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2023 Supreme(Guj) 7

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHUTOSH J. SHASTRI, J.
Chetanbhai Surendrabhai Patel Poewr Of Atterney Shardaben Dahyabhai Patel – Applicant
Versus
State Of Gujarat & 2 Others – Respondents
R/Criminal MISC. Application No. 20475 of 2017 with R/Criminal MISC. Application No. 12637 of 2019 with R/Criminal MISC. Application No. 20478 of 2017
Decided On : 06-01-2023

Advocates Appeared:
For the Applicant : Mr. Shakeel A. Qureshi.
For the Respondents: Mr. Shailesh C. Sharma, Mr. Chintan Dave.

Headnote:

Indian Penal Code, 1860 – Sections 406, 465, 467, 468, 181, 193, 199, 420, 120(B) – Criminal Procedure Code, 1973 – Section 438 – Seeking cancellation – Forgery for purpose of cheating – Cheating and dishonestly inducing delivery of property – Criminal conspiracy – Since background of facts and grievance appearing to be almost similar, with joint request of learned advocates, these three applications have been taken up together since common submissions are made by learned advocates appearing for respective sides and as such facts are taken up from Criminal Misc. Application – Held, Court is of view that background of this peculiar circumstance is such where learned Sessions Judge could have exercised discretion in a just and proper manner after dealing with all relevant material and that having not been done such decision making process is erroneous and not on the touch stone of settled proposition of law as indicate above, Court is of clear opinion that orders passed by learned Court below are not sustainable in eye of law – Conjoint effect of entire involvement of all accused persons inter se and alleged commission of crime which resulted into substantive complaint having been filed and contents of report do not inspire any confidence in favour of grant of anticipatory bail or continuance thereof. In such a serious offence, if these orders are allowed to stand in eye of law would result in derailing investigation which has substantially been done by respondent accused persons and as such this is not a fit case in which discretion under Section 438 of Cr.P.C. deserves to be exercised – Allowed.

JUDGMENT :

1. By way of this batch of applications, the applicant - original complainant has prayed for cancellation of anticipatory bail which has been granted by the 3rd Additional Sessions Judge, Anand dated 22.07.2017 in Criminal Misc. Application No.1104 of 2017, by the 2nd Additional Sessions Judge, Anand dated 11.04.2019 in Criminal Misc. Application No.427 of 2019 and by the 3rd Additional Sessions Judge, Anand dated 22.07.2017 in Criminal Misc. Application No.1108 of 2017 to the respondent Nos. 2 and 3 in Criminal Misc. Application No.20475 of 2017, respondent No.2 in Criminal Misc. Application No.12637 of 2019 and respondent No.2 in Criminal Misc. Application No.20478 of 2017 respectively.

2. Since the background of the facts and grievance appearing to be almost similar, with the joint request of learned advocates, these three applications have been taken up together since common submissions are made by the learned advocates appearing for the respective sides and as such the facts are taken up from Criminal Misc. Application No.20475 of 2017.

3. The present applicant had purchased the land situated in Sim of Khambhat Taluka, Revenue Survey No.80, 159/1, 162/1, 976, 993, 995, 999 and 962 from one Shantilal Maganlal Patel and accordingly, entry said to have been mutated. The respondents - accused persons said to have fabricated pedhinama/genealogy of Shantilal Patel wherein they have shown Piyushbhai Shantilal Patel as the sole heir and forged his signature while not showing two other original heirs and revenue entry has also been made being Entry No.4790. On the basis of that, the accused got approved the same from learned Mamlatdar on 23.06.2016 and then though the succession certificate was ordered to be obtained, still a bogus pedhinama on the basis of false affidavit was created and accused No.4 has signed as a witness in the said affidavit which has indicated that there are four legal heirs of Shantilal Patel. These accused persons, according to assertion of the complainant, were knowing that these agricultural fields were belonging to Shardaben, Meenaben, Bhupendrabhai still a false power of attorney got created by accused No.2 and by forging signature, a sale document has been affected in favour of accused No.1 and later on with a view to usurp the land in question, these accused persons inter se with their aid and assistance have executed a sale document on 03.02.2015 and then got mutated in revenue record as Entry No.4822 which led the proceedings before the learned Deputy Collector. By narrating the sequence of events, when the successive sale has taken place, the applicant side has consulted a private hand-writing expert and got the opinion on two occasions as a cross-verification and the said opinions were obtained on 29.12.2016 as well as 30.12.2016. According to applicant, during pendency of revenue proceedings with regard to the entry in questions accused No.1 - Ashwinibhai Kantibhai Patel filed false affidavit by forging signature of Piyushbhi Shantilal Patel and also shown false pedigree/genealogy by only showing three legal heirs in fact there were five legal heirs. On the contrary, the power of attorney in favour of accused No.5 i.e. Manubhai Bhupatbhai Chauhan is said to have been executed by Nutunben, Madhuben, Sushilaben and Piyushbhai, the same is also forged one and according to the applicant, even on that count also, hand-writing expert's opinion has indicated that said power of attorney is also forged. In fact the accused - Manubhai, whose signature appears to be in power of attorney, executed abroad, wherein Madhuben was not at all having a passport also and as such, the entire power of attorney has been forged with an intent to play fraud with the complainants.

3.1 It is the case of the applicant that though repeated requests were made before the police authorities, the authorities were not registering the complaint and as such, the applicant was constrained to approach this Court by way of

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