Som Nath Banerjee Vs. State of Jharkhand - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 2878 of 2001 Som Nath Banerjee ....Petitioner Versus 1. The State of Jharkhand.

2. Dilip Kumar .....Opposite Parties ---- Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY ---------- For the Petitioner : Mr. Rajeev Ranjan Prasad, Advocate For the State : APP For the O.P. No. 2 : Mr.Awanish Shekhar, Advocate ----- 18/22.12.2014 Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for Opposite Party No.

2.

2. In this application, the petitioner has prayed for quashing of the entire criminal proceedings including the order dated 2.3.2001 by which cognizance for the offence under section 420 of the Indian Penal Code in connection with complaint case no 155 of 2000 has been taken.

3. The prosecution story as would appear from the complaint petition is that the accused persons are alleged to have accepted a policy being Policy No. 551328477, which was communicated to the complainant through a postcard. It has been alleged that on 26.03.2000, the father of the complainant namely Jagdish Prasad Sahu died and the complainant put forward a death claim. It has further been alleged that the accused persons had asked for an illegal gratification of Rs.25,000/- for processing the death claim, which was however refused by the complainant. Thereafter it has also been alleged that on 23.03.2000, a forged back dated letter was written by the accused persons addressed to the complainant, in which it was intimated that the policy, which was taken in the name of the father of the complainant, was incomplete. The accused persons showed their intention to return the deposited amount of Rs.5794 to the complainant.

4. Learned counsel for the petitioner has submitted that the policy was itself not complete in view of the fact that the proposal dated 22.2.2000 for effecting the policy in the name of Jagdish Prasad Sahu was submitted along with the Agents Confidential Report dated 29th February, 2000 but since the report itself was not signed by the agent concerned as such while processing the proposal the Administrative Officer had called for a Moral Hazard Report ( MHR). Therefore, he -2- contends that the policy itself was not complete, as such the complainant did not and could not have any claim on the basis of the said policy. Learned counsel further states that the proposer had already died on 26.03.2000 and this information was submitted by the complainant on 26.06.2000. He further states that with respect to the same issue at hand, the complainant had filed a case before the Consumer Forum without making the petitioner party but the said case was dismissed on 17th December, 2002. It has been contended by learned counsel for the petitioner that even if the allegations in the complaint petition are taken to be true in its entirety, no case under the provisions of Section 420 of the Indian Penal Code is made out. The learned counsel for the petitioner has further submitted that with respect to policy number which was assigned the same was on account of a clerical error and immediately on coming to know of the said mistake, the same was cancelled and that the complainant cannot be allowed to take advantage of such error when from the facts itself it is disclosed that the contract itself was incomplete. Moreover, as per section 47 of the Life Insurance Corporation Act, the petitioner cannot be prosecuted till there was no ill intention on the part of the petitioner.

5. As against this, learned counsel for opposite party no. 2 submits that the intention of the petitioner to cheat the complainant opposite party no. 2 and thus deprive him from the death claim made by him would be evident from the fact that on 23.03.2000, a letter was sent to the complainant that since the personal history of the proposer was not disclosed and on the basis of fresh Moral Hazard Report, certain requirements were necessary so that the proposal may be sent to the Divisional Office, Jamshedpur for their consideration but the said letter was posted on 31.03.2000 which in effect means that in order to cover up their mala fide intention, a back date was given in the said letter. He further submits that the excuse made by the petitioner that the signature of the agents has been left out is entirely flimsy since the operations of the agents are within the domain and control of the Life Insurance Corporation. He also submits that with respect to the age and this aspect, which has also been contended by the petitioner, the same is apparent from the earlier Proposal No. 9067 which contains the entire details. Continuing with his argument, learned counsel for opposite party no. -3- 2 submits that Section 47 of the Life Insurance Corporation Act in the facts and circumstances of the case will not come into play. He therefore contends that since specific allegations have been levelled against the petitioner only with respect to cheating and demand of illegal gratification to the tune of Rs.25,000/-, interference by this Court for quashing the criminal proceedings is unwarranted.

6. After considering the arguments advanced on behalf of both the sides and on going through the pleadings, it appears that a criminal case had been instituted by the opposite party no. 2 on account of the fact that the death claim of the father of the complainant namely Jagdish Prasad Sahu could not be settled although according to opposite party no. 2 since policy number had been assigned to him, therefore it cannot be contended by the petitioner that the policy itself was incomplete. Further it appears that although the father of the complainant had died on 26.03.2000 but the same was intimated to the Corporation after a considerable delay which creates a suspicion about the intention of the opposite party no.

2. 7. In the case of Life Insurance Corporation of India Vs. Raja Vasireddy Komalavalli Kamba and Ors., reported in AIR1984SC1014while considering the contractual liability, the Hon’ble Supreme Court at paragraph 18 has held thus:-

“18. Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed”.

8. Admittedly the policy of the deceased Jagdish Prasad Sahu was sent to the Corporation and on finding the same to be incomplete a letter was written by the then Branch Manager to the Life Proposer on 23.03.2000 calling for certain requirements in order to send the proposal to the Divisional Office, Jamshedpur for their consideration. Thus, it cannot be said that contract of insurance between both the parties was finally concluded as conclusion of a contract of insurance would only result when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the -4- person making such offer. This general principle is sorely lacking in the facts of the present case and as such a contract cannot be said to have been a concluded contract. Mere receipt of first premium installment without acceptance of the offer cannot be signified as a mark of affirmation and the same does not conclusively suggest a contract of binding nature between the parties.

9. It would also be relevant to refer Section 47 of the Life Insurance Corporation of India Act, 1956 which envisages that no suit, prosecution or other legal proceeding shall lie against any member or employee of the Corporation for anything which is in good faith done or intended to be done under this Act.

10. From perusal of the complaint petition, there is nothing to suggest that the act done by the petitioner was mala fide and the same was deliberately done in order to put the complainant at a loss. The allegation of the complainant with respect to demand of illegal gratification of Rs.25,000/- seems to be an after thought only to put a colour of criminality in the allegations in the complaint petition as in none of the letters dated 26.06.2000 or 30.07.2000 issued by the complainant opposite party no. 2 making death claims in terms of the alleged policy, the issue of demand of illegal gratification was mentioned. Moreover, the complainant opposite party no. 2 had alleged in the complaint petition that after the death of his father, the complainant had claimed the payment as death claim at which the accused had asked for Rs.25,000/- as illegal gratification but surprisingly as has been mentioned above the allegation of illegal gratification was never brought to the notice of the authorities of L.I.C. in the two letters which were issued and which has been dealt with hereinbefore.

11. In the case of Rajiv Ranjan Vs. R. Vijaykumar, reported in 2014(12) SCALE150while considering the ambit and scope of Section 482 of the Cr.P.C., the Hon’ble Supreme Court had held thus:-

“24. Inherent powers Under Section 482 Code of Criminal Procedure though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.

12. Learned counsel for opposite party no. 2 had relied upon a judgment reported in (2011) 12 SCC437Padal Venkata Rama -5- Reddy Alias Ramu Vs.Kovvuri Satyanarayana Reddy and ors, in which he has referred to paragraphs 31 & 32, which are quoted hereunder:- “31.We have already pointed out various principles and circumstances under which the High Court can exercise inherent jurisdiction under Section 482. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan Lal. The powers possessed by the High Court under Section 482 and very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 32.It would not be proper for the High Court to analyse the case of the complainant in the light of all the probabilities in order to determine whether conviction would be sustainable and on such premise arriving at a conclusion that the proceedings are to be quashed. In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case in which the complaint does not disclose any offence or is frivolous, vexatious or oppressive. There is no need to analyse each and every aspect meticulously before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. The statement of witnesses made on oath to be verified in full and materials put forth in the charge-sheet ought to be taken note of as a whole before arriving at any conclusion. It is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons”.

13. It is not in dispute that inherent powers under section 482 of the Code of Criminal Procedure have to be used sparingly, cautiously and with great caution and if any abuse of the process leading to injustice is brought to the notice of the court, in such circumstances the Court has to interfere and exercise its inherent powers to prevent the miscarriage of justice.

14. Based on the factual discussions put forward on behalf of both the sides coupled with the judicial pronouncements as noted above, I have no hesitation in coming to the conclusion that initiation of the criminal proceedings against the petitioner is an abuse of the process of law and needs interference by this Court.

15. Accordingly this application is allowed. The entire criminal proceedings including the order dated 2.3.2001 by which cognizance -6- for the offence under section 420 of the Indian Penal Code has been taken in connection with complaint case no 155 of 2000 is hereby quashed. (Rongon Mukhopadhyay,J) Rakesh/