IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.124 of 2002 ======================================================= Vinay Kumar Sinha, son of Shri Bideshwari Prasad, Senior Divisional Manager, Life Insurance Corporation of India, Divisional Office, Muzaffarpur Umashankar Prasad Marg, P.S. Mithanpura, Town and District- Muzaffarpur. .... .... Accused/ Petitioner Versus 1. State Of Bihar 2. Lalbabu Prasad, son of Late Bal Khira Ram, Mohalla- Naya Kila Patwa Toli , P.S. Siwan, Town and district Siwan. .... .... Complainant/ Opposite parties With Criminal Miscellaneous No. 11453 of 2002 ======================================================= Prasant Kumar Prasad, son of late Adya Prasad, presently Branch Manager, L.I.C.I., Siwan Branch Office at and P.O. and District- Siwan. .... .... Petitioner Versus 1. State Of Bihar 2. Lal Babu Prasad, son of late Bal Khira Ram, Mohalla- Naya Kila, Patwa Toli, P.S. Siwan, Town and District- Siwan. .... .... Opposite Party/s ======================================================= Appearance (in both the petitions) For the petitioners : Mr. Umesh Prasad Singh, Sr Adv. For the State : Mrs. Indu Bala Pandey, A.P.P. For Opp. party no.2 : Mr. Udit Narayan Singh, Adv. ======================================================= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. In view of the order dated 21.11.2002 passed in Cr. Misc. No. 11453 of 2002, both the cases have been heard together. 2. In both the petitions, the Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 2 petitioners have challenged the order dated 6.12.2001 passed by the learned Judicial Magistrate, Siwan in Complaint Case No. 1288 of 2001, by which cognizance has been taken of the offences under Section 323 and 406 I.P.C. against them. 3. Learned counsel for the petitioners submits that petitioner, Vinay Kumar Sinha is the Senior Divisional Manager and the petitioner, Prasant Kumar Prasad was the Branch Manager of Life Insurance Corporation of India at the relevant time. The Life Insurance Corporation of India is a body corporate and has been created in pursuance of Section 3 of the Life Insurance Corporation of India Act, 1956. When the corporation was established, the Central Government specified the general duty of the Corporation to carry on life insurance business, whether in or outside India and the Corporation is to exercise its power under the Act as to secure the life insurance business is developed to the best advantage of the community. Pursuant to the functions assigned and in view of the provision made under the Act, the Life insurance business is being secured by the Corporation and all the Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 3 private companies stood nationalized and their assets and liabilities were transferred to the Corporation. The contract of life insurance is between the corporation on the one hand and the life assured on the other. No individual officer/employee of the Corporation is a party to the contract except that the officer/employee duly authorized in this behalf act for and on behalf of the Corporation, but without any personal liability so long the duty and functions of the officers/employees is rendered in good faith under the Act. In accordance with Section 47 of the Act, the officer/employees, who are servant, have also been otherwise allowed protection under the Act. Section 47 of the Act reads as follows:- “47. Protection of action taken under Act –No suit, prosecution or other legal proceeding shall lie against any Member or employee of the Corporation for any thing which is in good faith done or entitled to be done under this Act.” 4. At the relevant time, the petitioner, Vinay Kumar Sinha was posted as Senior Divisional Manager in Divisional Office of the Corporation at Muzaffarpur and he was rendering his duties in good faith in Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 4 accordance with law and petitioner, Prasant Kumar Prasad was Branch Manager of the Corporation at Siwan. It appears that Gayatri Devi (deceased), wife of Lal Babu Prasad filled up a proposal form for obtaining a life insurance policy on her own life on 21st, February 1999 for a sum of Rs.60,000/-. In Column 13(c), she was required to give details of the policies on the life of her husband, Lal Babu Prasad (opposite party no. 2) and accordingly she disclosed that there were two policies in force : Policy No. 75423991 for Rs.50,000/- under Table 75-20 at Siwan Branch and Policy No. 530510582 at Chapara Branch for a sum of Rs.75,000/- under Table No. 93-25. In the proposal form itself it was declared by the proposer that all the disclosures / statements made are true and nothing has been suppressed. It is, further, declared that in case any part of disclosure/statement is found to be untrue, the contract will be cancelled and the amount paid will be forfeited. The proposal form has been annexed as Annexure-1 to the revision application. On the basis of the aforesaid declaration made by the proposer, Smt. Gayatri Devi, Siwan Branch of the Corporation issued a Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 5 policy No. 531950712 on the life of deceased Gayatri Devi for a sum of Rs. 60,000/- for which she paid quarterly premium of Rs.1460/-. The Policy commenced w.e.f. 12.2.1999 which was to mature on completion of 15 years. The proposer has declared herself as house wife having no indidivual income. The life assured died due to illness on 24.2.2000. Sri Lal Babu Prasad (opposite party no. 2), the husband of Gayatri Devi is the nominee under the policy. Lal Babu Prasad sent a letter dated 4.4.2000 (Annexure-2) to the Branch Manager, Siwan informing that his wife died in course of treatment by Dr. Shyamal Kishore on 24.2.2000 and requested for claim Form. On receipt of the information the Branch Manager of the Corporation at Siwan issued vide letter dated 24.5.2000 Claim Form No. A, B, C, and D which was submitted by the nominee/claimant. 5. It has further been submitted that in the proposal form the life assured had declared that her husband had two policis one for Rs.50,000/- and another for Rs.75,000/- respectively, one at Siwan Branch and another at Chapara Branch. For that reasons the corporation accepted the proposal of Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 6 Rs.60,000/- on the life of the wife of opposite party no. 2 in accordance with rules and circulars. The life assured being a house wife falling under category-III and being a married women having no income she could not have been issued a policy for more than Rs.50,000/- along with restrictions as incorporated in Clause 4 B (Annexure-3). On query made by the Corporation regarding policy no. 530510582 for Rs.75,000/- it was come to the notice of the Corporation through letter dated 6.9.2001 (Annexure-4 to the revision petition) that Policy No. 530510582 does not belong to opposite party no. 2 or to any member of his family. Thus, it came to the notice of the Corporation that on the life of the husband of Gayatri Devi there was only one policy of Rs.50,000/- as such in no circumstance a policy of Rs.60,000/- could have been issued on the life of Gayatri Devi, a house wife having no independent income. 6. It has further been submitted that while the enquiry was going on and the Branch Office at Siwan was busy to settle the case it appears that all of a sudden to exert pressure, opposite party no.2, Lal Babu Prasad filed complaint case no. 1288 of 2001 on Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 7 8.10.2001 against the Divisional Manager and the Branch Manager without mentioning their name and only by designation in the Court of Chief Judicial Magistrate, Siwan alleging offence under Sections 323, 504, 406/34 I.P.C. It is further submitted that allegation against the Divisional Manager is to have asked opposite party no. 2 to go to the Branch Manager Office at Siwan and talk to Manager and the allegation against Prasant Kumar Prasad is to have given a slap to the complainant, and to have refused to give any amount of claim and to have abused the complainant. He has further submitted that it appears from the record of complaint petition that opposite party no. 2 was not even knowing the name of the petitioners, therefore, on 5.11.2001 a petition was filed by the complainant/ Opposite party no. 2 for giving permission to add the name of accused no. 1. It further appears that no order has been passed for the addition of the name of Branch Manager. It is further submitted that on 24.11.2001 the statement of complainant on solemn affirmation has been taken and learned counsel for complainant was heard and the case was fixed on 6.12.2001 for orders and Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 8 thereafter the learned Magistrate without considering the pros and cons of the case has passed the impugned order holding that a prima facie case is found against the accused petitioners for the offence punishable under Section 323 and 406 I.P.C. and an order has been passed for issuance of summons against the petitioners. It is clear from the complaint petition also that no money has been given by the complainant to the petitioners and no entrustment of any property was made to the petitioners nor there is any allegation that they have misappropriated any money. 7. It is further submitted that there is a growing tendency in business circles to convert purely civil disputes into criminal cases on account of prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders /creditors. Similarly, the opposite party no. 2 has filed a complaint case against the petitioners for wrongful gain. In support of his contention, he has referred to paragraph 10 of a decision in the case of M/s Indian Oil Corporation vs. M/s NEPC India Ltd.& ors., reported in AIR 2006 SC 2780. In paragraph 10, Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 9 the decision reported in 2000(2) SCC 636 has been quoted which reads as follows:- “ It is to be seen if a matter, which is essentiallly of civil nature, has been given a cloak on 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.” 8. In that decision it has been held that 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. 9. It is further submitted that learned Judicial Magistrate should have considered as to why the Branch Manager will assault the opposite party no. 2, the allegation is highly improper and no cognizance should have been taken only after taking the statement of the complainant on solemn Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 10 affirmation. 10. Learned counsel for opposite party no. 2 has submitted that there is no Bar to the Magistrate for taking cognizance only on the statement of the complainant and no interference in the impugned order is required. 11. After hearing learned counsel for both the parties and on perusal of the record it appears that both the petitioners are officers of the Life Insurance Corporation of India. Wife of the opposite party no. 2 had taken policy for Rs.60,000/-. On the proposal form (Annexure-1 to revision petition) it has been mentioned at Serial No. 13(c) that her husband, Lal Babu Prasad (opposite party no. 2) had two policies one at Siwan for Rs.50,000/- and another at Chapra for Rs.75,000/-. Admittedly, the wife of opposite party no. 2 was house wife and she had no individual income, as such her policy could not have been for more than Rs.50,000/-. Later on, on query it came to the notice of the Corporation that opposite party no. 2 had no policy for Rs.75,000/- at Chapra, as such in view of the declaration contained in Annexure-1, the policy was fit to be rejected and the amount, if any, Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 11 was liable to be forfeited. It was claimed by opposite party no. 2 that his wife, Gayatri Devi died after treatment by doctor. Since the terms and conditions of the policy of the deceased was itself incorrect, opposite party no. 2, the nominee of the deceased was not entitled to get any benefit out of that policy, a pressure tactics was adopted resulting into the filing of the complaint petition. Considering the merit of the case, it appears that proceeding of the complaint case no. 1288 of 2001 has been stayed by this Court vide order dated 19.2.2002 passed in Cr. Revision No. 124 of 2002 which was filed by the petitioner, Vinay Kumar Sinha, Divisional Manager and further proceeding of the aforesaid complaint case no. 1288 of 2001 has been stayed also vide Cr. Misc. No. 11453 of 2002 by this Court by order dated 21.11.2002. 12. Considering the facts and circumstances stated above, it appears that the impugned order is an abuse of the process of the Court and to secure the ends of justice the impugned order is fit to set aside. 13. For the reasons stated above, in my opinion, the impugned order is not fit to be Patna High Court CR. REV. No.124 of 2002 dt.22-07-2011 12 sustained. It is set aside. In the result, both the petitions are allowed. 14. Let the lower court records be returned. Patna High Court, Patna Dated 22nd of July 2011 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)