Bombay High Court
Hemant Yeshwant Ashtekar And Anr vs The State Of Maharashtra on 15 June, 2023
Bench: Amit Borkar
2023:BHC-AS:16039
8-aba1185-2020.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.1185 OF 2020
Hemant Yeshwant Ashtekar & Anr. ... Applicants
V/s.
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.116 OF 2021
IN
ANTICIPATORY BAIL APPLICATION NO.1185 OF 2020
Chandraprakash T. Tiwari ... Applicant
In the matter between
Hemant Yeshwant Ashtekar & Anr. ... Applicants
V/s.
The State of Maharashtra ... Respondent
Mr. Harshad V. Nimbalkar with Mr. Ashish Kachole &
Mr. Abhishek Arote with Mr. Sajid Mahat with Mr.
Omkar Chitale with Mr. Satyam H. Nimbalkar for the
applicants.
Ms. Pushpa Ganediwala with Mr. Chaitanya Purankar
i/by Ms. Purvi Shah for the applicant in IA/116/2021.
Mr. Pandurang H. Gaikwad, APP for the
respondent/State.
CORAM : AMIT BORKAR, J.
DATED : JUNE 15, 2023
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P.C.:
1. Apprehending arrest in connection with C.R. No.434 of 2020
registered at Chikhali Police Station, Pune for the offences
punishable under sections 465, 468, 471, 447, 341 and 34 of the
Indian Penal Code, 1860 read with section 7 of the Criminal
Amendment Act, 1932.
2. According to prosecution, the informant derived title of Gat
No.90 at village Talwade, Taluka Haveli, District Pune
admeasuring 7.5 R on 6 th November 1997. The said property was
declared as red zone and, therefore, he cannot construct over the
said property. The actual possession of the said property was with
the informant till 7th November 2018. On that day, the applicants
dispossessed the informant using unlawful force. He, therefore,
lodged a complaint with police station concerned on 7 th November
2018. The applicants illegally constructed a temporary shed and
bore well in the said property.
3. According to the informant, this is a part of land grabbing
which was pre-planned strategy of all the accused. According to
him, all the accused persons forged sale deed by inserting
boundaries of property owned by him with intention to grab land
owned by him. Based on such forged sale deed, the applicants
altered revenue records to make entries of their names in the
revenue record. Therefore, according to the informant, the
applicants along with other co-accused have committed offence
under sections 465, 468, 471, 447, 341 and 34 of the Indian
Penal Code, 1860 read with section 7 of the Criminal
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Amendment Act, 1932.
4. The applicants who are purchasers of the property, filed an
application before the learned Sessions Judge under section 438 of
the Criminal Procedure Code, 1973, which came to be rejected by
order dated 11th November 2020; hence, the applicants have filed
present anticipatory bail application.
5. Learned advocate for the applicants states that the applicants
are the bona fide purchasers of the property in dispute. The ready
reckoner value of the property in dispute is Rs.26,27,690/-.
Consideration agreed was Rs.45,40,000/-. The consideration was
sought to be paid by the cheques, however, due to dispute with the
informant, cheques around amount of Rs.13,19,000/- were
honoured. Rest of the consideration was not paid to the vendors.
According to him, except allegation that all the accused have
forged the sale deed in question, there is no specific role attributed
to the applicants as to how applicants participated in the offence of
forgery. According to him, there is no material available with the
investigation to attribute such role to the applicants. According to
him, therefore, considering allegations in the report and material
available in the investigation, essential ingredients of the offence
alleged against the applicants are not fulfilled. In support of his
submission, he relied on judgment in the case of Md. Ibrahim &
Ors. vs. State of Bihar & Anr. reported in (2009) 8 SCC 751.
6. Per contra, learned advocate for the informant submitted
that this is a classic case of land grabbing. The co-accused has
criminal antecedents. The market value of the property was
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astronomical but due to imposition of red zone, the value has been
deteriorated. According to her, the applicants along with other co-
accused made false documents by tampering with it and, therefore,
essential ingredients of the offence alleged against the applicants
are fulfilled.
7. Learned APP for the State supported the submissions of the
informant and submitted that custodial interrogation of the
applicants is necessary. Considering gravity and seriousness of
allegation, the applicants are not entitled to any relief.
8. I have considered the material on record. Based on material
on record, prima facie it appears that there is no specific role
attributed to the applicants that as to how applicants tampered the
sale deed. The allegations which find place in the report are to the
effect that all the accused without lawful authority and dishonestly
changed boundaries of the sale deed to grab the property of
informant and based on such sale deed encroached on the
property of the informant.
9. It is not in dispute that the applicants have filed a civil suit
seeking permanent injunction against the informant restraining
him from disturbing possession over the property in dispute. It is
also not in dispute that the informant has filed suit under section 6
of the Specific Relief Act, 1963, wherein the Civil Court by way of
interim relief has restrained the applicants from alienating the
property in dispute. Prima facie, it appears that the applicants have
parted with available consideration atleast to the extent of
Rs.13,19,000/- by cheques. Therefore, at this stage the applicants
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appeared to be purchaser of the property. If this be so, the
judgment in the case of Md. Ibrahim (supra) applies with full
force. The apex Court in paragraph 12 of the said judgment culled
out distinction between a person executing sale deed claiming the
property conveyed to be his property, and a person executing a
sale deed by impersonating the owner or falsely claiming to be
authorized by owner. The Apex Court further considered essential
ingredients of section 464 of the Indian Penal Code, 1860 to the
effect that a person can be said to have made false document if (i)
he made or executed a document claiming to be someone else or
authorized by someone else or altered or tampered the document
or obtained a document by practicing deception.
10. In the facts of the present case, the allegation contained in
the report is omnibus allegation that all the accused altered. It is
orally submitted that accused persons tampered the document to
insert boundaries of property owned by the informant. In absence
of specific allegation against the purchaser that it is the purchasers
who altered the document, at this stage no ingredients of the
offence are prima facie held to be satisfied. At this stage it is not
clear what was the original document and in what document the
insertion of changing boundaries was made. All these issues are
required to be considered by investigating agency.
11. At this stage, the investigation is complete. Charge sheet is
filed. From the material on record, as of now I am prima facie
satisfied that the ingredients of offence under sections 464, 468
and 471 are not made. This Court by order dated 14 th January
2021 protected the applicants. There is no material on record to
8-aba1185-2020.doc
indicate that the applicants have not cooperated with the
investigation or have violated terms of interim order. On overall
view of the matter, the interim order granted by this Court on 14 th
January 2021 deserves to be confirmed. Hence, the interim order
dated 14th January 2021 is confirmed on the same conditions.
12. It is stated that the charge sheet is not filed against the
present applicants. It will, therefore, be open for investigating
agency to complete the investigation in accordance with law and
the applicants shall cooperate with the investigation.
13. The anticipatory bail application stands disposed of.
14. In view of disposal of the anticipatory bail application,
nothing remains to be adjudicated in the interim application. The
same is disposed of.
(AMIT BORKAR, J.)
