POONAMBHAI MANJIBHAI UKANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR being C.R.No.I -27 of 2013 registered with DCB Police Station, Surat, for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code.

(2.) HEARD learned advocates for the parties.

(3.) LEARNED advocate Mr. S. K. Patel for the applicant has submitted that the applicant is the bonafide purchaser of plot nos.25 and 30 and has not forged any of the power of attorney for the purpose of executing the sale deed for the above said plots. Learned advocate Mr. Patel has submitted that there was a power of attorney executed by the plot holders especially with regard to plot nos.25 and 30 in favour of the brother of the applicant named Kantibhai who then decided to execute sale deed in favour of the applicant and also signed as a confirming party. Learned advocate Mr. Patel has submitted that the plot holder who executed power of attorney in favour of brother of applicant has also not complained about forgery of power of attorney and therefore, no question of involvement of the applicant in the offence alleged against him of forgery of power of attorney is there. Learned advocate Mr. Patel has submitted that this Court has released Kantibahi Manjibhai Ukani, brother of the applicant after considering the statement of plot holders and after considering the fact that Kantibhai had decided to execute the sale deed in favour of the applicant and also signed as a confirming party. Therefore, learned advocate Mr. Patel urged that this Court may exercise discretion under Section 438 of the Criminal Procedure Code, 1973, in favour of the applicant. Learned APP Ms. Monali Bhatt, opposing this application, submitted that the applicant who claims to be a bonafide purchaser, however, got sale deed executed in his favour on the basis of forged power of attorney which was alleged to have been given by original owners. She has submitted that Mohanbhai, the power of attorney holder has stated that he has never executed any document but in his name somebody has signed as power of attorney holder. She has, therefore, submitted that this Court may not exercise discretion under Section 438 of the Criminal Procedure Code, 1973, in favour of the applicant. Having heard learned advocates for the parties, considering the nature of the allegations in the FIR and having considered the fact that brother of the applicant named Kantibhai Manjibhai Ukani is released by this Court after perusing the police papers and finding that Kantibhai has signed as power of attorney of the plot holders and as a confirming party in the sale deed executed in favour of the applicant, this Court is of the view that discretionary jurisdiction under Section 438 of the Criminal Procedure Code, 1973, could be exercised in favour of the applicant.