Milan Mansukhlal Gandhi vs The State Of Maharashtra And Anr
2021 Latest Caselaw 16066 Bom

                                                    ABA-1959-2021-IA-2433-2021.doc




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELLATE JURISDICTION

      ANTICIPATORY BAIL APPLICATION NO.1959 OF 2021

SANJAY PUNAMIYA                                         )...APPLICANT

      V/s.

STATE OF MAHARASHTRA                                    )...RESPONDENT

                                       WITH

              INTERIM APPLICATION NO.2433 OF 2021


MILAN MANSUKHLAL GANDHI                                 )...INTERVENOR

                         IN THE MATTER BETWEEN

SANJAY M. PUNAMIYA                                      )...APPLICANT
    V/s.

STATE OF MAHARASHTRA                                    )...RESPONDENT


Mr.Niteen         Pradhan,           Senior   Counsel      a/w.         Mr.Dilip
Shukla,Advocate for the Applicant.
Mr.Ram Apte, Senior Counsel i/b. Mr.B.V.Salunkhe, Advocate for
the Intervenor.
Mr.Shekhar Jagtap, Special Public Prosecutor for the Respondent
- State.



AVK                                                                          1/38




      ::: Uploaded on - 22/11/2021                      ::: Downloaded on - 23/11/2021 05:28:22 :::
                                                     ABA-1959-2021-IA-2433-2021.doc




                                        CORAM : V. G. BISHT, J.

RESERVED ON : 16th NOVEMBER 2021 PRONOUNCED ON : 22nd NOVEMBER 2021

P.C. :

1 The present application has been moved by the

applicant under Section 438 of the Code of Criminal Procedure

(hereinafter referred to as the "Code") apprehending arrest under

Section 420, 467, 468, 470, 471 of the Indian Penal Code (IPC)

read with Section 13(1)(d) of Prevention of Corruption Act,

registered vide Crime No.201 of 2016 with Police Station Thane.

2 The prosecution case as set out in the First

Information Report (FIR) is thus :

Informant Milan Mansukhlal Gandhi is an Estate Agent and

carrying Estate Agency in Mira-Bhayander area. He knows

Shyamsunder Agarwal and his brother Muralidhar Agarwal since

past about ten years as they are the owners of Satima

Enterprises, Salasa Developers and Salgapur Developers. He was

AVK 2/38

ABA-1959-2021-IA-2433-2021.doc

told by them that as the Urban Land Ceiling Act (hereafter

referred to as ULC Act for the sake of brevity) was in force in

Mira-Bhayander area, every builder constructing on ULC land has

to pay a certain amount of money to the government for the

construction project and if he wants to complete the construction

without giving this share to the government, then they asked him

the name of builder who needs the Certificate, as according to

them Shyamsunder Radheshyam Agarwal had good acquaintance

in Collector Office. In order to convince the informant,

Muralidhar Agarwal showed him the certificate in respect of the

land bearing old Survey No.663 (new Survey No.237) stating

that the said land is exempted from the provisions of ULC Act.

The informant was thus convinced. However, he realized that it

was necessary to check the veracity of the matter before

discussing the matter with any builder.

3 The prosecution then contends that the informant

visited Mira-Bhayander Municipal Corporation in order to ensure

that old Survey No.663 (new Survey No.237) having

AVK 3/38

ABA-1959-2021-IA-2433-2021.doc

construction plan has been duly approved on the basis of

documents. The informant further found that the ULC order

mentioned in the construction work of the building being

constructed at old Survey No.664 and new Survey No.236 was

also mentioned and non-agricultural permission was also

obtained on the same basis. He was now fully convinced that

Muralidhar Agarwal through his brother Shyamsunder Agarwal

obtained the required Certificate from the ULC department.

4 According to prosecution, while the informant was

searching for a builder, at that time, he met Kalpesh Balwand

Patil, an Estate Agent in Bhayander area like him, who told him

that not to trust Agarwal brothers and further that the ULC

Certificate obtained by them was fake. Even he showed him the

information secured through Right to Information Act (RTI).

During discussion with one of his friends namely Ravi Shankar

Sharma, the informant also showed him a photocopy of ULC

Certificate of old Survey No.663 (new Survey No.237) obtained

under RTI and also gave him a copy thereof. From the

AVK 4/38

ABA-1959-2021-IA-2433-2021.doc

documents the informant was convinced that Muralidhar

Agarwal and his brother Shyamsunder Agarwal conspired to

carry out the old Survey No.663 (new Survey No.237)

admeasuring 23,340 sq. mtrs. and the certificates obtained from

the ULC department was not legally obtained from the competent

authority of the Upper District Collector. The said document was

obtained by them in collusion with Additional Collector and

competent authority of the concerned department of Mira-

Bhayander Municipal Corporation and the permit was obtained

on the basis of forged certificate. Thus, they caused loss to the

government to the tune of Rs.11,16,69,600/- and on the basis of

this, said FIR came to be registered and after due investigation

the charge-sheet came to be filed.

5 Mr.Niteen Pradhan, learned senior counsel for the

applicant, at the very outset, submits that despite filing of the

charge-sheet, investigating agency commenced further

investigation on the basis of certain complaints and arrested

Satyawan Dashrath Dhanegave, Shekhar Kashinath Limaye and

AVK 5/38

ABA-1959-2021-IA-2433-2021.doc

Dilip Prabhakar Gheware. Even the present applicant who was

witness earlier and whose statement was duly recorded under

Section 161 of the Code is now also made an accused. At this

juncture, the learned senior counsel was critical of the approach

of the prosecution agency in as much as according to the learned

senior counsel, no permission from the concerned trial Court was

sought by the investigating agency to commence further

investigation.

6 Dwelling further to the factual background of the

case, the learned senior counsel submits that applicant's

acquaintance namely Ratilal Jain somewhere in the year 2003

proposed him to start a business jointly. Accordingly, a

partnership firm was formed in the name and style "Sandhya

Enterprises" with three partners - Ratilal Jain, Sushil Mehta and

the applicant herein. Ratilal Jain was an active partner and used

to look after the affairs. In the month of August 2003, Ratilal

Jain visited the applicant and informed him that Rakesh Manglya

Mhatre had informed him that Survey No.569/1 is ready for sale

AVK 6/38

ABA-1959-2021-IA-2433-2021.doc

and accordingly, Ratilal Jain issued several cheques in favour of

Rakesh M. Mhatre and his legal heirs. After handing over

cheques to Rakesh M. Mhatre and his legal heirs, they were made

to sign the Agreement and Power of Attorney of Rakesh M.

Mhatre and his relatives. Then in the month of August 2005,

Ratilal Jain informed the applicant and other partners that he is

in need of money and therefore, he is desirous of selling the

Survey No.569/1. However, the applicant and other partners

advised Ratilal Jain that if he needed finance assistance, they

would refund the amount that he had invested in the firm.

Accordingly, a Deed of Retirement on 13th September 2005 was

entered into and Ratilal Jain was given all the dues. Ratilal Jain

then gave the original Agreement and Power of Attorney to the

applicant.

7 The learned senior counsel further submits that after

execution of the Retirement Deed, the applicant came to know

that Survey No.569/1 has been sold by Rakesh Mhatre to one

Vallabh Mulji Dhedia vide Agreement dated 24th April 2001 and

AVK 7/38

ABA-1959-2021-IA-2433-2021.doc

11th April 2001 and on that basis, Mutation Entry No.6161 came

to be effected and accordingly 7/12 extract was also prepared.

This was challenged by the applicant before Sub-Divisional

Officer (SDO) who cancelled the said Mutation Entry No.616 and

the names of Rakesh Mhatre and his legal heirs were restored

vide Mutation Entry No.6186.

8 The learned senior counsel next submits that in the

year 2006, the applicant applied for non-agricultural usage (NA

for short) with the Office Collector, Thane and after due process

the ULC department verified the ULC certificate as valid and legal

and accordingly, NA order came to be passed on 10th April 2006.

9 The learned senior counsel lastly contends that the

case of prosecution in short is that public servants namely

Dhanegavi and Dilip Ghevare forged ULC certificate and which

according to it was used by the applicant to get NA certificate

dated 23rd October 2000 in conspiracy with each other to extend

benefit to the builder which caused a loss of Rs.102 crores to the

AVK 8/38

ABA-1959-2021-IA-2433-2021.doc

State in Survey No.663, 664, 569/1, 661/1, 2, 3 and 662/2.

According to the learned senior counsel, it is not the case of the

prosecution that the applicant forged the ULC certificate. The

responsibility of the alleged forgery, if at all, falls upon the said

government servants namely Dhanegavi and Dilip Ghevare. The

whole investigation is over. Even original certificate of ULC has

been seized by the Investigating Officer and in such

circumstances, there is no need of custodial interrogation. The

learned senior counsel also placed reliance in Sheila Sebastian vs.

R. Jawaharaj & Anr. Etc.1 Shri Gurbaksh Singh Sibbia and Others

vs. State of Punjab2, Bhadresh Bipinbhai Sheth vs. State of

Gujarat and Another3, Siddharam Satlingappa Mhetre vs. State of

Maharashtra and Others4, Sushila Aggarwal and Others vs. State

(NCT of Delhi) and Another5, Mohammed Ibrahim and Others vs.

State of Bihar and Another6, Joginder Kumar vs. State of U.P. and

Others7, Mathloob Abdul Gafoor Qureshi vs. State of Maharashtra

1 Criminal Appeal Nos.359-360 of 2010 2 (1980) 2 Supreme Court Cases 565 3 (2016) 1 Supreme Court Cases 152 4 (2011) 1 Supreme Court Cases 694 5 (2020) 5 Supreme Court Cases 1 6 (2009) 8 Supreme Court Cases 751 7 (1994) 4 Supreme Court Cases 260

AVK 9/38

ABA-1959-2021-IA-2433-2021.doc

and Anr.8, Shyamsunder Radheshyam Agarwal vs. The State of

Maharashtra9, Manoj Motaji Purohit vs. The State of Maharashtra

with Ratilal Babhutmal Jain vs. The State of Maharashtra10.

10 Mr.Shekhar Jagtap, learned special public prosecutor,

vehemently submits that the applicant purchased the subject land

bearing Survey No.569/1 through his partnership firm, which

was subsequently dissolved and he became the sole owner.

Accordingly to the learned special public prosecutor, the

applicant intentionally used the bogus / forged ULC certificate of

the land bearing Survey No.569/1 at the time of executing and

obtaining various instruments including Deed of Confirmation

dated 18th May 2006, Agreement to Sell and General Power of

Attorney in respect of land bearing Survey No.569/1, as well as

obtaining N.A. NOC order dated 10th January 2006, NA dated

10th April 2006 and Completion Certificate dated 25th April 2006.

The applicant later on sold the land at Survey No.569/1 to

Siddharth Mahendra Mehta who is also his business associate. 8 1998 SCC Online Bom 772 9 Bail Application No.2482 of 2016 dated 9th December 2016 10 Bail Application No.1210 of 2017 and Bail Application No.1211 of 2017 dated 1st June 2017

AVK 10/38

ABA-1959-2021-IA-2433-2021.doc

The said Siddharth Mahendra Mehta on his part transferred the

development rights of the land bearing Survey No.569/1 to

various builders, as per instructions of the applicant, making him

the ultimate beneficiary.

11 Apart from above subject land, the learned special

public prosecutor also made reference to Survey No.661/3 and

Survey No.530/1 and 532/3. According to the learned special

public prosecutor, the applicant also acquired part of undivided

land bearing Survey No.661/3 through his partnership firm and

signed various documents on behalf of his partnership firm. The

applicant was the sole owner of the property till 16th January

2007 when he sold the property to one Manharlal Balwantrai

Mehta who carried on construction on the land. Here also, the

applicant used bogus ULC certificate and relied on the ULC

certificate at the time of executing the Agreement for Sale dated

16th January 2007.

AVK                                                                 11/38





                                                  ABA-1959-2021-IA-2433-2021.doc




12            The learned special public prosecutor next alleges

that in the year 2004, the applicant in connivance with other

accused namely Chandrashekhar Limaye, Dilip Gheware,

Bhaskarrao Wankhede conspired to forge ULC certificate for the

land bearing Survey No.569/1, 661/1,2,3 and 662/2 and showed

that the said property fell in green zone. Although, the ULC

certificate which was obtained through Chandrashekhar Limaye

was shown to be issued on 23rd October 2000, however, the

adhesive Court fee stamp is having date of 4th December 2001.

Even according to the learned special public prosecutor, the

applicant had conspired with the First Informant Milan Gandhi

and submitted that the said First Informant after making

representation to the Collector dated 14th June 2021 had filed

Writ Petition No.2356 of 2021 wherein the present applicant was

shown respondent no.5 and had shown his readiness and

willingness to compensate the loss caused, if any, to the

appropriate department of the said Office of Collector in relation

to plot bearing Survey No.569/1 and 663/1 situate at Village

Bhayander. The learned special public prosecutor then submits

AVK 12/38

ABA-1959-2021-IA-2433-2021.doc

that throughout the various transactions, the applicant was

having deep knowledge that the document in question i.e. the

ULC certificate is not a genuine document and despite that, he

used it for his financial gains.

13 The learned special public prosecutor, during the

course of arguments, also filed on record a tabular chart showing

how the partnership firm was formed, transactions were entered

into and how the applicant used forged ULC certificate bearing

No.ULC/TA/ATP/2000/252 dated 23rd October 2000 for his

financial gain. According to the learned special public prosecutor

the investigation is in progress and in order to unearth the

conspiracy and forgery which had led to huge loss of government

exchequer, it is very much necessary to have the custody of the

applicant so that the investigation can be carried out effectively.

The learned special public prosecutor also placed reliance in

Mohammad Nazim vs. State of Himachal Pradesh 11,

Chandrashekhar Murlidhar Dhavale vs. State of Maharashtra 12,

11 2021 SCC Online HP 606 12 2020 SCC Online Bom 3722

AVK 13/38

ABA-1959-2021-IA-2433-2021.doc

Maruti Nivrutti Navale vs. State of Maharashtra and Another 13, P.

Chidambaram vs. Directorate of Enforcement14, Naushad Abdul

Ali Shaikh vs. The State of Maharashtra with connected

matters15, State of Gujarat vs. Mohanlal Jitamalji Porwal and

Another16 and Suman Chattopadhyay vs. Republic of India17.

14 Mr.Ram Apte, learned senior counsel for the

intervenor/informant invited my attention to paragraphs 12 and

13 of the Intervention Application and submitted that baseless

allegations have been leveled against the original complainant/

intervenor. On the contrary, according to him, the applicant

cannot absolve his duty and responsibility to pay the loss caused

to the government by filing the present anticipatory bail

application and is liable to compensate the loss especially since

he had undertaken in his Affidavit-in-Reply before the High

Court. Thus, the present application does not deserve

consideration and needs to be rejected, argued the learned senior

13 (2012) 9 Supreme Court Cases 235 14 (2019) 9 Supreme Court Cases 24 15 2016 SCC Online Bom 3403 16 (1987) 2 Supreme Court Cases 364 17 2021 SCC Online Ori 676

AVK 14/38

ABA-1959-2021-IA-2433-2021.doc

counsel.

15 On the basis of submissions advanced before me,

following questions emerge for discussion -

(a) whether applicant, who is shown as a witness in Final Report

submitted on 31st March 2017 be arraigned as an accused on the

ground of "further investigation" without the permission of the

concerned Court ?

(b) if yes, whether prosecution has been able to establish prima

facie involvement of applicant-accused in alleged offences ?

The answer is an emphatic no. Let me qualify with reasons.

16 Pursuant to the complaint of Milan Mansukhlal

Gandhi the said crime number under relevant sections of Indian

Penal Code and Prevention of Corruption Act came to be

registered and during course of investigation, which is apparent

from the record, the applicant was summoned. It is further seen

that the statement of present applicant came to be recorded on

11th December 2016 as a witness in connection with the said FIR

AVK 15/38

ABA-1959-2021-IA-2433-2021.doc

and after completion of investigation, the Final Report / charge-

sheet came to be filed on 31st March 2017.

17 Before I go into the legal niceties, let me go through

the statement of applicant dated 11th December 2016 so recorded

by the Investigating Officer during the course of investigation.

The applicant in his statement stated that on 2nd July 2003 a

partnership firm in the name of "Sandhya Enterprises" consisting

of himself, Ratilal Jain and Sushil Mehta came to be formed.

Ratilal Jain then through one Arun Kadam of his office started

interacting with one Rakesh Manglya Mhatre. Since the applicant

and Sushil Mehta were busy in other business activities, all the

responsibilities were handed over to Ratilal Jain. Somewhere in

the month of August 2003, Ratilal Jain told the applicant and

Sushil Mehta that said Rakesh Manglya Mhatre, owner of Survey

No.569/1 is ready to sell the said land and he is required to be

given a cheque in the sum of Rs.3,25,000/-. Therefore, the

applicant and Sushil Mehta asked Ratilal Jain to give the cheque

in the name of firm. After completion of talks with Rakesh

AVK 16/38

ABA-1959-2021-IA-2433-2021.doc

Manglya Mhatre, he and his relatives were summoned in the

office by Ratilal Jain. The cheque was given and Rakesh Manglya

Mhatre and his relatives executed Agreement and also signed

Power of Attorney. On the next day, the applicant and Sushil

Mehta went to the office of Ratilal Jain and put their signatures

on Agreement and Power of Attorney.

18 It is further seen from his statement that in the month

of August 2005 Ratilal Jain called him and Sushil Mehta and said

that he is in need of money and therefore, the said land should

be sold. However, he and Sushil Mehta advised that the

applicant should take the amount invested by him in the said

land and accordingly, the compensation was given to Ratilal Jain

and a Deed of Retirement of his partnership was prepared on 13 th

September 2005. At that time, Ratilal Jain handed over

Agreement, Power of Attorney and ULC certificate which was

given to him by said Rakesh Manglya Mehta, to them. It is his

further statement that meantime, he came to know that on 20 th

February 2006 one Vallabh Dedhia, a businessman, had

AVK 17/38

ABA-1959-2021-IA-2433-2021.doc

registered a Deed of Confirmation before Sub-Registrar, Thane, in

respect of Survey No.569/1. When they confronted Ratilal Jain,

he acknowledged that it was he who had entered into a

transaction with Vallabh Dedhia but as the amount of transaction

was not received by him, the transaction remained incomplete.

This led to civil and criminal proceedings between them and said

Vallabh Dedhia. Being fed up, he ultimately sold the said land

i.e. Survey No.569/1 on 8th November 2006 to Siddharth Mehta

of Balaji Developers for less consideration than the prevailing

market rate.

19 It then appears that he was then shown the ULC

certificate which was found during the house search panchnama

of Manoj Purohit in respect of subject land and other lands and

after perusal of it, he was of the opinion that it is a forged one.

However, according to him, Ratilal Jain, despite having

knowledge of this fact, did not tell him and rather concealed the

said fact.

AVK                                                                  18/38





                                                  ABA-1959-2021-IA-2433-2021.doc




20            From the above, it is more than clear that the

statement of the applicant was recorded in extenso and he had

revealed all the relevant facts as to how the ULC certificate in

question came firstly in possession of Ratilal Jain through Rakesh

Manglya Mhatre and later on the same came to be seized from

the house of Manoj Purohit.

21 Now is the time to perceive and ponder over question

(a). It is quite disturbing that the Investigating Officer resorted

to Section 173(8) of the Code after a long gap of six years.

Section 173(8) of the Code provides as under :

"173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-

sections (2) to (6) shall, as far as may be, apply in

AVK 19/38

ABA-1959-2021-IA-2433-2021.doc

relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."

A plain reading of the provision shows that the officer in charge

must obtain "further evidence" apart from the "Report" submitted

as per sub-section (2). Needless to say, after submission of Final

Report / charge-sheet under Section 173(2) of the Code, the

concerned Investigating Officer must obtain "further evidence"

justifying or warranting "further investigation".

22 In Vinay Tyagi vs. Irshad Ali 18 the Hon'ble Apex Court

made following observations :

"22 "Further investigation" is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a "further investigation." Scope of such investigation is

18 (2013) 5 SCC 762

AVK 20/38

ABA-1959-2021-IA-2433-2021.doc

restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report.' 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation."

23 From the above observations, it is very much clear

that the Hon'ble Apex Court categorically held that the "further

AVK 21/38

ABA-1959-2021-IA-2433-2021.doc

investigation" does not have the effect of wiping out previous

investigation, rather it supplements the earlier investigation. A

clear perception gaining ground is the exercise adopted and

approached by the Investigating Officer is not less than re-

opening and re-investigating the case afresh, contrary to mandate

and dictum of Hon'ble Apex Court. Assuming that earlier

investigation qua the applicant had gone haywire and the said

fact dawned upon Investigating Officer subsequent to filing /

submission of charge-sheet, then statutorily Investigating Officer

was obliged to have brought the error to the knowledge of the

concerned Court and obtain necessary permission. There is

inscrutable silence of prosecution over this aspect. The learned

special public prosecutor is tellingly silent on the approach

adopted by the Investigating Officer. I, therefore, hold that the

learned senior counsel for the applicant makes an eminent sense

when he argues that the steps taken by the Investigating Officer

do not satisfy the test of Section 173(8) of the Code in terms of

"further investigation" vis-a-vis the permission and/or

information to the concerned Court.

AVK                                                                             22/38





                                               ABA-1959-2021-IA-2433-2021.doc




24            Assuming that all is well with the case of prosecution

vis-a-vis the first question. The second question comes herein.

25 I have carefully gone through the investigation

papers. The case put forth by the applicant is that he, Ratilal Jain

and Sushil Mehta constituted a partnership firm as Ratilal Jain

had proposed to purchase a land bearing Survey No.569/1 of

Village Bhayander i.e. subject matter land belongs to one Rakesh

Manglya Mhatre. Necessary Agreement and Power of Attorney

were also executed between the parties. It is pertinent to note

from record that "Certificate" dated 23rd October 2000 (Exh. C)

which is ULC certificate in question, is in the name of Rakesh

Manglya Mhatre pertaining to subject land and not in the name

of the applicant. I have also an advantage to have statement of

said Rakesh @ Babul Manglya Mhatre. According to him, in the

year 2001, a transaction had taken place between him and

Ratilal Jain through Arun Kadam. He and his representative had

signed Development Agreement and had also given Power of

Attorney to said Ratilal Jain, so as to obtain necessary

AVK 23/38

ABA-1959-2021-IA-2433-2021.doc

permission, who was running "Gagan Enterprises". It appears

that when he was shown an application addressed to Upper

Collector and Competent Authority, purportedly signed by him in

English in respect of issuance of Zone Certificate and non-

applicability of the provisions of ULC Act in respect of Survey

Nos.661, 662 and 569, he denied that it bears his signature.

Similarly, he was shown the certificate bearing No.ULC/TA/ATP/

Certificate/2000/ 252 dated 23rd October 2000 i.e. ULC

certificate in question, he again denied of having made any

application in order to secure the said certificate either himself or

through M/s.Vishesh Associates. Suffice it to say, this witness

feigned ignorance in respect of ULC certificate in question.

According to him, he neither had applied in person nor through

agency so as to secure ULC certificate in respect of subject land

and other lands. It is also pertinent to note that according to this

witness, he had handed over Power of Attorney to Ratilal Jain to

carry out further activities in respect of the land in question and

other lands so as to obtain necessary certificates. Pertinently

enough, this witness has not cast any aspersions on the role of

AVK 24/38

ABA-1959-2021-IA-2433-2021.doc

the applicant herein, nor that Ratilal Jain adopted foul means to

secure ULC certificate in question.

26 Coming to the ULC certificate in question, this

certificate is endorsed by Additional Collector and competent

authority in accordance with law. There is a letter (Exh. G)

written by Additional Collector and competent authority, Thane

Urban and Agglomeration, Thane to the Collector, Thane

(Revenue Branch) informing him that certificate (Exh. C) dated

23rd October 2000 is valid as per Government Circular No.NAJAK

1022/ No.128/ULC 3 dated 25th November 2002. It is then seen

from the record that the said ULC certificate in question came to

be found during the house search panchnama of one Manoj

Purohit. It is also relevant to note that the copy of the ULC

certificate (Exh. K) was seized during the course of investigation

and the original was kept with the police for sending it to

Forensic Science Laboratory. Thus, the original ULC certificate in

question is not forthcoming.

AVK                                                                 25/38





                                                  ABA-1959-2021-IA-2433-2021.doc




27            As against above, the case of prosecution is that the

applicant was having all the knowledge since beginning that the

document in question is not a genuine document and despite that

he used the said forged document for financial gains. The

learned special public prosecutor during the course of argument

submitted the statements of various prosecution witnesses

namely Rajiv Ganpat Rakvi, Harishchandra Atmaram Mhatre,

Dwarkabai Kashinath Patil, Dilip Lalchand Porwal, Rakesh @

Babul Manglya Mhatre, Rashesh Manharlal Mehta, Sushil

Mohanlal Mehta and others.

28 The statement of Rajiv Ganpat Rakvi shows that

according to him, on 4th August 2004 applicant and others had

proposed him to purchase his share of land. His statement then

shows that he then came to know from the police that the ULC

certificate in respect of 569/1, 661/1, 2,3, 662/2 was forged one.

This statement does not in any manner help the prosecution, as

far as the role of the applicant is concerned.

AVK                                                                      26/38





                                               ABA-1959-2021-IA-2433-2021.doc




29            Harishchandra Atmaram Mhatre states that the part

of Survey No.569/1 was given by his father and eight others for

development to applicant by virtue of an Agreement and then he

identified the signature of the applicant. Similar is the

statement of Dwarkabai Kashinath Patil in respect of her share in

Survey No.569/1, 661/1, 2, 662/2 being given to the applicant

by virtue of an agreement and the agreement bears the signature

of the applicant.

30 The statement of Dilip Lalchand Porwal is in the form

of opinion and it appear that he has no personal knowledge.

31 The statement of Rakesh @ Babul Manglya Mhatre

also shows that by virtue of an agreement dated 30th August

2003, he and eight others had given Survey No.569/1 for

development and on the basis of ULC certificate given by Shekhar

Limaye, the applicant had applied for permission of NA in respect

of the said land.

AVK                                                                   27/38





                                                ABA-1959-2021-IA-2433-2021.doc




32             The statement of      Rakesh Manharlal Mehta then

shows that applicant had given ULC certificate to his father in

respect of transaction of Survey No.661/3.

33 Then there is statement of Sushil Mohanlal Mehta

who was one of the partners of "Sandhya Enterprises".

According to him, he retired as a partner by Deed of Dissolution

in 2006. The ULC certificate was used by the applicant in respect

of Survey No.661/3 in order to get NA NOC and Completion

Certificate. Interestingly, he does not say anywhere that the

applicant was having the knowledge that the said ULC certificate

was forged one. His statement also shows that he came to know

only from the police that the said ULC certificate in question was

a forged document.

34 Similarly, statement of Dhiraj Shyamji Vira shows that

he came to know from the police that the ULC certificate in

question was a forged one.

AVK                                                                    28/38





                                              ABA-1959-2021-IA-2433-2021.doc




35             There is also a statement of Ratilal Bhagutmal Jain

who was also a partner of M/s.Sandhya Enterprises. According

to him, the ULC certificate in respect of Survey No.569/1, 661/1,

2, 3 and 662/2 was obtained by Mr.Chandrashekhar Limaye of

Vishesh Associates from ULC Office, Thane, from Town Planner

Dilip Ghevare.

36 Next is statement of Vishwarup @ Baban Shivaji

Parkar. It appears that when he was shown the ULC certificate in

respect of Survey No.569/1, 661/1, 2, 3 and 662/2 it was

showing year 2000, but according to him it was written infact in

the year 2004 and was typed at the residence of Gauri Sawant @

Vrushali Shinde. According to him, the Town Planner Shri. Dilip

Ghevare, Bharat Kamble and the then Additional Collector

Bhaskarrao Wankhede were involved in the forgery of the said

certificate. They were helped by Bharat Kamble and Gauri

Sawant.

AVK                                                                  29/38





                                                   ABA-1959-2021-IA-2433-2021.doc




37            On the other hand, statement of Bharat Kamble

shows that they used to work under the direction of Town

Planner Dilip Ghevare. So also Gauri Sawant @ Vrushali Shinde

states in her statement that she had typed the certificate on the

say of Baban Shivaji Parkar as he was directed to get the

certificate typed by said Dilip Ghevare.

38 All the above referred statements do not, in any

manner, prima facie indicate any constructive role played by the

applicant in obtaining the ULC certificate. Merely making

submissions that the applicant was having deep knowledge that

the document in question is not a genuine one will not further

the case of prosecution. It seems that the prosecution is

harbouring only inferences, conjectures and surmises without any

striking material. The same is not supported by equally and

strong cogent and convincing material so as to prima facie

establish the complicity of the applicant in the whole episode.

AVK                                                                       30/38





                                                  ABA-1959-2021-IA-2433-2021.doc




39            I have also carefully gone through the tabular chart

submitted before me by the learned special public prosecutor

during the course of arguments. It all depicts how the

documents of Agreement and Power of Attorney were executed

by land owners in favour of partnership firm of applicant and

others, how Ratilal Jain and Sushil Mehta came to be retired

from the said partnership firm and later on how the documents

were recorded in his name. It also shows that from time to time

the applicant used the ULC certificate in question before the

Revenue Authority. I have already pointed out and again

reiterate at the cost of repetition that except inferences of hand

in glove with the other accused, no positive prima facie evidence

is forthcoming, and therefore, in my view, this chart also will not

further the case of prosecution.

40 In the case of Bhadresh Bipinbhai Sheth (supra) the

Hon'ble Apex Court has enumerated following factors and

parameters which need to be taken into consideration while

considering anticipatory bail application :

AVK                                                                      31/38





                                                     ABA-1959-2021-IA-2433-2021.doc




                  "(x)          The following factors and parameters that

need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b)The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d)The possibility of the accused's likelihood to repeat similar or other offences;

(e)Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

AVK 32/38

ABA-1959-2021-IA-2433-2021.doc

(g)The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;

(h)While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

AVK 33/38

ABA-1959-2021-IA-2433-2021.doc

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail."

41 Similarly, in Siddharam Satlingappa Mhetre (supra)

the Hon'ble Apex Court has held that there is no requirement to

make out a special case under Section 438 of the Code. The

applicant is only required to make out a prima facie case to seek

relief from the Court under Section 438 of the Code.

42 What is apparent from the record is that government

servants Satyawan Dashrath Dhanegave, Shekhar Kashinath

Limaye and Dilip Prabhakar Gheware and others were

instrumental in forging the ULC certificate in question. I have

already pointed out that no satisfactory evidence is forthcoming

to point out prima facie involvement of the applicant. What is

AVK 34/38

ABA-1959-2021-IA-2433-2021.doc

apparent from the record is that the investigating agency has

seized / gathered all the documents evidencing transactions

pertaining to subject land and other lands, at the time of filing of

charge-sheet only. The submission of the learned senior counsel

for the applicant could not be scoffed out of significance when he

argues that the custody of the applicant is unwarranted.

43 Even otherwise, the case of prosecution is that the

ULC certificate in question was forged. According to the

definition of "forgery" - whoever makes any false documents or

false electronic record or part of a document or electronic record

with intent to cause damage or injury, to the public or to any

person, or to support any claim or title, or to cause any person to

part with property, or to enter into any express or implied

contract, or with intent to commit fraud or that fraud may be

committed, commits "forgery". Similarly, a person is said to have

made a "false document" if (i) he makes or executes a document

claiming to be someone else or authorised by someone else, or

(ii) he alters or tampers a document, or (iii) he obtains a

AVK 35/38

ABA-1959-2021-IA-2433-2021.doc

document by practicing deception or from a person not in control

of his senses. From the above, it is clear that the definition of

"false document" is part of definition of "forgery". Both goes

hand in hand and must be read together.

44 Next, "forgery" and "fraud" are essential matters of

evidence which could be proved as a fact by direct evidence or

from inferences drawn from proved facts. In the case in hand, I

have pointed out, no such material is forthcoming to enable me

to draw atleast prima facie inference that it was the applicant

who contributed, in any manner, towards the act of forgery. The

prosecution will have to wait till the necessary evidence tested by

cross-examination is led by the prosecution.

45 I have also gone through the various judgments

relied by the learned special public prosecutor. In my considered

opinion, those citations have no bearing to the case in hand as

they are distinguishable on facts.

AVK                                                                    36/38





                                                ABA-1959-2021-IA-2433-2021.doc




46              That must having been said, it must once again be

stressed that the applicant deserves to be granted anticipatory

bail.

47 In view of the foregoing discussion, I pass the

following order :

ORDER

1 The application is allowed.

2 In the event of his arrest in Crime No.201 of 2016 for the

offences punishable under Section 420, 467, 468, 470, 471

of the Indian Penal Code (IPC) read with Section 13(1)(d) of

Prevention of Corruption Act, registered with Police Station

Thane, the applicant be released on bail on his executing

P.R.Bond in sum of Rs.1,00,000/- with 1/2 surety in like

amount.

AVK                                                                    37/38





                                                    ABA-1959-2021-IA-2433-2021.doc




3     The applicant is directed to co-operate with the investigation

and shall join the investigation thrice in a week i.e. on

Monday, Tuesday and Wednesday between 11.00 a.m. to

2.00 p.m. till the filing of charge-sheet.

4 Parties to act on copy of this order duly authenticated by the

Sheristedar of this Court.

5 It is made clear that the observations made herein are prima

facie and the trial Court shall decide the case on its own

merit, in accordance with law, uninfluenced by the

observations made in this order.

6 The application stands disposed off accordingly.

7 The Interim Application is allowed and stands disposed off

accordingly.

                                            (V. G. BISHT, J.)

AVK                                                                        38/38