Sachin Laxman Parab and Ors. Vs the State of Maharashtra and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO.97 OF 2021

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1. Sachin Laxman Parab, age 40 years, r/o.Mumbai.

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2. Samiksha Sachin Parab, age 38 years, r/o.Mumbai.

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3. Shilpa Sivram Parab, age 48 years,
r/o.Mumbai.Applicants

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versus

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The State of Maharashtra and anotherRespondents

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Ms.Lucy Massy for applicants.
Mr.Abhijeet Patil for Respondent no.3.
Mr.A.R.Kapadnis, APP, for State.

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CORAM :PRAKASH D. NAIK, J.

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DATE : 8th March 2021

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PC :

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1.This is an application for anticipatory bail in CR No.478 of
2020 registered with Manpada Police Station for offence under
Section 452 r/w 34 of Indian Penal Code. The FIR was registered on
25th November 2020.

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Digitally signed by Manish Manish S. Thatte S. Thatte Date: 2021.03.1012:21:49 +0530

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2.The complainant has alleged that she had purchased a flat
jointly with her husband viz Flat No.903-E, Premia, Palava, Khoni,
Dombivili (East). The complainant has been paying loan
installments. The husband of the complainant expired on 17th June
2020. On 30th October 2020 the complainant visited her flat at
Palava and it was noticed that unknown persons are occupying the
same. The applicant no.1 informed that the flat was sold to him by

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complainant’s husband and he had executed a transaction with him.
The complainant alleges that her husband never informed her about
such transaction. The flat stands in the name of complainant as well
as her husband. The complainant questioned the applicant no.1 as
to how the transaction could only be with her husband. It is further
alleged that the premises was rented out to a licensee and he was
supposed to vacate the premises. The applicant no.1 and his family
members had trespassed into the flat premises. Pursuant to
registration of FIR, investigation had commenced.

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3.The applicants preferred application for anticipatory bail
before the Court of Sessions. The said application was rejected vide
order dated 10th December 2020. While rejecting the said
application learned Sessions Judge had observed that memorandum
of understanding (MOU) relied upon by applicants nowhere
mentions that possession of the flat is given by the informant’s
husband to applicant no.1. There is no documentary evidence
produced to show that informant’s husband at any point of time gave
possession of the flat to any of the accused. The MOU shows that
informant’s husband had agreed to sell the flat to accused no.1 and it
is also mentioned that from time to time amount of Rs.18 lakh is
received and the balance amount of Rs.12 lakh is to be paid within
seven years. However, there is nothing to show that informant’s
husband had authority to sell the flat since it was purchased jointly
in the name of informant and her husband. The investigating officer
produced copy of Annexure-II of the flat which indicate that it is
purchased in the name of informant and her husband and the
consideration price mentioned therein is Rs.46,22,512/-. The flat
was purchased by registered agreement in the joint name.

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4.The contention of the applicants is that the MOU was executed
between applicant no.1 and informant’s husband on 23rd December
2019. The copy of MOU has been annexed to this application. The
MOU mentions that the amount of Rs.18 lakh was paid to
informant’s husband in cash and cheque. The MOU was allegedly
executed on 23rd December 2019. Most of the payments reflected
therein are prior to execution of MOU. It is submitted by learned
counsel for applicant that applicant no.1 was put in possession by
informant’s husband. The amount of Rs.18 lakh was parted by
applicant no.1. The dispute relates to possession of the property
which is civil nature. Applicant no.1 has filed suit in the Court which
is pending. The possession was given to the applicant no.1 in July-
2020 along with access card and key of flat. It is further submitted
that issue relating to validity of MOU will be decided in Civil Court.
The applicants need not be subjected to custodial interrogation. The
amount paid by the applicant no.1 has been credited into the account
of complainant’s husband. Additional affidavit of applicant no.1 is
filed relying upon MOU and other documents. It is submitted that
value of the flat is not Rs.46 lakh which is evident from the
document relating to flat situated in the area. It is submitted that
the bank statement of applicant no.1 reveals transfer of amount to
husband of complainant. The copy of bank statement has been
annexed to the affidavit.

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5. Learned APP submitted that during investigation it was revealed that the amount as contended by applicant no.1 has not been credited into the account of informant’s husband. Complicity of the applicants is disclosed during the course of investigation.

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6.Learned counsel for intervenor submitted that the claim of the
applicants is false. The complainant and her husband were joint
owners of the property. The MOU ought not to have been executed
between single owner and applicant no.1. The applicants are
illegally occupying the property. They have committed criminal
trespass. There is no cogent evidence to show that amount of Rs.18
lakh have been received by the informant’s husband. It is submitted
that the MOU indicates that amount of Rs.18 lakh is paid by
applicant no.1 and Rs.12 lakh were to be paid within a period of
seven years. Transaction is illegal. It is further submitted that in the
application the applicants have contended that the informant’s
husband had handed over peaceful possession of the property in
July-2020. It is submitted that statement is patently false. The
husband of the informant has expired due to brain hemorrhage on
17th June 2020. The question of handing over possession in July-
2020 does not arise. It is also submitted that value of the flat is
around Rs.46 lakh. It was the purchase amount which is reflected in
the agreement to sale executed between the informant, her husband
and the seller of said flat. It is difficult to accept that flat will be sold
for a consideration of Rs.30 lakh.

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7.Having heard both the sides I have perused the documents on
record. Applicant no.1 claims that the MOU was executed on 23rd
December 2019. The flat was sold to him by informant’s husband for
consideration of Rs.30 lakh. The document is notarized. It is
pertinent to note that flat was owned by informant and her husband
jointly. It is difficult to accept that flat will be sold by MOU without
the consent of complainant. The applicant no.1 is relying upon
vouchers dated 23-7-2019, 14-8-2019, 27-8-2018, 11-9-2019, 23-12-
2019. Except voucher dated 23-12-2019, all the cash vouchers are

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prior to the execution of alleged MOU. The vouchers did not
indicate as to for what purpose the amount was paid to informant’s
husband. The applicants are also relying on a cheque issued in the
name of informant’s husband for Rs.1.45 lakh. The investigation
revealed that no amount has been transferred to the account of
informant’s husband. It is also difficult to believe that property
valued at Rs.46 lakh was sold for Rs.30 lakh, that too amount of
Rs.12 lakh was to be paid within a period of seven years. In the
circumstances, the contention of applicant no.1 cannot be accepted.
The allegation against applicants is that all of them had entered into
the premises owned by the complainant and they continued to
occupy the flat.

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8.The MOU was allegedly executed with applicant no.1. He has
played vital role. Applicant no.2 is wife of applicant no.1 and
applicant no.3 is sister of applicant no.1. it is alleged that applicant
nos.2 and 3 are also occupying the said premises and they have
connived with applicant no.1.

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9.Considering the overt act attributed to the applicant no.1, no
relief u/s 438 of Cr.P.C can be granted to him. However, although
applicant nos.2 and 3 are allegedly occupying the premises and had
connived with applicant no.1, considering the fact that MOU was
allegedly executed with applicant no.1 and applicant nos.2 and 3,
they need not be subjected to custodial interrogation.

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10. Hence, I pass following order :

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ORDER

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(i) Application of applicant no.1 Sachin Parab stands rejected;

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(ii)In the event of arrest of applicant nos.2 and 3 in connection
with CR No.478 of 2020 registered with Manpada Police Station, the
applicant nos.2 and 3 be released on bail on their executing PR bond
in the sum of Rs.25,000/- each with one or more sureties in the like
amount;

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(iii)The applicant nos.2 and 3 shall attend the Investigating Officer
as and when called for.

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11.This order will be digitally signed by the Private Secretary of
this Court. All concerned will act on production by fax or e-mail of a
digitally signed copy of this order.

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(PRAKASH D. NAIK, J.)

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MST

Sachin Laxman Parab and Ors. v. the State of Maharashtra and Anr.

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Sachin Laxman Parab and Ors. v. the State of Maharashtra and Anr.

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