Dismissed

Vinod Kumar v. State of Hp and Others

Himachal Pradesh HC9 Apr 2024CWP/2252/2023

Case brief

AI extract

What is this about?

A writ petition under Article 226 sought transfer of investigation into theft allegations to the State CID, alleging police bias. The High Court found the allegations arose from a civil dispute over construction dues, no evidence of theft was found, and the dispute lies within civil/arbitration jurisdiction. The petition was dismissed.

What did the court decide?

The writ petition seeking transfer of the investigation under Section 380 IPC was dismissed.

Vinod Kumar Vs State of Hp and Others — Civil Procedure and Limitation | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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CWP No.2252 of 2024.

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Date of Decision : 9^th April, 2024.

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Vinod Kumar. ...Petitioner. Versus State of H.P. and Others. ... .Respondents.

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Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?¹ For the Petitioner: Mr. Nareshwar Chandel, Senior Advocate with Mr. Jyotirmay Bhatt, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar, Mr. B.C. Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General. ASI, Pardeep Singh, Police Station Baddi, present in-person.

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Sandeep Sharma, Judge (Oral).

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By way of the instant writ petition filed under Article 226 of the Constitution of India, petitioner has prayed for following main relief(s):-

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“i. Directions may be issued to respondents to transfer the case FIR No.93 of 2021

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1 Whether reporters of the local papers may be allowed to see the judgment?

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dated 06.05.2021 lodged in Police Station Baddi, (Police District BBN), District Solan, Himachal Pradesh under Sections 380, 406, 420 and 120B of the Indian Penal Code, 1860 to State CID, Shimla, H.P., for investigation.”

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Precisely, the grouse of the petitioner as has been

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highlighted in the petition and further canvassed by Mr. Nareshwar Chandel, learned Senior Advocate, appearing for the petitioner is that allegations contained in FIR No.93 of 2021 dated 06.05.2021 lodged in Police Station Baddi, (Police District BBN), District Solan, Himachal Pradesh, are not being properly investigated by the Police and clear-cut attempt has been made by the Police to misdirect the investigation and as such, the investigation may be transferred to some other agency.

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Facts as emerge from the record reveal that the petitioner herein was awarded some constructions work at Baddi University of Emerging Science and Technology, Makhumajra, District Solan, H.P. (for brevity ‘ Baddi University ’) in the year 2004. For smooth monitoring of the work, petitioner was also provided an accommodation for

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office/store in the premises of Baddi University. Construction work was completed by the petitioner in the year 2017, and thereafter, some dispute arose inter se petitioner and accused named in FIR, on account of non-payment of dues. Though petitioner was claiming a sum of Rs.6,31,13,913/- but sum of Rs.5,30,30,219/- was only paid by the Baddi University. On account of aforesaid dispute, the matter has ultimately landed before the Arbitrator appointed in terms of agreement executed inter se parties. Suddenly, in the month of May 2021, petitioner lodged FIR No.93 of 2021 dated 06.05.2021, leveling allegations against accused persons namely (i) Sh. Gaurav Ram Jhunjhunwala, Secretary Governing Body, (ii) Sh. Charandeep Singh, Civil Engineer, Baddi University, and (iii) Sh. Bhola Ram, Supervisor, Baddi University, that they have stolen few valuable documents from the office. Petitioner alleged in the FIR detailed above that on 18.03.2021 when he visited the office after COVID-19 Pandemic, he found that the lock of the office was broken. He also alleged that lock of the almirah was also broken and all the relevant/important documents were also missing. Taking cognizance of aforesaid complaint of the petitioner, police lodged the FIR as detailed above and

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registered case under Sections 380, 406, 420 and 120B of the Indian Penal Code, 1860, against accused named above. Since, much progress was not made in investigation in the aforesaid FIR, petitioner approached this Court by way of instant proceedings with the prayer to transfer the investigation to CID. Petitioner alleged that Police of Police Station Baddi is hand in glove with the accused and as such, he has no hope of getting free and fair justice.

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Pursuant to notices to instant proceedings, respondents have filed reply, wherein allegations with regard to connivance, inter se police and accused came to be refuted. Respondents categorically stated that immediately after lodging of the FIR, matter was investigated but dispute inter se parties appears to be on account of non-payment of bills. Respondents also averred in their reply that as per respondent authorities, a sum of Rs.5,30,30,219/- stands paid to the petitioner, who happens to be owner of JMD Construction Company. As per police, office alleged to have been provided to the petitioner by Baddi University is still in existence but in dilapidated condition. During investigation, police failed to find out any article or document in the premises, given to the petitioner.

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Respondents have also stated in the reply that they were unable to find any evidence on the spot, suggestive of the fact that office provided to the petitioner by the Baddi University was purposely dismantled by the University, rather same appears to have fallen itself.

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Careful perusal of the complaint, on the basis of which FIR came to be instituted, reveals that though construction work of building was completed by the company of the Petitioner in 2017, but yet he remained in possession of office site, which was provided to him by Baddi University. As per own case of the petitioner, he was unable to visit the project office situated in Baddi University after year 2019, meaning thereby, after completion of building, though no work was available with the petitioner in the premises of Baddi University but yet he retained the poseession. Though it has been claimed by the petitioner that few valuable documents belonging to other firms were lying stacked in the almirah kept in the office, but no such document were ever found/located by the police during investigation, otherewise also, it is not understood that where was the purpose/occasion of the petitioner to keep the

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documents of other firms in the project office provided by Baddi University.

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Similarly, if documents belonging to other firms were of importance then it is not understood why the petitioner never made any attempt to collect them between the year 20192021, rather during this period he chose not to visit the project site provided to him by the Baddi University. As per the police investigation, dispute, if any, inter se petitioner and the respondent is only on account of non-payment qua the civil work done in the premises by the petitioner. But while filing the FIR as detailed above, an attempt has been made by the petitioner to give criminal colour to civil dispute, if any.

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During the pendency of the present petition, respondent-State has filed fresh status report dated 09.04.2024 under the signature of SHO, Police Station Baddi, where same facts have been reiterated. As per report, Police after investigation has already filed Untraced Report in the Competent Court of law. Being aggrieved on account of the aforesaid untraceable report, remedy, if any, available to the petitioner being complainant, is to file objections. Needless to

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say, Court before which untraceable report is filed, otherwise is required to issue notice to the complainant.

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Having scanned the record of investigation made available to this Court, this Court finds it difficult to agree with Sh. Nareshwar Chandel, Senior Advocate, representing the petitioner that police has not conducted the investigation impartially and efforts have been made to save the main culprits, rather material available on record clearly reveals that immediately after registration of the FIR, police conducted the investigation by associating all the concerned complainant as well as accused. Otherwise also, this Court is of the view that allegations contained in the FIR are not so grave having adverse impact upon the society, which can compel this Court to transfer investigation to CID, which is also part of Himachal Police. Neither there is anything in the petition, nor during arguments, counsel appearing for the petitioner was able to point out any circumstance, suggestive of the fact that police has not acted fairly, rather having perused record of investigation, this Court is convinced that the dispute inter se petitioner and accused named in the FIR is on account of nonpayment of bills and remedy for the same lies either in the Civil

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Court or by way of arbitration, which petitioner has already invoked.

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Consequently, in view of the above, this Court finds

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no merit in the instant petition. Accordingly the same is dismissed. Pending applications, if any, also stand disposed of.

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(Sandeep Sharma) Judge

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9^th April, 2024

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(Pardeep)

Vinod Kumar v. State of Hp and Others

Case brief

What is this about?

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Vinod Kumar v. State of Hp and Others

Case brief

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