Vivek Keshavrao Dongre vs The State Of Maharashtra
2021 Latest Caselaw 350 Bom

Shambhavi
N. Shivgan                                             Cri.ABA St.2630&3219-2020.doc

Digitally signed by
Shambhavi N.
Shivgan
Date: 2021.01.07
15:35:04 +0530
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                            Anticipatory Bail Application Stamp No. 2630 OF 2020

                      Vivek Keshavrao Dongre                             .. Applicant
                           Vs.
                      The State of Maharashtra                          .. Respondent

                                                  Alongwith

                            Anticipatory Bail Application Stamp No. 3219 OF 2020


                      Gaurav Jinendrakumar Shah                         .. Applicant
                           Vs.
                      The State of Maharashtra                          .. Respondent

                                                    ......

Mr. Chaitanya Pendse a/w Ms. Siddhi Bhosale, Advocate for the Applicant in ABA St. No.2630/2020.

Senior Advocate, Mr. Raja Thakare a/w Mr. Siddharth Jagushte and Akash Kavade i/by Mr. Nitin Sejpal, Advocate for the Applicant in ABA St. No. 3219/2020.

Mr. Amin Solkar a/w Ms. Anamika Malhotra and Ms. P.P. Shinde, APP for State/ Respondent.

API, Giri, Mahad, MIDC Police Station, present.

......

Cri.ABA St.2630&3219-2020.doc

CORAM : SANDEEP K. SHINDE J.

RESERVED ON : 21st DECEMBER, 2020.

PRONOUNCED ON : 07th JANUARY, 2021.

JUDGMENT :-

Heard.

1. Apprehending arrest in connection with the Crime No. 79 /

2020 dated 25th August, 2020 registered with Mahad City Police

Station for the offences punishable under Sections 304, 304-A, 337,

338 read with 34 of the Indian Penal Code, 1860, applicants are

seeking pre-arrest bail.

2. Applicant - Vivek Dongre (Dongre for short), is a Civil Engineer

and proprietor of M/s Vertical Architect and Planners; whereas Gaurav

Shah is an Architect. Since both were in the same field, they had

executed few development projects, jointly. On 5th April, 2011, a

proposal was submitted to Mahad Municipal Council (Planning

Authority), seeking permission to construct a building consisting 40

flats, office and a pump-house in accordance with the prevailing

Cri.ABA St.2630&3219-2020.doc

Development Control Rules. Proposal was submitted on the letterhead

of M/s Vertical Architect and Planner, a proprietary concern of Mr.

Dongre, through Gaurav Shah, who had signed as its' Architect.

Construction permission, was sought on behalf of M/s Kohinoor

Developers, a proprietary concern of co-accused, Farookh Kazi. The

plan was approved and M/s Kohinoor Developers commenced the

construction on 8th October, 2011.

3. On, 3rd January, 2012, M/s Vertical Architect and Planner

certified, that building was constructed as per the sanctioned plan.

This certificate was signed by Gaurav Shah as its' Architect. Thus, on

the basis of certificate issued by Gaurav Shah, on 19 th October, 2013,

Municipal Council issued a building completion certificate; building

"Tareek Garden".

4. On 24th August, 2019 at about 18.15 hours, the 'Tareek Garden',

crumbled down and in the unfortunate incident, 16 residents lost their

lives and 09 were injured. Shortly after that, authorized Officer of the

Cri.ABA St.2630&3219-2020.doc

Municipal Council, lodged the complaint and crime was registered

against, Farookh Kazi, proprietor of M/s Kohinoor Developers; Gaurav

Shah, Architect (applicant); Chief Executive Officer of the Municipal

Council and Yunus Shaikh, a supplier of building material under

Sections 304, 337, 338 of the Indian Penal Code, 1860 and later

against Vivek Dongre (applicant).

5. Applicant - Dongres' case : Learned Counsel for the Applicant -

Dongre, would contend that though construction permission was

sought on the letter-head of his proprietary concern, the relevant

papers required for seeking the permission were signed by Architect,

Gaurav Shah. It is submitted that in 2011, Gaurav Shah had

approached him with the present project and since applicant - Dongre

and Gaurav Shah shared a good relationship, Gaurav Shah requested

Dongre to execute the project in the name of his proprietary firm. It is

argued that Gaurav Shah did not want to disclose receipts from the

present project, to the Income Tax and thus, requested the applicant -

Dongre to allow him to execute the present project in the name of M/s

Cri.ABA St.2630&3219-2020.doc

Vertical Architect and Planner (a proprietary concern of Dongre). It is

contended that Gaurav Shah assured Dongre, that he would complete

the project in accordance with the Development Control Rules and

keep him indemnified from and against all losses / claims, which may

arise from and upon execution of the project. Believing Gaurav Shah,

it is Dongres' case, that he permitted and allowed him to execute the

subject project in the name of M/s Vertical Architect and Planner.

Thus submitted, the plans of the building were drawn, signed

submitted by Gaurav Shah to the Municipal Council, all alone and

Dongre has had no connection and / or, interest in the project of the

building "Tareek Garden". In short, it is applicants' case that Gaurav

Shah being a friend of the applicant, he had allowed him to use the

name of his firm in "good faith" and believing the representation made

by him. On these grounds pre-arrest bail is sought.

6. Applicant - Shahs' case : So far as, a case of Gaurav Shah is

concerned, Mr. Thakare learned Senior Counsel refuted, contentions of

Dongre and submitted that Gaurav Shah had not signed any proposal

Cri.ABA St.2630&3219-2020.doc

or sought a permission to construct a building "Tareek Garden" but

someone had forged his signature. Mr. Thakare, learned Senior

Counsel, further submitted that Gaurav Shah has submitted his

passport and such other documents, bearing his signature to the

Investigating Officer, to enable him to verify the signature on the

building permission proposal (questioned document), allegedly

submitted on the letter-head of M/s Verticle Architect and Planner.

Mr. Thakare further submitted that Gaurav Shah was not appointed as

an architect either by M/s Vertical Architect and Planner or by M/s

Kohinoor Developers. He therefore, denied involvement of Gaurav

Shah in the subject project. Mr. Thakare, learned Senior Counsel, in

support of his contentions has relied on the charge-sheet filed, against

one of the accused persons and taken me through the statements of

witnesses. Referring to a statement of Shivpal Yadav, he would submit,

neither Yadav nor other witnesses said that Gaurav Shah had visited

the building site or was supervising the project during the period, when

a construction was on-going. Mr. Thakare also submitted that the

charge-sheet does not disclose or even 'suggest' that he was paid

Cri.ABA St.2630&3219-2020.doc

remuneration by developer for the services allegedly rendered by him.

On the contrary, he submits, the investigation has revealed, the

monetary transactions between Farookh Kazi, co-accused and

proprietor of M/s Kohinoor Developers and Dongre. Mr. Thakare also

relied on the statement of Marathe, who said that Dongre through

RCC consultants, M/s Shrawni Consultant submitted, RCC plan to

M/s Kohinoor Developers for constructing the building. Mr. Thakare

therefore, submitted that there is no material on record which would

disclose applicants' complicity in the crime. It is contended by Mr.

Thakare that since Gaurav Shah, has submitted documents like

passport bearing his signature, prosecution can verify applicants'

signature on questioned documents, with specimen signature and

therefore Shahs' custody is unwarranted.

7. Contradicting the submissions of both the counsel, Mr. Solkar

learned Special Counsel for the State has taken me through the charge-

sheet filed against the co-accused and in particular a statements of

Shivpal Yadav, Santosh Girkar, Devendra Morkhandekar; transcript of

Cri.ABA St.2630&3219-2020.doc

a telephonic conversation between Santosh Girkar and Dongre dated

25th August, 2020 its panchanama alongwith certificate under Section

65-B of the Evidence Act, mail received from HDFC bank with KYC

form bearing signature of applicant - Shah, monetary transactions

between Farookh Kazi, proprietor of M/s Kohinoor Developers and

Dongre. Mr. Solkar submitted that primary evaluation of these

documents clearly disclosed involvement, participation and complicity

of both the applicants in the subject crime.

8. Before adverting to the aforesaid evidence, it may be noted that

the file containing building permissions, approved plans of building

'Tareek Garden' and relevant data is missing from the office of

Municipal Council. Mr. Solkar submitted that the original approved

plan of the building is neither found, nor it is available in the office

record, and a digital record maintained by the Municipal Council. In

other words, Mr. Solkar would submit circumstances suggest the

attempts were made to cause a disappearance of primary evidence. In

support of this submission, Mr. Solkar has relied on the correspondence

Cri.ABA St.2630&3219-2020.doc

with the Municipal Council and a statement of Devendra

Morkhandekar (employee of the Council).

9. Building 'Tareek Garden' collapsed within seven years, wherein

sixteen innocents lost their lives. Material on record shows one Shivpal

Yadav was a 'centering work' contractor, and Farookh Kazi, is a

proprietor of M/s Kohinoor Developers. In past Shivpal Yadav had

worked on projects of Farookh Kazi. In this case, Bhahubali Dhamne

(co-accused) was RCC consultant. Shivpal Yadav was awarded the

centering work contract of the Tareek Garden by Farookh Kazi, in

2011. Shivpal Yadav disclosed, that in 2011, before awarding 'centering

work contract' to him, document was executed by and between

Farookh Kazi and himself, which was witnessed by Dongre. His

statement suggests Dongre was architect of the building and he was

supervising the construction throughout. Repeatedly, he stated that

architect Dongre was supervising and getting the centering work done

from him. However, this witness told police that a copy of approved

plan given to him by Dongre, was not available with him fore up.

Cri.ABA St.2630&3219-2020.doc

Therefore, Shivpal Yadav, admits presence of Dongre, on the site, while

construction was on-going. It suggests his participation in the project

and prima facie dispels his contentions.

10. Another statement, Mr. Solkar relied upon, is of Girkar. His

statement was recorded on 28.10.2020. He was working as a Liaison

Officer with another Architect from 1997 till 2000. From on and

onward year 2000, he independently started liaising work in relation to

building permissions. He stated, while doing liaising work, he became

acquainted with Gaurav Shah and Dongre (applicants herein). He told

police that, in 2006, he introduced Gauarav Shah to Dongre and

thereafter Gaurav Shah was Architect of two projects floated by Dongre

at Kharghar, District-Thane. Girkar further told that, he stopped

beneficial relationship with Dongre since 2006. He told, when at

native place, on 25.08.2020, he had received a call from Dongre, who

told him that, building "Tareek Garden" had collapsed on preceding

night i.e. 24.08.2020. Girkar, as it appears from his statement, had

recorded telephonic conversation and thereafter stored data in the

Cri.ABA St.2630&3219-2020.doc

pendrive. This pendrive was seized under panchanama dated

28.10.2020. The conversation was transcribed in the presence of two

panchas on 28.10.2020. Strong reliance has been placed by Mr.

Thakare, learned Senior Counsel appearing for Gaurav Shah to

contend that, this transcript spells out a fact that, Dongre had forged

signatures of Gaurav Shah on all letters since inception of project i.e.

seeking building permission till issuance of completion certificate.

11. I have perused the statement of Girkar and transcript

panchanama dated 28.10.2020. It suggests that, Dongre told Girkar

that, he had signed all letters/proposals/certificates while seeking

construction permission till issuance of completion certificate and not

Gaurav Shah. Transcription further suggest that, Dongre advised

Girkar to tell Gaurav Shah that, he had authorised Dongre to sign on

his behalf on all letters, proposals and correspondence with Municipal

Council in relation to building, "Tareek Garden". Thus, Mr. Thakare,

would contend that, prima-facie, Girkars' statement and 'transcript'

suggests that, Dongre had signed/forged fake signatures on all letters,

Cri.ABA St.2630&3219-2020.doc

proposals and certificates.

12. The primary evaluation of the statements of Shripal Yadav

(Center Work Contractor), Santosh Girkar, evidence in form of bank

entries between Farooq Kazi, (developer) and Dongre and such other

material indicates/discloses, presence of Vivek Dongre on a

construction site since inception of the project and his complicity in the

crime. His exact role, is required to be ascertained by in-depth

interrogation. One of the statements of the witnesses, also suggests,

Dongre was throughout instructing the supervisors on the construction

site and once had also rejected the RCC design made by RCC

Consultant in order to reduce the cost of construction. Application of

Dongre is therefore, rejected.

13. Now, so far as, Gaurav Shah is concerned, it may be stated that,

Gaurav Shah was an Architect in past of the projects, floated by

Dongre. Admittedly, the building permission in question, was sought

by Gaurav Shah as an Architect, through a proprietary concern of

Cri.ABA St.2630&3219-2020.doc

Dongre, as it bears his signature. Gaurav Shah has denied this fact and

alleged someone had forged his signature. Gaurav Shah, therefore

submitted documents like, passport to the Investigating Officer to

verify his signature on disputed document with his specimen signature

on the passport. However, report of Handwriting Expert is awaited.

14. A fact cannot be overlooked that, original building sanction plan

is not forthcoming, in as much as, neither witnesses nor arrested

accused produced it, on the pretext that it was lost or torn out. The

plan assumes importance because, prosecution alleges, as per sanction

plan, 14 tenaments were to be constructed; however investigation has

revealed, 43 tax assessment documents. It means the approved plan

was departed. It is also the prosecution's case that, RCC design was

modified/changed to reduce the cost of construction. Thus, it is

alleged by the prosecution, not only inferior quality of material was

used in construction to reduce the cost, but construction was not

carried out as per the approved plan. On this backdrop, a fact cannot

be overlooked, that the file containing approved plan and related

Cri.ABA St.2630&3219-2020.doc

permissions and even digital evidence in relation to this construction

project is "missing". Therefore, attendant circumstances suggest,

collective efforts were made by the accused to cause disappearance of

the evidence. If such evidence is not collected and brought on record,

it will lead to serious consequences. Thus, to unearth the truth and to

collect dependable evidence, custodial interrogation of Gaurav Shah is

necessary.

15. So far as, signature of Gaurav Shah on building permission

proposal is concerned, to verify the signature, Investigating Officer

sought KYC details from HDFC Bank, where Gaurav Shah maintains

his accounts. Officer who verified the signature on KYC form with

disputed documents, found signature on disputed documents

resembles the signature on KYC documents.

16. It is contended by Mr. Thakare, learned Senior Counsel that, not

even single prosecution witness has disclosed Gaurav Shah's name in

their statement, attributing role to him nor there is other evidence to

Cri.ABA St.2630&3219-2020.doc

connect Gaurav Shah to the present project. However, the fact remains

that, Municipal Council accepted the Certificate purportedly signed by

Gaurav Shah and granted completion certificate. Though the

transcript of telephonic conversation suggests that, Dongre had forged

Gaurav Shah's signature but it may also be noted that, though

conversation was allegedly recorded by Girkar on 25.08.2020,

panchanama of the transcript was done nearly after two months.

. Firstly, why Girkar recorded the conversation and secondly

in which circumstances, are the two facts-in-issue. Besides, why and

under which circumstances, Girkar produced, pendrive to police and

that too after two months, is another issue to be gone into; but not at

this stage. Therefore, in the present proceedings, I refrain myself from

relying on and or analysing the transcript. Thus, not only approved

plan of the building is coming forth, but entire file and electronic

evidence in relation to building "Tareek Garden" is missing from the

office of the Municipal Council. This building crumbled within seven

years resulting into death of 14 residents and left many residents

seriously injured. The circumstances on record, clearly suggests

Cri.ABA St.2630&3219-2020.doc

someone is attempting to tamper the evidence. In these circumstances,

possibility of further tampering and influencing the prosecution

evidence cannot be ruled out. In consideration of the facts and

circumstances of the case, in my view, applicants are not entitled to

pre-arrest bail. Both the applications are rejected.

17. In the facts and circumstances of the case, office of the Chief

State Examiner of Documents, is directed to produce the report within

three weeks from today to the concerned Investigating Officers.

18. Both the applications are rejected and disposed off accordingly.

19. In consideration of the facts of the case and reasons stated,

request for continuing the interim pre-arrest protection is declined and

rejected accordingly.

(SANDEEP K. SHINDE, J.)

NAJEEB//