Ashok Kumar Roy vs The State Of Jharkhand
2022 Latest Caselaw 1098 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 455 of 2015

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Ashok Kumar Roy, son of late Sudhir Kumar Roy, Divisional Manager, M/s National Insurance Company, Jamshedpur, Divisional Office, 1st Floor, Hindustan Building, Bistupur, PO and PS Bistupur, Jamshedpur, District East Singhbhum ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Vishnu Kumar Sharma, son of late S.D.Sharma, Partner M/s Parsuram Roadways, resident of M.E.School Road, Near Seva Sadan Hospital, In front of Paani Tanki, PO and PS Jugsalai, Jamshedpur, District East Singhbhum ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Manish Kumar, Advocate For the O.P.No.2 :- Mr. P.P.N. Roy, Sr. Advocate

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9/22.03.2022 Heard Mr. Manish Kumar, the learned counsel appearing on

behalf of the petitioner and Mr. P.P.N.Roy, the learned Senior counsel

appearing on behalf of the O.P.No.2. The respondent State has gone

unrepresented.

This petition has been filed for quashing the entire criminal

proceeding in connection with C-1 Case No.2722/2014 instituted for the

alleged offence under section 409/167/120B IPC including the order

taking cognizance dated 24.11.2014 whereby cognizance under section

406 of the IPC has been taken against the petitioner and the matter is

pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur.

The complaint was filed alleging therein that, the

complainant is the owner of Tata Motor Truck bearing Registration No.JH-

05W-4675 for which he had obtained Insurance Policy from National

Insurance Company and the said truck met with an accident on

27.01.2013 and he informed the Regional Office of Insurance Company

about the same on 15.02.2013 who in turn appointed a Surveyor for

assessing the loss and the mechanic assessed the total estimate of repair

at Rs.2,76,790/- in presence of the said Surveyor. It is further alleged

that the said Surveyor demanded 20% bribe for submitting genuine

report in order to settle the claim amount otherwise he warned that he

would submit undervalued report but the complainant did not oblige him

and complained to the petitioner who also asked him to comply with

demand of Surveyor but the complainant did not accept the said

suggestion and submitted original bills and receipts for settlement of his

claim for Rs.1,64,968/- on 17.06.13 but his claim was not settled for

more than a year and thereafter he got sent a legal notice to the

petitioner and Insurance Company on 18.04.2014 and the petitioner

replied to his legal notice on 22.04.2014 stating that as per Survey

Report his claim has been settled @ Rs.59,031/- and he was asked to

collect the same in accordance with procedure. It is further alleged that

the complainant sent a reply letter on 09.05.14 through his lawyer

objecting to high handed manner in which his claim was settled. It is

further alleged that his claim was not settled as per bills submitted by

him without assigning any reason because the complainant failed to

oblige them and in this manner the accused persons have committed the

offence punishable under section 409/167/120B of the I.P.C.

Mr. Manish Kumar, the learned counsel appearing for the

petitioner submits that section 64 UM(2) of the Insurance Act stipulates

that no claim in respect of a loss shall (unless otherwise directed by the

Controller) be admitted for payment or settled by the insurer unless he

has obtained a report on the loss that has occurred from a person who

holds a licence to act as a Surveyor or loss assessor. He submits that the

petitioner was Divisional Manager posted at Jamshedpur and the vehicle

in question was met with an accident at Rajauli Ghati. He submits that

the claim of the petitioner has been settled to the tune of Rs.59,702/-

pursuant to the insurance issued in favour of the O.P.No.2. He submits

that only a bald allegation has been made of demand of 20% of the

assessed claim amount from the Surveyor and he submits that this

petitioner has not claimed for that amount and it was by the Surveyor

and unnecessarily the petitioner has been dragged in the case. He

further submits that by the cognizance order the learned court has taken

cognizance against the petitioner whereas against the Surveyor the

cognizance has not been taken who has allegedly demanded 20% of the

assessed claim amount. He further submits that no case under section

406 IPC is made out and inspite of that cognizance has been taken. He

submits that legal notice has been received by the petitioner wherein it

has not been disclosed that anybody has demanded 20% of the assessed

claim amount. So far section 64 UM(2) of the Insurance Act is concerned

that has been considered by the Hon'ble Patna High Court in the case of

Oriental Insurance Company Limited v. State of Bihar, 2004 2 PLJR 458.

Paragraph no.26 of the said judgment is quoted hereinbelow:

"26. In the instant case the decision to repudiate the policy was based on the findings of the Surveyor and Investigators based on the meteorological reports. Under Sec. 64 UM(2) of the Insurance Act no claim in respect of a loss shall (unless otherwise directed by the controller) be admitted for payment or settled by the insurer unless he has obtained a report on the loss that has occurred from a person who holds a licence issued under that Section to act as a surveyor or loss assessor. The decision to reject the claim was in consonance with the report of Surveyor and Loss Assessor/Investigator. It does not appear in the facts and circumstances that there was any criminal Intention i.e. mens rea on the part of the concerned officials of the petitioner-company to cheat the complainant or misappropriate money so as to make them liable for prosecution. I am satisfied in the circumstances that the petitioners prosecution would be an abuse of the process of the Court and it is a fit case in which this Court should exercise inherent powers under Sec. 482 of the Criminal Procedure Code to quash the same."

On the point of ingredients of section 406 IPC, he relied in

the case of Binod Kumar and Others v. State of Bihar and Another,

(2014) 10 SCC 663. Paragraph nos. 9, 10 and 11 of the said judgment

are quoted hereinbelow:

"9. In Nagawwa v. Veeranna Shivalingappa Konjalgi, this Court enumerated the cases where an order of the Magistrate issuing process against the accused can be quashed or set aside as under : (SCC p. 741, para 5) "(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

The Supreme Court pointed out that the cases mentioned are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash the proceedings.

10. In Indian Oil Corpn. v. NEPC India Ltd.3, this Court has summarised the principles relating to exercise of jurisdiction under Section 482 CrPC to quash complaints and criminal proceedings as under : (SCC pp. 747-48, para 12) "12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-- Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, CBI v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State (NCT of Delhi), Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining

prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

11. Referring to the growing tendency in business circles to convert purely civil disputes into criminal cases, in paras 13 and 14 of Indian Oil Corpn. case, it was held as under : (SCC pp. 748-

49) "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., this Court observed : (SCC p. 643, para 8) '8. ... It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in

law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.'

14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

On the point of section 406 IPC, he further relied in the

case of Mitesh Kumar J.Sha v. State of Karnataka and Others, 2021 SCC

Online SC 976.

Per contra, Mr. P.P.N. Roy, the learned Senior counsel

appearing for the O.P.No.2 submits that the petitioner is a public servant

which has been admitted in the paragraph no.12 of the petition. He

submits that in view of the section 7 of Prevention of Corruption Act, the

petitioner is liable to be punished as he has demanded the bribe. He

further submits that what has been argued by the learned counsel for the

petitioner was the subject matter of trial and this Court may not interfere

in this case under section 482 Cr.P.C. He further submits that recently the

Hon'ble Supreme Court has held in the case of Sau. Kamal Shivaji

Pokarnekar v. State of Maharashtra and Others, AIR 2019 SC 847 that at

the initial stage of issuance of process it is not open to the Courts to

stifle the proceedings by entering into the merits of the contentions made

on behalf of the accused. He relied in paragraph no.9 of the said

judgment.

In the light of the above facts and submissions of the

learned counsel appearing for the parties, this Court has gone through

the materials on record. On perusal of the complaint case it is crystal

clear that the case was filed on account of full settlement of the

insurance claim pursuant to insurance policy issued by the company of

this petitioner. Moreover, in the entire complaint, the allegation of

demand of 20 % of the assessed claim amount is upon the Surveyor

whereas cognizance has been taken against the petitioner who was

happened to be Divisional Manager of the company. In the legal notice

annexed with the petition issued by the O.P.No.2 there is no disclosure of

the fact that anybody has demanded 20% of the assessed claim amount.

The cognizance has not been taken under any section of Prevention of

Corruption Act as argued by the learned counsel appearing for the

O.P.No.2. In the light of section 64 UM(2) of the Insurance Act, the claim

is required to be settled after assessment by the Surveyor has held by

Hon'ble Patna High Court in the case of Oriental Insurance Company

Limited v. State of Bihar (supra) in paragraph no.26 of the said judgment.

At best it can be said that if the entire claim was not settled by the

insurance company the remedy before the O.P.No.2 was to move under

the Consumer Protection Act. Thus, it appears that wrong criminal

prosecution has been made out against the petitioner who happened to

be Divisional Manager of the insurance company which amounts to abuse

of the process of law. The ingredients of section 406 IPC is also not made

out against the petitioner. The argument of learned counsel for the

O.P.No.2 with regard to Prevention of Corruption Act is not accepted by

this Court as there is no cognizance against the petitioner under that

section. The demand is also not made by the petitioner as disclosed in

the complaint petition. It is alleged in the complaint petition that

Surveyor has demanded 20% of assessed amount. The judgment relied

by Mr. Roy, the learned Senior counsel for the O.P.No.2 in the case of

Sau. Kamal Shivaji Pokarnekar v. State of Maharashtra and Others(supra)

was on the facts and circumstances of that case and in that case also the

Hon'ble Supreme Court has considered in paragraph no.5 that the High

Court is competent to quash the criminal proceeding where the complaint

does not disclose any offence, or is frivolous, vexatious, or oppressive.

In the facts and circumstance of that case, the order was passed wherein

the case in hand, no case so far the petitioner is concerned is made out

against the petitioner. The judgment relied by Mr. Roy, the learned Senior

counsel in the aforesaid case is not helping the O.P.No.2.

In view of the above facts and the reasons and analysis this

petition succeeds and the entire criminal proceeding in connection with

C-1 Case No.2722/2014 including the order taking cognizance dated

24.11.2014 whereby cognizance has been taken against the petitioner

pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur

is quashed.

Cr.M.P. No.455 of 2015 is allowed and disposed of.

( Sanjay Kumar Dwivedi, J)

SI/,