ABA/1050/2011 of SHRAVANKUMAR PURSHOTTAMDAS BAGARIA Vs THE STATE OF MAHARASHTRA on 29 December 2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. 1050 OF 2011

Shravankumar Purshottamdas Bagaria

...Applicant.

Vs.

The State of Maharashtra..Respondent.

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Mr. Subhash Jha, for the Applicant.Mr. P.S. Hingorani, A.P.P. for State.Mr. Abhijit S. Deshmukh, for Org. Complainant.

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CORAM: M.L. TAHALIYANI, J.

DATE : DECEMBER 29, 2011.

P.C.:

1Heard Mr. Jha, learned counsel for the applicant, Mr. Hingorani, learned A.P.P. for the State, and Mr. Deshmukh, learned counsel for the complainant. However, he has no instructions so far.

2The applicant is apprehdning of arrest in Crime No.I-12/11 registered with Shivajinagar Police Station, Ambernath for the offences punishable u/ss 467, 468, 471 and 420 r/w Section 34 of the Indian Penal Code. The complainant is one Aarti Pange. She is daughter of Charushila Waikar. Admittedly, Charushila Waikar was owner of one of the properties situated at Gut No.32/3, Plot No.13, admeasuring 1550 sq.yds. Admittedly, she died in the year 1996. The allegations against the applicant and others are that the manager of the complainant namely Shashi Sharma and one Thorat were holders of power of attorney of Charushila Waikar and some other land owners in the same vicinity. In the present application, this court is mainly concerned with one transaction which had allegedly taken place between Shashi Sharma as power of attorney holder of deceased Charushila Waikar and Rahul Bagaria as power of attorney holder of the applicant who is the proprietor of the firm known as Bagaria Builders and Developers. It is alleged that Charushila Waikar had never signed any power of attorney in favour of Shashi Sharma authorizing him to sell the aforementioned property admeasuring 550 sq.yds. It is stated that Charushila Waikar died in the year 1988 and the document which is stated to be the power of attorney is executed in the year 1996.

3It is submitted on behalf of the applicant that an amount of Rs.40,000/- was paid to Charushila Waikar by two cheques of Rs.20,000/- each in the year 1996 itself. The sale deed was executed in the year 2010. As already stated, the same was signed by Shashi Sharma on behalf of Charushila Waikar as vendor and Rahul Bagaria on behalf of his father as purchaser. The contention of the prosecution is that Shashi Sharma has been working as manager of the applicant since last many years. Charushila Waikar died in the year 1988, and therefore, she could have executed any power of attorney in favour of Shashi Sharma in the year 1996. It is alleged that the applicant and his manager and others in furtherance of their common intention had prepared forged document i.e. power of attorney of the deceased Charushila Waikar and on the basis of the said forged document, Shashi Sharma had executed sale deed in the year 2010 in favour of Bagaria Builders and Developers.

4Mr. Jha, learned counsel for the applicant has submitted that the applicant had never knew about the death of Charushila Waikar. It was submitted that 7/12 Extract also shows that there was no mutation till 2010. Moreover, the applicant had no occasion to meet Charushila Waikar as sale deed was executed on her behalf by the said Shashi Sharma. It is further submitted that the applicant is a very respectable businessman and he is chairperson of Builders’ Association and owns property worth rupees more than two thousand crores and that he would not indulge into such petty offence.

5In the first place, let it be stated here that said Shashi Sharma is one of the accused in the present case. He has been arrested and released on bail. Rahul Bagaria, son of the applicant was granted anticipatory bail by this court. What is pertinent to note here is that the amount was paid in the year 1996 when the alleged forged power of attorney was executed in favour of Shashi Sharma. It is further pertinent to note that Rs.40,000/- was paid from the account of the applicant. It is the case of the applicant that he did not know his execution of alleged forged power of attorney. If that was not within the knowledge of the applicant, then what was the occasion for him to pay Rs.40,000/- to Charushila Waikar. The sale deed was executed in the year 2010 on the basis of the said alleged forged power of attorney. If there was no agreement for sale or sell, then there was no occasion for the applicant to pay Rs.40,000/-. This indicates that there was meeting of minds of the applicant and the said Sashi Sharma. It appears to be a case of conspiracy under which similar offences have been committed by the applicant and his manager Sashi Sharma. It is also alleged that the said Rs.40,000/- had never been credited to the account of Charushila Waikar though the amount had been debited from the account of the applicant. I am not able to follow as to why the Police had not applied Section 120B in the present F.IR. It is noted by this court that the applicant is involved in similar other transactions and offences have been registered against him.

6Mr. Jha, has submitted that he has been granted bail under Section 438 by this court in other F.I.Rs on payment of certain amount. It may be stated here that bail in other two offences has been granted because the applicant had showed his willingness to pay Rs.56 lacs to the persons who had suffered due to the alleged misdeed on the part of the applicant. In my view, this should not be a ground to grant bail in the present case, if the case is otherwise found to be unfit for grant of pre arrest bail.

7It is also to be noted here that two bail applications under Section 438 of the Cr. P.C. in the present case have already been rejected by this court (Coram: A.R. Joshi, J.) on merits. The applicant had moved the Hon”ble Supreme Court by way of S.L.P. It appears that in the meantime, the applicant got anticipatory bail in two cases on payment of certain amounts and he withdrew his S.L.P. and has moved this court again for grant of bail under Section 438 of the Cr. P.C.

8Admittedly, the Investigating Officer has not been able to collect the admitted signature and handwriting of Charushila Waikar. In fact this could have been done much earlier by the Investigating Officer. It appears that the investigation is not in right direction. The Investigating Officer needs some guideince from his superior officer in the present investigation. Though, the Investigating Officer has not been able to collect admitted signature and handwriting of Charushila Waikar, there is ample material on record that there was meeting of the minds of Sashi Sharma and the applicant both in the year 1996 or may be prior to that.

9In the circumstances, I am of the considered view that it is necessary that the applicant is interrogated in custody.

10It is submitted by Mr. Jha, learned counsel on behalf of the applicant that the applicant is suffering from various ailments and has to undergo dialysis at least four times in a week. He is in wheel chair or stretcher all the time. He has many other health problems and that this court may consider his bail application on health grounds. The conduct of the applicant does not permit me to grant bail u/s 438 of Cr. P.C. Though the applicant had paid huge amount of about Rs.56 lacs to the sufferer of the alleged misdeed of the applicant in other cases, that does not show that his intentions were bonafide in the year 1996. More than 15 years have been passed, and the value of property has increased by at least ten times and payment of Rs.56 lacs or more than that does not indicate anything in favour of the applicant.

11For all these reasons, though the applicant is not well, interest of justice requires that this application shall be rejected. The Anticipatory Bail Application is, therefore, rejected.

12The applicant is at liberty to surrender before the concerned Magistrate, and bail application, if any, filed by the applicant shall be decided on merits without being influenced by this order.

(M.L. TAHALIYANI, J.)