Gayaprasad B. Lal v. The State Of Maharashtra

Sherla V.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.603 OF 2016 Shri Gayaprasad B. Lal ... Applicant Vs.

The State of Maharashtra ... Respondent Mr.A.P. Mundargi, Sr. Advocate with Mr.M.S. Mohite and Mr.Sachin Deokar i/b V.V. Purwant for Applicant Mrs.P.P. Shinde, APP, for Respondent - State CORAM: MRS.MRIDULA BHATKAR, J.

DATE: MAY 5, 2016 P.C.:

1.

The applicant-accused is facing prosecution for the offences punishable under sections 465, 467, 468, 470, 471, 191 r/w 34 of the Indian Penal Code in C.R. No.I-42 of 2016 registered at the instance of one Govind S. Gambhire, Police Inspector, on 24.2.2016 with Kasarvadavali police station, Thane. It is the case of the complainant that he received one letter / application by name Siloo Dhanjishaw Mistri, 90 years old from Napensea road, Mumbai on 5.1.2012. In the said application, Siloo Mistri has objected to one agreement bearing registered No.4381 of 1989 which was registered on 9.12.1989 which had allegedly taken place between Siloo Mistri and Samarth Development Corporation in respect of land bearing survey No.79/2 and 80/2 at Mauje Borivade, Taluka and District Thane. In the said application, the said Siloo Mistri has 1 / 8

complained that the said agreement was bogus and it was executed and registered with the intention to grab her land and so she registered the offence of cheating and forgery against the persons. It was also mentioned in the application that she being an old lady, her brother Kersi Minu Guard be allowed to appear for further statements as she has given authority letter to him alongwith photocopies of her PAN card and Election card. Pursuant to the complaint, the police started enquiry. At that time, on 5.12.2015, the police station received one more complaint dated 7.12.2015 from one Satish P. Shetye, who presented it on behalf of the New Shri Swami Samarth Borivade Housing Company i.e.

, the purchasers of the land shown in sale deed of 1989 and it was mentioned that the said land is owned by Siloo Mistri, however, one Gilbert John Mendonca, who is a co-accused in this C.R., prepared false documents on the basis of bogus conveyance deed of 1981 and thereafter applied for entering his name in 7/12 extract. However, Samarth society took objection to the said application as they were called and they filed enquiry application before the Tehsildar, Thane, being application No.16769 of 2015 on 27.10.2015 and they have issued notice to the Collector, Thane on 23.10.2015.

the record-keeper one Mr.Gaikwad in Thane Nagar police station. The police collected all the documents pertaining to the land and also tried to contact the original complainant Siloo Dhanjishaw Mistri, who gave the complaint application earlier. However, they found that the address given in the said application is not available and so also either Siloo Mistri or Kersi Guard did not appear in Kasarvadavali police station. However, the police realised that Siloo Mistri had filed a criminal Writ Petition No.4931 of 2015 in the Bombay High Court on 15.12.2015 praying for transfer of investigation as it was not honest and satisfactory and, therefore, the police were asked to remain present on 6.1.2016 before the High Court. At the time of hearing of the writ petition, before the Division Bench, an advocate Mr.G.B.

Lal, co-accused, appeared for the petitioner alongwith other counsel. However, at that time, Senior Counsel Mr.Jehangir Mistri appeared in the Court and took objection to the petition and he informed that the petition was filed in the name of his mother Siloo Mistri, however, in reality, his mother has not filed any petition and never gave any application to the police station. However, he stated that his mother Siloo is the real owner of the impugned land. At that time, the honourable Division Bench directed that the lady who claimed to be Siloo Mistri and who filed the petition should remain present before the Court as it was informed that she was in the corridor.

petition is filed by forging the signature of his mother and by impersonation. On the next date, the matter was fixed by the Division Bench and the lawyer of the petitioner G.B. Lal and one Sonawane, the clerk of the advocate, who had identified the petitioner as Siloo Mistri, were asked to give explanation. On 7.1.2016, the Senior Counsel Jehangir Mistri alongwith his aged mother Siloo Mistri appeared before the Court. However, the petitioner or her representative did not appear. All genuine papers of real Siloo Mistri were produced before the Court. After going through those papers, the Division Bench directed the petitioner to appear before the Court on 14.1.2016 alongwith the petitioner i.e., the present applicant-accused and her lawyer i.e., the other co-accused Gayaprasad B. Lal. On 14.1.

2016, the complainant officer appeared before the Court at that time and on that day also, the alleged Siloo Mistri did not remain present. However, her brother Kersi Guard, who is the coaccused was present and again the matter was adjourned to 21.1.2016 for filing an affidavit of the petitioner and on that day, the present applicant Piloo Mehta appeared before the Court and she told the Court that she presented herself as Siloo Mistri at the instance of her brother Kersi Guard.

At that time, Kersi Guard, the co-accused, who was also present, disclosed to the Division Bench that he and his sister had done all the acts at the instance of the co-accused Gilbert Mendonca and Ashok Hire. The 4 / 8

Division Bench directed to record the statements of these persons in the Court premises. Thereafter, at the time of investigation, it was found that the real owner had Siloo Mistri entered into the registered agreement of sale in 1989 with Samarth Builder. However, the name of Samarth Builder was not entered into 7x12 extract due to certain technicalities. However, Gilbert Mendonca, the co-accused and Ashok Hire hatched the conspiracy alongwith the help of present applicant-accused Piloo Mehta and her brother Kersi Guard to grab the land and they prepared a forged registered conveyance dated 17.9.1981 of survey Nos.79/2 and 80/2, wherein it is shown that Siloo Mistri has sold this land to Gilbert Mendonca. In June, 2015, Gilbert Mendonca filed a civil Suit No.

469 of 2015 before the civil Court at Thane for specific performance against Siloo Mistri. Pilloo Mehta appeared as Siloo Mistri. In August, 2015, both the parties i.e., the sham Siloo Mistri, i.e., the real Piloo Mehta and Gilbert Mendonca, who is a fake purchaser of the said land, filed consent terms. They compromised the matter before the civil Court at Thane and filed consent terms and the suit was disposed of. On the basis of consent terms and the bogus registered sale deed of 1981, Gilbert Mendonca applied for entering his name in the revenue record of survey No.79/2 and 80/2. At that time, it was objected to by Samarth builders and as it was objected to, Siloo Mistri filed complaint on 5.12.2015 against Samarth Builders that they have played fraud and tried to grab the land.

the offence was registered as the police found that all the documents filed by Siloo Mistri and Gilbert Mendonca, Ashok Hire and Kersi Guard are bogus and the lady represented before the High Court has filed a false Writ Petition by impersonation before the High Court and also filed a suit before the civil Court and thus, lodged present C.R. against all the accused.

2.

Mr.Mundargi, the learned Senior Counsel for the applicant-accused, has submitted that the applicant-accused Gayaprasad Lal is a practising advocate and he is innocent and he has not committed any offence. He submits that it is true that he has filed Vakalatnama on behalf of the Silloo Mistri and filed Writ Petition and appeared for her, however, he did not know that she is Pilloo Mehta and not Silloo Mistri. He submitted that the only evidence against him is the statement of Pilloo Mehta to the police that her lawyer told her to maintain a stand as Silloo Mistri if at all, she is asked. The learned Senior Counsel submits that this is a statement of the co-accused which has no evidentiary value. Besides this statement, there is no evidence against him. He has acted in good faith believing that she was the real Silloo Mistri. He was engaged by one advocate Mr.Sailesh Thakur from Thane. As the client was referred through him, he had no opportunity to doubt and find out her real identity. So it is prayed that he may be granted pre-arrest bail.

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3.

Learned Prosecutor has opposed the application. She submitted that the applicant-accused told the co-accused Pilloo Mehta to represent as Silloo Dhanjshaw Mistri and thus, the applicant-accused Gayaprasad Lal was aware of the original identity of the co-accused Pilloo Mehta. 4.

Perused the FIR, the statements of the co-accused Pilloo Mehta. It appears that she has stated to the complainant that in the Court she met Ashok Hire and lawyer G.B. Lal and told by them that if her name is asked, she should not tell her name as Pilloo Parvez Mehta but should maintain her stand that she is Silloo Dhanjishaw Mistri. Besides this one statement, there is nothing on record to show that the applicant-accused had knowledge that the lady to whom he is representing has a fake identity. It is a statement by co-accused and besides this, no other evidence is available against the applicant-accused.

5.

Considering this, I grant protection to the applicant-accused Gayaprasad Lal under section 438 of Code of Criminal Procedure. The application is allowed on the following terms: i) In the event of arrest, the applicant-accused shall be released on bail upon furnishing P.R. Bond in the sum of Rs.20,000/- with one or two solvent sureties in the like amount;

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ii) The applicant-accused shall cooperate with the Investigating Officer and attend the concerned police station as and when called; iii) The applicant-accused shall not tamper with the evidence or pressurise the complainant;

iv) The applicant-accused shall not indulge into any criminal activity;

v) The applicant-accused shall not abscond or leave India without prior permission of the Court and furnish his permanent address to the Investigating Officer alongwith documentary proof of his address.

vi) In the event of breach of any of the above conditions, the prosecution will be at liberty to move the Court for cancellation of bail.

(MRIDULA BHATKAR, J.) 8 / 8