MAHENDRA MANILAL SHAH Vs. RASHMIKANT MANSUKHLAL SHAH

JUDGEMENT

(1.) Pursuant to the directions given by the Apex Court for early disposal of this application, application was taken up for hearing yesterday. Before I consider rival submissions, it is necessary to give brief background of this case.

(2.) A complaint was lodged against the accused - Rashmikant Mansukhlal Shah vide C.R. No.I/240 of 2008, dated 02/12/2008 which was registered with Kasarvadavli Police Station, Thane for the offence punishable under sections 420, 465, 467, 468, 471 read with section 34 of the Indian Penal Code. The complainant and the accused - Rashmikant alongwith two others were partners of the Company called Vijay Dwellers. The Company initially came into existence in 1996 and, at that time, complainant - Mahendra Manilal Shah, Vinod Gala, and Vrajlal Gala were partners and in the year 2002, accused - Rashmikant Shah was added as partner and it was agreed that the said Company would redevelop two buildings. Accused - Rashmikant was given 25% share and the remaining partners were given 25% share each and the construction of the building started in the year 2004. Out of redeveloped flats, 18 flats were to be given to tenants and 12 flats were allotted in favour of the Company which were to be sold to flat purchasers. It was alleged that accused - Rashmikant Shah without taking permission from other partners sold 12 flats between 2007 and 2008 and out of the flats which were reserved for tenants, 6 flats were in the name of six companies since they had purchased tenancy rights from tenants. These six flats also were sold by the accused - Rashmikant according to the complainant. It is further alleged that the said four companies which had purchased flats from four tenants filed suit in this Court. Accused - Rashmikant made a statement on oath in this Court in the Civil Suit that four flats were released in favour of Vijay Dwellers and the said release deed was kept at Thane. The said release deed was not produced in the Court. A complaint was filed and the police searched the premises and, according to police, two release deeds were found in the toilet of the complainant's office. According to the complainant, he suspected some foul play in respect of seizure of the said release deeds and, according to him, the release deeds were forged and fabricated and neither he nor Nemichand Shah has signed or executed the said release deeds. He, therefore, filed the said complaint that the accused - Rashmikant had forged and fabricated the said release deeds and, thereby, had cheated the complainant to the tune of crores of rupees. Thereafter, order was passed by the learned Magistrate granting bail to the accused - Rashmikant Shah by order dated 14/05/2009 which order was challenged by the complainant in this court by filing an application for cancellation of bail and the bail, in the meantime, was cancelled by the learned Single Judge of this Court vide order dated 19/ 06/2009. In the meantime, accused - Rashmikant had complained of chest pain and was admitted in the J. J. Hospital. The matter went to the Supreme Court and the Apex Court passed the following order on 24th July, 2009.

(3.) It appears that though the accused - Rashmikant Shah was directed to surrender on/or before 24/09/2009, he surrendered on 05/ 10/2009 and the reason given for this was that on account of his ill-health, he could not surrender on the day on which the Apex Court had directed him to surrender and that he had applied for extension of time to the Apex Court. However, extension was not granted. Since 05/ 10/2009 accused - Rashmikant Shah, therefore, is in jail.