Nokia India Pvt. Ltd. vs Rajendrakumar Parmanandbhai Parikh Advocate and Another

R.P. Dholakia, J.—Heard learned Counsel for the applicant, Ms. Amee Yajnik for the applicant, Mr. H.D. Chudasama for the respondent No. 1 and learned APP, Ms. Chetanaben Shah, for the respondent No. 2.

This petition has been filed by the present petitioner-Nokia India Pvt. Ltd. for quashing of the complaint filed by the complainant-Rajendrakumar Parmanandbhai Parikh against the present petitioner-original accused No. 1 and one Sachinkumar Bharatkumar Choksi-original accused No. 2, who, according to the complainant, is the dealer of Nokia.

Short facts of the case of the complainant are that the present respondent No. 1-complainant Rajendrakumar Parmanandbhai Parikh is a practising advocate in Viramgam Taluka of Ahmedabad District. He purchased a Nokia Mobile phone, model No. 3100 and Code No. 352937008553510 on 13-5-2004 from the original accused No. 2 by paying an amount of Rs. 7,000/- under a scheme whereby risk of Nokia mobile phone was covered by insurance by National Insurance Company Ltd. for a period of one year and bill No. 1566 has been issued by the accused No. 2 in that respect. Policy bearing No. 957600 of National Insurance Company Ltd. covering risk of Rs. 7,000/- of said mobile phone was also issued to him. It is the say of the complainant that on 17-4-2005 when he was passing from Dena Bank to ST Bus Stand, somewhere said mobile phone had lost. An application to that effect was made by him with Viramgam Town Police Station on 20-4-2005 and also obtained a certificate to that effect from said Police Station. Thereafter, he contacted the original accused No. 2, who advised him to lodge the claim at the address mentioned in the box i.e. Delhi. According to him, he made the claim by way of registered post on 5-5-2005 at the address of New Delhi but it came back with an endorsement as #left#. He then came back with the envelopment from the Postal Department on 20-5-5005 and went to accused No. 2 and ultimately on discussion he came to the conclusion that the intention of the Company from the very beginning was to cheat the customers. He stated further in paragraph 4 of his complaint that he came to know that the accused No. 1 Company is not doing business at the address mentioned on the box and policy of an Insurance Company which was closed since long was issued to him wherein ultimately, process has been issued by the learned Judicial Magistrate (First Class), Viramgam, u/s 204 of Cr.P.C.

Record shows that order has been passed by the learned Judicial Magistrate (First Class), Viramgam, District Ahmedabad on 31-5-2005 issuing process u/s 204 of Cr.P.C. and matter was kept on 17-6-2005 for further inquiry. Record also shows that nothing has taken place on 17-6-2005 but straightaway on 29-7-2005, without recording any further evidence of the complainant or any witness and without going through the complaint and documents annexed with the complaint, but only relying upon the verification dated 31-5-2005, issued process u/s 204 of Cr.P.C. for the offence punishable under Sections 420 and 114 of IP Code giving rise to filing of the present petition.

It is required to be noted that the respondent No. 1-complainant is not a layman but a practising advocate in Viramgam Taluka of Ahmedabad District. The document including xerox copy of the certificate of the National Insurance Company Ltd. annexed as Annexure-C on page 24 mentions as under:

any communication in respect of this policy may be sent to the following address:

NATIONAL INSURANCE COMPANY LTD. HCL SAFEGUARD INSURANCE SCHEME DO XVII, 12, Community Centre, East of Kailash, New Delhi-110065

In short, the certificate itself showed that in case of any claim or dispute, purchaser was requested to contact the National Insurance Company Ltd. at the address given in the certificate. Instead of contacting the said Insurance Company, he made a show pretending himself as a layman and went to the dealer i.e. accused No. 2 for advise and thereafter complaint in question has been filed. Specimen copy of the certificate has also been annexed by the petitioner at page No. 25, terms and conditions whereof have been mentioned at page No. 26 which reads as under:

INSURANCE BENEFITS

A. Extended warranty identical to Manufacturer''s (NOKIA) warranty conditions on handset for 1 year from the date of the expiry of manufacturer''s warranty.

However this does not cover:

a)...

b)...

c)...

d)...

e)...

f)...

g)...

h)loss of use of the handset or consequential loss of any nature.

....

CLAIM PROCESS/DOCUMENTS

In the event of a claim please do the following:

A. For theft:

(a)(i) lodge FIR with the police station in whose jurisdiction the theft occurred, within 24 hours of the occurrence of the same.

....

The case of the complainant from the very beginning in the complaint was that Nokia mobile phone has been lost while he was passing from Dena Bank to ST Bus Stand. Hence, even as per the policy also, he is not entitled to claim the benefit which he must be knowing as he being a practising advocate. As per the policy condition also, complaint is required to be filed within 24 hours from the loss occurred which, according to learned Counsel for the petitioner, Ms. Yajnik, has not been done by the petitioner.

It is required to be noted that it is the courage of the complainant to state before the Court in black and white by way of complaint that National Insurance Company Ltd. is no more in existence and is already closed. Xerox copy of the certificate itself shows that claim is required to be made before the National Insurance Company at the given address. Instead of doing so, he has contacted the accused No. 2 and made a show by way of sending envelope to the registered office of the Company at Delhi which has nothing to do with the same. Had he, being a practising advocate, applied his mind promptly, he could have made his claim before the National Insurance Company Ltd. As stated above, case of the complainant is not theft of mobile phone but loss of it and, therefore, risk does not cover. This might be one of the reasons that tempted him to file the complaint. By doing so, he tried to convert the civil dispute into criminal one. Even learned Judicial Magistrate (First Class) had also not followed the procedure. The day on which order has been passed i.e. on 17-6-2005 complaint was in his hand with annexures containing documents, however, without recording further evidence of the complainant straightaway process u/s 204 Cr.P.C. has been issued by the learned Magistrate which is required to be criticized.

In short, the complainant wanted to convert the civil dispute into criminal one by using his skill in his own case. Instead of filing civil suit or lodging the claim before the National Insurance Company Ltd., he has filed the complaint in question which is nothing but an abuse of process of law. Hence, complaint qua the petitioner is required to be quashed.

It is to be noted that the accused No. 2 has not filed the petition for quashing of the complaint. However, looking to the facts and circumstances and also in view of the fact that he is not the principal accused and has not approached this Court, there is no purpose in pursuing the complaint qua him also and hence, complaint qua him is also required to be quashed.

Under the circumstances, the petition is allowed. Complaint being Criminal Case No. 1018 of 2005 pending in the Court of learned Judicial Magistrate (First Class), Viramgam, District Ahmedabad qua the petitioner-original accused No. 1 as well as the original accused No. 2 and the proceedings therein are quashed. Rule is made absolute.