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2006 DIGILAW 805 (CAL)

RATAN CHANDRA GURIA v. STATE OF WEST BENGAL

2006-12-19

SAILENDRA PRASAD TALUKDAR

body2006
Before Sailendra Prasad Talukdar, J. ( 1 ) THE petitioner, Ratan Chandra Guria, by filing an application under section 401 read with Section 482 of the Code of Criminal Procedure sought for quashing of the proceeding being G. R. Case No. 704 of 2001 arising out of purulia Town Police Station Case No. 93/2001 dated 28. 9. 2001 under Sections 420 and 120b of the Indian Penal Code now pending before the Learned 3rd court of Judicial Magistrate, Purulia. ( 2 ) THE backdrop of the present case may briefly be stated as follows :-On 28. 9. 2001 the Opposite Party No. 2 filed a petition of complaint before the Learned Court of Chief Judicial Magistrate, Purulia, being Case No. 99/ 2001. Learned Court directed the Officec-in-Charge of the Purulia Police Station to investigate into the case after treating the said petition of complaint as F. I. R. under Section 156 (3) of Criminal Procedure Code. The allegations made in the petition of complaint led the Police authority register a case under Sections 420/120b of Indian Penal Code. After completion of investigation Police authority submitted report wherein it was stated that M/s. New India Assurance company Limited had duly issued a Mediclaim certificate in favour of the complainant after receiving the premium amount from M/s. Golden Trust financial Services and had even received the claim but had not fulfilled the obligation. The investigation revealed that the petitioner and one, Kumud bhattacharjee, committed the offence. It was alleged by the petitioner herein that the F. I. R. which led to the registration of the Purulia Town Police Station case No. 93/2001 was more in the nature of pressurising the concerned insurance Company to submit to the claim of O. P. No. 2 though the said claim was not substantiated by relevant documents. This was previously done at a stage when the matter was pending for consideration before the learned District consumer's Dispute Redressal Forum. It was alleged that criminal prosecution was started for a collateral purpose. The Investigating Authority without appreciating the matter in its proper perspective and relying upon the evidence of the witnesses, who do not seem to have any knowledge of the present controversy submitted charge-sheet in this case. It was alleged that criminal prosecution was started for a collateral purpose. The Investigating Authority without appreciating the matter in its proper perspective and relying upon the evidence of the witnesses, who do not seem to have any knowledge of the present controversy submitted charge-sheet in this case. It was further claimed that the Police report spelt out of offence as against M/s. New India Assurance company Limited as it recorded that "it has amply been proved that New India assurance Company Limited had duly issued the Mediclaim certificate in favour of the complainant after receiving the premium amount from Golden Trust and even received the claim submitted by the de facto complainant without fulfilling their obligation. The written objection of the two Company before the Ld. Forum conclusively proves about an unholy nexus between them so as to cheat the person with allurement. " ( 3 ) IT is alleged that the District Consumers' Dispute Redressal Forum, purulia observed that the complainant being the second Opposite Party failed to substantiate the claim and submit documents as demanded. The complainant having failed to do so, it was within the competence of the concerned Insurance company to refuse the claim. Such refusal could not amount to commission of any offence. There could be no question of any unholy alliance or nexus between M/s. New India Assurance Company Ltd. and M/s. Golden Trust financial Services. It was further claimed that the charge-sheet and the various other materials and documents accompanying the same do not make out any offence punishable under Section 420 or Section 120b of Indian Penal Code. ( 4 ) THE present application under Section 482 of the Code of Criminal procedure was, thus, filed with a prayer for quashing of the instant proceeding. ( 5 ) LEARNED Counsel for the petitioner submitted that it was not proper for the learned Court to take cognizance on the basis of Police report submitted in this case without appreciating the peculiarity of the circumstances. Mr. Ranjan roy, appearing as learned Counsel for the petitioner, contended that even assuming the allegations made against the present petitioner are true, there could be no scope for tying him for the alleged offence under Section 420 of indian Penal Code. ( 6 ) REFERENCE was made to the decision in the case of Anil Mahajan v. Bhor Industries Ltd. and Anr. ( 6 ) REFERENCE was made to the decision in the case of Anil Mahajan v. Bhor Industries Ltd. and Anr. , reported in (2006)1 SCC (Cr) 746, in support of the contention that mere failure of a person to keep up promise does not necessarily lead to a presumption that there had been culpable intention right at the beginning. The Apex Court in the said case observed that "a distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. " ( 7 ) MR. Ranjan Roy further submitted that when a complaint does not disclose an offence under Section 420 or Section 120b of Indian Penal Code and the dispute appears to be in the nature of a civil dispute there is no reason why such a prosecution shall not be quashed as its continuation would amount to abuse of the process of the Court. Relying upon the decision in the case of uma Shankargopalika v. State of Bihar and Anr. , reported in (2006)2 SCC (Cr)49, it was submitted that benefit of the judgment to non-appealing accused cannot also be denied. The said judgment was also in the context of a prayer for quashing of prosecution against appellant, as F. I. R. did not disclose any cognizable offence. ( 8 ) MR. Roy further referred to the decision in the case of Dr. Sharda prasad Sinha v. State of Bihar, reported in AIR 1977 SC 1754 , where it was held that when allegations in complaint or charge-sheet do not constitute any offence, the order taking cognizance can be quashed by High Court in exercise of its inherent power under Section 482 of Criminal Procedure Code. ( 9 ) ON the other hand, it was submitted by learned Counsel for the private Opposite Party that investigation of the case having already been completed, it is impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. ( 9 ) ON the other hand, it was submitted by learned Counsel for the private Opposite Party that investigation of the case having already been completed, it is impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. Mr. Mukherjee, as learned counsel for the Pvt. O. P. , referring to the decision in the case of State of orissa and Anr. v. Saroj Kumar Sahoo, reported in (2005) 13 SCC 540 , submitted that even after charge is framed, the Court for proper appreciation can evaluate materials and documents on record but it cannot appreciate the evidence. It was then submitted that the High Court should not ordinarily embark upon an enquiry as to reliability of evidence to sustain the allegations, which is the function of the trial Judge. ( 10 ) IT cannot be denied that there are situations and occasions which demand consideration of the special facts of a case in order to appreciate the prayer for quashing of the proceeding. The Apex Court in the decision in the case of Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chadrojirao angre and Ors. , reported in AIR 1988 SC 709 , observed that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. ( 11 ) IN the present case, it was alleged in the written complaint which was treated as F. I. R. that on being approached by a person who introduced himself to be an agent of Golden Trust Financial Services, the complainant agreed to go for a group Mediclaim having coverage of Rs. 1 lakh and a premium amount of Rs. 1399. 15 was paid on 2. 12. 1999. Accused No 3. being the chairman of the concerned Insurance Company issued Policy No. 4830127 dated 15. 12. 1999. Subsequently, the complainant had to be operated in february, 2000 at Vellore. He reported the fact of his hospitalisation on 8. 2. 2000. After that, the complainant submitted the bills on 30. 3. 1399. 15 was paid on 2. 12. 1999. Accused No 3. being the chairman of the concerned Insurance Company issued Policy No. 4830127 dated 15. 12. 1999. Subsequently, the complainant had to be operated in february, 2000 at Vellore. He reported the fact of his hospitalisation on 8. 2. 2000. After that, the complainant submitted the bills on 30. 3. 2000 but no positive step had been taken by the accused person towards disbursement of the said amount. A notice was sent on 26. 9. 2000. The authority concerned had been consistently indifferent to the repeated persuasion of the complainant. It was alleged that it could be gathered from the written objection filed by accused persons No. 3 and 4, the agents and family members of Golden Trust Financial services were only allowed to take group Mediclaim Policy. The complainant being neither an agent nor a family member, an insurance certificate was obtained in his favour by practice of fraud. It was further alleged that accused no. 3 and 4 categorically denied that accused No. 1 and 2 are their authorized or legal agent for collection of premium amount from any policy holder. The complainant approached the accused persons for the purpose of settling his legitimate claim. The accused persons resorted to dilatory tactics though the claim of the complainant was properly substantiated by relevant documents. ( 12 ) IT was submitted that the District Consumer's Disputes Redressal forum, Purulia, was approached by the complainant/o. P. No. 2. In response to the same, the New India Assurance Company Limited was directed by order dated 26. 4. 2004 to settle the claim of the complainant within one month from the date of the order. Such order of the District Forum was put into execution but the concerned Forum dismissed the claim on the ground that the claimed amount of Rs. 90,000/- and odd settle the claim thereby leaving nothing for further execution. ( 13 ) AFTER taking into consideration the entire facts and materials on record, I find it very difficult to brush aside the grievance of the present petitioner that the allegations made in the F. I. R. do not really disclose any offence under section 420/120b of Indian Penal Code. It cannot be said that non-settlement of the Mediclaim as was alleged by the O. P. No. 2/complainant was with the idea of cheating the complainant. It cannot be said that non-settlement of the Mediclaim as was alleged by the O. P. No. 2/complainant was with the idea of cheating the complainant. It also cannot be said that there had been any initial deception and in absence of that, an offence under Section 420 of i. P. C. cannot stand. ( 14 ) HAVING regard to the peculiar background of the present case and the facts and circumstances, this Court finds it difficult to remain indifferent. True, in response to an application under Section 482 of Criminal Procedure code, this Court is not required to embark upon an enquiry as to reliability of evidence. But it also cannot be denied that in absence of any initial deception or any concrete material so as to Indicate that the present petitioner intended to cheat the de facto complainant, further proceeding of the case will no doubt amount to abuse of the process of Court. For the said purpose, this Court has certainly not gone into the value of the documents sought to have been relied upon on behalf of the de facto complainant but it is clear that even if the allegations made in the complaint remain uncontroverted, there can be no reason to proceed against the present petitioner/accused persons for the offence under Section 420/120b of Indian Penal Code. ( 15 ) IN the result, the present application being A. S. T. No. 354 of 2006 be allowed and the further proceeding of the case being Purulia Town Police station Case No. 93/2001 and Charge-sheet No. 82/2002 be quashed. The accused person in the said case, if on bail, be released from the bail bonds. ( 16 ) CRIMINAL Department is directed to supply urgent certified copy in compliance with due formalities.