Rajeshbhai Ravjibhai Karkar vs State Of Gujarat
2021 Latest Caselaw 8034 Guj

     R/CR.MA/9428/2021                          ORDER DATED: 08/07/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 9428 of 2021
                                With
             R/CRIMINAL MISC.APPLICATION NO. 9463 of 2021
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                         SANNY AMBADAS MADAS
                                Versus
                         THE STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR. RUSTOM MARSHALL, SR. ADVOCATE WITH MR DAIFRAZ
HAVEWALLA(3982) for the Respondent(s) No. 1
MS. MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 08/07/2021

                             ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule on behalf of respondent - State.

2. These applications have been filed under section 439 of the Code of Criminal Procedure for Regular Bail in connection with the FIR being I-C.R. No.11210015200088 of 2020 registered with DCB Police Station, Surat for offences punishable under sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code, 1860.

3. The FIR is filed by Mr. Mukeshbhai Ranchhodbhai Patel against 7 accused alleging that the accused hatched criminal conspiracy and in furtherance of the conspiracy, accused Rajeshbhai Ravjibhai Karkar- accused applicant in Cr.MA No. 9463 of 2021 got executed a Power of Attorney (PoA) from the father of the complainant on 21.7.2020 and on the same day,

R/CR.MA/9428/2021 ORDER DATED: 08/07/2021

father of the complainant executed Agreement to Sell in favour of Mr. Ravjibhai Kanubhai Radadiya and it is alleged that the Power of Attorney and the Agreement to Sell was executed influencing the father of the complainant for getting sanction of loan through Sanny Ambadas Madas- accused applicant in Cr.MA No. 9428 of 2021 and alleged that in concord with others, the Power of Attorney and Agreement to Sell was executed., Thereafter, on 21.8.2020 a Public Notice was issued for the sale of the land inviting objections from the public. The complainant, against that Public Notice, raised his objections and cautioned by way of three different Public Notices on 27.8.2020 in Daily Newspaper 'Gujarat Mitra'. It is alleged that inspite of that fact, Mr. Rajeshbhai Ravjibhai Karkar - accused applicant in Cr.MA No. 9463 of 2021, created a Sale-deed and made a false declaration of continuance of Power of Attorney and against that the complainant had given his objection before the Sub-Registrar Officer on the same day and on the next day, produced relevant documents and when the complainant, along with his father had gone to Sub-Registrar Office, it came to his knowledge that the accused had produced a false notarised affidavit with the fabricated signature and thumb impression of his father. It is alleged that the criminal act of the accused is in furtherance of grabbing their valuable property. It is alleged that the documents which are produced before the Sub-Registrar was under the pretext of getting the loan sanctioned on the said land while all the accused have deceived the father of the complainant and had fraudulently and dis-honestly induced him to deliver the land and for that purpose, false, forged and fraudulent documents were created.

R/CR.MA/9428/2021 ORDER DATED: 08/07/2021

4. Mr. B.M.Mangukiya, learned advocate for the applicants referred to the copy of the Power of Attorney and Agreement to Sell and submitted that both the documents were registered before the Sub-Registrar Office. Mr. Mangukiya submitted that as per the practice adopted by the Sub-Registrar Office, the execution of the documents and registration was video- graphed. The first informant and his father were present for the execution of the Sale-deed, and as demanded, three signed cheques were handed over. The price of the land was as per the government Jantri. Mr. Mangukiya stated that as agreed between the parties Rs. 11 Lakhs was paid through RTGS procedures, which was on the day previous to the registration of the Agreement to Sell and the Power of Attorney. Thus, it was only after confirmation of the receipt of the amount, the first informant and his father agreed to execute the irrevocable Power of Attorney, which was transferred with interest. Mr. Mangukiya submitted that the video footage, as asked under the RTI of the Sub-Registrar Officer would fortify the fact that it was in the form of question and answer. The Sub-Registrar of Assurances got the confirmation of the execution of the Power of Attorney in respect of the land bearing Block No. 111 and 112 of village Kumbharia in favour of Rajeshbhai Ravjibhai Karkar. The Sub- Registrar of Assurances vide communication dated 14.7.2020 has sought legal opinion of Inspector of Registration, pointing out fact that the Power of Attorney is irrevocable. Mr. Mangukiya submitted that the Police prior to lodging of FIR, ought to have considered that the whole issue is a civil dispute and the first informant and his father has siphoned off large amount of money from the accused arrayed in the FIR and thus, has prayed for liberty of the applicants.

R/CR.MA/9428/2021 ORDER DATED: 08/07/2021

5. Ms. Monali Bhatt, learned Additional Public Prosecutor, assisted by Mr. Rustom Marshall, learned Senior Counsel along with Mr. Daifraz Havewalla, learned advocate submitted that the accused cheated the father of the complainant taking undue advantage of his being illiterate. The signature on the documents were obtained on false representation of getting the loan sanctioned under the Government Scheme at lower rate of interest whereby subsequently subsidy was granted. It was stated that bogus affidavits were submitted before the Sub-Registrar and offence has been made under the Gujarat Land Grabbing (Prohibition) Act, 2020, for which necessary proposal was moved by the Police. The beneficiary of the transaction is co-accused Laljibhai Kanubhai Radadiya who is yet to be arrested in the matter. Five cash receipts show the writing of the same nature whereby only the dates have been changed though the tenure for the payment of sale consideration is for 5 years, huge consideration of Rs. 2,50,00,000/- is showed to be paid within 15 days of the execution of the document. The Receipts are under the shadow of doubts. It was submitted that though Public Notice was issued cancelling the Power of Attorney, the accused executed a false declaration, forged the signature and thumb mark of the father of the complainant and it was only on the objection raised by the complainant, the documents have remained pending before the Sub-Registrar. It is also argued that Agreement to Sell has been executed in favour of Laljibhai Kanubhai Radadiya whereas the alleged Power of Attorney- holder Rajeshbhai Ravjibhai Karkar executed Sale-deed in favour of co-accused Ashwinbhai Pansuria with different sale consideration.

R/CR.MA/9428/2021 ORDER DATED: 08/07/2021

5.1. Ms. Monali Bhatt, learned APP, referring to the Report of the Police dated 24.6.2021, submitted that five of the accused are arrested while two are absconded. She stated that this is a serious offence of land grabbing and stated that the applicant of Cr.MA No. 9463 of 2021 Rajeshbhai Ravjibhai Karkar is a history-sheeter and there are criminal antecedents and in CC NO. 3224 /2010 vide judgment and Order dated 23.8.2017 along with four co-accused, was convicted for rigorous imprisonment for 7 years for the offence punishable under Section 467, 420 and 120B of the IPC.

5.2 Mr. Marshall, learned Senior Counsel submitted that the Special Criminal Application No. 1142 of 2021 has been moved by the complainant before this Court against the decision of Collector for not granting approval though applied by the Police under the Gujarat Land Grabbing (Prohibition) Act, 2020. Mr. Marshall submitted that two accused are yet to be arrested and no discretion should be exercised in favour of the applicants.

6. The record show that Power of Attorney and the Agreement to Sell were registered on the same day before the Sub-Registrar Office, Surat. The process of execution of documents was video-graphed, the Registrar of Assurances got affirmation of the execution of the documents, the Power of Attorney is irrevocable as stated to be transferred along with interest. The Sub-Registrar had moved a communication seeking legal opinion from Inspector of Registration and Rs. 11 Lakhs had been paid to the father of the complainant through RTGS procedure on 20.7.2020 of the Power of Attorney and

R/CR.MA/9428/2021 ORDER DATED: 08/07/2021

Agreement to Sell was registered on next day i.e. on 21.7.2020. It is alleged that the documents were executed for sanctioning of loan, public notice was issued inviting objection prior to registration of sale-deed, the complainant too, by way of Public Notice, had declared cancellation of Power of Attorney, objections were raised before the Sub-Registrar. Whether the Power of Attorney was transferred with interest or revocable, is a matter of civil dispute, the payment of sale consideration too is for the parties to get it agitated before the Civil Court and the payment of Rs. 11 Lakhs by RTGS procedures is not denied. The Police had forwarded a proposal for invocation of Gujarat Land Grabbing (Prohibition) Act, 2020, but has submitted that no approval has been given by the Collector and the matter is still at large in SCR.A No. 1142/2021. The Anticipatory Bail came to be rejected on the ground of necessity of custodial interrogation. All alleged forged and fraudulent documents are before the Sub-Registrar Office. Other documents in the form of Power of Attorney and Agreement to Sell and the Sale-deed are registered documents. There are no scope of tampering with such documents. Taking into consideration the nature of allegation, the punishment prescribed, this Court deems it fit to exercise the discretion of enlarging the applicants on bail.

7. Hence, the present applications are allowed. The applicants are ordered to be released on regular bail in connection with FIR being I-C.R. No.11210015200088 of 2020 registered with DCB Police Station, Surat on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) each with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that

R/CR.MA/9428/2021 ORDER DATED: 08/07/2021

he shall;

[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned trial court;

[e] furnish their present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

8. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case.

9. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.

GITA GOPI,J) SAJ GEORGE