Krupalbhai Bhanubhai Patel vs State Of Gujarat
2021 Latest Caselaw 14924 Guj

      R/CR.MA/970/2021                             ORDER DATED: 23/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 970 of 2021
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                         KRUPALBHAI BHANUBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DILIP L KANOJIYA(3691) for the Applicant(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 1
MR.L.B.DABHI, APP, (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 23/09/2021
                                ORAL ORDER

[1] This is an application by the applicant under Section 438 of the

Code of Criminal Procedure, 1973 for anticipatory bail in the event of

his arrest in connection with FIR registered at C.R. No.I-42 of 2019

before Petlad Rural Police Station, Anand for the offence under Sections

465, 467, 468, 471, 201, 447 and 120(B) of the Indian Penal Code.

[2] Learned advocate for the applicant submits that the FIR is

hopelessly delayed as the revenue entry on the basis of the disputed

document was made way back in the year 2006 and now the FIR is

registered in the year 2019. Learned advocate submitted that the entry

is also cancelled entry which is the foundation for registering of the FIR

was already cancelled in the revenue proceedings by the Deputy

Collector and the revenue entry was deleted way back in the year

2015, still the FIR came to be filed in the year 2019.

[2.1] Learned advocate for the applicant drew attention of this Court

to the bank statement to indicate that way back in the year 2016,

R/CR.MA/970/2021 ORDER DATED: 23/09/2021

some money transfer was made in favour of the complainant and

therefore, only father of the complainant had never raised any dispute,

but only after his death in the year 2013, now the complainant has

raised by filing of complaint. It is submitted that all the while the

complainant was aware of the land transaction as in the year 2020

itself, the proceedings under Section 145 of the Code of Criminal

Procedure were instituted in connection with land. Learned advocate

states that co-accused who are revenue officers have been enlarged on

anticipatory bail and hence, claims parity to be enlarged on

anticipatory bail.

[3] Learned Additional Public Prosecutor has opposed the grant of

application by submitting that the preliminary investigation indicates

that the applicant has fabricated a forged document in the form of

mortgage deed and had used the same for producing the same before

the revenue authorities and usurp the valuable right of the complainant

in the valuable land and that too without any consideration while in the

fabricated document, it is stated that the land has been mortgaged to

the applicant for an amount of Rs.10 Lakhs. During the course of

investigation, there is nothing on record to indicate that as to in what

manner the amount of Rs.10 Lakhs is paid nor during the investigation

even from the revenue authorities the said mortgage deed on which

the applicant raises his right did not recover and hence, at least for this

purpose, the custodial interrogation will be required. Learned APP also

submitted that the applicant has committed this offence for the

complacency of revenue officer and therefore, to identify their role also

custodial interrogation of the applicant will be necessary.

       R/CR.MA/970/2021                             ORDER DATED: 23/09/2021



[4]     Learned advocate appearing for the complainant submitted that

the applicant is trying to mislead the Court by showing some other

documents in the form of bank statement as the bank statement

shown by the applicant indicates the name of the account holder in

whose favour the amount of Rs.2 Lakhs were transferred in the year

2007 is that of Indravadan C.Patel, whereas the name of the father of

the complainant is Indravadan Kantilal Patel.

[5] The Court has considered the rival submissions of the parties and

perused the documents placed on record. The investigation is in

connection the said co-owned land which was given by his father to the

applicant to cultivate in the year 2006 on sharing basis and since then

he was cultivating the said land on sharing basis. Thereafter, his father

died and he went to the gram panchayat of the said village to get his

name entered in the said co-owned land, at that time, he came to know

that the applicant had mortgaged the said co-owned land for

Rs.10,00,000/- and encumbrance of Rs.10,00,000/- was created on the

said land by submitting mortgage agreement in the panchayat.

Therefore, he inquired with his family members, who were co-owners in

the said land and they stated that no one has mortgaged the said land

or no one has availed finance of Rs.10,00,000/-. Moreover, upon

getting information, he come to know that they have not executed any

writings or put their signature regarding loan or encumbrance

anywhere. He went and inquired to the E-Dhara, Mamlatdar Office,

Petlad and found that the name of the applicant was appearing as

mortgagor in 7/12 and the said entry was also certified. Therefore, he

made oral as well as written submission in the Mamlatdar Office, but he

R/CR.MA/970/2021 ORDER DATED: 23/09/2021

did not get satisfactory reply. Therefore, he preferred RTS Appeal

No.98/14 before the court of the Deputy Collector, Petlad. Upon

hearing, the Deputy Collector allowed his appeal and canceled the

Mutation Entry No.14630 made by the Circle Officer, Sunao by Order

dated 28/01/2015. Thus, the applicant is neither having right or title in

the said land nor he is direct heir. Despite that, the applicant has

usurped possession of his land illegally, and at present also, the said

land is in his possession and not vacating the possession of the said

land. Thus, the complainant or his family members had not mortgaged

the said land to anyone for loan, but, his father gave the said land to

the applicant for cultivation on sharing basis, who got mutated the lien

of Rs.10,00,000/- on the said land, got entered his name falsely, and in

collusion with the officers and staff of the Mamlatdar Office, Petlad,

usurped the possession of his land, got the wrong entries mutated in

the land in order to usurp the land.

[5.1] Thereafter, the complainant filed an R.T.S. appeal No.98/2014 in

the Court of Deputy Collector, Petlad, regarding the same. After the

conclusion of these proceedings, the Deputy Collector, Petlad gave the

judgment dated 28/01/2015 in favor of the complainant, canceling the

mutation entry No.-14630 made by Circle Inspector Sunavana.

[5.2] Upon reading the order of Deputy Collector, Petlad, passed in the

R.T.S. appeal No.98/2014 wherein he held that, there has not been

encumbrance entry of any bank or institute in the aforesaid land but, it

appears that, mortgage entry of the applicant has been made in the

same. The Advocate of this accused was instructed to submit

R/CR.MA/970/2021 ORDER DATED: 23/09/2021

evidences such as mortgage document and cheque etc. before the

court, but, they could not produce such evidence before the Court.

Therefore, the Deputy Collector, Petlad has canceled the order of the

Circle Officer Sunava approving the mutation entry No.1463 which was

obtained by the accused.

[6] Upon perusing the case papers, there is nothing on record to

indicate that the mortgage deed for Rs.10 Lakhs ever existed and when

the entry in revenue record is made on the basis of a mortgaged deed,

which prima-facie appears to be non-existent. This itself is a serious

offence which indicate complacency of the revenue officer also. The

custodial interrogation therefore is at must otherwise in the opinion of

the Court, the entire investigation will be frustrated in absence of

recovery of the mortgaged deed.

[7] The Court has also taken into consideration the conduct of the

applicant in producing a bank statement to demonstrate before the

Court that some amount has been paid to the father of the complainant

however, close look would indicate that any amount paid way back in

the year 2007 is paid in favour of Indravadan C. Patel, whereas name

of the father of the complainant is Indravadan Kantilal Patel. The role of

the applicant and the benefits derived is very evident. The role of the

co-accused enlarged on anticipatory bail being connected with their

official duty as Government servants at the relevant time has been

considered which is different that the role of the applicant.

       R/CR.MA/970/2021                            ORDER DATED: 23/09/2021



[8]     In view of the above, no case is made out to exercise discretion

in favour of the applicant and hence, application deserves to the same

is hereby dismissed. The interim relief granted stands vacated.

(A.Y. KOGJE, J) SIDDHARTH