1 IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14332 of 2006 SURENDRA KESHAVKANT GRAMANI Versus THE STATE OF BIHAR & ORS ----------- O R D E R 9. 9.7.2008 This petition has been preferred by the petitioner seeking quashing of the order of summoning dated 4.2.2006 passed by Shri Ram Bihari, Judicial Magistrate, Sitamarhi, in Complaint Case No. CI/ 175 of 2005 by which while holding an enquiry the learned Magistrate recorded a finding that a prima facie case under Sections 419 and 406 of the Indian Penal Code was made out for which the accused persons should stand trial. It appears that initially a police case was registered on the information of opposite party no. 2. The matter was reported not true and, as such, the protest petition filed in Sitamarhi P. S.Case No. 366 of 2003 was treated as the petition of complaint and after examination of the complainant on Solemn Affirmation and usual enquiry under Section 202 of the Code of Criminal Procedure, the impugned order of summoning was passed. Put briefly, the case of the complainant was that he and other investors were impressed upon to deposit Rs. 3,500/- so as to be made as members of Van Sanjivani Assurance Marketing Services(P) 2 Ltd. There was a meeting of the investors and others and two persons operating franchise office of the said Company at Shankar Chowk, Main road, Sitamarhi. It is stated that the complainant had deposited Rs. 3,500/- on 26.8.2003 but did not get a receipt nor could he know anything about the assured insurance and, lastly, talked to the Divisional Manager of the Oriental Insurance Company, namely, the present petitioner who stated that the said company, i.e., Van Sanjivani Assurance Marketing Services(P) Ltd. did not hold the required license under the I.R.D.S, Government of India and, as such, any insurance business done by that company could be illegal. The complainant alleged that he was duped along with others and did not get back his money nor the receipt in token of depositing the amount. It was contended by drawing the attention of the Court to annexure 2 series that the Oriental Insurance Company( “ Insurance Co.” for short) was approached by Van Sanjivani Assurance Marketing Services (P.) Ltd. for taking “Nagrik Suraksha Policy” in order to cover the personal accident with hospitalization of its members and accordingly the petitioner being the Divisional Manager of the Insurance Co. sent a appreciation 3 letter to the said Van Sanjivani Assurance Marketing (P) Ltd. as per the business norms. Accordingly, the said marketing services Company sent the list of its members along with the required official premium as the expenses to the Insurance Co. for issuing “Nagrik Suraksha Policy” to cover the personal accident and hospitalization of its members on the terms and conditions of the policy. It was further submitted that the opposite party did not lodge any claim before either the petitioner or his employer the Insurance Co. and that some members who raised their claims were paid back as per the policy conditions as per due process. The next contention was that taking the allegations made in the complaint petition on their face value to be true, there was no allegation of misappropriation or defrauding against the petitioner or his employer, the Insurance Co., and any dispute between the complainant and Van Sanjivani Assurance Marking Services (P) Ltd.,Jaipur had no concern with the present petitioner. Drawing the attention of the Court to Section 31 of the General Insurance Business 4 (Nationalization) Act, 1972, it was contended that the Officer and employees of the Corporation were deemed to be public servants. It was further contended by making reference to Section 38 of the said Act that no suit, proceeding or prosecution shall lie against the Officer or other employees of the corporation or of the acquiring company in any way for the act done under the Act. It was further contended that the company has simply to pay the amount and accordingly the complainant was also paid up his dues when he presented his demand which may appear from the balance sheet at page 30 of the brief from its serial no.110. Learned counsel appearing for the petitioner attempted to place reliance on some of the enclosures to the counter affidavit and submitted that in the facts and circumstances the offences were duly constituted against him. It is well known that an accused could be summoned only when an offence appears committed by him. For raising the above inference the allegation and statements in the complaint petition have to be read and accepted to be true at that stage. On a consideration of the complaint petition what appears clearly coming out of it is that the petitioner or his company, i.e., the Insurance Co. 5 was never in picture or at the stage of receiving the payments. It was Van Sanjivani Assurance Marketing( P) Ltd. Which invited the investment in the “Nagrik Suraksha Policy” and received payments. What the complainant states in the complaint petition was that the petitioner was simply contacted by phone to verify the correctness of the claim of the primary solicitors and he confirmed that there was such a policy which has been fruitful and could be purchased from his company. The annexure to the present petition indicates that the complainant was duly paid his dues of Rs. 1136.50 paise only, by the petitioner’s company. In that view, there could be no offence made out by the petitioner. Further in addition to the above, Section 31 of the General Insurance Business Nationalization Act 1972 recognizes the petitioner as a public servant and Section 38 protects the petitioner from any civil or criminal prosecution. In that view, the prosecution of the petitioner could not be proceeded with as the same is barred by the statutory provision of the above noted Insurance Nationalization Act,1972. Considering the above discussions, I find merit in the petition and accordingly the same is 6 allowed. The impugned order passed by the learned Magistrate summoning the petitioner appears completely out side the purview of law as also the provision of the Act and as such the same could not be allowed to continue. The same is hereby quashed. The petition is allowed. ( Dharnidhar Jha,J) Kanth