Banu Abdul Shaikh vs State Of Maharashtra
2023 Latest Caselaw 11497 Bom

2023:BHC-AS:34940
                                                         12-ABA3078-2023+.DOC

                                                                                Santosh

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION


                    ANTICIPATORY BAIL APPLICATION NO. 3078 OF 2023

               Smt. Banu Abdul Shaikh                                  ...Applicant
                                   Versus
               The State of Maharashtra                            ...Respondent

               Mr. A. H. Phatangare, for the Applicant.
               Mr. M. G. Patil, APP for the State/Respondent.
               Mr. Satish Patil, for the First informant.
               API Shriran Gosavi, Ambarnath Police Station, present.

                                               CORAM: N. J. JAMADAR, J.

DATED: 8th NOVEMBER, 2023

ORDER:-

1. Heard the learned Counsel for the applicant, the

learned APP for the State and the learned Counsel for the

first informant.

2. This is an application for pre-arrest bail in connection

with CR No.436 of 2023, registered with Ambarnath Police

Station, Thane, for the offences punishable under Sections

420, 465, 467 and 471 read with Section 34 of Indian Penal

Code, 1860 ("the Penal Code").

3. On 16th May, 2000, the first informant and his partner

Moryani purchased lands, including the land bearing Survey

No.18 admeasuring 98.4 guntha, from the then holders late

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Rataram Chaudhary and Talokram Chaudhary under a

registered Sale Deed. While mutating the name of the

purchasers, an incorrect entry of 29.4 guntha instead of 98.4

guntha was made in the record of rights of the subject land.

The first informant got the record of rights rectified.

4. The applicant is the Power of Attorney of Jagdish

Chaudhary, the successor in interest of the vendors. On 20 th

April, 2022 the applicant filed an application to correct the

area of the subject land, in ME No.1559. During the course of

the hearing before the Tahsildar the applicant produced a

Sale Deed indicating that only an area admeasuring 29.4

guntha was sold under the registered Sale Deed. The first

informant obtained certified copies of the Sale Deed. Forgery

in the area of the land was noticed. As the names of the

vendors came to be mutated to portion of the subject land,

the vendors executed an Agreement for Sale in favour of the

applicant thereby agreeing to convey 26.5 guntha land, which

had already been sold to the first informant. Alleging

conspiracy and cheating by forgery of the documents, the

first informant lodged the report.

5. The learned Counsel for the applicant made an

endeavour to draw home the point that the dispute is of a

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civil nature. The vendor and the applicant have instituted a

suit seeking declaration that the successor in interest of the

vendors of the first informant and the applicant are the

owners of the 69 guntha land and the first informant has no

right, title and interest therein. It was submitted that taking

undue advantage of the mutation entries, the first informant

has falsely alleged that there is a forgery of the Sale Deed.

The learned Counsel made an endeavour to take the Court

through the mutation entries to bolster up the case that

Survey No.18 never admeasured 98.4 gunthas.

6. Indisputably, the parties have instituted proceedings

before the Civil Court and Revenue Authorities. The issue of

criminality, however, cannot be simply brushed aside on the

said count. If in a given case, there is material to show that

registered instrument has allegedly been forged, criminal

investigation is warranted.

7. In the case at hand, the allegations of forgery is qua a

registered conveyance executed by the predecessor in title of

accused Nos.1 to 3, in favour of the first informant. Two

documents prima facie indicate that what was conveyed

under the registered Sale Deed was, inter alia, 98.4 guntha

land out of Survey No.18. One, the original Sale Deed which

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was tendered for the perusal of the Court. Two, a certified

copy of the Sale Deed issued by the Registrar of Assurances.

Both record the area of lands bearing Survey No.18 as 98.4

Are. In contrast, in the instrument which was set up by the

applicant and the co-accused before Revenue Authorities as

the original Sale Deed, the area of Survey No.18 was shown

29.4. gunthas.

8. Mr. Fatangare made an endeavour to demonstrate that

since a portion of Survey No.18 was already acquired for

road, on the date of the execution of the Sale Deed, the

vendors could not have held 98.4 gunthas of land. All these

inferential submissions, do not merit acceptance at this

stage. One factor which prima facie seals the issue in favour

of the prosecution is the copy of the 7/12 extract which was

annexed to the original deed of conveyance dated 16 th May,

2022 at page No.15. The said 7/12 extract clearly indicates

that the area of the said land was 98.4 gunthas.

9. The position which thus emerges is that the area in the

original Sale Deed, in the custody of the first informant,

tally's with the certified copy of the Sale Deed issued by the

Registrar of Assurances and the copy of the 7/12 extract

annexed to the said Sale Deed indicates that on the date of

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execution of the Sale Deed the area of Survey No.18 was 98.4

Are. Prima facie, it appears that taking undue advantage of

an incorrect entry of area in the record of rights, the original

instrument was sought to be altered. The matter, therefore,

warrants investigation.

10. The learned Counsel for the applicant placed reliance

on a decision of this Court in the case of Babasaheb s/o

Gokul Kangude vs. The State of Maharashtra 1, wherein this

Court was persuaded to grant pre-arrest bail as the dispute

was subjudice before the Civil Court.

11. I am afraid the aforesaid pronouncement advances the

cause of the applicant. As noted above, where there is a

strong prima facie case of forgery of instrument, criminal

investigation is not precluded on the premise that disputes

are pending before the Civil Court. A profitable reference in

this context can be made to a recent judgment of the

Supreme Court in the case of Pratibha Manchanda and anr.

vs. State of Haryana and anr.2, wherein the Supreme Court

repelled the submission that during the pendency of a civil

proceeding wherein the genuineness of the documents was

an issue, custodial interrogation is not warranted. Setting

1ABA/86/2022 dtd.12/4/2022.

2 2023(8) SCC 181.

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aside the order passed by the High Court granting pre-arrest

bail to the accused therein, the Supreme Court observed,

inter alia, as under:

"28. It is immaterial that the genuineness of the 1996 GPA is already sub-judice before the Civil Court in the civil suit pending between the parties. The appellants, owing to their age and residential status, cannot be expected to await indefinitely for the outcome of these civil proceedings. Regardless, the pendency of these cases does not estop the issues of forgery and fabrication being considered in the course of criminal investigation. The facts of the case speak for themselves and an element of criminality cannot be ruled out at this stage. Whether or not the alleged offences were committed by Respondent No.2 and his co-accused in active collusion with each other can be effectively determined by a free, fair unhampered and dispassionate investigation. In the peculiar facts and circumstances of this case, custodial interrogation of not only Respondent No.2 but all other suspects is, therefore, imperative to unearth the truth. Joining the investigation with a protective umbrella provided by pre-arrest bail will render the exercise of eliciting the truth ineffective in such like case. ......."

(emphasis supplied)

12. The Supreme Court has thus enunciated that

irrespective of pendency of civil proceeding where there is

prima faice material to show an element of criminality in

setting up and banking upon documents, issue of forgery and

fabrication of documents can be legitimately considered in

the course of criminal investigation.

13. For the foregoing reasons, I am not persuaded to

exercise discretion in favour of the applicant as it is only the

custodial interrogation of the applicant that would unearth

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the fraud and unmask the identity of the persons who

allegedly committed the forgery.

14. Hence the following order:

:ORDER:

      (i)       Application stands rejected.

      (ii)      It is clarified that these prima facie observations

are confined to determine entitlement to pre-arrest bail

only.

[N. J. JAMADAR, J.]