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CR.MA/4068/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4068 of 2010
=====================================================
VINUBHAI
HARIBHAI MALAVIA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=====================================================
Appearance
:
MR
BB NAIK WITH MR NM KAPADIA for Applicant(s) : 1,
MR HL JANI
ADDITIONAL PUBLIC PROSECUTOR for Respondent(s) : 1,
MR SV RAJU
WITH MR AB MUNSHI for Respondent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/07/2010
ORAL
ORDER
1. This
is an application filed under Section 439 of the Code of Criminal
Procedure by the applicant, who came to be arrested in connection
with complaint being I C.R. No.476 of 2009 registered with Umra
Police Station, Surat for the offences punishable under Sections 465,
467, 468, 384, 120-B and 114 of the Indian Penal Code.
2. As
per the allegation made in the complaint dated 10.12.2009, the
incident took place in January, 2008 and October, 2008. The
complainant, who is a builder and agriculturist, has registered the
FIR with Umra Police Station alleging that he has purchased
agricultural land being old Survey No.434 and New Survey No.307 from
the original land owners i.e. Maisuriya family by way of sale deed
dated 9.4.2003. In the month of October, 2008, the complainant
received telephone call from the present applicant and the applicant
threatened the complainant that in the absence of meeting, the
complainant would have to repent because the original owners Naynaben
and Jagdishbhai Maisuria were regular visitors to the office of the
applicant. Thereafter, the complainant and his uncle Hitesh Ratilal
Patel went the office of applicant, where the applicant and advocate
Mr. Modi were present. The applicant informed that the applicant
obtained the General Power of Attorney and Release-deed regarding the
said land treating the land as of clear title and asked the applicant
to pay Rs.1.5 Crores for treating the agreement with agriculturists
as cancelled. It is further alleged in the complaint by the
complainant that later on, he was informed that the original land
owners were asked to put the signature on certain documents by
Vinubhai Malavia, advocate Mr. Modi, Naynaben Maisuria, Jagdishbhai
Maisuria by representing that they were advocates of the complainant,
the power of attorney was obtained in favour of Naynaben and release
document was obtained in favour of Bhikhiben which all were notarized
with Notary Mr. Dilip Desai on 10.1.2008, 20.6.2007 and 18.7.2007. It
is also alleged that the signatures were obtained on such bogus,
false documents of release deed and power of attorney by causing
misunderstanding to the original owners and tried to grab the
valuable land.
3. Learned
Senior counsel Mr. B.B. Naik with Mr. N.M. Kapadia appearing for the
applicant, submitted that the applicant is an innocent person and
wrongly arraigned in the commission of the offence. There is no role
attributed to the applicant as reflected in the FIR or there is no
any direct or overt act on the part of the applicant. The dispute is
purely of civil nature and therefore, with malafide on the part of
the complainant for abusing the process of law, criminal complaint is
filed. He further submitted that on 2.6.2010, the applicant has filed
an affidavit in the present matter and declared that he has no
relation with the said Survey No.434 and also has no any right over
the same and he has never raised any right and will not raise any
right over the said land.
4. Learned
Senior counsel Mr. Naik further submitted that in the complaint, name
of Naynaben is shown as accused, who has been released by the learned
Additional Sessions Judge on anticipatory bail vide order 19.1.2010
passed in Criminal Misc. Application No.2408 of 2009. Therefore, the
present application was required to be released on bail, but the
learned Sessions Judge has not considered submissions made by the
present applicant. He also contended that from the statement of
witness Mr.Manibhai, the ingredients of Section 467 cannot come
into force. Originally from
the stamp paper of Naynaben, who is released on anticipatory bail,
the provisions of Section 464 cannot be considered that the document
is forged and fabricated. It is contended by the learned
Senior Counsel that the investigation is also over and availability
of applicant during trial can be secured and there is no chance of
tampering with the evidence by the applicant. Therefore, the
applicant may kindly be released on bail.
5. Mr.
S.V. Raju with Mr. Munshi for the complainant submitted that the
applicant is involved in a serious offence and there is a huge amount
of transaction and thereby, the applicant has committed offence. He
has read the order of the learned Sessions Court and therefore, the
applicant may not be granted bail.
6. Mr.
H.L. Jani, learned APP for the respondent State, submitted that
the applicant is involved in the offence which is punishable under
Sections 465, 467, 468, 384, 120-B and 114 of the Indian Penal Code
and considering the seriousness of the offence, gravity and
punishment of the offence, the applicant is not entitled to release
on bail. Therefore, discretion may not be exercise in favour of the
applicant.
7.
I have perused the application along with papers produced before me
and submissions made by both the parties. It appears that against the
present applicant, the complaint is filed for the offences punishable
under Sections 465, 467, 468, 384, 120-B and 114 of the Indian Penal
Code and I have considered the main ingredients of the aforesaid
sections, quantum of punishment, gravity of the offence etc. The
present applicant has prepared false document with a view to grab
huge amount by preparing false document with respect to the property
belonging to the complainant. Prima facie, it appears that the
applicant is involved in the commission of offence of forgery of
valuable security just for the purpose of cheating. It is also on
record that the complainant was threatened by the applicant and other
accused persons and put under fear to deliver the property
dishonestly by way of observation. Even from the papers, I have also
found that prima facie, there was conspiracy for getting of the huge
amount illegally from the complainant by the applicant and other
conspirators and agreement executed by them. No doubt, affidavit has
been filed by the applicant in connection of his right but it appears
that it is only made with a view to come out from the alleged
offence.
8. So,
from the above observation, it is established on record that prima
facie case is made out against the applicant. Now a days, illegal
activities of grabbing the land is always committed by the land mafia
and just to protect the right of the original owner or purchaser,
cannot be considered any lenient view. Hence, I am of the opinion
that sufficient evidence is produced on record. Hence, the
application is dismissed. Rule is discharged.
(Z.K.SAIYED,
J.)
ynvyas
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