Gujarat High Court
Dipakbhai Jagjivanbhai Patel vs State Of Gujarat on 9 August, 2023
Bench: Nirzar S. Desai
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R/CR.MA/9950/2023 ORDER DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9950 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 10013 of 2023
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DIPAKBHAI JAGJIVANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR R S SANJANWALA, SENIOR ADVOCATE WITH MR AJAY S
JAGIRDAR(2688) for the Applicant(s) No. 1,2
MR R R MARSHALL, SENIOR ADVOCATE WITH MR DAIFRAZ
HAVEWALLA(3982) for the Respondent(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 09/08/2023
ORAL ORDER
1. By way of both these applications, the
applicants herein are seeking anticipatory bail in
respect of the offences registered as C.R.
No.11210015230085 with DCB Police Station, Surat City
for the offence punishable under Sections 406, 420,
120B and 114 of the Indian Penal Code.
2. Heard learned Senior Advocate Mr. R. S.
Sanjanwala with learned advocate Mr. Ajay Jagirdar
for the applicants, learned APP Mr. Hardik Soni and
learned Senior Advocate Mr. R. R. Marshall with
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learned advocate Mr. Daifraz Havewalla.
3. Criminal Misc. Application No.9950 of 2023 was
preferred by two persons viz. Dipakbhai Jagjivanbhai
Patel and Sanjaykumar Jagjivanbhai Patel. However, at
the outset, it was submitted by learned Senior
Advocate Mr. Sanjanwala that Dipakbhai Jagjivanbhai
Patel was arrested during the pendency of this
application and was subsequently granted bail by
learned Chief Judicial Magistrate, Surat vide order
dated 03.08.2023 in Criminal Misc. Application (J)
No.8089 of 2023. Hence, Criminal Misc. Application
No.9950 of 2023 survives only in respect of applicant
No.2 - Sanjaykumar Jagjivanbhai Patel.
4. Criminal Misc. Application No.10013 of 2023 is
preferred by Jagjivanbhai Madhavbhai Patel and
Jagjivanbhai Madhavbhai Patel is shown as accused
No.2 in the FIR, whereas Sanjaykumar Jagjivanbhai
Patel is shown as accused No.4 in the FIR. In the
nutshell, these two applications are preferred by
father and son in respect of the FIR for which the
anticipatory bail is being prayed for.
5. By way of impugned FIR dated 05.06.2023, one
Sunilbhai Narendrabhai Jariwala has stated that he is
an advocate and doing the business of purchase and
sell of land and the accused No.1 - Vimalkumar
Khandubhai Patel happens to be a known person to him.
The said Vimalkumar Khandubhai Patel was the owner of
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the land situated at Block No.287 (old Survey No.306)
admeasuring 5967 sq. mtrs., which is given Final Plot
No.14 and situated in T.P. Scheme No.14(Pal), Mauje
Pal, Taluka Adajan, District Surat. The area of the
land is admeasuring 5967 sq. mtrs. and as per Final
Plot, its area is 4207 sq. mtrs. i.e. 5032 sq. yards.
As the said Vimalkumar Patel wanted to sell the
aforesaid piece of land, the First Informant acted as
a mediator and the deal to sell the land to one
Bhaveshbhai Patel was struck by paying the
consideration of Rs.5,75,00,000/-.
5.1. As per the FIR, the original owner of the land
was one Gandabhai Dalpatbhai Patel, who had given
power of attorney to the applicant - Jagjivanbhai
Madhavbhai Patel and in capacity of Power of Attorney
Holder of Gandabhai Dalpatbhai Patel, said
Jagjivanbhai sold the land to Vimalkumar Patel vide
registered sale deed No.2582 dated 29.08.2000.
Thereafter, the original land owners preferred a
civil suit on 16.07.2001 and pursuant to the order of
maintaining status quo by the competent Civil Court,
mutation entry No.5425 dated 03.03.2004 was entered
into the revenue records. Ultimately, the land in
question was sold to said Bhavesh Patel upon
receiving consideration of Rs.5,75,00,000/- vide
registered sale deed No.88 dated 01.02.2017. In the
FIR, it is further stated that despite the order of
status quo, as the land was sold in favour of Bhavesh
Patel, an application for contempt of Court was
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preferred on 28.07.2017 and in that application,
present applicant Jagjivanbhai had filed a reply and
stated that he is not in touch with Vimalkumar. The
reply was filed on 14.09.2017.
5.2. One more application for contempt of Court was
filed by the applicant Jagjivanbhai Madhavbhai Patel
on 31.01.2019 and thereafter he preferred a civil
suit on 22.01.2020 along with both his sons Dipak and
Sanjay against the present First Informant, Bhavesh
and other persons.
5.3. Further, in the FIR, it is stated that after
Regular Civil Suit No.185 of 2001 (which was given a
new No.1270 of 2015) was dismissed, on the very third
day on 06.08.2021, the said Vimal Khandubhai Patel
executed a gift deed in favour of both the present
applicants and it was stated in the gift deed that
sale deed bearing registration No. 2582 executed on
29.08.2000 was executed only for the purpose of
convenience.
5.4. In view of above, in the FIR, it is stated that
as the present applicants, in connivance with
Vimalkumar, have executed various deeds in favour of
each other and thereby sold the land to Bhavesh Patel
by accepting the consideration of Rs.5,75,00,000/-,
they have cheated, and therefore, the FIR was
registered.
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6. Heard learned Senior Advocate Mr. Sanjawala
appearing with learned advocate Mr. Jagirdar, who
made following submissions.
6.1. That the dispute is of civil nature. The
possession of land in question is with the present
applicants. Though it is stated that the sale deed
was executed in 2017, which, prima facie, establishes
the fact that the land belongs to the present
applicants since 1982, and therefore, the dispute
being purely of civil nature, no criminality involved
qua the present applicants.
6.2. Learned Senior Advocate Mr. Sanjanwala further
submitted that there are long standing civil disputes
in respect of land in question and even the present
applicants also have preferred Special Civil Suit
No.15 of 2020, whereby, along with other prayers,
there was a prayer to quash and set aside the Sale
Deed executed on 01.02.2017. Availing appropriate
civil remedies and thereby filing appropriate
application before the competent Court is a matter of
right of the present applicants and they can always
test the documents before the competent Court of law.
It would not attract any criminality on the part of
present applicants and therefore considering the fact
that nature of dispute is of civil nature, present
applicants be considered for anticipatory bail.
6.3. Learned Senior Advocate further submitted that
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the applicant Jagjivanbhai Madhavbhai Patel is an old
man of 81 years of age and therefore considering his
age also, he may be considered for anticipatory bail.
6.4. Learned Senior Advocate Mr. Sanjanwala further
submitted that considering the fact that one of the
co-accused i.e. Dipak Jagjivanbhai Patel is already
enlarged on regular bail by the Chief Judicial
Magistrate, Surat vide order dated 03.08.2023 in
Criminal Misc. Application (J) No.8089 of 2023 and as
the allegations against each of the applicants are of
similar nature, even the present applicants also be
considered for anticipatory bail. Despite the prayer
for remand was made by the Investigating Officer in
respect of Dipak Patel, the competent Court did not
consider that request and did not grant any remand
which would indicate that custodial interrogation of
the present applicants would not be required.
6.5. Learned Senior Advocate Mr. Sanjanwala further
submitted that considering the fact that the civil
suit preferred by the present applicants being
Special Civil Suit No.15 of 2020 is pending before
the competent Court of law and as the present
applicants have already preferred the aforesaid civil
suit coupled with the fact that even in the FIR there
are no allegations in respect of forgery or
otherwise, even the recent decision of the Hon'ble
Supreme Court in the case of Pratibha Manchanda &
Anr. v. State of Haryana & Anr., reported in (2023)
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SCC Online SC 785 would not be applicable in the
facts of the case.
6.6. By making the aforesaid submissions, learned
Senior Advocate Mr. Sanjanwala prayed that both the
applicants be considered for anticipatory bail.
7. Learned Senior Advocate Mr. Marshall appearing
with learned advocate Mr. Havewalla vehemently
opposed these anticipatory bail applications and
submitted that both the present applicants are hand
in glove with accused No.1 Vimal Patel, which can be
seen from the fact that the land was originally
belonged to Gandabhai Patel and the present applicant
- Jagjivanbhai Patel was Power of Attorney Holder of
the aforesaid Gandabhai Patel. It is the present
applicant Jagjivanbhai Patel, who in the capacity as
Power of Attorney Holder of Gandabhai Patel, executed
a sale deed in the year 2000 in favour of accused
No.1 - Vimal Patel and thereafter there are series of
transactions by way of documents which were executed
by Vimal Patel. Some of those transactions are of the
nature, whereby, the Power of Attorney in respect of
the land in question was given by Vimal Patel to the
present applicants as well. Further, in the year
2007, said Vimal Khandubhai Patel executed a document
(bahendhari karar) in favour of Jagjivanbhai Patel,
Dipak Patel and Sanjay Patel wherein, it was
categorically stated that though the land belongs to
the present applicants, it is only for the purpose of
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convenience that the registered sale deed is executed
in favour of Vimal Patel, which would indicate that
all the four accused persons are hand in glove with
each other and just to defeat the right of the
original owner of the land, the aforesaid sale deed
was executed between Jagjivanbhai Patel as a Power of
Attorney Holder and Vimal Patel.
7.1. It was further pointed out by learned Senior
Advocate Mr. Marshall that thereafter also between
2007 - 2017, said Vimal Patel executed various
documents and one more deed of understanding was
executed on 05.06.2015 between Vimal Patel and
present applicants, wherein, it is categorically
stated by the accused Vimal Patel that in the year
2014, a public notice was published in Daily "Gujarat
Mitra" stating that the land was sold by him to some
persons but by way of the aforesaid deed, he
clarified that the land was not sold by him nor in
future he intends to sell the land in favour of
anyone, which indicates that the land actually
belonged to the present applicants and the accused
person Vimal Patel was also knowing about the
aforesaid fact.
7.2. Learned Senior Advocate Mr. Marshall further
submitted that even the land in question, when was
sold to Bhavesh Patel in the year 2017, it was not
brought to the notice of the purchaser Bhavesh Patel
that the land is being sold in breach of the order of
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status quo passed by the competent Civil Court and
the land was sold by pocketing a consideration of
Rs.5,75,00,000/-. Further, it was submitted by
learned Senior Advocate Mr. Marshall that even after
the aforesaid land was sold upon receipt of the
consideration, despite the aforesaid fact, when an
application for contempt was preferred before the
competent Civil Court, the said Jagjivanbhai filed a
reply before the Civil Court, wherein, it is stated
that there are no relations existing between them and
accused Vimal Patel. It was also submitted by learned
Senior Advocate Mr. Marshall that on one hand the
present applicant Jagjivanbhai Patel has stated
before the Court by filing a reply that there are no
relations between them and accused Vimal Patel and
immediately thereafter, when the suits which were
pending and which were dismissed for default in the
year 2021, one more document in the nature of gift
deed was executed by Vimal Patel in favour of the
present applicants, whereby the land was gifted by
Vimal Patel in favour of the present applicants,
despite knowing fully well that the land was already
sold in favour of Bhavesh Patel, which shows active
conspiracy and connivance of all the accused persons.
Therefore, by pointing out the aforesaid facts,
learned Senior Advocate Mr. Marshall prayed for
dismissal of these applications for anticipatory
bail.
8. Learned Additional Public Prosecutor Mr. Hardik
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Soni vehemently opposed these applications for
anticipatory bail and submitted a chart, whereby,
there is a mention about as many as 14 documents
executed in relation to the land in question. By
throwing light in respect of some of the important
documents executed between Vimal Patel and present
applicants right from 29.08.2000 till 06.08.2021,
learned APP Mr. Soni pointed out that the aforesaid
chain of events in form of execution of various deeds
would indicate that all the four accused persons were
not only in constant touch with each other and
executed various documents in favour of each other,
as per their convenience and as per their
requirements but as they happen to be the family
members as Jagjivanbhai's daughter is married to
Vimal Patel and Sanjay and Dipak Patel happen to be
the son of accused person Jagjivanbhai, they have
hatched a conspiracy and thereby duped Bhavesh Patel
and in that entire deal, present complainant was a
middle man. Learned APP Mr. Hardik Soni also relied
upon the recent judgment of the Hon'ble Supreme Court
in the case of Pratibha Manchanda (supra) and
submitted that considering the application for
anticipatory bail, the Court must also consider the
gravity of offence, impact on society and the need
for free and fair investigation. Learned APP Mr. Soni
further pointed out, upon the instruction, received
from the Investigating Officer, who is present in the
Court that accused Vimal Patel is absconding at
present and as per the inputs received by the I.O.,
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he has flown to US and the authority is in process of
getting look out notice issued. By pointing out the
aforesaid facts, leaned APP Mr. Soni submitted that
when this is a clear cut case of conspiracy and one
of the mastermind of the conspiracy i.e. Vimal Patel
has already flown to US, if the present applicants
are considered for anticipatory bail, there are all
likelihood that they also will not be available for
investigation.
8.1. As per the submission of learned Senior Advocate
Mr. Sanjanwala that in respect of co-accused person
Dipak Patel, even custodial interrogation was not
found to be necessary by the competent Court and
despite the fact that a request of remand was made to
the concerned Court, the aforesaid request was not
considered and no remand was granted qua accused
Dipak Patel, learned APP by relying upon the judgment
of the Hon'ble Supreme Court in the case of Sumitha
Pradeep v. Arun Kumar C.K. passed in Criminal Appeal
No.1834 of 2022 dated 21st October, 2022 submitted
that the Hon'ble Supreme Court has held in that
judgment that custodial interrogation can be one of
the relevant aspects to be considered along with
other grounds while deciding an application for
anticipatory bail and that may not be sole criteria
to decide the application for anticipatory bail.
Learned APP Mr. Soni submitted that considering the
totality of facts and circumstances, present
applications for anticipatory bail, be dismissed as
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this is a clear cut case of hatching conspiracy and
thereby duping the person who has purchased the land
in question by paying consideration of
Rs.5,75,00,000/- and, more particularly, when all the
four accused persons are family members of one
family. At this stage, when the investigation is
going on, they may not be considered for anticipatory
bail. By making aforesaid submissions, learned APP
has prayed for dismissal of both these applications
for anticipatory bail.
9. I have heard learned Senior Advocates Mr.
Sanjanwala and Mr. Marshall and learned APP Mr.
Hardik Soni and perused the record. On perusal of the
record, I have found that the first transaction in
the year 2000 in the form of a sale deed executed by
present applicant Jagjivanbhai Patel in favour of
Vimal Patel was executed as Power of Attorney Holder
and not the owner of the land in question. Further,
on perusal of the material, which is placed on
record, there are two deeds executed between Vimal
Patel and present applicants i.e. one Bahendhari
Karar dated 02.04.2007 and another Bahendhari/Samjuti
Karar dated 05.06.2015 executed between the present
applicants and Vimal Patel, wherein, it is
categorically stated and admitted by Vimal Patel that
the present applicants are de facto owners of the
land in question and they are the persons who are
managing the affairs of the land in question and just
for the convenience, the sale deed was executed in
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favour of Vimal Patel. Further, I have also
considered the fact that by way of two deeds dated
02.04.2007 and 05.06.2015, it is categorically stated
by Vimal Patel that the land in question belonged to
the present applicants. Despite that, the sale deed
was executed in favour of Vimal Patel who sold the
land in favour of Bhavesh Patel in 2017 and once
again executed a gift deed in favour of the present
applicants in the year 2021. In the year 2017 when
the sale deed was executed in favour of Bhavesh Patel
by Vimal Patel despite the fact that the stay was in
operation and though the order of status quo was
passed by the competent Court, the land was sold.
Thereafter, in the year 2021, said Vimal Patel gifted
the land in question in favour of the present
applicants by way of a gift deed. Prima facie, it
seems that though in the year 2020, the present
applicants along with co-accused Dipak Patel
preferred Special Civil Suit No.15 of 2020, the same
was merely an eyewash. The said suit was filed by the
present applicants despite the fact that present
applicants were not having any locus over the land in
question to file the suit as the title of the land
was never in favour of the present applicants and
therefore in absence of any title or interest in the
land in question, such suit, prima facie, seems to
have been filed by the present applicants just to
deprive the present complainant of his legitimate
right over the land in question.
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10. What is important to note is the fact that when
despite the order of status quo sale deed was
executed in respect of land in question by Vimal
Patel in favour of Bhavesh Patel, an application for
contempt of Court was filed as stated in the FIR and
in that application, present applicant Jagjivanbhai
Patel filed a reply and stated that he does not have
any relation with Vimal Patel. The aforesaid
statement was made despite the fact that right from
2000 to 2017 at least two documents were executed
between Vimal Patel and present applicants indicating
that the present applicants are the real owner of the
land in question. Even after the aforesaid statement
was made in the reply filed in an application for
contempt of Court by the applicant - Jagjivanbhai, in
the year 2021, by virtue of gift deed, a right over
the land in question was created in favour of the
present applicants. All these factors show
contradiction in respect of stand taken by the
present applicants at various point of time as per
their convenience, which would, prima facie, supports
the case of the prosecution that this was a well
planned conspiracy to cheat the complainant and
therefore in view of the fact that, prima facie, it
constitutes an offence, present applicants cannot be
said to have no knowledge about the same, as can be
seen from their conduct from time to time.
11. As far as the submission of learned Senior
Advocate Mr. Sanjanwala that no custodial
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interrogation is required, as in respect of co-
accused Dipak Patel, the learned Trial Court did not
accede to the request for remand and therefore no
custodial interrogation is required is concerned, it
is well settled by now and as observed by the Hon'ble
Supreme Court in the case of Sumitha Pradeep (supra),
custodial interrogation can be only one of the
relevant aspects to be considered along with other
grounds while deciding an application for
anticipatory bail. Further, as observed by the
Hon'ble Supreme Court in the case of Pratibha
Manchanda & Anr.(supra), one of the important factors
to be considered while considering an application for
anticipatory bail is about the gravity of offence. In
the instant case, as per the sale deed produced,
which is on record, the consideration paid in respect
of land in question was Rs.5,75,00,000/-. If a land
for which a consideration is paid in crores of rupees
that itself is sufficient to indicate how precious
the land would be and therefore in respect of such a
precious land if some offence has taken place, such
offence cannot be looked at with a lenient mindset.
Today, the present applicants are seeking
anticipatory bail which indicates that the
investigation is in its preliminary stage.
12. As far as the submission of learned Senior
Advocate Mr. Sanjanwala regarding age of the
applicant Jagjivanbhai Patel that he is 81 years old
and therefore he should be considered for
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anticipatory bail is concerned, though I have
considered the aforesaid submission considering the
fact that by way of various deeds, it is
categorically indicated that the land belongs to the
accused Jagjivanbhai Patel and therefore when the
entire dispute revolves around the land, which is
owned by Jagjivanbhai Patel in the name of Vimal
Patel, the role of Jagjivanbhai Patel, prima facie,
seems to be an active role. Therefore, only by
considering the age of the present applicant and by
ignoring his overall role, if anticipatory bail is
granted, in that case, I am of the view that it will
affect the investigation. Therefore, on the ground of
age also I see no reason to grant anticipatory bail
to applicant - Jagjivanbhai Patel.
13. When the FIR speaks about cheating in respect of
a land running into crores of rupees, in that case,
the matter is required to be investigated thoroughly
coupled with the fact that one of the co-accused
Vimal Patel is absconding and as per the inputs
received from IO as submitted by Mr. Soni, he has
flown to US. When the co-accused Vimal Patel, who
happens to be the son-in-law of applicant -
Jagjivanbhai Patel and brother-in-law of applicant
Sanjay Patel and as they belong to the same family,
the possibility of present applicants also flying
away, if granted anticipatory bail, cannot be ruled
out. In view of above, considering the gravity of
offence as well as possibility of flying away to some
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country abroad as it has happened in the case of co-
accused Vimal Patel, I did not see any reason to
entertain this application for anticipatory bail.
Accordingly, present applications are required to be
dismissed and same are dismissed. Rule discharged.
(NIRZAR S. DESAI,J)
LAVKUMAR J JANI
