BHAVANJI KACHARAJI CHAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of the present application under Section 438 of the Code of Criminal Procedure, 1973 ('the Code'), the applicant has prayed to release him on bail in case of his arrest in connection with the FIR being C.R. No.I -19 of 2016 registered with Bopal Police Station, Ahmedabad for the offences punishable under Sections 465, 467, 468, 471 and 120(B) of the Indian Penal Code.

(2.) Learned senior advocate Mr. N.D. Nanavati appearing with learned advocate Mr. Sunil Joshi for the applicant submitted that the applicant could not be said to be in any manner involved in the matter of forging the document of agreement to sell (Banakhat) as main accused - Rupalben is stated to have withdrawn the amount of two different cheques referred in the Banakhat and the applicant, as per the condition of Banakhat, was waiting for title clearance certificate, for which he even intimated to his advocate when a public notice for title clearance was issued by the husband of the main accused. Mr. Nanavati submitted that the applicant has filed affidavit in the present proceeding stating that without prejudice to the contentions raised in the application and without admitting the allegations levelled in the FIR, the applicant would not at all claim any benefit arising out of the Banakhat dated 4.5.2015 as well as not lay any suit or proceeding before any Court of law for the lands in question. Mr. Nanavati further submitted that the applicant even does not claim refund of any amount stated to be paid under the Banakhat. Mr. Nanavati further submitted that after the application was made by the husband of the main accused to SIT, the Banakhat was handed over to the police and now, there is no requirement of recovery of any document from the applicant and therefore, there is no need for custodial interrogation. Mr. Nanavati therefore, submitted that in the facts of the case, especially when the applicant is not claiming any benefit on the basis of the Banakhat, this Court may exercise discretion under Section 438 of the Code in favour of the applicant.

(3.) Learned Additional Public Prosecutor Ms. Thakore on the other hand submitted that the signatures on the Banakhat are found to be forged as per the FSL report and the applicant, who is beneficiary of the Banakhat, could be said to be involved in the offences as alleged. Ms. Thakore submitted that the amounts of two cheques stated to be withdrawn by Rupalben - the main accused were not from the account of the applicant but the cheques were given by one Nitinbhai and that accused No.1 -Rupalben in her statement has stated that she had never signed the Banakhat. She submitted that detailed investigation is required to find out that who other persons with the applicant were involved in the offences in respect of the Banakhat for the lands, wherein brother of the complainant was co -owner. Ms. Thakore further submitted that the conduct of the applicant is also required to be considered inasmuch as not only the applicant has been absconding but he even lodged objections when public notice was issued by the brother of the complainant for title clearance certificate in connection with the lands for which the Banakhat was stated to be executed, which would suggest that the applicant was very much interested in getting forged Banakhat executed and such being a serious matter, this Court may not exercise discretion under Section 438 of the Code in favour of the applicant.