CRIMINAL MISCELLANIOUS No.36769 OF 2004 (In the matter of an application under Section 482 of the Code of Criminal Procedure) *********** 1. THE MANAGING DIRECTOR,ORIENTAL INSURANCE CO.LTD.THRU. Sri MALAY LALA Asst. Manager Cum Duly Constituted Attorney Regional Office Oriental Insurance Company Pir Mohani Kadam Kuan Patna 2. Prabhat Kumar Jha Son of Sri Birendra Nath Jha Ex Regional Manager. 3. Rakesh Kumar Son of Late Ram Bahadur Prasad Regional Manager 4. R.K. Mishra Son of Late Dinesh Chandra Mishra Ex Divisional Manager Divisional Office-III 5. R.R. Singh son of Rananjay Sinha Divisional Manager Divisional Office III All Regional Office Oriental Insurance Company Pir Mohani Kadam Kuan P.S. Kadam Kuan Patna ---------------Petitioners Versus 1. STATE OF BIHAR 2. JMD Foot Wear Pvt. Ltd. Raja Bazar P.S. Shastri Nagar Town and District Patna through its Director Rohit Rishav ----------Complainant---Opposite Parties. For the Petitioners:- Mr. Rana Pratap Singh, Sr. Adv. Mr. Ashok Priyadarshi, Adv. Mr. Sumant Singh, Adv. For the State:- Mr. Damodar Pd. Tiwari, Adv. For Opposite Party No. 2: - Mr. Alok Kr. Agarwal, Adv. ************ P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN ********** Sheema Ali Khan, J. Heard learned counsel for the petitioners and learned counsel for the opposite party. 2. The petitioners all five in number are working in the Oriental Insurance Company, Limited as Manager at the center, in different 2 offices of the company. The opposite party no. 2 JMD Foot Wear Private Limited is a business undertaking which had taken loan from the Bank and set up a shop for sale of Shoes known as “Khadims”. It is alleged in the complaint petition that the petitioners 4 and 5 persuaded the opposite party no. 2 to take the insurance from its company. The petitioner took insurance policy covering, burglary which is Annexure-2 to this application. The document is admitted by both the parties. In between the night of 21st and 22nd of February, 2003, a burglary was committed in the shop of opposite party no. 2. The F.I.R. was instituted on behalf of the opposite party no. 2 and a search was made and final form was submitted against unknown persons. 3. The petitioner opposite party no. 2 raised his claim for payment of insurance amount from the company of the petitioners. The company paid the amount which was the loss suffered by opposite party no. 2 on account of stocks stolen during the burglary. The opposite party – complainant is aggrieved by the fact that the petitioners, who are the officers of the Insurance Company, refused to make payment of Rs.91,000/- 3 and odd which was stolen by the miscreants lying in the cash box of the shop. For the purpose of search the Oriental Insurance Company had appointed a surveyor to enquire into the mater. The Surveyor enquired into the matter, and reported that since the money stolen, was from the cash box, and not the „safe‟ as defined under insurance policy, the petitioners were not liable to pay the insurance amount. 4. It has been argued on behalf of the petitioners that Supreme Court in the case of Oriental Insurance Company Limited Vs. Samayanallur Primary Agricultural Co-operative Bank has already defined the meaning of the word „Safe‟. According to the judgment of the Supreme Court the cashier table/drawer could not be said to be a „safe‟ within the meaning of the Insurance policy. Nonetheless, it is not disputed by the Insurance Company that burglary was committed and the cash amount of Rs. 91,000/- was lying in the „safe‟ of the shop of opposite party no. 2, however, the Insurance Company refused to pay the insurance amount for the cash amount stolen. Non payment of Insurance amount according to the counsel for the petitioner does not constitute a 4 criminal offence in the facts stated aforesaid. As far as the allegation under section 406/420 and 120 B is concerned, this Court comes to the conclusion, on the facts of this case, no allegations are made out to constitute an offence or even prima facie indicate there was any intention on behalf of the petitioners to misappropriate the complainants money or to convert it into their own use or for their benefit. The proper forum for the petitioner in this matter, in fact, was to move the consumers Court. In case the petitioner files an application for payment the insurance amount, the District Consumers Forum should entertain the complaint, after considering that the delay in filing the compliant was due to fact that the petitioner was perusing the matter in a different forum. 5. In the result the order dated 9.10.2004 passed in complaint case no. 1555 (C ) of 2004 (T.R. No. 1996 of 2004) is quashed and the application is allowed. Patna High Court Dated 10th March, 2011 Anand Kr./NAFR ( Sheema Ali Khan, J.)