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Crl. M.C. No. 378/2013 Page 1 HIGH COURT OF DELHI
CRL.M.C. 378/2013
TALWAR MEDICAL CENTRE ..... Petitioner
Through: Mr. Harsh Jaidka & Mr. Manoj Kumar, Advocates
CRL.M.C. 378/2013
TALWAR MEDICAL CENTRE ..... Petitioner
Through: Mr. Harsh Jaidka & Mr. Manoj Kumar, Advocates
VERSUS
G. SUREKA & ORS. ..... Respondents
Through: Nemo.
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 01.02.2013
Crl.M.A. No.1216/2013 (u/S 482 Cr.P.C.)
Allowed subject to all just exceptions.
Crl. M.C. No. 378/2013 & Crl.M.A. No.1217/2013 (u/S 482 Cr.P.C.)
Petitioner is the complainant of Criminal Complaint under Sections
406/408/420/120-B and 34 of IPC which along with application under
Section 156(3) Cr.P.C. has been dismissed by trial court vide order of 24th November, 2011. A revision petition was preferred by petitioner against aforesaid order which stands dismissed vide impugned order of 25th October, 2012 holding that the ingredients of offence of cheating are not made out.
Learned counsel for petitioner assails impugned order as well as trial court’s order by contending that infact arguments were heard on the
2013:DHC:537 Crl. M.C. No. 378/2013 Page 2 application under Section 156 (3) Cr.P.C. and trial court erroneously dismissed the criminal complaint as well. This grievance of petitioner no longer survives for consideration because impugned order is rendered after hearing both the sides and thereafter on merits it has been held that the ingredients of the offence alleged are not made out while upholding the dismissal of the criminal complaint.
Before this court, it was strenuously argued by petitioner’s counsel while relying upon decisions of a Coordinate Bench of this Court in Tata
Motors Ltd. v. State rendered on 12th February, 2009 and Prakash Devi &
Ors. v. State of Delhi & Anr. 2010 (4) JCC 2833 that petitioner’s complaint has been dismissed at pre-summoning stage and the revisional court was not within its jurisdiction to issue notice to the accused and to hear them. However, it is not shown as to what prejudice is caused to the petitioner on account of respondent/accused being also heard by the revisional court. In any case, the stand taken by petitioner’s counsel before this Court is that the offence of criminal breach of trust is made out and so dismissal of petitioner’s complaint at the threshold is bad in law. Learned counsel for petitioner drew attention of this Court to paragraph No.13 of the impugned order which gives the factual matrix and it reads as under:-
“Perusal of the agreement dated 06.12.2006 shows that the revisionist/ complainant was a service provider of respondent, who was acting as third party administrator
(TPA). LIC engaged the services of respondents for carrying out medical treatments or test in partnership firm and respondent approached the revisionist/ complainant for the purpose of carrying on various kinds of diagnostic tests and other medical treatment.”
Crl. M.C. No. 378/2013 Page 3 Pertinently, Clause 9 of agreement of 6th December, 2006, in question, has been made the basis by petitioner to initiate the criminal proceedings. This Clause 9 has been reproduced in paragraph 14 of the impugned order and it reads as under:-
“The Service Provider shall raise an invoice on UMSL on the second day of every month in respect of all the tests/medical examination conducted by it in upon the
Beneficiaries in the month immediately prior to the date of raising the invoice. Each such invoice shall be accompanied by the receipts issued by the Service
Provider to the Beneficiaries as provided in clause 5 above. All such invoice shall be settled by UMSL by making payment to the Service Provider within 15 working days from the date on which an invoice is received by UMSL. In the event UMSL fails to make payment of any such invoice within the period as aforesaid, UMSL shall be liable to pay interest to the
Service Provider in respect of the overdue amounts at the rate of 12% per annum from the end of the fifteenth day from the date of receipt of invoice till the date of payment.”
To refute the finding in the impugned order of there being nothing on record to show that respondent/accused were collecting payments from LIC on behalf of petitioner, learned counsel for petitioner drew attention of this Court to letter of 30th December, 2009, written by respondent/accused to petitioner, informing as under:-
“Please refer to your letter dated 9th December, 2009 regarding release of payment. As inform to you vide our letter dated 4th December 2009 your payments will be released as soon as we receive payments from LIC. We are in the process of submitting all bills to LIC and are
Crl. M.C. No. 378/2013 Page 4 hopeful of getting payments soon. We solicit your co- operation in the matter.”
Even if it is so, still neither the ingredients of cheating nor the criminal breach of trust are there in petitioner’s criminal complaint of 1st June, 2010 whose copy has been placed on record. The crux of petitioner’s criminal complaint is contained in paragraph 7 thereof, which reads as under:-
“That the accused was working as a TPA i.e. a type of agent who works as a middleman between the company and the service provider. In the present case the accused were working as an agent between Insurance Company and the complainant firm. From the inquiry it appears that they have received the money from the Insurance
Company but are not making the payment to the complainant. Despite the fact that the bills were sent to them at the scheduled time from May 2009 onwards still they did not bother to make the payment. It appears that after entering into the agreement and after working with the complainant for some time they intended to cheat after entering into a criminal conspiracy with each other and hence they even did not renewed the agreement after
6.12.2008 and stopped clearing the bills from May 2009 onwards. As accused has received the payment from
L.I.C. but has not handed over the same to the complainant firm the accused while working as an agent have committed criminal breach of trust also.”
A bare perusal of petitioner’s criminal complaint of 1st June, 2010 makes it evident that it lacks the ingredients of cheating or criminal breach of trust. Rather, it reveals that the liability of respondent/accused is purely of civil nature. This Court is conscious of the fact that in many criminal complaints, apart from civil action, the basis to initiate criminal
Crl. M.C. No. 378/2013 Page 5 action exists on account of ingredients of criminal offence being present in criminal complaint, so filed. The instant complaint is not one of such cases. Reliance placed by petitioner’s counsel upon Apex Court’s decision in Lee Kun Hee, President, Samsung Corporation, South Korea v. State of Uttar Pradesh, (2012) 3 SCC 132 wherein complaint of cheating involved both civil as well as criminal liability and attention of this Court was drawn to the following observations made in the afore- cited
Crl.M.A. No.1216/2013 (u/S 482 Cr.P.C.)
Allowed subject to all just exceptions.
Crl. M.C. No. 378/2013 & Crl.M.A. No.1217/2013 (u/S 482 Cr.P.C.)
Petitioner is the complainant of Criminal Complaint under Sections
406/408/420/120-B and 34 of IPC which along with application under
Section 156(3) Cr.P.C. has been dismissed by trial court vide order of 24th November, 2011. A revision petition was preferred by petitioner against aforesaid order which stands dismissed vide impugned order of 25th October, 2012 holding that the ingredients of offence of cheating are not made out.
Learned counsel for petitioner assails impugned order as well as trial court’s order by contending that infact arguments were heard on the
2013:DHC:537 Crl. M.C. No. 378/2013 Page 2 application under Section 156 (3) Cr.P.C. and trial court erroneously dismissed the criminal complaint as well. This grievance of petitioner no longer survives for consideration because impugned order is rendered after hearing both the sides and thereafter on merits it has been held that the ingredients of the offence alleged are not made out while upholding the dismissal of the criminal complaint.
Before this court, it was strenuously argued by petitioner’s counsel while relying upon decisions of a Coordinate Bench of this Court in Tata
Motors Ltd. v. State rendered on 12th February, 2009 and Prakash Devi &
Ors. v. State of Delhi & Anr. 2010 (4) JCC 2833 that petitioner’s complaint has been dismissed at pre-summoning stage and the revisional court was not within its jurisdiction to issue notice to the accused and to hear them. However, it is not shown as to what prejudice is caused to the petitioner on account of respondent/accused being also heard by the revisional court. In any case, the stand taken by petitioner’s counsel before this Court is that the offence of criminal breach of trust is made out and so dismissal of petitioner’s complaint at the threshold is bad in law. Learned counsel for petitioner drew attention of this Court to paragraph No.13 of the impugned order which gives the factual matrix and it reads as under:-
“Perusal of the agreement dated 06.12.2006 shows that the revisionist/ complainant was a service provider of respondent, who was acting as third party administrator
(TPA). LIC engaged the services of respondents for carrying out medical treatments or test in partnership firm and respondent approached the revisionist/ complainant for the purpose of carrying on various kinds of diagnostic tests and other medical treatment.”
Crl. M.C. No. 378/2013 Page 3 Pertinently, Clause 9 of agreement of 6th December, 2006, in question, has been made the basis by petitioner to initiate the criminal proceedings. This Clause 9 has been reproduced in paragraph 14 of the impugned order and it reads as under:-
“The Service Provider shall raise an invoice on UMSL on the second day of every month in respect of all the tests/medical examination conducted by it in upon the
Beneficiaries in the month immediately prior to the date of raising the invoice. Each such invoice shall be accompanied by the receipts issued by the Service
Provider to the Beneficiaries as provided in clause 5 above. All such invoice shall be settled by UMSL by making payment to the Service Provider within 15 working days from the date on which an invoice is received by UMSL. In the event UMSL fails to make payment of any such invoice within the period as aforesaid, UMSL shall be liable to pay interest to the
Service Provider in respect of the overdue amounts at the rate of 12% per annum from the end of the fifteenth day from the date of receipt of invoice till the date of payment.”
To refute the finding in the impugned order of there being nothing on record to show that respondent/accused were collecting payments from LIC on behalf of petitioner, learned counsel for petitioner drew attention of this Court to letter of 30th December, 2009, written by respondent/accused to petitioner, informing as under:-
“Please refer to your letter dated 9th December, 2009 regarding release of payment. As inform to you vide our letter dated 4th December 2009 your payments will be released as soon as we receive payments from LIC. We are in the process of submitting all bills to LIC and are
Crl. M.C. No. 378/2013 Page 4 hopeful of getting payments soon. We solicit your co- operation in the matter.”
Even if it is so, still neither the ingredients of cheating nor the criminal breach of trust are there in petitioner’s criminal complaint of 1st June, 2010 whose copy has been placed on record. The crux of petitioner’s criminal complaint is contained in paragraph 7 thereof, which reads as under:-
“That the accused was working as a TPA i.e. a type of agent who works as a middleman between the company and the service provider. In the present case the accused were working as an agent between Insurance Company and the complainant firm. From the inquiry it appears that they have received the money from the Insurance
Company but are not making the payment to the complainant. Despite the fact that the bills were sent to them at the scheduled time from May 2009 onwards still they did not bother to make the payment. It appears that after entering into the agreement and after working with the complainant for some time they intended to cheat after entering into a criminal conspiracy with each other and hence they even did not renewed the agreement after
6.12.2008 and stopped clearing the bills from May 2009 onwards. As accused has received the payment from
L.I.C. but has not handed over the same to the complainant firm the accused while working as an agent have committed criminal breach of trust also.”
A bare perusal of petitioner’s criminal complaint of 1st June, 2010 makes it evident that it lacks the ingredients of cheating or criminal breach of trust. Rather, it reveals that the liability of respondent/accused is purely of civil nature. This Court is conscious of the fact that in many criminal complaints, apart from civil action, the basis to initiate criminal
Crl. M.C. No. 378/2013 Page 5 action exists on account of ingredients of criminal offence being present in criminal complaint, so filed. The instant complaint is not one of such cases. Reliance placed by petitioner’s counsel upon Apex Court’s decision in Lee Kun Hee, President, Samsung Corporation, South Korea v. State of Uttar Pradesh, (2012) 3 SCC 132 wherein complaint of cheating involved both civil as well as criminal liability and attention of this Court was drawn to the following observations made in the afore- cited
JUDGMENT
which reads as under:-
“x x x What a party has been deprived of by an act of cheating can be claimed through a civil action.
The same deprivation based on denial by way of deception, emerging from an act of cheating, would also attract criminal liability. In the course of criminal prosecution, a complainant cannot seek a reciprocal relief for the actions of the accused.”
In Peddinti Padmaja & Anr. v. State of A.P. & Anr. 2011 Crl.L. J.888, it was held that apart from taking recourse to Section 138 of
Negotiable Instruments Act, resort to any provision of Indian Penal Code can be made if the complaint disclosed the ingredients of the offence under the Indian Penal Code. When ingredients of any criminal offence are disclosed in a criminal complaint then there is no question of quashing of proceedings arising from such criminal complaint. However, the decision in Dharimal Tobacco Products Ltd. & Ors. v. State of
Maharashtra & Anr. AIR 2009 SC 1032 does not come to the rescue of the petitioner because in the instant case, it has been found not only by the trial court but even by the revisional court and this Court that the ingredients of offences alleged in the criminal complaint by petitioner are
Crl. M.C. No. 378/2013 Page 6 lacking.
Consequently, upon a bare perusal of criminal complaint in question, this Court is unable to persuade itself to hold that it discloses the ingredients of the offence of either cheating or criminal breach of trust. Even if letter of 30th December, 2009 of respondent/accused is taken to be correct, still it discloses a purely civil liability. Hence, finding no palpable error in the impugned order or in the order of the trial court, I dismiss this petition and the application in limine.
(SUNIL GAUR)
JUDGE
FEBRUARY 01, 2013 vn
“x x x What a party has been deprived of by an act of cheating can be claimed through a civil action.
The same deprivation based on denial by way of deception, emerging from an act of cheating, would also attract criminal liability. In the course of criminal prosecution, a complainant cannot seek a reciprocal relief for the actions of the accused.”
In Peddinti Padmaja & Anr. v. State of A.P. & Anr. 2011 Crl.L. J.888, it was held that apart from taking recourse to Section 138 of
Negotiable Instruments Act, resort to any provision of Indian Penal Code can be made if the complaint disclosed the ingredients of the offence under the Indian Penal Code. When ingredients of any criminal offence are disclosed in a criminal complaint then there is no question of quashing of proceedings arising from such criminal complaint. However, the decision in Dharimal Tobacco Products Ltd. & Ors. v. State of
Maharashtra & Anr. AIR 2009 SC 1032 does not come to the rescue of the petitioner because in the instant case, it has been found not only by the trial court but even by the revisional court and this Court that the ingredients of offences alleged in the criminal complaint by petitioner are
Crl. M.C. No. 378/2013 Page 6 lacking.
Consequently, upon a bare perusal of criminal complaint in question, this Court is unable to persuade itself to hold that it discloses the ingredients of the offence of either cheating or criminal breach of trust. Even if letter of 30th December, 2009 of respondent/accused is taken to be correct, still it discloses a purely civil liability. Hence, finding no palpable error in the impugned order or in the order of the trial court, I dismiss this petition and the application in limine.
(SUNIL GAUR)
JUDGE
FEBRUARY 01, 2013 vn