STATE OF GUJARAT Vs. PAVANKUMAR DEVNARAYAN GUPTA

JUDGEMENT

(1.) This application is filed by the State invoking Sec. 439 (2) of the Code of Criminal Procedure praying for quashing and setting aside the order dtd. 16/1/2021 passed in Criminal Miscellaneous Application No. 81 of 2021 passed by the learned 15 th Additional Sessions Judge, Surat and has further prayed for cancellation of the Anticipatory bail granted to the respondent - original accused no.1 in respect of FIR bearing I-C.R. No. 240 of 2018 registered with Varachha Police station for the offense punishable under Sec. 406, 420, 465, 467, 468, 471, 474, 447, 341, 506 read with Sec. 114 of Indian Penal code.

(2.) The gist of the complaint as it emerges from the FIR bearing I- C.R. No. 240 of 2018 is as under : The complainant Sureshchandra Shrikrishan Gupta is aged around 65 years and is living retired life at his native place at Edapur village, post Surtajpur, Thana : Dorighat, Taluka: Madhuban, Uttar Pradesh. He claims to be the owner of land bearing plot no.1 admeasuring 543.48 sq. mrts. of Final Plot No. 7-B2 paiki, T.P. Scheme No.4, Choryasi, Surat. The complainant claims to have purchased said plot for consideration of Rs.60,000.00 by registered sale deed dtd. 30/12/2000 and has declared that the original sale deed copy is lost in floods. It is alleged that the respondent- accused No.1 Pawan kumar Gupta, had created false and bogus documents of such property which include notarised power of attorney dtd. 15/2/2010, executed before notary named K.B. Solanki, by forging the signature of the complainant. The said power of attorney was claimed to have been executed in presence of two witnesses namely Vinod G. and Ramesh. The said power of attorney was made in his favour which was used as genuine document by the said accused before the office of Sub- Registrar to execute the sale deed dtd. 4/11/2015, in favour of one Meharsinh Mangalsinh Sodha and derived consideration Rs.3,25,000.00 resulting in diminishing of valuable right of ownership of the complainant. The complainant realised the aforesaid fact when his son Durgesh was provided the copy of power of attorney draft by present respondent - accused which was already signed by Lalitkumar Mangilal Bhanshali on Rs.100.00 stamp paper. The same was handed over to obtain his signature. His son Durgesh therefore approached the plot and noticed that said Pawankumar had made encroachment in said plot. The complainant was therefore constrained to inquire about the status of his plot whereby he learnt about the forged power of attorney as well as the so called sale deed 4/10/2015. The said sale deed was witnessed by one Masarsinh Bhurasinh Rajpur and Tagaram Jivrajbhai Prajapati. It further transpired that one false affidavit was also created by the present respondent - original accused no.1 declaring that the power of attorney is in force. Such an affidavit was affirmed before notary Dharti B. Patel on 3/11/2015. On obtaining a copy of such an affidavit the complainant realised that the signatures put in each page are forged as he has never executed such a document. It further transpired on comparison of documents that the present respondent - accused had referred to a copy of his election card bearing unique no. UGH1715317 with power of attorney whereas in the false affidavit he had produced a copy of his election card bearing No. UGH1715317 wherein it was noticed that the election card was issued on 15/4/2014. In such circumstances, the son of the complainant had asked the accused No. 1 to vacate the plot which the accused No.1 refused to and threaten to not to enter in the property. This gave cause of action for the complainant to approach the court of the learned Principal Civil Judge by filing civil suit R.C.S. No. 1557 of 2015. The complaint came to be filed before the Varacha police station which was registered as I-C.R. No. 240 of 2018 dtd. 1/7/2018 against (1) Pawankumar Devnarayan Gupta, (2) Meharsinh Mangalsinh Sodha, (3) Masarsinh Rajpur, (4) Tagaram Jirrajbhai Prajapati, (5) Witness Vinod and Ramesh, (6) Notary K.B. Solanki and (7) Laltikumar Bhanshali.

(3.) During the course of investigation except for present respondent, initially the rest of the accused persons were arrested. The IO officer had filed a charge sheet on 30/11/2018 wherein the present respondent accused who has emerged as main accused was shown absconding. The respondent after having remained absconded for almost three and half years, approached the court of learned District and Sessions Judge, Surat by filing Criminal Miscellaneous Application No. 81 of 2021 on 4/1/2021 seeking anticipatory bail under Sec. 438 of Cr.P.C. It was contended that the IO has never inquired about him and as soon he became aware about such FIR, he has approached the court for anticipatory bail. The relief was sought for on the ground of parity as other co-accused namely Lalitkumar Bhanshali, Meharsinh Mangalsinh Sodha and Nareshkumar Mangilal Bhansali were released on bail by this court and trial court concerned. It was further contended that the criminal case is at the stage of evidence and investigation being concluded and based on documentary evidence, his custodial interrogation may not be required.