
premises/plot in question, the complainant came to know about the
fraud committed by the applicants in the month of June, 2004. To make
an inquiry, husband of the complainant came to India and thereafter
it came to the notice of the complainant that the applicants have
prepared forged and bogus documents and used the same as genuine
documents with an intention to cheat her and thereby the applicants
have committed breach of trust. She, thereafter, filed the above
mentioned complaint. After filing of the complaint, to avoid
custodial interrogation, the applicants have settled the dues
remaining with the bank.
5. Heard
learned Counsel Mr. N.D. Nanavati for applicants of Criminal Misc.
Application No.14206 of 2008, learned Counsel Mr. Y.N. Oza for the
applicants of Criminal Misc. Application No.14205 of 2008, learned
Counsel Mr. Prakash Thakkar for the original complainant and learned
A.P.P. for the respondent State.
6. Learned
Counsel Mr. Nanavati, has contended that the applicants are the
partners of Amiraj Exports and they are related with each other. He
has mentioned the date of offence and contended that the offence in
question took place between 23.7.1995 and 17.4.1996, and on 10.2.2005
the complaint was lodged before learned Chief Judicial Magistrate,
Rajkot. It is also contended that Vijaya Bank granted the loan
facility to the applicants. The Title Deeds were deposited in the
year 1994 and due to non-payment of instalments, the recovery
proceedings were initiated before the Debt Recovery Tribunal. The
Debt Recovery Tribunal passed an Award and as per the Award amount
was paid and the Bank has issued No Due Certificate.
7. It
is also contended by Mr. Nanavati that the complainant has sold her
property in question in the year 2003 and thereafter in the year 2005
she has filed complaint against the present applicants. It is also
contended that Vijaya Bank is a real party who can file complaint,
but, the Bank has not filed any complaint. He has contended that the
ingredients of Section 405 & 406 I.P. Code cannot be said to be
attracted in these matters and when they were not entrusted and
dominion over the property, ingredients of both the provisions cannot
be attracted. He has contended that from the contents of the
complaint also, it cannot be established that all the applicants have
committed offence punishable under Sections 405 & 406 I.P. Code.
He has also contended that the offence under Section 419 I.P. Code is
bailable offence and after reading the provision of Section 463 Mr.
Nanavati has contended that the present complainant has no right to
file complaint against the present applicants under Sections 465,
467, 468, 471 I.P. Code. Mr. Nanavati has also drawn the attention to
the provision of Section 511 I.P. Code and contended that the attempt
made by the complainant to involve the applicants in the alleged
offence is not established on record and finally contended that since
no loss is caused to the complainant she has no right to file
complaint against the present applicants.
8. Learned
Counsel Mr. Yatin Oza appearing on behalf of the applicants of
Criminal Miscellaneous Application No.14205 of 2008 has adopted the
arguments advance by learned Counsel Mr. Nanavati. He has contended
that the property of the complainant is not auctioned and the amount
due has already been paid at the stage of notice. He also contended
that the Bank who is real and necessary party has not filed any
complaint or application and, therefore, the present complainant has
no right to file the present complaint. Mr. Oza has contended that
applicant Manguben is aged 65 years old. He has also contended that
when the case is based upon the documentary evidence then the
question of custodial interrogation cannot arise. Mr. Oza has relied
upon the decision of the Hon’ble Supreme Court reported in (2004) 3
SCC 602 and tried to establish that the intention to commit above
offences by the applicants cannot be termed as if the applicants have
committed illegal wrong.
9. Learned
Counsel Mr. Prakash Thakkar, appearing on behalf of the original
complainant, has raised a question that whether any person can obtain
loan without the consent of landlord and whether he can use the
landlord’s property by putting it as a guarantee with the help of
forged documents for obtaining loan. Mr. Thakkar has read the
provisions of all the sections alleged in the offences and contended
that the complainant was the owner of the property and without her
consent and permission the applicants have forged the documents of
her property and have obtained loan from the Bank. He contended that
it is established on record that the applicants have committed
offence by forging the documents and it was in their knowledge that
the said documents are forged and not genuine, yet, they have
produced the forged documents before the bank and obtained loan and
due to the non-payment of instalment of loan amount the proceedings
were initiated before the Debt Recovery Tribunal and when the Award
was passed by the Tribunal, the amount was paid by the applicants. He
further contended that due to this wrongful act of the applicants
the complainant received irreparable loss and injury. Mr. Thakkar has
contended that from the conduct of the present applicants itself
collusion of the applicants with each other is established and to
obtain illegal benefit with the common intention they have committed
such wrongful act. Mr. Thakkar has vehemently opposed the grant of
bail to the applicants of both the applications.
10. Learned
APP Mr. Hasurkar has supported the arguments advanced by Mr. Thakkar
and contended that the presence of the applicants for custodial
interrogation is necessary. He has contended that prima facie case is
made out against the applicants and vehemently opposed the grant of
bail to the applicants.
11. I
have gone through the contentions and averments made by learned
Counsel for the parties. I have also gone through the observation
made by the Hon’ble Supreme Court in the above decision. I have also
perused the documents produced on record. I have also considered the
fact that the applicants have paid the amount to the Bank and the
Bank has also issued No Due Certificate. The learned Counsel for the
applicants have tried to establish that the provisions of Section
406, 419 and 427 I.P. Code cannot be attracted, when the applicants
have paid the amount.
12. In
my view, this is not the stage to decide the alleged question on
merit. Apparently, it appears that the applicants have misused the
title deeds of the complainant’s property and they have prepared
forged documents and used the same as genuine documents for obtaining
the loan. It appears that without the consent and permission of the
complainant the property of the complainant was mortgaged to the bank
by using the forged documents and obtained loan from the Bank. The
contention was made by the learned Counsel for the complainant that
without the consent of the complainant her property was mortgaged and
when the Award was passed by the D.R.T. they have repaid the loan
amount, therefore, provisions of Section 44 I.P. Code is attracted.
The said section 44 provides a meaning of injury and from the
offences committed by the applicants meaning of injury is
fulfilled.
13. I
have also gone through the provisions of Sections 463 & 464 I.P.
Code. Section 463 provides meaning of dishonest intention and
Section 464 provides the meaning of word dishonest and
fraudulantly which covers the present case. It appears that prima
facie the complainant has established sufficient case. Prima facie it
is also established that the applicants have misused the property of
the complainant fraudulantly and dishonestly. From perusing the
documents, it appears that the genuinness of the papers is required
to be investigated and custodial interrogation of the applicants is
required to be made.
14. From
the above, prima facie, it appears that the serious offences are made
out against the applicants and, therefore, it is not desirable to
allow these Applications. Accordingly, both these applications are
rejected. Rule discharged.
(Z.K.SAIYED,
J.)
sas
Top