Case: VIKRAM JOHAR Vs. THE STATE OF UTTAR PRADESH

3. The brief facts of the case, which need to be noted for deciding this appealThe respondent No.2 (hereinafter referred to as ?complainant?), was a partner of M/s. Ram Company engaged in business of wood processing and sale. The company had its premises at Kosikala, District Mathura, UttarOn 18.12.2010 at 3.00 AM fire broke into the premises of M/s. Ram Company. Fire brigade and police were informed, which reached on the spot and fire could be controlled after several hours. The cause of fire was shown as electric short circuit in electric cable. Fire caused damages of stocks, plant and machinery and building. M/s. Ram Company had taken a Standard Fire & Special Perils Policy from M/s. United India Insurance Co. Ltd. M/s. Ram Company had submitted insurance claim on 20.12.2010. Total claim raised by the company was Rs.3,62,45,114/-. The United India Insurance Co. Ltd. (hereinafter referred to as ?insurance company?) appointed the appellant M/s. Protocol Surveyor and Engineers Private Limited, who is a certified surveyor by Insurance Regulatory and Development Authority. The appellant being Director of M/s. Protocol Surveyor and Engineers Private Limited undertook survey of insurance claim of theOn 04.04.2011, the appellant visited the premises at Kosikala, District Mathura for the purposes of preparing a survey report. Joint Inspection note was prepared on 04.04.2011, for which various documents were asked from the company. After various correspondences, the appellant submitted a final survey report dated 23.09.2011. M/s. Ram Company wrote letter dated 15.07.2011 and 22.07.2011 to the surveyor, which was duly replied on 23.07.2011 by the surveyor. M/S. Ram Company has also written to insurance company, which was replied by insurance company on 08.08.2011 informing M/s. Ram Company that surveyors have been asked to submit their final report at theOn 11.09.2011, the M/s Ram company submitted a letter to insurance company requesting to make payment of policy amount of Rs. 285.60 Lacs. In the said letter, some complaints were also made against the surveyor. Again on 19.09.2011, a letter was sent by M/s. Ram Company to the insurance company, where allegations were made against the surveyor. The surveyor, i.e., the appellant submitted final report on 23.09.2011 with regard to claim of M/s. Ram Company, in detail noticing all aspects of the matter. In the Survey Report in the last paragraph, following wasIn view of the above, it stands establishedThe insured has mis represented their claim ofThe insured has mis represented their claim ofc) The insured had made false declaration to inflate the stockThe insured had made false declaration on the stock valuepolicy shall be voidable in the event of mis representation, mis description or non disclosure of any materialthe claim be in any respect fraudulent, or if any false declaration be made or used in support thereof if any fraudulent means or devices are used by the insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the wilful act, or with the connivance of the insured, all benefits under this policy shall beis clear that the insured?s Mis representation & False declaration have breached both the above stated policyview of above, that the subject claim is not admissible under the captioned policy ofreport is being submitted without prejudice and is subject to the terms and conditions of the policy ofProtocol Surveyors & Engineers Pvt.On 14.11.2011, respondent No.2, i.e., complainant filed an application under Section 156(3) Cr.P.C. alleging offences under Sections 383, 384, 471, 504 and 506 I.P.C. In the complaint, allegation was made against the appellant that he alongwith two or three other unknown persons, one of whom was holding a revolver, came to the complainant?s house on 02.10.2011 at 7.00 PM and abused him in filthy language and was about to assault him, When some neighbours arrived there, the appellant and two or three other unknown persons fled the spot on their vehicle. On the above application dated 14.11.2011, on the order of the Magistrate, first information report was lodged being F.I.R. No.367 of 2011 under Sections 383, 384, 471, 504 and 506 I.P.C. registered on 24.11.2011. Insurance company by letter dated 12.12.2011 repudiated the claim of M/s. Ram Company. Paragraph Nos. 3, 4 and 5 of the said letter are to the followingThat during the course of carrying out survey & assessment of this claim, the overall approach & conduct of the surveyor was found to be satisfactory.That the said surveyors submitted a copy of their Final Survey report No.2010-DEC-131 dated 23 September, 2011 to this office on 27 September, 2011.That after scrutiny of the submitted survey report and in consultation with the technical team of our Head Office, we have repudiated the said claim vide our letter ref.no. VKJ:RK:FC:2011: 235:11 datedI.O. conducted the investigation calling the appellant also and submitted a closure report. In the closure report, I.O. also had stated that as per the call details and location of Vikram Singh?s mobile (appellant), there was no roaming of his mobile from 1 st October to 4 th October and his location was within the NCR area. After recording the statements of several persons, the I.O. submitted final form, closure report. Against the report, a protest petition was filed by the complainant before the Judicial Magistrate, who by order dated 18.05.2012 allowed the protest petition and directed for further investigation in the Crime No. 448 of 2011. Further investigation was also conducted by another I.O., who again submitted a final report opining that no offence has been committed. Again, a protest petition was filed. The Judicial Magistrate by Order dated 21.12.2012 held that no further investigation is required and it shall be justified to try and dispose of the case as a complaint case. Complainant?s statement under Section 200 Cr.P.C was recorded. Complainant also got recorded statement of PW1- Ganesh Sharma and PW2 – Roop Singh @The Magistrate by Order dated 07.02.2014 summoned the appellant under Sections 504 and 506 I.P.C. Against the order dated 07.02.2014 an application under Section 482 Cr.P.C. was filed by the appellant in the Allahabad High Court, which application was disposed of by the High Court by order dated 30.07.2014. High Court while disposing of the application under Section 482 Cr.P.C. observed that in case, if discharge application is moved by the applicant within 30 days, it is expected that the same shall be considered and decided by a reasoned and speaking order, and till disposal of the application on merit, no coercive action shall be taken against theAn application was filed by the applicant under Section 239 read with Section 245 Cr.P.C. before the Court of Judicial Magistrate praying that appellant be discharged. In the application under Sections 239 and 245, details of claim, various reports and consideration by insurance company was mentioned. Additional Chief Judicial Magistrate vide its order dated 29.11.2016 rejected the application for discharge against which Criminal Revision was filed in the High Court, which has been dismissed on 06.02.2017. Aggrieved, by above order, this appeal has been filed.

Reasoning:
10. From the facts noticed above, it is clear that appellant?s role was only of a surveyor appointed by insurance company to survey and submit report on the fire insurance claim alleged by the complainant with regard to incident dated 18.12.2010, which took place in his factory premises at Kosikala, District Mathura.It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.After noticing the nature of jurisdiction to be exercised by the Court at the time of discharge, we now revert back to the facts of the present case, where taking an allegation of complaint as correct on the face of it, whether offences under Sections 504 and 506 is made out, is a question to be answered.In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant?s house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra).Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27 th Edition with regard to proof of offence states following:(i) That the accused threatened someThat such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he wasThat he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of suchplain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.