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2018 Supreme(Bom) 1326
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAKASH D. NAIK, J.
Satpal Singh Bachan Singh Nagul – Appellant
Vs.
State of Maharashtra – Respondent
CRIMINAL WRIT PETITION NO.89 OF 2016
Decided on : 03-08-2018
Advocate Appeared:
For the Appellant :Mr.K.M.Shine, Advocate
For the Respondent: Mr.Y.M.Nakhwa, Mr.Lengare PI., Mr.Pratap Bhasem, Adv.
Headnote:
Criminal Procedure Code, 1973 – Section 102 - Indian Penal Code, 1860 - Sections 420, 406, 342, 465, 467, 468, 471 and 120-B - Charge-sheet - Registered Sale Deed - Purchase flat Original documents of flat along with title documents and physical possession of flat was handed over to petitioners - Electricity meter was also transferred in their name - Flat was originally purchased by from Realities Private Limited vide registered conveyance agreement registered with Sub-Registrar under Registration - Before executing transactions with petitioners were provided with verification of original registered agreement as well as physical site visit of flat - They duly verified title to flat and relied upon title certificate issued by advocate as well as by property search through another advocate vide Survey Report – Held, However report merely indicate that charges are added and charges be added to charge sheet - Apart from that by merely invoking provisions of MPID Act property does not get seized/attached under provisions of Act - For attachment of property provision as prescribed MPID Act has to be followed - In present case seizure was Section which was illegal in accordance with prevailing law and now it is tried to be submitted that on account of additional charge under MPID Act property stands seized provisions of MPID Act - Seizure Section itself is illegal and since investigating officer has no power to seize immovable property same cannot continue to be seized - Apart from that proceedings are still pending before Court of JMFC - It is seen that an application was moved before Court for committing case to Special Court - On going through record and report which were placed before trial Court it is noted that investigating authorities had not followed due process of law - In case it is observed that procedure contemplated provisions of MPID Act is required to be followed for attaching property - Merely submitting a report that additional provisions are invoked MIPD Act would not amount to attachment of property - In aforesaid decision it was observed that premises required to be notified which have been published in official Gazette purpose of attachment as required under Section of said Act - Scheme Act is that after recording reasons in writing Government shall issue an order by publishing it in official Gazette attaching money or other property believed to have been acquired by such financial establishment either in forged name or in name of any of other person from out of deposit collected by financial establishment or it is transpired that such money or other property is not available for attachment or not sufficient for repayment of deposit – Petition disposed
Rule. Rule made returnable forthwith. Matter is taken up for final disposal.
2. Petitioners are aggrieved by order dated 22nd September, 2015, passed by learned Additional Sessions Judge, Vasai, in Criminal Revision Application No.29 of 2015 and order dated 2nd February, 2015, passed in OMA No.837 of 2014.
3. The relevant facts which are necessary to adjudicate the present petition are as follows:
(a) The petitioners are husband and wife. They were in need of residential flat at Khargher, Navi Mumbai. They purchased the flat bearing No.202, on the second floor admeasuring 1250 square feet carpet area in MEST Building (building no.5, as per approval of CIDCO), in the project known as “Keser Exotica”, constructed on Plot no.264, 265 and 266 in Sector 10 at Kharghar, Navi Mumbai. The said flat was purchased from Mrs. Bhavana Karande, vide registered Sale Deed dated 16th May, 2014, registered with Sub Registrar, Panvel under registration No.3651 of 2014, by paying total consideration of Rs.1,25,00,000/-.
(b) The original documents of the flat along with title documents and physical possession of the flat was handed over to the petitioners. The electricity meter was also transferred in their name.
(c) The flat was originally purchased by Ms.Bhavna Karande from M/s.Kesar Realities Private Limited vide registered conveyance agreement dated 21st June, 2012, registered with Sub-Registrar, Panvel, under Registration No.5696 of 2012.
(d) Before executing transactions with M/s.Bhavna Karande, petitioners were provided with verification of the original registered agreement dated 21st June, 2012 as well as physical site visit of the flat. They duly verified the title of Mrs.Karande to the said flat, and, relied upon title certificate dated 2nd November, 2007, issued by the advocate as well as by property search through another advocate vide Survey Report dated 8th May, 2014.
(e) According to the petitioners, they had bonafide purchased the flat from Mrs.Karande by conducting due diligence and by payment of valuable consideration and in pursuant to that vacant physical possession thereof was handed over to the petitioners vide possession letter dated 16th May, 2014.
(f) After registration of the sale deed dated 16th May, 2015, petitioners approached the office of M/s. Kesar Exotica society, when they were informed that the flat has been seized by the respondent no.2, vide panchanama dated 6th May, 2013. On further inquiry, they were given to understand that the flat has been seized in C.R.No.262 of 2012, registered by Manikpur Police Station against Yogesh Karande and others for offences under Sections 420, 406, 342, 465, 467, 468, 471 and 120-B of IPC. They were also informed that charge-sheet has been filed before the appropriate Court on 31st November, 2013, and the case was numbered as C.C.No.963 of 2013, pending in the Court of 3rd Joint Judicial Magistrate First Class, Vasai.
(g) According to the petitioners, on verification of case papers, it was noticed that Mrs.Bhavna Karande was not an accused in C.R.No.262 of 2012. The prosecution case was that accused Yogesh Karande is the husband of Mrs.Bhavna Karande and that he along with other co-accused floated various agencies and by using false documents, cheated the complainant and others. During the course of investigation, it was revealed that the flat was purchased by Yogesh Karane in the name of his wife Mrs.Bhavna Yogesh Karande by using the crime proceeds. According to the petitioner, the flat was not physically sold by respondent no.2 as the same was in physical possession of Mrs.Bhavna Karande, during the visit of the petitioners to the site on 11th May, 2014. There was no notice being displayed at the flat premises about the seizure of the said flat.
(h) Petitioner preferred an application under Section 457, before the Court of Judicial Magistrate First Class, Vashi, which was numbered as OMA No.837 of 2014. The investigating officer filed their reply on 28th November, 2014. In t
