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Judgment
D.K. Sinha, J.—Instant criminal revision is directed against the order impugned dated 19.6.2006, passed by Smt. Neerja Ashri, Judicial Magistrate, lst Class, Jamshedpur, by which the petition filed u/s 245(1)(2) of the Code of Criminal Procedure for discharge of the petitioner United India Insurance Co. Ltd. in C/1 Case No. 526 of 2002 for the alleged offence u/s 417 of the Indian Penal Code was dismissed.
Petitioner had earlier moved before this Court in Cr. Revision No. 800 of 2004 for setting aside the order by which the cognizance of the offence was taken u/s 417 of the Indian Penal Code which was dismissed by the order of this Court on 6.9.2005.
Short facts of the case as stand narrated in the compliant case are that the complainant- opposite party No. 2 Shri Raj Kumar Kundu had initiated criminal proceeding against the accused including United India Insurance Co. Ltd. for the alleged offence under Sections 406/420/120B of the Indian Penal Code alleging inter alia that the accused persons induced his father and pursuant to that, he had obtained medi-claim policy for the entire family. He paid the premium of the said policy which was accepted by the accused persons. The total sum assured was Rs.3,50,000/- for one year against the one time premium paid to the tune of Rs.4413/-. It was initially effective from 3.10.2000 to 2.10.2001 which was subsequently renewed on 3.10.2001 up to 2.10.2002. In the month of June, 2001, his father fell down from the stairs as a result of which he suffered degenerative spinal disease and he had to undergo surgical operation at the Apollo Hospital, Chennai, but before that he had been under the treatment of Dr. R. Tody, Heal Well Clinic, Jamshedpur. Information in this regard was given to the Senior Divisional Manager of the United India Insurance Co. Ltd., Jamshedur. His father was admitted at Apollo Hospital, Chennai on 13.9.2001 and was discharged from the hospital on 23.9.2001 and a sum of Rs.72,000/- was incurred towards the expenses in his treatment at both the places. Complainant as well as his father had sent several letters for settlement of the mediclaim under the policy. However, the letter of Sri A.K. Mekap, Administrative Officer of the United India Insurance Co. Ltd. dated 6.2.2002 was received by them which contained the medical opinion by which Dr. S. Prem Kumar, Penal Doctor of the Company opined, "degeneration is a wearing out process and hence for the disc to degenerate and produce symptoms, it would have taken at least two years". Since treatment was taken up after ten months of taking the policy, so it was a pre-existing disease and giving such reasoning, his claim was repudiated by the accused. The father of the complainant again sent the reply with the certificate issued by Dr. R. Gopal Krishnan but of no avail and finally, the Accused No. 2 T.K. Das replied that there was no scope for entertaining such claim on some false and frivolous ground. The conduct shown by the accused persons, according to the complainant, indicated their mala fide intention to deprive the complainant and his father of his legitimate claim and the dishonest intention of the accused and thereby causing wrongful loss to him in connivance with each other.
On receipt of the summons, petitioner-Company and another T.K. Das filed a petition u/s 245(1)(2) of the Code of Criminal Procedure for their discharge on the ground that the petitioner including the accused were the public servant protected u/s 197 of the Code of Criminal Procedure and the allegations were civil in nature and that the claim of the complainant was repudiated under the agreed terms and conditions of the policy due to suppression of pre-existing ailment while proposing for procuring the medi-claim policy. It was further stated that the complainant had earlier lodged his case before the Consumer Forum and also before the ombudsman of the Company, i.e. the highest authority to deal with the grievance of the complainant but both were dismissed. Petition of the petitioner was rejected by the learned Judicial Magistrate with the observation,
On the other hand, learned Counsel for the complainant submitted that Hon''ble High Court has pleased to confirm the cognizance order of this Court which goes to show that there is prima facie evidence against the accused persons and there is no technical error in taking cognizance. It is further submitted that there is sufficient material for framing of charge against the aforesaid accused persons. Hence, prayer of the defence has no force and deserves dismissal.
Regard being had to the facts and circumstances of the case and arguments advanced on behalf of both sides, I do agree with the submission of learned Counsel for the complainant and also find sufficient material for explaining the substance of accusation. The petition filed on behalf of defence has no merit and deserves dismissal. Accordingly dismissed.
Cognizance of the offence was taken u/s 417 of the Indian Penal Code and the punishment prescribed for such offence is imprisonment for one year or fine or both and the accused for the alleged charge shall be tried under the provisions laid down for summons cases as contained in Chapter-XX of the Code of Criminal Procedure in which no provision for discharge of the accused is provided and hence petition filed on behalf of the petitioner u/s 245(1)(2) of the Code of Criminal Procedure was not maintainable before the Judicial Magistrate. Substance of accusation is explained to the accused in summons cases who is called upon to answer as to whether he pleads guilty or has got any defence to make and no formal charge is framed. Judicial Magistrate has no power to discharge the accused under any provision of this Chapter. The accused may be acquitted or convicted but the learned Judicial Magistrate grossly erred by not recording her finding on the point of maintainability of the petition for discharge filed on behalf of the petitioner and therefore, the order impugned cannot be sustained under law.
For the reasons stated above, the order impugned dated 19.6.2006 passed by Smt. Neerja Ashri, Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 526 of 2002 is set aside with the direction to the Court to proceed as per provision laid down under Chapter-XX of the Code of Criminal Procedure. It would be relevant to mention that the case of the petitioner being a union sponsored Company under the Companies Act for the criminal liability is governed by Section 305 of the Code of Criminal Procedure.
With these observations, this criminal revision is disposed of.