NIKHIL PRAMOD SHAH AND ORS v. THE STATE OF MAHARASHTRA
Court: Bombay High Court
Bench: HON'BLE SHRI JUSTICE PRAKASH D. NAIK
Judgment date:
Case summary
Bombay High Court judgment dated 2020-01-13. NIKHIL PRAMOD SHAH AND ORS v. THE STATE OF MAHARASHTRA. Read the judgment and case details on LawSphereX.
Judgment text
rpa 1/9 905-aba-81-2020. doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO. 81 OF 2020 1) Nikhil Pramod Shah; 2) Vinod Pramod Shah; 3) Santosh Jadhav; 4) Dattatray Mule; 5) Ashwin Sangvi. .. Applicants Vs. State of Maharashtra .. Respondent …... Mr. Subhash Jha a/w. Seoul Shah, Sanjana Pareshi i/b. Prasanna P. Patil, Advocate for the Applicants. Mr. S. S. Pednekar, APP for the Respondent – State. Mr. M. J. Kharmavat, Advocate for Original Complainant. Mr. Sandesh M. Chavan, PSI, Shivajinagar Police Station, Pune City, present. …... CORAM : PRAKASH D. NAIK, J. DATED : JANUARY 13, 2020. P. C. : The applicants are apprehending arrest in connection with C. R. No. 157 of 2019, registered with Shivaji Nagar Police Station, Pune City. First Information Report (“FIR”, for short) was th lodged on 8 February, 2019, alleging ofence under Section 406 of Indian Penal Code (“IPC”, for short) were invoked. rpa 2/9 905-aba-81-2020.
doc Subsequently, the ofences under Sections 380 and 454 of IPC were invoked. 2 The case of the prosecution is that the complainant is the contractor in Glass and Aluminum Sheets work. In April 2017, he entered into contract with Premier Developers through the applicant. The contract was assigned for Glass Aluminum Sheet in project called “Elite Colossal”, situated at Model Colony, F. C. Road, Pune. The complainant started working as per the work order and the specifcations given by the builder/applicants. He had purchased necessary materials from the vendors in Pune and Bhiwandi and was using the same material for completing the work. He was provided room to store the necessary materials and machinery at the site, and, accordingly he used to store diferent materials and machinery on diferent foors of the site. In September 2018, the forum work of the building was completed thereby 70 percent of work of afiiing aluminum sheets was th completed and only iron fttings were left.
On 30 September, 2018, the person looking after work of Premier Developers, Dattatray Mule, Nikhil Shah, Vinod Shah told complainant to stop the work. The complainant could not work on the site and decided to shift his workers on another site where work was in progress. rpa 3/9 905-aba-81-2020. doc The complainant kept his articles in room provided to him and locked the room. The iron pipes, aluminum sheets, lying on various foors was shifted to another place of work. The complainant insisted for commencement of work. However, there was no response. Subsequently, he learnt that new contractor th was inducted to complete the work. On 26 October, 2018, the complainant went to check his articles stored in the room and it was noticed that the room was open and the material and machinery lying therein was missing. He enquired with Santosh Jadhav, Site Engineer.
He stated that on instructions of Dattatray Mule, he broke open the lock of room and provided the articles to current contractor Ashwin Sanghvi. The complainant, thereafter, interacted with accused by teit messages on mobile and Emails. th On 8 February, 2019, the complainant noticed that the accused were using his aluminum sheets. The accused had utilized the goods worth Rs. 4,23,592/-, and misappropriated the same. th 3 Vide letter dated 19 September, 2019, the applicants were informed that investigation in connection with C. R. No. 157 of 2019 for the ofence punishable under Section 406 read with 34 of IPC concluded and the charge–sheet is proposed to be fled against the accused, and, therefore, at the time of fling the rpa 4/9 905-aba-81-2020. doc charge–sheet, the presence of the accused is required. However, th the charge–sheet has not been fled. On 6 November, 2019, letter was issued directing the accused to appear for the purpose of investigation.
Subsequently, the ofences under Sections 380 and 454 of IPC, were invoked. 4 Applicants had preferred an application for anticipatory bail before the Sessions Court, which has been th rejected by order dated 7 January, 2020. 5 Learned counsel for the applicant submitted that the custodial interrogation of the applicants is not called for. The ofence as alleged in the FIR as well as the subsequent ofences are not attracted. 6 It is submitted that, the letter issued by the th investigating oficer on 19 September, 2019, would indicate that without subjecting the accused to custody, the investigation was completed and they were only directed to appear before the Court for the purpose of fling charge–sheet. It is contended that the applicants had indeed complied the said directions, but, it was noticed that the charge–sheet was not fled. However, rpa 5/9 905-aba-81-2020.
doc th subsequent letter dated 6 November, 2019, was issued by the investigating agency stating that they should remain present before the investigating oficer for the purpose of investigation. The applicants, thus, apprehended arrest and preferred an application for anticipatory bail before the Sessions Court. 7 It is submitted that at the time was essence of contract and there was undue delay from complainant to complete the work assigned to him. Learned counsel pointed out the quotation furnished to the complainant which is anneied to this application. It is submitted that the work order was issued on rd 3 April, 2017. The work was not completed within stipulated time. The developer had no other option but to hand over the work to another contractor. Applicant no. 2 is not partner of company. The applicant no. 1 and 4 are partners of project. Applicant no. 3 is a site engineer and applicant no. 5 is new contractor. The applicants had cooperated with investigation.
Documents were produced and statements recorded. The applicants had paid an amount of Rs. 37,71,990/-, to complainant. The applicants have paid more money to complainant. The th applicants had fled N. C. complaint against complainant on 11 th December, 2018. The complainant has fled civil suit on 24 rpa 6/9 905-aba-81-2020. doc th January, 2019. It is further submitted that the letter dated 29 December, 2018, forwarded by the complainant to Premier Developers falsify the claim of the complainant against the developer as it provides schedule for completing the work. The said letter do not attribute any allegations as alleged in the FIR. It is submitted that the applicants are willing to further co-operate with the investigation. Custodial interrogation is not warranted. 8 Learned APP submitted that the complainant was assigned the work as alleged in the FIR. 70 percent of the work was completed.
The material lying at the place of the incident was used by the applicants-accused for the project. It is submitted that the statements of witnesses were recorded, which show that the lock of the premises was broken and the goods were removed and utilized. It is submitted that the statements of the electrician who is relative of accused recorded during the course of investigation mentions that substantial work was completed by the complainant. In the event any dues are to be paid to complainant, the same would be paid. Learned counsel for the intervener reiterated the submissions advanced by the learned APP. It is submitted that there is suppression of facts. The rpa 7/9 905-aba-81-2020. doc applicants had not pointed out that the ofence under Section 454 and 380 of IPC has been registered against the applicants. The complainant had completed substantial work and inspite of that, he was asked to stop the work.
He had no other option but to direct his workers to shifting to another project. However, the goods were still lying in the premises. It is submitted that the goods were misappropriated by the accused by breaking the lock of the room and removing the same. It is submitted that the FIR would indicate that the ofences under Sections 380 and 454 of IPC are made out, and ,therefore, the same are invoked subsequently. The complainant has been deceived by the accused. The payment towards his work was not made and apart from that the goods belonging to the complainant were utilized by the accused. 9 I have perused the documents on record. The quotation referred by the applicants indicate the work assigned to the complainant. It is pertinent to note that in accordance with the quotation and work order, the work assigned to the complainant was to be completed within stipulated time. The th letter dated 29 December, 2018, is silent with regards to the allegations refected in the FIR.
It is relevant to note that on the rpa 8/9 905-aba-81-2020. doc same initially the ofence was registered under Section 406 of IPC. However, subsequently, Sections 380 and 454 of IPC were th invoked. Letter dated 19 September, 2019, was forwarded to the accused indicating that charge–sheet would be fled against them. The said letter was forwarded after seven months after the date of registration of the FIR. However, subsequently, by letter dated th 6 November, 2019, the accused were directed to appear before the investigating oficer for investigation. The said letter was issued after a period of about nine months from the date of registration of FIR. No new facts had gathered after letter dated th 19 September, 2019, eicept the fact that new sections were invoked on the basis of same facts. Apart from that, the matter relates to the accounts and payments of money. Civil Suit is fled by complainant. FIR is lodged subsequently.
Considering the factual matrii of the case, custodial interrogation of the applicants is not necessary. Case for anticipatory bail is made out. 10 Hence, I pass the following order: :: O R D E R :: (i) Anticipatory Bail Application No. 81 of 2020, is allowed; rpa 9/9 905-aba-81-2020. doc (ii) In the event of arrest of Applicants in connection with C. R. No. 157 of 2019, registered with Shivaji Nagar Police Station, Pune City, they be released on bail on their eiecuting P. R. Bond in the sum of Rs. 25,000/-, each, with one or more sureties in the like amount; (ii) Applicants shall report investigating oficer on th nd 20 to 22 January, 2020, between 11:00 a. m. to 01:00 p. m. , and, thereafter, as and when called for, till fling of the charge–sheet; (iii) Anticipatory Bail Application stands disposed of. (PRAKASH D. NAIK, J. )
Source: Bombay High Court. Dataset: Dattam Labs. CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.