Mr. Ranjit Kumar Bag, J. - The petitioner, Divisional Manager, National Insurance Company Limited has prayed for quashing of the criminal
proceeding of Complaint Case No.C-2639 of 2014 pending before the court of learned Metropolitan Magistrate, 14th Court, Calcutta by filing
this revision under Section 401 read with Section 482 of the Code of Criminal Procedure.
2. The backdrop of the present revisional application is as follows:- The opposite party no.1/complainant filed a petition of complaint against the
petitioner and the Managing Director of National Insurance Company Limited before the court of learned Chief Metropolitan Magistrate, Calcutta
praying for issuance of process under Sections 406/420/120B/198/ 372/177/164/382/201/209/468/471/477A of the Indian Penal Code. Learned
Magistrate took cognizance of the offence, examined the opposite party no.1/complainant and issued process against the petitioner and the
Managing Director of National Insurance Company Limited. The petitioner has challenged the order of taking cognizance by the learned
Magistrate and prayed for quashing of the said criminal proceeding.
3. Mr. Abhijit Gangopadhyay, learned counsel appearing on behalf of the petitioner contends that National Insurance Company Limited has not
been arraigned as an accused in the petition of complaint, though the opposite party no.1/complainant has made allegation against the National
Insurance Company Limited. He further submits that the National Insurance Company Limited is still willing to pay Rs.64,360/- to the opposite
party no.1/complainant for reimbursement of the medical bill in connection with the mediclaim policy issued in his favour by National Insurance
Company Limited. By referring to the order passed by the Consumer Courts, Mr. Gangopadhyay submits that the opposite party
no.1/complainant did not get favourable order from the Consumer Court and the appeal preferred by him against the order of State Consumer
Disputes Redressal Commission is pending for admission before the National Consumer Disputes Redressal Commission at New Delhi. By
referring to the averments made by the opposite party no.1/complainant in the petition of complaint, Mr. Gangopadhyay submits that the allegations
made by the opposite party no.1/complainant do not disclose any offence punishable under the Indian Penal Code and as such the criminal
proceeding initiated against the petitioner is liable to be quashed.
4. Mr. Fazlur Rahaman, learned counsel for the opposite party no.1 contends that the allegations made by the opposite party no.1/complainant in
the petition of complaint prima facie disclose offence punishable under Sections 406/420/120B/201/209/468/471/477A of the Indian Penal Code.
He further submits that learned Metropolitan Magistrate has rightly taken cognizance of the offence and issued process against the petitioner and
the co-accused person to face the trial. Mr. Rahaman has also cited five decisions of the Supreme Court and one decision of our High Court in
support of his contention that this court cannot invoke inherent power under Section 482 of the Code of Criminal Procedure to quash the criminal
proceeding initiated by the opposite party no.1/complainant against the petitioner before the court of learned Magistrate.
5. For proper appreciation of the submissions made by the learned counsel representing the respective parties, it is necessary to narrate in brief,
the allegations made by the opposite party no.1/complainant against the petitioner and the Managing Director of National Insurance Company
Limited. The contents of the petition of complainant disclose that in the year 2007, the opposite party no.1/complainant obtained Mediclaim Policy
bearing No.104200 /48/08-85000878 from the National Insurance Company Limited for which certificate was given to the opposite party
no.1/complainant covering medical expenditure to the tune of Rs.1 lakh. It is alleged that the trust imposed by the opposite party no.1/complainant
on National Insurance Company Limited was broken when the said National Insurance Company Limited refused to settle the claim of the
opposite party no.1/complainant in the year 2008. It is further alleged that the sectional clerk, Bidhan Roy Chowdhury and the Divisional Manager,
Bhaswati Chatterjee demanded Rs.5,000/- from the opposite party no.1/complainant for settling the claim made by the opposite party
no.1/complainant. The opposite party no.1/complainant claimed Rs.87,773/- as reimbursement of medical expenditure incurred by the opposite
party no.1/complainant for his medical treatment in R.N. Tagore International Institute, but the same has not yet been paid in spite of having valid
medi-claim policy of the opposite party no.1/complainant. The opposite party no.1/complainant prayed for taking cognizance of the offence,
examination of the opposite party no.1/complainant under Section 200 of the Code of Criminal Procedure and issuance of process against the
petitioner and the Managing Director of National Insurance Company Limited.
6. It appears from record that the opposite party no.1/complainant filed a complaint before the District Consumer Forum for refusal on the part of
the National Insurance Company Limited to settle the claim made by the opposite party no.1/complainant in connection with the bill for his medical
treatment to the tune of Rs.87,773/-. By order dated November 14, 2012, the District Consumer Forum, Calcutta, Unit-1 directed the Managing
Director and Divisional Manager of National Insurance Company Limited to make payment of Rs.23,373/- towards medical expenditure of the
opposite party no.1/complainant along with interest @ 9% per annum from the date of repudiation till realisation of the amount and compensation
to the tune of Rs.50,000/- for harassment and mental agony and litigation cost of Rs.5,000/-. The said order of the District Consumer Forum,
Calcutta, Unit-1 was set aside by the State Consumer Disputes Redressal Commission, West Bengal on January 3, 2014. The revision preferred
by the opposite party no.1/complainant against the order passed by the State Consumer Disputes Redressal Commission, West Bengal is pending
for admission as reflected from the order dated March 10, 2016 passed by the National Consumer Disputes Redressal Forum in connection with
Revision Petition No.1090 of 2014.
7. Now, I would like to discuss the decisions cited by learned counsel for the opposite party no.1/complainant in support of his contention that this
court cannot invoke inherent power under Section 482 of the Code of Criminal Procedure to quash the instant criminal proceeding pending before
the court of learned Metropolitan Magistrate. In ""State of Karnataka v. M. Devendrappa"" reported in SCC (2002) 3 SCC 389, the
Supreme Court has reiterated in paragraph 4 the proposition of law laid down in ""State of Haryana v. Bhajanlal"" for quashing of the criminal
proceeding by invoking inherent power under Section 482 of the Code of Criminal Procedure. Similarly, in ""State of Madhya Pradesh v.
Awadh Kishore Gupta"" reported in (2004) 1 SCC 691, the Supreme Court has laid the proposition of law for quashing of the criminal
proceeding by invoking power under Section 482 of the Code of Criminal Procedure. In ""Thiru V Thanigachalam v. State of Tamil Nadu
reported in (1976) 4 SCC 304, the Supreme Court has observed in paragraph 3 that the question whether the appellant is a public servant within
the meaning of Section 21 of the Indian Penal Code can be decided by the trial court after recording of evidence as the said issue is a mixed
question of fact and law. In ""Satvinder Kaur v. State Government of NCT of Delhi"" reported in (1999) 8 SCC 728, the Supreme Court
has observed in paragraph 7 that the High Court will have to consider entirely the allegations made in the complaint and the documents
accompanying the same for the purpose of formation of opinion whether the High Court will interfere at the stage of investigation. In ""J. P. Sharma
v. Vinod Kumar Jain"" reported in (1986) 3 SCC 67, the Supreme Court has laid down in paragraph 21 that the test for quashing of the
criminal proceeding is to consider the allegations made in the complaint without adding or subtracing anything and to form opinion whether the
offence is made out or not. In paragraph 23 of the said report, the Supreme Court has held that where the allegation of entrustment and mis-
appreciation was made under Section 405 and 406 of the Indian Penal Code, a prima facie case was made out for the trial of the offence. In
Sachchidananda Singh v. State of West Bengal"" reported in (2008)1 C.Cr.L.R. 582, learned single Judge of this High Court has held in
paragraph 4 that the High Court will not interfere when the ingredients of the offences are disclosed in the complaint and there is no material to
show that the complaint is mala fide or frivolous or vexacious.
8. On consideration of the decisions referred to herein above, I find that this court will consider only the allegations made by the opposite party
no.1/complainant in the petition of complaint and the said allegations must be taken in their entirety without adding or sub-tracting for formation of
opinion whether any offence punishable under the Indian Penal Code is made out. This court is not entitled to look into any document cited on
behalf of the accused person/petitioner for the purpose of formation of opinion whether any offence punishable under the Indian Penal Code is
made out against the petitioner and another co-accused person. On perusal of the allegation made in the petition of complaint, I do not think that
there is any mixed question of law and fact for decision of the trial court after recording of evidence during the trial and as such, the ratio of the
decision of the Supreme Court in ""Thiru V Thanigachalam v. State of Tamil Nadu"" (supra) cannot be made applicable in the facts of the present
case. Since the decisions cited by learned counsel for the opposite party no.1/complainant are based on the decision of the Supreme Court in
State of Haryana v. Bhajan Lal"", I would like to rely on the said decision to decide whether the criminal proceeding against the petitioner is liable
to be quashed. The criteria laid down by the Supreme court in paragraph 102 of ""State of Haryana v. Bhajan Lal"" reported in 1992 SCC
(Cri) 426 for quashing of the criminal proceeding are as follows:-
(a) Whether the allegations made in the first information report or 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 a case against the accused.
(b) Whether the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence,
justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section
155(2) of the Code.
(c) Whether the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(d) Whether the allegations in the FIR do not constitute a cognisable offence, but constitute only a non-cognisable offence, no investigation is
permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(e) Whether the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(f) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(g) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
9. By applying the above test laid down by the Supreme Court in the facts of the present case, I have to decide whether the offence punishable
under the Indian Penal Code is made out from the allegations made by the opposite party no.1/complainant in the petition of complaint. I have
already observed that the opposite party no.1/complainant obtained medi-claim policy from the National Insurance Company Limited to cover
medical expenditure to the tune of Rs.1 lakh. The opposite party no.1/complainant made a claim of Rs.87,773/- for reimbursement of his medical
bill incurred by him for treatment in R.N. Tagore International Institute. The opposite party no.1/complainant has refused to accept Rs.64,360/-
from the National Insurance Company Limited for non-payment of the balance amount claimed by him. The opposite party no.1/complainant has
alleged that one Bidhan Roy Chowdhury, Sectional Clerk and one Bhaswati Chatterjee, Divisional Manager demanded Rs.5,000/- as bribe for
settling the claim of money from the opposite party no.1/complainant. The complainant/ opposite party no.1 has prosecuted the Managing Director
of National Insurance Company Limited and the Divisional Manager of National Insurance Company Limited without impleading the said National
Insurance Company Limited, which has refused to settle the claim of the opposite party no.1/complainant. The principle of vicarious liability is not
applicable in connection with the offences punishable under the Indian Penal Code and as such the petitioners being the Managing Director and the
Divisional Manager of the National Insurance Company Limited cannot be prosecuted on the principle of vicarious liability, when the allegation is
levelled against the National Insurance Company Limited.
10. Now, let us see whether the offences for which process has been issued by learned Magistrate have been made out from the allegations made
in the petition of complaint. What I understand from the averments made by the opposite party no.1/complainant in the petition of complaint is that
the complainant has considered the trust imposed on the National Insurance Company Limited as entrustment of property, which is misnomer
within the ambit of definition of criminal breach of trust under Section 405 of the Indian Penal Code. The allegations made in the petition of
complaint do not indicate any entrustment of property with the National Insurance Company Limited, nor is there any misappropriation of the said
property by the said National Insurance Company Limited. So, the offence punishable under Section 406 of the Indian Penal Code is not made
out from the contents of the petition of complaint. The non-payment of dues of Rs.23,373/- by the National Insurance Company Limited as the
same is not permissible as per terms and conditions of implied contract between the parties reflected in the policy of mediclaim, cannot amount to
cheating within the ambit of Section 415 of the Indian Penal Code. So, the allegations made in the petition of complaint do not disclose any offence
punishable under Section 420 of the Indian Penal Code. On close scrutiny of the entire allegations made by the opposite party no.1/complainant
and by taking the said allegations in their entirety, I cannot persuade myself to hold that any offence punishable under Sections
406/420/120B/201/209/468/471 /477A of the Indian Penal Code is made out. Since no offence is made out from the allegations made by the
opposite party no.1/complainant in the petition of complaint, the criminal proceeding is liable to be quashed under Section 482 of the Code of
Criminal Procedure as laid down by the Supreme Court in ""State of Haryana v. Bhajanlal"" (supra). The irresistible inference of my entire above
observations is that the continuation of the criminal proceeding against the petitioner and another co-accused person before the trial court will be an
abuse of the process of the court.
11. In view of my above findings, the criminal proceeding of Complaint Case No.C- 2639 of 2014 pending before the court of learned
Metropolitan Magistrate, 14th Court, Calcutta is quashed. The opposite party no.1/complainant is at liberty to realise his outstanding dues in
connection with the mediclaim policy from the National Insurance Company Limited by following the procedure of law. The criminal revision is,
thus, disposed of.
12. Let a copy of the judgment and order be sent down to the learned court below for favour of information and necessary action.
13. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
