A GURGAON court has questioned the “impartiality” of Haryana police in handling a case lodged against independent MLA Balraj Kundu on charges of cheating.
“…it appears to be a case of high-handedness of the police in troubling the petitioners (Kundu brothers and one of their partners). The sequence of events unfolded in this case is not a happy countenance,” observed Gurgaon Sessions Judge MM Dhonchak while accepting the anticipatory bail application of the petitioners on Tuesday. Balraj, his younger brother Shivraj Kundu and a director of his firm VK Lamba had approached the court seeking anticipatory bail.
Stating that “this court is further of the considered opinion that the complainant cannot be allowed to succeed in his design”, the judge ordered to send a copy of the order to the Haryana Home Secretary for necessary action.
Balraj Kundu was earlier with BJP but had turned rebel when the saffron party did not field him from Meham constituency of Rohtak district in the 2019 Assembly polls. Then Kundu resigned from the post of Rohtak Zila Parishad chairman and won the Assembly election as an independent candidate from Meham. Just a few months after formation of the BJP-JJP government, Kundu had withdrawn the support from the alliance. After that, two FIRs have been lodged against Kundu. The legislator had termed the cases as an outcome of “political vendetta”, since he had leveled serious allegations against a former minister.
The latest case was registered against the Kundu brothers and two directors of his firm, V K Lamba and Mohammad Hasim, over allegations that the accused did not make full payment for construction of a road in Madhya Pradesh, apart from blaming them for cheating. In his complaint, Gurgaon resident Parivartan Singh, who is former director of a firm, had accused the Kundu brothers of cheating, while blaming Hasim and his associates for assault too.
“After getting a contract for construction of the road, Kundu and his associates had given this work to the complainant for Rs 75 crore in 2017. The complainant says he had completed the work of about Rs 40 crore but the accused gave him only about Rs 27 crore,” a police spokesperson had earlier told The Indian Express. Kundu, who runs a construction company, alleged the FIR was an attempt to “pressurise” him amid the ongoing farmers agitation and Baroda bypoll. Kundu had joined farmers protests which were held to oppose three controversial farm laws.
To avoid arrest, the Kundu brothers and Lamba had approached the Gurgaon court. Their counsel argued that “at best, it was a case of civil liability and what was done by the ACP and the SHO concerned, in registration of the present FIR, was something alike usurping the powers of the Court of Session….”
The counsel pointed out that the court of the chief judicial magistrate had not allowed the request for registration of an FIR under section 156 (3) of the CrPC into the matter. “If the complainant was bent upon getting an FIR registered, he should have taken recourse to the judicial remedy instead of approaching the police again. Unfortunately, police were also too ready to oblige the complainant. The whole exercise undertaken by police cannot be said to be an exercise in objectivity,” the court observed.
Appearing for the police in the court, the assistant public prosecutor said, “… terms of the agreement were framed in such a way that the accused could succeed in deceiving the complainant…as per the petitioners, work worth Rs 36.33 crore was carried out but till now from the account of the accused an amount of Rs 24.77 crore was received by the complainant besides equipment/rent which was given by the petitioners (Kundu brothers and Lamba) on behalf of the complainant to the different service providers.”
After hearing arguments of both parties, sessions judge M M Dhonchak observed, “If there was a contract/agreement between the complainant and petitioners-accused but it was not honoured by the petitioners, this in itself would not lead to commission of offence of cheating or breach of trust and the proper remedy in this regard is to invoke arbitration clause mentioned in the agreement itself… The remedy under the criminal law is out of question. If the proposition advanced by the learned assistant public prosecutor which was the sum and substance of his arguments and the stance of the complaint, is to hold the field then in every case in which in a commercial or contractual transaction, one party owes a sum to another and the same remains unpaid, it would be a case of cheating punishable under section 420 of the IPC, 1860. Unfortunately for the complainant, this is not the legal proposition. Law does not permit conversion of a civil dispute in a criminal prosecution.”
“…this court has no hesitation in prima- facie reaching the conclusion that a design on the part of the complainant to turn the civil litigation into a criminal litigation with a view to exert pressure upon the petitioners, was there and unfortunately, the police have not displayed expected objectivity while dealing with the case. This court is not oblivious of its limitations while deciding an application for bail but at the same time, this court is of the considered opinion that calling ‘a spade, a spade’ is the first and foremost pious duty of a judge and he cannot be expected to be a mute spectator feeling helpless in recording something the omission of which would come in the way of discharging the obligations enjoined upon the Court,” observed the judge.
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