Anavarbin Mahamadbin Sheikh vs State Of Gujarat

                                                                                NEUTRAL CITATION




   R/CR.MA/12397/2023                              ORDER DATED: 09/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 12397 of 2023

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                        ANAVARBIN MAHAMADBIN SHEIKH
                                   Versus
                             STATE OF GUJARAT
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Appearance:
PARAM V SHAH(9473) for the Applicant(s) No. 1,2,3
MR. NIRUPAM NANAVATY, SENIOR ADVOCATE with MR YASH N
NANAVATY(5626) for the Respondent(s) No. 1
MR. MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 09/08/2023

                                ORAL ORDER

1. By way of this application under section 438 of Criminal Procedure Code, the applicants are seeking anticipatory bail in connection with the FIR being C. R. No. 11198015230979 of 2023 registered with Bortalav Police station, District:- Bhavnagar for the offences punishable under section 406, 420 and 114 of the Indian Penal Code.

2. Heard learned advocate Mr. Ashish Dagli with learned advocate Mr. Param V. Shah for the applicants, learned Senior Advocate Mr. Nirupam Nanavaty with learned advocate Mr. Yash N. Nanavaty for the original complainant and learned APP Mr. Manan Mehta for the respondent - State.

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3. At the outset, learned advocate Mr. Ashish Dagli, upon instructions, states that the applicant no. 1 i.e. Anavarbin Mahamadbin Sheikh has already expired on 07.07.2023 and therefore, this application has become infructuous qua the applicant no. 1 and he presses this application only qua the applicants no. 2 and 3.

4. Learned advocate Mr. Dagli places on record the death certificate of applicant no. 1 - Anavarbin Mahamadbin Sheikh issued by Bhavnagar Municipal Corporation and the same is taken on record.

5. As per the FIR registered by one Chhaganbhai Khodabhai Navadiya, he has stated that he is having factory of diamond polishing and also partner of Est Corporation and in the business of purchase and sell of agricultural and non agricultural land. On 29.12.2020, he alongwith one Dineshbhai @ Vinubhai Rajabhai Pavasiya entered into an agreement to sell in respect of agricultural land bearing Revenue Survey No. 6 paiki 1 admeasuring 2-29-67 Acre. Are. sq. mtrs which belongs to one Sharifaben Mahamadbin Sheikh who happens to be mother of Anavarbin Mahamadbin Sheikh, Munababin Mahamadbin and Jinabin Mahamadbin Sheikh and another piece of land situated at Revenue Survey No. 1 admeasuring 0-71-98 acre-are-sq.mtrs. which belong to Anavarbin Mahamadbin Sheikh, Munababin Mahamadbin and Page 2 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined Jinabin Mahamadbin Sheikh and deceased Kadarbin Mahamadbin, his brother Abdullabin Mahamadbin and sister Fatumaben, Batuben,, Jenuben and Shabiraben who had their right title and interest in the aforesaid land. The total land that was decided to be sold to the original first informant was 1-85- 14 acre.-are-sq. mtrs. (11 vigha 7 guntha) and it was decided to purchase the said land at a price of Rs. 1200/- per sq. mtrs. by paying a consideration of Rs. 3,61,98,000/- and for that part consideration of Rs. 30,00,000/- were paid through cheques. Since, the land was in the joint name of other coparceners also , as per the FIR, the accused persons promised that they will see to it that the name of other interested persons in respect of the land would be deleted from the revenue record. Thereafter, as the accused persons did not do anything in respect of the deleted the name of other coparceners on 05.09.2021, the first informant find that one Kirit Mori given public notice in news paper indicating that he has purchased the land in question and therefore, the FIR was registered alleging that after accepting a consideration of Rs. 30,00,000/- by way of cheque and other amount which was given to the present applicants towards the expenses by siphoning the aforesaid amount, the present applicants have cheated the first informant.

6. Learned advocate Mr. Dagli made the following submissions:-

NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined (1) The dispute in question is purely of civil nature. Learned advocate Mr. Ashish Dagli submitted that the first informants have already preferred civil suit being Special Civil Suit No. 11 of 2023 for specific performance before the Civil Court at Bhavnagar and alongwith the aforesaid suit, the present FIR is registered which would prima facie indicate that the dispute in question is of civil nature.

(2)He further submitted that as the FIR is registered under sections 406, 420 and 114 of the Indian Penal Code, the maximum punishment even if the present applicants are held guilty of the offences would be seven years and therefore, the facts of the present case are squarely covered by principle enunciated by Hon'ble Supreme Court in case of Arnesh Kumar V/ s. State of Bihar reported in 2014 (8) SCC 273 and therefore, the police authorities are required to follow the procedure as observed by the Hon'ble Supreme Court in the aforesaid judgment. However, that procedure has not been followed by the authority.

(3)Learned advocate Mr. Dagli further submitted that the entire FIR is registered on the basis of one agreement to sell allegedly executed by the present applicants in favour of one Kirit Mori. However, when the Kirit Page 4 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined Mori preferred a suit for specific performance being Special Civil Suit No. 18 of 2021, the aforesaid suit was dismissed by the learned Principal Senior Civil Judge, Bhavnagar vide its order dated 13.10.2022 passed below Exh. 12 and 19 on the ground that the very document of agreement to sell was not produced alongwith suit and on the ground of insufficient stamp affects on the plaint. He submitted that once the aforesaid suit is dismissed and even in that suit also the alleged document i.e. agreement to sell was not produced and the same is produced by the original complainant before this Court itself would suggest that the aforesaid Kirit Mori nothing but a creation to the first informant.

(4)Learned advocate Mr. Dagli for the applicant further submitted that in a similar facts before the Hon'ble Supreme Court, the Hon'ble Supreme Court in case of Kunti and Another V/s State of Uttar Pradesh and other reported in (2023) 6 SCC 109 was pleased to quash and set aside the impugned FIR holding that the dispute is of civil nature. In the instant case also, according to learned advocate Mr. Dagli considering the facts of the dispute is of civil nature and therefore, the present applicants required to be considered for anticipatory bail.

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7. On the other hand, learned Senior Advocate Mr. N. D.

Nanavaty appearing with learned advocate Mr. Yash Nanavaty for the original complainant has vehemently opposed this application and submitted that the judgment in case of Arnesh kumar V/s State of Bihar by Hon'ble Supreme Court does not give a blanket embargo against the arrest of an accused person who is an accused person in respect of an offence for which the maximum punishment would be less than seven years. Learned Senior Advocate Mr. Nanavaty submitted that the sum and substances of ratio of judgment of Arneshkumar is that it cast responsibility upon the Investigating Officer to record the reasons in both the eventualities of his decision to arrest an accused or if he decides not to arrest the accused person. In case if he fails to record the reasons behind arrest or decision not to arrest an accused person in the police diary in that case, the accused person would be entitled to bail once the Trial Court finds that the reasons are not recorded but in any case, if the reasons are recorded by the Investigating Officer, in that case, looking to the nature of the offence, Investigating Officer have powers to arrest an accused person looking to the facts and circumstances of the case and gravity of the offence.

8. Learned Senior Advocate Mr. Nanavaty pointed out that the conduct of the present applicants also amounts to abuse of Page 6 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined process of law. Learned Senior Advocate Mr. Nanavaty pointed out from the record that in response to the application for anticipatory bail when the first informant filed their objections by way of reply and the copy of reply was served upon the present applicants on 19.07.2023 indicating the past incidents whereby the present applicants in the past also had entered into agreement to sell in respect of the land in question atleast two persons namely Hiteshbhai Maganbhai Mitaliya with whom agreement to sell executed in the month of September, 2014 and one Mansukhbhai Karshanbhai Bhimani with whom also agreement to sell was executed in September, 2014.

9. Learned Senior Advocate Mr. Nanavaty for the original complainant also pointed out that in their reply they have produced the agreement to sell executed between the present applicants and that Kirit Mori which also shows that the applicants have formed a habit of executing an agreement to sell with different persons accepting the part consideration and thereafter, not executing the sale deed. Learned Senior Advocate Mr. Nanavaty by pointing out the aforesaid documents took this Court to the affidavit in rejoinder filed by the learned advoate for the applicants wherein the applicants have annexed the photocopies of affidavits filed by Mansukhbhai Karshanbhai Bhimani and Hiteshbhai Maganbhai Mitaliya.

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10. Learned Senior Advocate Mr. Nanavaty drew the attention of this Court that though those agreement to sells were executed in the month of September, 2014 and affidavit of the those persons are procured by the present applicants on the very day i.e. 19.07.2023 stating that earlier deal struck between them and the present applicant stands cancelled and that fact is declared by affidavit dated 19.07.2023. Learned Senior Advocate Mr. Nanavaty pointed out that this Court though while issuing rule on 14.07.2023 made it returnable on 20.07.2023 and therefore, immediately before the returnable date, affidavits of those persons with whom an agreement to sell was entered into the year 2023 was procured and placed on record by way of affidavit in rejoinder.

11. Learned Senior Advocate Mr. Nanavaty also drew the attention of this Court to the affidavit of notary - Kishorbhai M. Mevada who had notarized the agreement to sell executed between the present applicant and Kirit Mori wherein he has stated that the aforesaid agreement to sell was executed by using the fabricated seal and forged signature of the notary and the name of the second party of the agreement is not recorded in his register. The aforesaid affidavit of the notary - Kishorbhai Maljibhai Mevada was affirmed on 24.07.2023. On the same day, the aforesaid notary also made a complaint th the P. I., Gangajaliya Police Station alleging misuse of his Page 8 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined seal, stamp and signature and indicating that the name of the second party is not there in his register.

12. Learned Senior Advocate Mr. Nanavaty pointed out that all these persons have filed affidavits at the behest of the present applicant itself indicates the misuse and abuse of process of law and it also indicates that the task which otherwise could have been carried out by the Investigating Agency was undertaken by the present applicants and which amounts to tempering with the witnesses. He submits that if the present applicants have acted like this and if their conduct is such, at the time when the bail application is pending, in that case, if they are enlarged on anticipatory bail, there are all the chances and possibility that they will be tempering with the witnesses and ultimately that would affect that free and fair investigation.

13. Learned Senior Advocate Mr. Nanavaty also drew attention of this Court that the suit preferred by the present applicants were preferred after the FIR was registered by the coparcener of the present applicant.

14. Learned Senior Advocate Mr. Nanavaty also drew attention of this Court that not just the judgment of Arnesh kumar (supra) but even the mandate of section 41 A of the Criminal Procedure Code and more particularly sub section 3 Page 9 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined also states that even if a notice under section 41 A issued to the accused person and even if he compliance the aforesaid notice than also if the Investigating Officer deems it appropriate to arrest the accused persons, all that is required to record reasons for the arrest in the police diary which indicates that as such there is no bar against the arrest of the accused persons once the procedure prescribed under section 41 A is followed.

15. By making the aforesaid submissions, learned Senior Advocate Mr. Nanavaty states that the present applicant may not be considered for anticipatory bail application and the same be dismissed.

16. Learned APP Mr. Manan Mehta appearing for the respondent - State has vehemently opposed this application and submitted that as per telephonic instructions received from Mr. C. P. Rathod, P.S.I. through Yuvrajsinh Gohil, Police Constable who is present in the Court, the Investigating Officer has recorded his satisfaction for arrest of the present applicant in the police diary. He submitted that looking to the nature of offence wherein a land worth crores of rupees were promised to be sold to various persons and ultimately, all of a sudden while affidavit affirmed on 19.07.2023, those persons with whom the agreement to sell was entered in the year 2014 declaration has made that they have settled the dispute in the Page 10 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined year 2023 which was not the case before the FIR was registered or even before the Court issued rule in this present application. He submitted that there are as many as three other instances whereby the present applicants have entered into agreement to sell with various persons apart from the present applicant and thereafter, did not execute the sale deed.

17. Learned APP further submitted that in the instant case, agreement to sell was executed by receiving the consideration by way of cheque and therefore, prima facie, the allegations about cheating are substantiated by material on record. Learned APP further submitted that even as stated by learned Senior Advocate Mr. Nanavaty even the conduct of the present applicant is such that though they could have simply deny the contents of the affidavit in reply, the present applicants have shown the courage to approach the notary which allegedly notarized the document in form of agreement to sell executed in favour of Kirit Mori and all the affidavits which are produced by the present applicants i.e. of notary and two other persons namely Hiteshbhai Maganbhai Mitaliya and Mansukhbhai Karshanbhai Bhimani are produced by the present applicants itself indicates that they are tempering with the evidences and they have misused and abused the process of law.

18. By making the aforesaid submissions, learned APP also Page 11 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined prayed to reject this application.

19. I have heard learned counsels appearing for the respective parties and perused the material on record. On perusal of the material I found that it is undisputed the fact that an agreement to sell was executed in faovur of the first informant. However, the record indicates that at various point of time, there were agreement to sell executed in favour of different persons prior to execution of an agreement to sell in favour of the first informant and thereafter, also. I have also found that the first informant have moved civil and criminal both machinery in motion and as stated by the learned APP even the Investigating Officer also has recorded his satisfaction for arrest of the present applicant in the police diary. Further considering the overall facts and circumstances of the case and nature of allegations levelled against the present applicants as also considering the conduct of the present applicant who have tried to approach various persons and all of sudden during pendency of this application after the reply was filed in the present applications, have filed photocopies of the various affidavits sworn by the various persons including notary, does not rule out the possibility of the present applicants tempering with the evidence in event if they are granted anticipatory bail.

20. Further, on perusal of material available on record, Page 12 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023 NEUTRAL CITATION R/CR.MA/12397/2023 ORDER DATED: 09/08/2023 undefined priam facie, it transpired that the applicants are actively involved in the offence in question.

21. Considering the aforesaid aspect, gravity of offence as well as looking to the facts that the land in question is a precious land worth crores of rupees as well as considering the conduct of the present applicant, I do not see any reason to entertain this application for anticipatory bail and therefore, the same is required to be dismissed and the same is dismissed accordingly. Rule is discharged.

(NIRZAR S. DESAI,J) VARSHA DESAI Page 13 of 13 Downloaded on : Sun Sep 17 00:48:45 IST 2023