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2021 DIGILAW 606 (JK)

Parveen Singh v. Rajinder Singh Jaswal

2021-11-18

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed by the petitioners for quashing the order dated 23.01.2014 passed by the learned Munsiff (JMIC), Jammu (hereinafter to be referred as the trial court) in a complaint, titled “Rajinder Singh Jaswal vs. Parveen Singh Wazir and another” for commission of offence under sections 323, 504 and 506 RPC, by virtue of which the process has been issued against the petitioners and also prayer is made for dismissing the aforesaid complaint. 2. It is stated that the petitioners are the law abiding citizens and are working in the Bajaj Allianz General Insurance Company. The petitioner No. 1 is holding the post of Manager whereas the petitioner No. 2 is an independent Surveyor working for the said company. It is further stated that the insurance claim was received by the insurance company with respect to the vehicle bearing registration No. JK02AH 5260, that was damaged due to the accident at Miran Sahib Jammu. The vehicle stands registered in the name of one S. Yudhveer Singh S/o Swarn Singh. Thereafter, the petitioners processed the claim of the said accidental vehicle as per the company's rules and the matter was referred to the Investigator of the company, Mr. R.N. Tickoo. The said Investigator thereafter contacted the owner of the vehicle S. Yudhveer Singh for verification regarding the vehicle but the said S. Yudhveer Singh stated that the car at the time of accident was lying with the respondent herein, an employee of the Jammu Ford Company. The said S. Yudhveer Singh further stated that he has made only one insurance claim regarding the vehicle in question and he was not aware of any other claim much less the claim under reference. Further, S. Yudhveer Singh also denied to have signed the claim form and consent letter submitted before the company. It is further stated that after this development, it became crystal clear that the respondent forged the signatures of the owner of the vehicle i.e. S. Yudhveer Singh and submitted the claim form to the Insurance Company. Thereafter, a serious note was taken by the Investigator regarding the impersonation and forged claim form filed by the respondent and the Investigator suggested the company i.e. Bajaj Allianz General Insurance Company to register a complaint against the respondent under sections 420, 467, 468 and 471 RPC vide letter dated 17.09.2013. Thereafter, a serious note was taken by the Investigator regarding the impersonation and forged claim form filed by the respondent and the Investigator suggested the company i.e. Bajaj Allianz General Insurance Company to register a complaint against the respondent under sections 420, 467, 468 and 471 RPC vide letter dated 17.09.2013. While the matter was under consideration with the company, the respondent somehow came to know about the said proposed action being taken against him regarding the forged claim form. Therefore, he filed the complaint in question on false and frivolous grounds, against the employees of the Insurance Company i.e. petitioners herein. Further it is stated that the perusal of the complaint shows that a false incident alleged in the complaint has been shown to have occurred on 30.11.2013 whereas the complaint was filed before the court on 22.01.2014 on the basis of absolutely false allegations as the petitioners never visited the office of the respondent to meet him and to settle the insurance claim as the Investigator had already made a recommendation to the company for filing a criminal complaint against the respondent. The allegations in the complaint are absurd as it is the Insurance Company who has to make the payment, as the petitioners were not to pay the said claim from their own pocket. It is stated that the complaint has been filed by the respondent with ulterior motive so that the company does not file any complaint against the respondent. 3. It is further stated that no offence is made out against the petitioners in the complaint. The learned trial court too, while issuing the process against the petitioners, has not applied its mind to the facts and circumstances of the complaint. 4. The petitioners have placed on record the copy of the claim form, copy of the communication addressed by the S. Yudhveer Singh dated 06.06.2014, the report of the Investigator and the certified copy of the complaint. 5. The respondent was served and his counsel appeared only once and thereafter there was no representation on behalf of the respondent and as such, in view of these facts and circumstances, this Court is considering the present petition on the basis of the record available before it. 6. Mr. Sumit Moza, learned counsel for the petitioners has reiterated the submissions those have been made in the petition. 7. Heard and perused the record. 8. 6. Mr. Sumit Moza, learned counsel for the petitioners has reiterated the submissions those have been made in the petition. 7. Heard and perused the record. 8. The perusal of the complaint filed by the respondent reveals that the respondent has disclosed himself to be the attorney holder of S. Yudhveer Singh S/o S. Swarn Singh who was the owner of the vehicle bearing registration No. JK02AH 5260. S. Yudhveer Singh had sought accidental claim with the Bajaj Allianz General Insurance Company and a total expenditure amounting to Rs. 87,314/- was incurred by S. Yudhveer Singh for repairs made to the vehicle and the said amount stood paid to the Jammu Ford Workshop by S. Yudhveer Singh. It was further stated by the respondent that as the respondent was the attorney holder of the S. Yudhveer Singh, so he time and again contacted the Insurance Company for refund of the claim but no action was taken in the matter. It was on 30.11.2013 when the respondent was in the office of the Jammu Ford Workshop, at Akhnoor Road, Jammu, both the petitioners visited the workshop and told him that they wanted to discuss the insurance claim regarding the vehicle in question. It was further stated that the petitioners told the respondent that they were ready to settle the claim and offered to settle the claim at Rs. 27,000/- for the vehicle. Since the amount offered did not match the expenditure incurred for repairing and as the respondent confronted them with regard to the expenditure incurred for repairing of the vehicle, both the petitioners became aggressive and started abusive language and insulted the respondent in his office. The petitioner No. 1 slapped the respondent and threatened that if he did not accept the amount offered by them, then he would face the consequences and further threatened that they would set the car on fire. 9. It is not in dispute that the vehicle suffered damage and the insurance claim was pending with the Bajaj Allianz General Insurance Company. A perusal of the form placed on record with regard to the claim lodged by the insured reveals that it bears the signatures of the insured. Further, the communication of the Insured reveals that he has categorically stated that he had not signed the claim form and the consent letter. A perusal of the form placed on record with regard to the claim lodged by the insured reveals that it bears the signatures of the insured. Further, the communication of the Insured reveals that he has categorically stated that he had not signed the claim form and the consent letter. In the said communication, it has also been mentioned that the said vehicle was lying with Jammu Ford since 13.09.2013. Further from the communication addressed by the Investigator to the Bajaj Allianz General Insurance Company dated 17.09.2013 it is revealed that the Investigator had already intimated the Insurance Company for initiating the proceedings under sections 420, 467, 468 and 471 RPC against the respondent as it was the respondent, who had dishonestly and fraudulently signed the documents with the intention of causing these to be believed documents signed by S. Yudhveer Singh. 10. From the record of the trial court, it is evident that though the complainant-respondent alleged himself to be the attorney holder of S. Yudhveer Singh, but no such special power of attorney was placed before the learned trial court. The learned trial court was expected to have directed the respondent to produce the special power of attorney of S. Yudhveer Singh so as to determine the authenticity of the allegations levelled in the complaint. The learned trial court rather has acted in a mechanical manner. Whenever any complaint is filed before the Magistrate, the Magistrate is required to apply its mind on the allegations levelled in the complaint and should not proceed to issue process in a mechanical manner but in the instant case, the learned trial court has simply recorded the statement of the complainant-respondent and one witness and issued the process. He should have asked the respondent to produce the power of attorney so as to find out whether he had any authority to process the insurance claim on behalf of the S. Yudhveer Singh or not. Thus, the order of issuing the process dated 23.01.2014 is bad in the eye of law. In M.N. Ojha v. Alok Kumar Srivastav, reported in (2009) 9 SCC 682 , Apex Court has held as under: “21. Thus, the order of issuing the process dated 23.01.2014 is bad in the eye of law. In M.N. Ojha v. Alok Kumar Srivastav, reported in (2009) 9 SCC 682 , Apex Court has held as under: “21. In our considered view, criminal law has been set in motion by the complainant to harass the bank officers needlessly and to wreak personal vengeance in order to bring them under pressure not to further prosecute the proceedings already initiated by the appellants against the complainant on behalf of the Bank. 22. In our considered opinion, the learned SDJM set the criminal law in motion against the appellants without even examining the allegations and averments made in the complaint filed by the respondent complainant. The learned SDJM took cognizance of the case without considering the allegations on merits. 23. Had the learned SDJM perused the complaint properly he would have realised that the complainant himself had made a mention about the lodging of the FIR for criminal breach of trust and other offences against the respondent complainant and others. Had he looked into the complaint properly, he would have certainly asked the complainant to furnish a copy of the said FIR. 24. A copy of the legal notice issued on behalf of the respondent complainant to the appellants was filed along with the complaint and a mention is made about it in the order passed by the learned SDJM. Had the learned SDJM perused the said legal notice, he would have realised that the complainant himself admitted about his execution of agreement of guarantee and other documents unconditionally agreeing to discharge the loan amount in case of failure of the principal borrower to pay the said amount to the Bank. 25. Had the learned SDJM applied his mind to the facts and circumstances and sequence of events and as well as the documents filed by the complainant himself along with the complaint, surely he would have dismissed the complaint. He would have realised that the complaint was only a counterblast to the FIR lodged by the Bank against the complainant and others with regard to the same transaction.” 11. He would have realised that the complaint was only a counterblast to the FIR lodged by the Bank against the complainant and others with regard to the same transaction.” 11. The Learned Magistrate in the instant case has acted in a mechanical manner while issuing process contrary to the mandate of law laid down in Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749 , where Apex Court has held as under:- “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 12. Further from the facts, it is evident that the alleged occurrence is of 30.11.2013 whereas the complaint was filed on 22.01.2014. Though the delay per se cannot be a ground for quashing the complaint but certainly it can substantiate the allegation of the malice against the complainant-respondent. 13. Further from the facts, it is evident that the alleged occurrence is of 30.11.2013 whereas the complaint was filed on 22.01.2014. Though the delay per se cannot be a ground for quashing the complaint but certainly it can substantiate the allegation of the malice against the complainant-respondent. 13. In the instant case, there is nothing on record to demonstrate that the respondent had any authority to process the claim of S. Yudhveer Singh and even the Investigator vide its letter dated 17.09.2013 has intimated the Insurance Company to proceed under the relevant provisions of Ranbir Penal Code against the respondent after receiving the information from the original owner of the vehicle/insured that he had not lodged any claim with regard to the damage caused to the vehicle with the Insurance Company. 14. In view of the above, it is evident that the said complaint was lodged with ulterior motive just to pressurize the petitioners as also to dissuade the Insurance Company not to proceed against the respondent as recommended by the Investigator. 15. In view of all what has been discussed above, this Court is of the considered opinion that this is a fit case that requires indulgence by this Court, as such, impugned order dated 23.01.2014 is set aside and the criminal proceedings initiated in the complaint titled “Rajinder Singh Jaswal vs. Parveen Singh Wazir and another” pending before the learned Munsiff (JMIC), Jammu are quashed.