ASIF @ ANISH AYUB PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned APP Mr. Rakesh Patel waives service of Rule on behalf of the respondent No.1 - State and learned advocate Mr. Umesh Trivedi waives service of Rule on behalf of the respondent No.2.

(2.) Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, is preferred by the applicant - original accused against the order passed by the learned Sessions Judge, Bharuch, in Criminal Revision application No.61 of 2016 dated 11.11.2016, whereby the learned Sessions Judge allowed the said Revision Application by quashing and setting aside the order dated 8.6.2016 passed by the learned Fourth Additional Judicial Magistrate (F.C.), Bharuch, in Criminal Case No.2994 of 2012 application below Exhibit 29, preferred by the respondent - State, under Section 173(8) of the Code of Criminal Procedure, seeking further investigation for role played on the part of one Faruq Vora.

(3.) The facts giving rise to this Revision Application may be summarized as under: The respondent No.2 - original complainant filed complaint being C.R. No. I 67 of 2012 at Bharuch City "A" Division Police Station against the present applicant for the offence under Sections 465, 467, 468, 471, 406, 420 of the Indian Penal Code. After the investigation, the Investigating Officer filed charge sheet on 10.8.2012 for the said offences including one offence under Section 403 of the Indian Penal Code, which was reported by the P.I. On 28.5.2012. During the period between 11.3.2011 to 15.5.2012, the applicant - accused executed an agreement to sell in favour of the complainant for land bearing Survey No.1059 situated at Mangrol village, admeasuring 1 Acre - 32 Gunthas for the sale consideration of Rs.49 Lakhs and thereafter, the applicant did not execute the sale deed in favour of the complainant. It is also the case of the prosecution that the accused had already sold out the land of Survey Nos.2061 and 2062 of village : Aachod and flouted the project in the name of "Prayas Park", and thereby obtained the amount of Rs.51,65,000/- from the complainant of 37 plots and executed false undertakings and documents and also sold out Captiva Car No.GJ-16-BV-7744 of the complainant to one Samirbhai Bhikhubhai Gaghedhariya for Rs.80 Lakhs and collected Rs.7 Lakhs from the said person and thus, he obtained Rs.1 Crore and 65 Lakhs from the complainant and took away said Captiva Car. It is also the case of the prosecution that the applicant was arrested on 19.5.2012 and after completion of his remand, he was sent to the Judicial Custody and subsequently, he was released on bail. It is also the case of the prosecution that after submission of the charge-sheet, the charge was framed by the trial Court at Exhibit 8 and the plea of the accused was recorded at Exhibit 9 on 4.1.2014, wherein the accused did not plead guilty. Thereafter, Criminal Case No.2994 of 2012 was registered and the said Case was kept for recording of the evidence and the summons was issued to the complainant on 31.1.2015. It is also the case of the prosecution that on that date, the complainant and his advocate appeared and sought time. Thereafter, the matter was pending for recording the evidence of the complainant, but the complainant had not remained present. It is also the case of the prosecution that the accused did not remain present, the warrant was issued against the accused and the matter was kept again for recording of the evidence of the complainant. It is also the case of the prosecution that due to non-cooperation of the complainant, his evidence was not recorded by the trial Court. It is also the case of the prosecution that Special Public Prosecutor was appointed in the said case and he presented one application below Exhibit 29 in the said said case, under Section 173(8) of the Code, stating that the accused had obtained Rs.1 Crore and 65 Lakhs from the complainant and and the stamp paper for executing the agreement to sell is executed, was purchased by one Faruk Vora on 3.3.2011 and though this person is Notary by profession, the said agreement to sell was not notarized and even other three stamp papers upon which the receipts were to execute for plot No.1 to 27 of Prays Park were also purchased by said Faruk Vora and notarized the same. It is also stated that in the papers of investigation, the statement of said person Mr. Faruk Vora is not recorded and therefore, it is necessary to know the specific role of said Mr. Faruk Vora. Even the Police has not investigated that at which place, the accused had invested the money and or use the same. Therefore, Special Public Prosecutor made prayer for further investigation. After hearing the parties, the learned trial Judge dismissed the said application below Exhibit 29 by order dated 8.9.2016. Against the said order dated 8.6.2016 passed by the trial Court, the respondent State preferred Criminal Revision Application No.61 of 2016 before the learned Sessions Judge, Bharuch and same was allowed vide order 11.11.2016 passed in Criminal Revision Application No.61 of 2016, quashing and setting aside the order passed by the trial Court. Hence, present Criminal Revision application against the said order by the applicant.