IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1959/2016 BETWEEN:
1. SRI BHARGAVA DASGUPTA AGED ABOUT 48 YEARS S/O. ANSHUMAN DASGUPTA MANAGING DIRECTOR AND CHIEF EXECUTIVE OFFICER ICICI LOMBARD GENERAL INSURANCE COMPANY ZENITH HOUSE KESHAVRAO KHADE MARG OPP: RACE COURSE, MAHALAXMI MUMBAI- 400 034 2. DR.JITENDRA SINGH AGED ABOUT 38 YEARS S/O. TEJ BAHADUR SINGH MEDICAL OFFICER ICICI LOMBARD GENERAL INSURANCE COMPANY ZENITH HOUSE KESHAVRAO KHADE MARG OPP: RACE COURSE, MAHALAXMI MUMBAI- 400 034 3. DR.N.SATHYA MURTHY AGED ABOUT 33 YEARS S/O. NAGARAJAIAH R/AT NO.18/33, 8TH MAIN ANANDNAGAR, HOSEKEREHALLI BANASHANKARI 3RD STAGE BANGALORE- 560 085 …PETITIONERS (BY SRI C.V.NAGESH, SENIOR COUNSEL FOR SRI RAGHAVENDRA K., ADVOCATE) AND:
1. THE STATE OF KARNATAKA MAHALAKSHMI LAYOUT POLICE STATION BANGALORE- 560 086 2. SRI M.K.LAKSHMINARAYANA R/AT NO.662, 19TH CROSS 24TH MAIN, IDEAL HOMES RAJARAJESHWARINAGAR BENGALURU- 560 098 ...RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI SURENDRA.T., ADVOCATE FOR R2 [ABSENT]) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 12.02.2016 AND TO QUASH THE FURTHER PROCEEDINGS IN C.C.NO.4018/2016 PENDING ON THE FILE OF VII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120B, 418, 420, 468, 471 R/W SECTION 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri C.V.Nagesh, learned Senior Counsel appearing for petitioners and Sri Vijayakumar Majage, Additional SPP for the State. Learned Counsel for respondent No.2 is absent. Perused the records.
2. Respondent No.2 filed a private complaint under Section 200 of Cr.P.C. against five accused persons namely, (i) ICICI Lombard General Insurance Company, (ii) Mr.Bhargava Dasgupta, Managing Director and Chief Executive Officer, ICICI Lombard General Insurance Company, (iii) Mr.Sudhir Salian, Head of Retail shop and Health Insurance Functions, ICICI Lombard General Insurance Company, (iv) Dr.Jitendra, Medical Officer, ICICI Lombard General Insurance Company and (v) Dr.Krishna Prasad, Medical Officer, ICICI Lombard General Insurance Company.
3. The grievance of the complainant was that he obtained two policies for indemnifying the liability of the complainant to the creditor banker namely, Barclays Bank, PLC. As per the terms of the policies, if insured suffered any of the illness at clause 7(1) of the policy for the first time after purchase of the policy, he/she shall be eligible for total benefit of the entire loan sanctioned.
4. On 14.10.2010, complainant was admitted to Fortis Hospital, Rajajingar, due to chest pain and was examined by Dr. Sreekanth Shetty and Dr.Prakash, and was diagnosed with inferior-posterior wall MI, and identified with suffering from Acute Myocardial infraction. On 16.10.2010, he was discharged and was referred to further medical management. After discharge from the hospital, upon following due procedure, complainant approached the above accused for settling the complainant’s insurance claim. Aforesaid accused repudiated the claim on the ground that the complainant had suppressed the material fact that he was suffering from Ischemic Heard Disease (IHD) “since three years”. According to the complainant, the said rejection was made based on medical records issued by Fortis Hospital, Rajajinagar by making interpolation or insertion in the medical records to the effect that complainant was suffering from the said heart disease “since three years”.
5. In other words, grievance of the complainant is that in order to repudiate the claim, accused Nos.4 and 5 named in the private complaint manipulated the medical records and hence he sought prosecution of all the five accused persons named in the private complaint for the offences punishable under Sections 418, 420, 463, 464, 120-B r/w Section 34 of IPC.
6. The learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. Though five accused persons were named in the private complaint, FIR was registered only against Bhargava Dasgupta, Sudhir Salian, Dr.Jitendra and Dr.Krishnaprasad. Insurance Company was not arrayed as accused in the FIR. After investigation, charge sheet came to be laid against three accused persons namely, Dr.Jitendra Singh (Accused No.1), Sathyamurthy (Accused No.2) and Bhargav Das Gupta (Accused No.3) Managing Director and Chief Executive Officer, ICICI Lombard General Insurance Company.
7. Sri C.V.Nagesh, learned Senior Counsel for the petitioners at the outset would submit that the charge sheet does not contain any allegation so far as petitioners are concerned. The case of the prosecution is based on alleged interpolation and tampering of the documents maintained in the hospital. There is no material on record to show that which of the accused persons are responsible for the alleged interpolation or tampering. There is no allegation whatsoever against the petitioners. Petitioner Nos.1 and 2 namely accused Nos.3 and 1 are prosecuted merely in the capacity of Managing Director and Medical Officer of ICICI Lombard General Insurance Company. In the absence of any material to show that the petitioners herein were guilty of the commission of the above offences, prosecution of the petitioners is wholly illegal and amounts to abuse of the process of Court.
8. Sri Vijayakumar Majage, learned Additional SPP appearing for the State argued in support of the impugned action contending that the materials collected by the Investigating Officer, prima-facie make out the ingredients of the offences alleged against the petitioners and prays for dismissal of the petition.
9. Considered the submissions and scrutinized the records. The case of the prosecution is that the medical records relating to the treatment given to respondent No.2-complainant in Fortis Hospital, Rajajinagar, were manipulated by inserting the words “since three years”, so as to facilitate ICICI Lombard General Insurance Company to repudiate the legitimate claim of the complainant. But the Investigating Officer has not collected any material to show as to who committed the alleged forgery or interpolation of documents. The only material produced along with the charge sheet is FSL report. But this report does not inculpate any of the petitioners herein, as such, there is no prima-facie material to hold that the petitioners herein were responsible for interpolation or tampering of the document.
10. Undeniably, none of the petitioners were interested in repudiating the claim of respondent No.2. When the case of the prosecution is that with an intention to repudiate the claim of respondent No.2, the alleged act of forgery or falsification of documents were carried out, undeniably the Insurance Company namely, ICICI Lombard General Insurance company was the one which stood benefited from the alleged transactions. But the said company has not been made an accused in the FIR or in the charge sheet.
11. Petitioner Nos.1 and 2 who are shown as accused Nos.3 and 1 are prosecuted in the capacity of the Managing Director and Chief Executive Officer and Medical Officer of ICICI Lombard General Insurance Company. When the company itself is not arrayed as accused and there being no allegations that the aforesaid offences were committed by accused Nos.3 and 1, the prosecution of petitioner Nos.1 and 2 i.e. accused nos.3 and 1 cannot be sustained. There is nothing in the entire charge sheet to indicate that petitioner Nos.1 and 2 were instrumental in causing interpolation or tampering the above documents.
12. Likewise, there are no allegations against Dr.Satyamurthy/accused No.2. He was not even named in complaint. There is nothing on record pointing out his involvement in the alleged acts. In the said circumstances, prosecution of accused No.2-petitioner No.3 is also baseless, illegal and unsustainable.
13. It is submitted by learned Senior Counsel for the petitioners that claim made by respondent No.2 is fully satisfied and a sum of Rs.1,75,00,000/- has been paid to respondent No.2 through cheques bearing Nos.001152, 001153 and 001154 all dated 24.09.2014 of Rs.77,50,590, Rs.72,49,410 and Rs.25,00,000/- in full and final discharge of the claim made by respondent No.2.
14. In the light of the above facts and circumstances and prosecution having failed to make out prima-facie case for prosecution of petitioners for the alleged offences, the petition is allowed. The proceedings initiated against the petitioners for the offences punishable under Section 120-B, 418, 420, 468, 471 r/w Section 34 of IPC in C.C.No.4018/2016 pending on the file of VII Additional Chief Metropolitan Magistrate, Bengaluru are hereby quashed.
KSR Sd/- JUDGE