Ganesh Arjun Chukkal vs The State Of Maharashtra And Anr
2023 Latest Caselaw 11140 Bom

2023:BHC-AS:32860
                                                               901-ABA2996-2022.DOC

                                                                                       Santosh

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION


                    ANTICIPATORY BAIL APPLICATION NO. 2996 OF 2022
                                        WITH
                         INTERIM APPLICATION NO. 1787 OF 2023

               Ganesh Arjun Chukkal                                           ...Applicant
                                   Versus
               The State of Maharashtra and anr.                        ...Respondents


               Mr. Amit Desai, Senior Advocate, a/w Gopal Shenoy, Laxman
                    Sahapur, Vinayak Katti, Viraj Kadam, for the
                    Applicant.
               Mr. Niranjan Mundargi, i/b Shreya Shrivastava a/w Nikhil
                    Randive, for the Intervener.
               Smt. Ashwini Takalkar, APP for the State/Respondent.
               PSI Ganesh Avhad, present.


                                                      CORAM: N. J. JAMADAR, J.

Reserved On : 16th October, 2023 Pronounced On: 31st October, 2023

ORDER:-

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

with CR No.978 of 2022, registered with Powai Police Station,

Mumbai, for the offences punishable under Sections 420,

465, 467 and 471 of the Indian Penal Code, 1860 ("the Penal

Code").

2. A Leave and Licence Agreement was executed on 19 th

June, 2018 between M/s. HGP Community Pvt. Ltd., (HGP

Community) the licensor and Brice Infrastructure and

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Development Pvt. Ltd., (Brice Infrastructre) the licensee, of

which the applicant is a Director. Flat bearing No.3102

situated on the 31st level of 'B' Wing of 'ADONIA' situated at

CTS 22/6, Hiranandani Gardens, Powai, alongwith two

covered car parkings were given on a licence to Brice

Infrastructure. The applicant executed the said Leave and

License Agreement in the capacity of the Director of Brice

Infrastructure. It was, inter alia, agreed that the term of the

lincence would be of 36 months commencing from 28 th June,

2018, the licensee would pay security deposit of

Rs.15,30,000/- and monthly license fee of Rs.2,25,000/- with

a provision for increase by 5%.

3. In the intervening period, pursuant to an order passed

by NCLT on 14th January, 2018, the said building 'ADONIA'

came to be transferred to Melronia Hospitality Pvt. Ltd.

(Melronia). The first informant is the authorized

representative of Melronia.

4. Melronia alleged Brice Infrastructure committed default

in payment of monthly licence fee which fell due from 20 th

October, 2019. The applicant was repeatedly requested to

clear the licence fee. Despite assurances the applicant did

not pay the arrears of the licence fee. A notice was issued on

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18th February, 2020 calling upon Brice Infrastructure to

vacate the licenced premises. Eventually, an application

under Section 24 of the Maharashtra Rent Control Act, 1999

was filed before the Competent Authority, being Eviction

Application No.51 of 2020.

5. In the said proceedings, the first informant alleges, on

20th October, 2021, an affidavit was filed on behalf of the

Brice Infrastructure to which two false documents were

annexed namely; an agreement purported to have been

executed by and between M/s. Lake View Developers and

Ganesh Chukkal; the applicant, on a stamp-paper of Rs.20/-

denomination and a Lease Deed purported to have been

executed on 8th March, 2019 on five stamp-papers of Rs.100/-

denomination in respect of the licenced premises between

HGP Community and the applicant, whereunder the licenced

premises was shown to have been given on lease for 30 years.

Alleging that those documents were forged and fabricated,

the first informant lodged a report.

6. It was, inter alia, alleged that the intrinsic evidence of

those documents clearly indicated that they were forged and

fabricated. As regards the Lease Deed purported to be

executed on 8th March, 2019, it was contended that the HGP

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Community had ceased to have control over the licenced

premises and it was Melronia to whom licence fee had been

paid and yet Lease Deed was shown to have been executed on

behalf of the HGP Community. Secondly, Smt. Alka Bhatia

Hiranandani, who had purportedly executed the said Lease

Deed in favour of the applicant, was not in India, on the date

of the execution of the said Lease Deed. The applicant had

allegedly forged the signatures of the partners of Lake View

Developers on the purported Agreement dated 19 th February,

2004 and the signature of Smt. Alka Bhatia Hiranandani on

the purported Lease Deed. Moreover, the applicant used the

forged documents as genuine in the legal proceedings.

7. In the meanwhile, eviction application under Section 24

of the Maharashtra Rent Control Act, 1999 was decided

against the applicant. Revision Application preferred by the

applicant was also dismissed by the Additional

Commissioner, Konkan Division. The applicant instituted a

suit being LD Suit No.80 of 2022 before the Court of Small

Causes at Mumbai seeking a declaration that the Lease Deed

was valid and subsisting and the applicant - plaintiff was a

lawful lessee of the suit premises. In the said suit the

applicant took out an application for interim injunction. By

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an order dated 30th September, 2022, the learned Judge,

Court of Small Causes, was persuaded to grant temporary

injunction opining, inter alia, that the defence of the

defendants that the instruments relied upon by the plaintiff

were false, was a matter for trial.

8. Apprehending arrest, the applicant approached the

Court of Session. As the learned Additional Sessions Judge

declined to exercise the discretion in favour of the applicant,

this application has been preferred for pre-arrest bail.

9. On 21st October, 2022, where the application was listed

before this Court, upon the learned APP submitting that the

documents were apparently forged and, therefore, the

applicant be ordered to produce the original documents

before the Investigating Officer, the learned Senior Advocate,

who then appeared for the applicant, agreed to hand over the

original documents to the Investigating Officer. Recording the

said statement, this Court granted interim relief.

10. It seems the applicant had produced the original Lease

Deed dated 8th March, 2019. On 6th April, 2023 this Court

was informed that the applicant is not in custody of the

original agreement dated 19th February, 2004.

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11. This Court was of the view that the applicant had

obtained ad-interim relief by making a categorical statement

that the applicant would produce the Agreement dated 19 th

February, 2004 as well and subsequently took a stand that

he was not in custody of the said document. Since the

applicant had instituted the suit on the basis of the said

Agreement dated 19th February, 2004, the change in the

stand did not merit acceptance. This Court was thus

persuaded to vacate the ad-interim protection. Paragraph 6

of the said order reads as under:

"6. The fact that the Applicant has obtained interim relief from the Small Causes Court based on these documents, would prima facie indicate that the applicant is in possession of the documents. Even otherwise, the records reveal that the Applicant was granted interim protection in view of the statement recorded in the order dated 21/10/2022. The Applicant had at no point of time informed this Court that the said document was not in his possession. On the contrary, he had sought adjournment time and again in view of which the interim protection was continued. It appears that the statement was made only to procure interim relief. Considering the conduct of the Applicant, I am not inclined to extend the interim protection granted in favour of the Applicant."

12. At this stage, it may be necessary to note that under

the allegedly forged Agreement dated 19 th February, 2004,

M/s. Lake View Developers, (the precursor of the HGP

Community and Melronia) had agreed to pay a sum of

Rs.14,50,00,000/- or in the alternative an area admeasuring

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4,000 sq. ft. in the saleable component of redevelopment or in

the project owned by the Lake View, in consideration of the

liasoning services rendered by the applicant. Purported Lease

Agreement dated 8th March, 2019, after adverting to the said

agreement, incorporates a covenant to grant lease of the

subject property for a period of 30 years with an option of

renewal of a further 25 years, at the rent equivalent to the

monthly maintenance of the suit premises. The applicant is

the executant of the said Lease Agreement. On behalf of the

HGP Community Smt. Alka Bhatia Hiranandani is shown to

have executed the Lease Agreement as in the capacity its

Director/ authorised signatory.

13. I have heard Mr. Desai, the learned Senior Advocate for

the applicant, Ms. Takalkar, the learned APP for the State

and Mr. Niranjan Mundargi, the learned Counsel for

respondent No.2/first informant.

14. Mr. Desai would submit that the applicant had clarified

that for want of proper instructions an incorrect statement

was made on behalf of the applicant that the applicant would

produce original Agreement dated 19 th February, 2004.

Therefore, the applicant cannot be attributed want of

goodfaith. Since the applicant had immediately apprised the

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Investigating Officer that he was not in the custody of the

original agreement, the insistence of the prosecution to have

the custodial interrogation of the applicant to recover the said

agreement is wholly unjustifiable. Mr. Desai would urge that

till date, the investigating agency had not obtained the

specimen hand writing and signature of the applicant. Since

the offences revolve around the documents, the question as

to whether the documents are forged can only be determined

by sending the instruments for the opinion of the Hand

Writing Expert.

15. Mr. Desai would further urge that the applicant has

relied upon the documents in question and the Court of

Small Causes has granted interim injunction protecting the

possession of the applicant over the demised premises by

observing that the question as to whether those documents

are genuine or forged is a matter for trial. According to Mr.

Desai, the aforesaid reasoning applies with equal force to the

core question which would arise for determination at trial in

the instant prosecution. Thus, custodial interrogation of the

applicant is not at all warranted.

16. As against this, Smt. Takalkar, the learned APP, would

submit that the forgery of both the documents is writ large.

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Having obtained ad-interim relief by making a positive

statement that the applicant would produce the original

Agreement dated 19th February, 2004, it was not open for the

applicant to urge that the said document is not in his

custody. Smt. Takalkar submitted that the said document

constitutes the basis of the Lease Agreement as the subject

premises is shown to have been given on lease for rent

equivalent to monthly maintenance. It was submitted that

there is material to show that Smt. Alka Bhatia Hiranandani

was not in India on the day, the purported Lease Deed was

executed.

17. Mr. Mundargi, the learned Counsel for respondent No.2,

submitted that apart from the intrinsic evidence of both the

documents, there is a communication in the form of an

admission on the part of the applicant that he would clear

the outstanding licence fee in the month of January, 2020. If

the Lease Agreement was executed on 8 th March, 2019, the

applicant would not have agreed to clear the outstanding

licence fee.

18. I have recorded the facts elaborately on purpose. There

is no dispute over the fact that the subject premises was

given on Leave and Licence to the applicant under the

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registered Agreement dated 19th June, 2018. The applicant

claims subsequent to the execution of the said Leave and

Licence Agreement, jural relationship changed and the very

same premises was given on lease for a term of 30 years by

HGP Community. The said purported lease agreement seems

to be a Notarised document.

19. The nexus between the said purported Lease Agreement

and the Agreement dated 19th February, 2004 lies in the fact

that the applicant seeks to draw support and sustenance for

the execution of lease from the consideration which flowed

under the said agreement dated 19th February, 2004. Lake

View had allegedly agreed to pay a sum of Rs.14,50,00,000/-

towards the liasoning fees to the applicant. It is in this

context, the said Agreement dated 19th February, 2004

assumes significance.

20. Evidently, there is a time-lag of more than 15 years in

executing a further instrument to give effect to the right and

obligations emanating from the said Agreement dated 19 th

February, 2004. To add to this, the attendant circumstances

of the execution of the purported Lease Agreement appear to

be quite telling. Prima facie, the Lease Agreement neither

refers to the correct date of the anterior agreement between

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Lake View and the applicant, nor the correct constructed

area agreed to be given in lieu of the sum of

Rs.14,50,00,000/- then agreed to be paid. The date of the

said agreement is mentioned 19th February, 2008 instead of

19th February, 2004 and area 6,000 sq. ft. instead of 4,000

sq. ft. Secondly, the said Lease Agreement was purportedly

executed by Smt. Alka Bhatia Hiranandani. The Investigating

Officer has collected material to show that during the said

period the executant was not in India. Thirdly, and most

importantly, the contemporaneous conduct of the applicant.

In the message sent on WhatsApp on 21 st December, 2019, in

response to the messages sent on behalf of Melronia seeking

payment of outstanding licence fee, the applicant seem to

have apologized for the considerable delay and inconvenience

and assured to make the payment at the earliest in the first

week of January. It is pertinent to note the Lease Deed was

purportedly executed on 8th March, 2019. In the month of

December, 2019, the applicant did not set up the changed

jural relationship. This circumstance cannot be brushed

aside as inconsequential. Fourthly, it was pointed out that

pursuant to order of NCLT dated 24 th August, 2018, Melronia,

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the demerged entity that came in existence and HGP

Community had no dominion over the subject premises.

21. Lastly, the alleged obligation which HGP Community or

its predecessor-in-title, owed to the applicant, under the

purported Agreement dated 19th February, 2004, did exist

when HGP Community and Brice Infrastructure entered into

a registered licenced agreement whereunder Brice

Infrastructure parted with refundable security deposit on

Rs.15,30,000/- and also paid licence fee upto October, 2019.

The case of subsequent change in jural relationship is

required to be seen through this context.

22. Prima facie, in the backdrop of the attendant facts and

circumstances, the allegation that both the documents

appear to be forged merits investigation. The submission of

Mr. Desai since the Civil Court has protected the possession

of the applicant by observing that the nature of the

documents set up by the applicant is a matter for trial, and

therefore, arrest and custodial interrogation of the applicant

is not warranted, does not merit acceptance.

23. The Investigating Officer has collected material to show

that the Stamp Vendor's Register evidencing the sale of the

stamp-papers on which the purported Lease Deed has been

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scribed, the name of the HGP Community has been inserted

by over writing. The register maintained by the stamp vendor

is tampered with. It is the applicant, who would be in a

position to throw light on the circumstances in which the

purportedly forged instruments came to be executed.

Custodial interrogation of the applicant appears

indispensable to unearth the authorship of the forgery, the

manner thereof and the persons privy thereto.

24. It is trite when there are serious and prima facie

credible allegations of forgery of the documents and use of

forged documents in judicial proceedings, it is imperative to

have effective investigation. In the face of such allegations

an offer to join in the investigation armed with an order of

pre-arrest bail is of no use from the point of view of effective

investigation. Custodial interrogation, as is well known, is

qualitatively different. Merely because a proceeding in which

the legality and validity of the apparently forged instrument is

subjudice, the cause of effective investigation and prosecution

cannot be jeopardised.

25. It would be suffice to make a reference to a recent

judgment of the Supreme Court in the case of Pratibha

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Manchanda and anr. vs. State of Haryana and anr.1, 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 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)

26. 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

1 2023(8) SCC 181.

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fabrication of documents can be legitimately considered in

the course of criminal investigation.

27. In view of the aforesaid enunciation and the attendant

facts and circumstances, adverted to above, in my view the

applicant does not deserve the exercise of discretion.

28. 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.

(iii) In view of disposal of ABA/2996/2023, IA/1787/2023

does not survive and stands disposed.

[N. J. JAMADAR, J.]