State of Gujarat vs Kamleshbhai Hashmukhbhai Bhavsar

G.B. Shah, J.—Rule. Mr. R.C. Jani, learned Advocate waives service of notice of Rule on behalf of Respondent No. 1.

Being aggrieved and dissatisfied with the order passed below Exh.6 dated 25.5.2011 passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Misc. Application No. 841 of 2011 whereby the Respondent-accused was granted anticipatory bail in connection with offences punishable under Sections 406, 420, 467, 468, 471 and 120-B of the Indian Penal Code, the applicant State of Gujarat has filed this Misc. Criminal Application for cancellation of the anticipatory bail granted to the Respondent-accused u/s 439(2) of the Code of Criminal Procedure, 1973.

The short facts leading to filing of the complaint in question is that the Respondent-accused along with other accused persons by way of forged and bogus election card of Pritiben Rajeshbhai Natverlal who is having land situated in the sim of village Fatehvadi bearing survey No. 462-2-3 of 8599 square meters, decided to sell the said land to the complainant for a sum of Rs. 2.40 crores and out of which Rs. 35 lacs were received in cash and Rs. 15 lacs by way of cheque of Canara Bank and thereby committed cheating with the complainant and other witnesses. The Respondent along with other accused created forged and bogus documents by affixing photograph of accused Hinaben and showing her as Pritiben as landholder and used them as if true, correct and genuine documents. Thus the complaint came to be filed.

Upon registering the FIR, on apprehension of their arrest, accused had preferred anticipatory bail application. The learned Sessions Judge, after hearing the parties, granted anticipatory bail to the Respondent-accused by order dated 25.5.2011 passed in Criminal Misc. Application No. 841 of 2011 as stated above. This order is under challenge in this application.

Learned APP Mr. K.P. Rawal has submitted that the present Respondent-accused in connivance with the other accused persons have hatched a conspiracy and sold the valuable land of the original owner by way of creating false and bogus documents i.e. the election card and the role of the present accused person was that he had obtained the photograph of Hinaben and by showing her as Pritiben and thereby helped the main accused person to sell the land by using forged and bogus election card as if they were true, correct and genuine. Name of the Respondent-accused revealed in the FIR from the beginning and, therefore, it cannot be believed that the present Respondent has been falsely implicated in the offence in question. He has, then submitted that one of the charges is in relation to offence u/s 120-B of the Indian Penal Code and in that case the collective involvement of the present Respondent in the commission of the crime ought to have been looked into. He has, lastly submitted that the learned Trial Judge has passed the order below Exh.6 without properly appreciating the facts on record by the prosecution, Investigating Agency and without considering the papers of the investigation and, therefore, the said order is required to be rejected.

Learned Advocate Mr. R.C. Jani for the Respondent has submitted that the learned Trial Sessions Judge has given cogent reasons in paragraphs 3, 4 and 5 of the order dated 25.5.2011 for granting the bail passed in Criminal Misc. Application No. 841 of 2011 and looking to the well settled law, once the bail is granted, for cancellation of the same, cogent and overwhelming circumstances are necessary. He has further submitted that even the facts of the matter do not constitute the offence as the alleged incident of offence had occurred on 1.4.2011 and the total price of the land was fixed at Rs. 2,40,00,000/- against which the document was executed on 1.4.2011 on the same day for Rs. 50,00,000/- out of which it is alleged that Rs. 35,00,000/- had been given in cash and Rs. 15,00,000/-was given by cheque. It is pertinent to note that after purchasing the land in question, advertisement for title was issued on 6.4.2011 and on the same day, stop payment of the cheque was made without any objection found in pursuance of the said advertisement. He has further submitted that after surrendering the present Respondent himself before the concerned police station, the Investigating Agency has asked for remand of the present Respondent on 3.6.2011 which came to be rejected and the said order has not been challenged before the higher forum by the present applicant. The learned Advocate for the Respondent, has therefore, prays that considering the aforesaid facts, this application deserves to be dismissed.

I have perused the complaint dated 13.5.2011, the affidavit filed by the Investigating Officer and the impugned order passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Misc. Application No. 841 of 2011. Having perused the complaint dated 13.5.2011, it appears that the complainant, Harshadbhai Prathapbhai Thakore is doing real estate business as mentioned in para 2 of the complaint. As submitted by the learned Advocate for the Respondent, the alleged incident of offence had occurred on 1.4.2011 and the total price of the land was fixed at Rs. 2,40,00,000/- against which the document was executed on 1.4.2011 on the same day for Rs. 50,00,000/- out of which it is alleged that Rs. 35,00,000/- had been given in cash and Rs. 15,00,000/- was given by cheque. The incident of offence alleged to have been committed by the Respondent was completed on the same day i.e. on 1.4.2011. This conduct of the complainant, prima facie, appears to be not normal. It is surprising that after the purchase of the land, advertisement for title clearance was issued on 6.4.2011 which also appears quite unnatural more particularly when the complainant is engaged in the business of real estate. All these aspects have been considered by the learned Sessions Judge and in my view, the discretion exercised by the learned Sessions Judge appears to be correct. For cancellation of bail, conduct subsequent to release on bail and the supervening circumstances are relevant to be looked into. To me there appears No. overwhelming circumstance which demands cancellation of the bail order passed by the trial court.

This Court is of the view that the learned Trial Judge has considered all relevant parameters while granting anticipatory bail to the Respondent. On behalf of the applicant, nothing has been indicated to show that the Respondent has, in any manner, misused the liberty granted to him. In the circumstances, No. case is made out for cancellation of the anticipatory bail granted to the Respondent. The application, being devoid of merits, is accordingly rejected. Rule is discharged.