Bombay High Court
Samraj Gold Export Pvt Ltd Through Its … vs Atul Sahai(Chairman) on 17 April, 2026
2026:BHC-AS:18279
WAKLE
MANOJ
JANARDHAN MANOJ 1-WP-3626-2022 & OTHERS.DOC
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2026.04.18
17:34:19 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3626 OF 2022
1. New India Assurance Company Ltd.,
(Head Office) Through Power of Attorney
Holder, Mr. Ravindra Bodwade, Age-59
(Approx.) Regional Manager), New India
Assurance Building, MRO IV, 87th Mahatma
Gandhi Road, Fort, Mumbai - 400 001.
2. Mr. Kirti Patel (Administrative Officer (D),
Age- 60 years (Approx.), MRO IV, 12th Floor,
New India Assurance Building, 17-A,
Cooperage Road, Mumbai - 400 039.
3. Mr. Vivek Kalla,
Age- 52 years (Approx.),
Senior Divisional Manager, MRO IV, 12th
Floor, New India Assurance Building,
17-A, Cooperage Road, Mumbai - 400 039.
4. Mr. Vivek Deshpande
Age- 62 years (Approx.), MRO IV, 6th Floor,
New India Assurance Building, 17-A,
Cooperage Road, Mumbai - 400 039.
5. Mr. Ravi Reddy,
Age- 60 years (Approx.),
Deputy General Manager, MRO IV, 6th Floor,
New India Assurance Building, 17-A,
Cooperage Road, Mumbai - 400 039. ...Petitioners
Versus
1. Samraj Gold Exports Pvt. Ltd.
(One Star Export House), 907, Jewel World,
9th Floor, Cotton Exchange, 175 Kalbadevi,
Zaveri Bazar, Mumbai- 400 002.
Through its Director Mr. Rakesh Samanta.
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2. The State Maharashtra
To be served through the Public
Prosecutor High Court Bombay. ...Respondents
WITH
CRIMINAL WRIT PETITION NO.6246 OF 2024
Shri Kaushal Madanlal Kishore
Age-57 years, adult Indian Inhabitant
Having office at 920, 9th Floor, A-wing,
Corporate Avenue, Sonawala Road,
Goregaon (East), Mumbai- 400 063. ...Petitioner
Versus
1. Samraj Gold Exports Pvt. Ltd.
(One Star Export House), being
represented through Shri Rakesh Samanta
907, Jewel World, 9th Floor, Cotton
Exchange, 175 Kalbadevi, Zaveri Bazar,
Mumbai -400 002.
2. The State Maharashtra
(Through the Office of the Public Prosecutor) ...Respondents
WITH
CRIMINAL WRIT PETITION NO.525 OF 2023
Samraj Gold Exports Pvt. Ltd.
having its registered address 907, Jewel
World, 9th Floor, Cotton Exchange, 175
Kalbadevi, Zaveri Bazar, Mumbai- 400 002.
Through its Managing Director
Mr. Rakesh Rabindra Samanta.
Age - 38 years, Occ- Business
(M.D. Samraj Gold Exp.Pvt.Ltd.)
R/o. Flat No.702, 7th floor,
Shatrunjay Tower CHS, MMGS Marg,
Naigaon, Dadar (E), Mumbai- 400014. ...Petitioner
Versus
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1. Atul Sahai (Chairman)
New India Assurance Building
Head Office- New India Assurance Building
MRO IV, 87th Mahatma Gandhi Road,
Fort, Mumbai- 400001.
2. Mrs. J. Jayanti
General Manager Misc. Insurance.
New India Assurance Building
MRO IV, 87th Mahatma Gandhi Road,
Fort, Mumbai- 400001.
3. Mrs. Nirmala Shetty
Head of Claim Hub MRO IV,
13th Floor, New India Building
Cooperage Road, Mumbai-39
4. The State of Maharashtra,
Through (Sr. Police Inspector
L.T. Marg Police Station, Mumbai) ...Respondents
Mr. Surel Shah, Sr. Advocate a/w Mr. Vishnudutt Mishra &
Mr. Ashish U. Mishra, for the Petitioners in Cri.WP/3626/2022 and
for Respondent Nos.1 to 3 in Cri.WP/525/2023.
Mr. Kripashankar Pandey a/w Mr. Meet Gandhi, for the Petitioner in
Cri.WP/6246/2024.
Mr. Gauraj Shah a/w Mr. SK Atique Ur Rehman i/by Mr. M.M.
Chaudhary, for the Petitioner in Cri.WP/525/2023.
Mr. Aseem Naphade a/w Mr. SK Atique Ur Rehman Shaikh i/by
Mr. M. M. Chaudhary, for the Respondent in Cri.WP/3626/2022 and
Cri.WP/6246/2024.
Ms. Prajakta P. Shinde, APP for the Respondent-State.
Mr. Chintala Nagasai, (through V.C.), Officer of New India Assurance
Co. Ltd., present.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 31st JANUARY, 2026
PRONOUNCED ON : 17th APRIL, 2026
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JUDGMENT:
. These Petitions filed under Article 227 of the Constitution of
India and under Section 482 of the Code of Criminal Procedure
are being decided by this common Judgment as the parties and
the questions involved in the Petitions are same. Additionally, the
Petitions are questioning two Orders passed in two separate
Criminal Revision Applications but both Revisions impugning the
same Order of issue process dated 07.04.2022, passed by the 28 th
Court of Metropolitan Magistrate, at Esplanade, Mumbai in a
complaint case No.2800098/SW/2020 filed by M/s Samraj Gold
Exports Pvt. Ltd. (“the complainant”) against nine accused.
1.1 Petitioner in Writ Petition No.523/2023 is the original
complainant and Respondent Nos.1, 2 and 3 therein are the
original accused Nos.2, 5 & 7. Petitioners in Writ Petition
No.3626/2022 are the original accused Nos.1, 3, 4, 6 and 9.
Petitioner in Writ Petition No.6246/2024 is the original accused
No.8. (Hereinafter parties are being referred to by their original
status in the complaint).
2. Writ Petition No.3626/2022 has been directed against the
Order dated 11.08.2022 passed by the learned Additional City Civil
and Sessions Judge, Greater Mumbai in Criminal Revision
Application No.488 of 2022. Thereby, the revisional Court
dismissed that revision application to the extent of A-1, A-3, A-4,
A-6 and A-9 upholding against them the said Order of issue
process for the alleged offence punishable under Sections 406,
467, 468, 471, and 34 of I.P.C. Writ Petition No.523/2023 has
been filed by the complainant challenging the same Order dated
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11.08.2022, thereby, the revisional Court partly allowed that
revision application to the extent of A-2, A-5 and A-7 setting aside
the said Order of issue process against them.
2.1 Writ Petition No.6246/2024 has been filed by A-8
impugning an Order dated 05.04.2023, in Criminal Revision
Application No.639 of 2022, passed by another learned Additional
Sessions Judge, City Civil and Sessions Court Greater Bombay,
thereby, said revision application filed by A-8 was dismissed
upholding against him the same impugned Order of issue process
dated 07.04.2022.
3. Heard Mr. Shah, learned Senior counsel appearing for A-1 to
A-7 and A-9, Mr. Pandey, learned counsel appearing for A-8 and
Mr. Naphade with Mr.Rehman Shaikh learned counsel appearing
for the complainant and Ms. Shinde, the learned APP appearing
for the Respondent-State. Perused the entire record.
4. The complainant’s case is that it deals in gold business. Mr.
Rakesh Samanta has been the director of the complainant.
Between 2001 and till 2019, the complainant used to insure its
goods with A-1. The A-2 was Chairman of A-1. The A-3 was an
Administrative Officer, MRO-IV of A-1. The A-4 was Divisional
Manager of MRO-IV of A-1. The A-5 was General Manager and the
A-6 was Divisional Head of A-1. The A-7 was Head of the claim
department and A-9 was the Dy. General Manger of A-1. Rakesh
Samanta knew the accused.
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against the accused persons alleging an offence under Sections
467, 468, 469, 471 and 406 of I.P.C. In the complaint it was stated
that on 13.05.2019 the Director-Rakesh Samanta had filed an
F.I.R. alleging that the complainant had entrusted 20.7 kgs. of
gold to Anil Maji and his associates to make jewellery/ornaments.
However, Anil Maji and his associates misappropriate that gold by
cheating. Said gold was insured with A-1 (vide policy of insurance
dated 14.01.2019). After lodging the F.I.R., the complainant filed
the insurance claim towards the lost gold property.
4.2 It was alleged that in-spite of accepting the necessary
premium and issuing the policy of insurance, the accused persons
avoided to process and pay the insurance claim finding faults with
the claim Application filed by complainant. For that purpose,
appointment of surveyor was delayed, the record of the insurance
policy was tampered with, false documents of insurance policy
were prepared and even the original sum insured/risk covered was
reduced by the accused persons behind the complainant’s back
and without his consent only to claim that the information
provided by the complainant was faulty and misrepresenting.
4.3 It is alleged that, in his Survey Report dated 01.10.2019, at
one place, the A-8 has deliberately, with mala fide intention and
ulterior motive wrongly recorded that name of the Anil Maji was
not mentioned (in the insurance proposal/policy as an employee
of the complainant). However, at the another place, the A-8
mentions that since April 2017 Anil Maji was working with the
complainant as goldsmith (Karigar). Further, A-8 stated that Anil
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Maji was appointed in the year 2019. It is alleged that, finally, A-8
recommended to reject the insurance claim at the instance of the
other co-accused.
4.4 Thus, the accused persons committed the alleged offence
punishable under Sections 467, 468, 469, 471 and 406 of I.P.C. It
was alleged that the said crime has been committed by the accused
persons by hatching a criminal conspiracy and in furtherance of
their common intention. The complainant reported about the
aforesaid crime to L.T. Marg Police Station as well as the DCP CID
Bombay and requested for action in accordance with law. Said
police, however, refused to register an F.I.R., citing a reason that,
it was a civil dispute/transaction vide letter dated 29.10.2020.
Therefore, the complainant filed the said complaint under Section
156 (3) of Cr.P.C.
5. By Order dated 23.12.2020 the complaint was posted for
examination of the complainant and his witnesses under Section
200 of Cr.P.C. On 06.04.2021, the learned Advocate for the
complainant provided a typed verification statement of the
complainant. The learned Magistrate verified the complaint
through Rakesh Samanta and obtained his signature on the typed
verification statement. Further, the learned Magistrate passed an
Order for investigation under Section 202 of Cr.P.C. Accordingly,
the matter was referred to L.T. Marg Police Station. Thereafter,
Mr.Vivek Bhosale, Police Inspector (Administration) and
Investigation Officer, L.T. Marg Police Station submitted his
report dated 22.12.2021 before the learned Magistrate. Therein,
Mr. Bhosale, I.O. concluded that, the offence punishable under
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Sections 406, 420, 465, 468, 471 and 120B of I.P.C. has been made
out against the accused persons.
6. In the backdrop, the learned Magistrate passed the
impugned Order to issue process which reads :-
“1) Perused complaint and verification of complainant
filed u/Sec.200 of Cr.P.C. Heard Ld. Advocate for
complainant. Record shows that complaint has been
made alleging that accused has committed an offence
punishable under Section 406, 467, 468, 469, 471, 34 of
the Indian Penal Code.
2) From the available evidence on record at this
stage, I found prima facie involvement of accused in the
alleged offence and thereby it prima facie it seems that
accused have committed offences punishable u/Sec.406,
467, 468, 471 r/w 34 of the Indian Penal Code. Thus
being there are sufficient grounds to proceed against
accused, I pass following order.
ORDER
1. Issue process against accused for the offence
punishable under Sections 406, 467, 468, 471 r/w 34
of the Indian Penal Code vide section 204 of the
Code Of Criminal Procedure.
2. The complaint is dismissed against Accused
U/sec. 469 of the Indian Penal Code vide section 203
of the Code of Criminal Procedure.”
7. Aggrieved by the Order of issue process, the A-1 to A-7 and
A-9 filed the Criminal Revision Application Nos.488/2022 and
the A-8 filed the Criminal Revision Application No.639/2022. The
Revisions were decided by different learned judges as noted above.
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Revision Application No.488/2022, the learned Additional
Sessions Judge observed that since beginning, the complainant
was in contact with A-3 Kriti Patel. As per the instructions of A-3,
from time to time, the complainant provided necessary documents
to A-3, paid the premium amount and completed the process of
the insurance policy including addition of the insurance of Rs.2.5
crores for transit and Rs.2.5 crores for fidelity totaling to Rs.5
crores. Thereafter, Anil Maji cheated the complainant. Therefore,
FIR was lodged by complainant with L.T. Marg Police Station.
Further, the complainant filed the insurance claim. However, the
complainant did not get satisfactory response from the accused
side. This fact is also confirmed by the police report under Section
202 of Cr.P.C. Therefore, the learned Additional Sessions Judge
observed that, the accused persons had received the premium for
the insurance policy of Rs.7 crores but they reduced the policy
risk. It was observed that said allegations were revolving around
A-3, A-4, A-6 and A-9.
Insofar as the allegations against A-7 Nirmala Shetty are
concerned, the learned Additional Sessions Judge observed that, it
was pointed out to A-7 to appoint a surveyor within 72 hours from
filing of the insurance claim, but in collusion with other accused,
A-7 did not appoint the surveyor. As alleged, A-8 had submitted a
false survey report in spite of availability of necessary documents.
However, the learned Judge observed that, said allegation does
not show A-7’s complicity in the commission of the alleged
offence. Ultimately, the learned Judge observed that, there is no
sufficient material against A-2, A-5 and A-7. However, the learned
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Judge observed that, there is a prima facie case against the A-1, A-
3, A-4, A-6 and A-9. As a result, the learned Judge dismissed the
Criminal Revision Application No.488 of 2022 in respect of A-1,
A-3, A-4, A-6 and A-9, but, partly allowed the same in respect of
A-2, A-5 and A-7.
7.2 While dismissing the A-8’s Criminal Revision Application
No.639 of 2022 by the impugned Order dated 05.04.2023, the
learned Additional Sessions Judge observed and held that specific
allegations have been made against A-8 that he has acted
mischievously along with the other accused persons and his
insurance policy was deliberately tampered. The officials of A-1
have committed conspiracy with surveyor to hide their fraud,
negligence and manipulated the policy and tampered with
evidence, to reject the insurance claim by the complainant. From
the police report it appears that A-8 has submitted his report to
refuse the claim of the complainant, in respect of the Insurance
policy no.13100046190782000001. But there are no documents
whether the same policy was in existence and the A-1 has not given
any explanation or the documents about the said policy. On the
other hand, the complainant is claiming insurance on the basis of
the policy no.131000461800000032, but, the A-8 has submitted
the report to reject the claim on the basis of the insurance policy
no.13100046190782000001. There are allegations against A-8
that he has done the conspiracy with the other office bearers of the
insurance company. So, considering the nature of the allegations,
the parties are required to lead the evidence in support of their
allegations. The prima facie allegations show the involvement of
A-8. There is no explanation about certain facts. So, considering
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the same, there is no substance in the contentions of A-8 that
there is no prima facie case against him to issue process and
therefore the said Order requires to be set aside.
8. Mr. Shah, the learned Senior Counsel for A-1 to A-7 and A-9
submitted that, earlier, the complainant had filed a similar
complaint with the same police station alleging the same offence
against the accused persons. Said complainant resulted in filing of
a closure report. Because, there was no evidence showing that the
accused persons had committed the alleged offence. He submitted
that, the allegations made in the instant complaint do not
constitute the alleged offences. No document is produced by the
complainant to demonstrate the alleged fraud played by the
accused persons. Mr. Shah submitted that the complaint is filed
out of vengeance for the insurance company did not approve the
insurance claim as desired by the complainant. He submitted that
considering the matter as a whole, the dispute involved in this case
is nothing but about the deficiency in service on the part of A-1. In
other words, this is a case of civil dispute but certainly not of
criminal nature. However, the complainant gave this matter a
colour of crime with an ulterior motive and as an arm twisting
exercise to get the civil liability fulfilled as wanted by him. The
complainant has suppressed the fact of filing the Consumer
Complaint by him. This conduct supports the contention of the
accused persons that this is a civil dispute. Mr. Shah submitted
that the complainant has misled the Investigating Officer in
respect of the document of insurance policy. However, the learned
Sessions Judge failed to consider the aforesaid facts. Mr. Shah
vehemently submitted that, the contents of the complaint in
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question were not verified through Rakesh Samanta by putting
him in the witness box. Said contents were verified with the help
of a ready made/typed verification statement produced by the
learned Advocate for the complainant. This practice is illegal. The
learned Additional Sessions Judge did not consider this illegality.
Therefore, the impugned Order dated 11.08.2022 thereby
dismissing the Criminal Revision Application No.488 of 2022 to
the extent of A-1, A-3, A-4, A-6 and A-9 is illegal and it is liable to
be set aside. However, Mr. Shah has supported the impugned
Order dated 11.08.2022 stating that it is lawful to the extent it
exonerated A-2, A-5 and A-7 from the alleged offence.
To buttress these submissions Mr. Shah, learned Senior
Counsel has relied upon following reported cases : i) Deepak Gaba
v. State of U.P.,reported in (2023) 3 SCC 423 and ii) Usha
Chakraborty v. State of W.B., reported in AIR 2023 Supreme
Court 688.
9. Mr. Pandey, the learned counsel for A-8 submitted that the
A-8 had no role in issuance of the insurance policy in question nor
the revised policy. A-8 came into picture only after he was
appointed by A-1 to survey into the matter and ascertain the loss.
Neither in the complaint nor in the verification statement, the
relationship of A-8 with other accused persons has been set out to
demonstrate his complicity in the alleged offence.
Mr. Pandey submitted that, the Survey Report was based on
the documents provided by the office of A-1. In the Survey Report,
A-8 has specifically referred to both the policies including the risk
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covered in the original policy dated 14.01.2019 and the reduced
risk covered in the subsequent policy dated 03.05.2019. While
finalising the Survey Report, A-8 has observed that, since the
document was in dispute, he had considered that document from
the side of Insured as well as the Insurer. However, A-8 has not
based the Survey Report on the subsequent policy. Besides the
controversy as to whether Anil Maji, the goldsmith was included in
the policy proposal as the employee of the complainant or not, A-8
has independently considered the fact of consecutive delivery of
raw gold to Anil Maji for making the fine ornaments but without
fulfilling the job of the earlier consignment. This constituted
complete negligence on the part of the complainant. Therefore, on
merits also the claim was proposed to be repudiated.
Mr. Pandey pointed that, as provided by Regulation 12 of
the Insurance Regulatory And Development Authority of India
(Insurance Surveyors and Loss Assessors) Regulations, 2015,
there has been an option for appointment of the Surveyor and
Loss Assessor either at the instance of the Insurer or the Insured.
The complainant himself could have appointed the Surveyor
invoking said Regulation 12, however, he did not. Therefore, there
is no substance in the allegations about the delay in appointment
of the Surveyor/A-8 and that A-8 has issued the Survey Report at
the instance of other accused.
Mr. Pandey highlighted that there are no averments and
allegations sufficient to constitute the alleged offence against A-8.
There is no material to attract the offence of Section 406. No
process has been issued under Section 420 of I.P.C. There is no
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allegation of making false document either in the complaint or in
the verification. No process has been issued for the offence of
Section 465 of I.P.C. Therefore, the question of issuing process for
the aggravate offence of forgery, i.e., under Section 467 of I.P.C.
does not arise. The verification statement was recorded but
mechanically and without complying with Section 200 of Cr.P.C.
The Order of the issue process does not record the reasons to
conclude that the alleged offence was made out against A-8 to
issue the process against him. The present complaint is nothing
but the pressurizing tactic by the complainant to compel the
accused persons to pay him the claimed amount or to settle the
dispute. As such, the impugned Order is illegal.
Mr. Pandey has relied on following cases to support his case.
i) Lalankumar Singh v. State of Maharashtra, reported in 2022
SCC OnLine SC 1383, ii) Manju Gupta v. M.S. Paintal, reported in
(1982) 2 SCC 412, iii) Amarnath Baijnath Gupta v. Mohini
Organics Pvt. Ltd., reported in 2008 SCC OnLine Bom 1194, iv)
Chirag Sen v. State of Karnataka reported in 2025 SCC OnLine SC
1518 and v) Mohd. Ibrahim v. State of Bihar reported in (2009) 8
SCC 751
10. Mr. Naphade and Mr. Rehman Shaikh both the learned
counsel appearing for the complainant have pointed the list of the
dates with events and submitted that despite the insurance policy
was purchased disclosing proper information in the insurance
proposal and on payment of the required premium, the accused
party reduced the insurance risk ignoring the proposal to increase
the risk. This the accused persons did on purpose, i.e., to deny the
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legitimate insurance claim of the complainant. For that end the
accused misappropriated the insurance premium paid by the
complainant and also prepared false documents and valuable
security. It is submitted that all the necessary facts have been
stated in the complaint which clearly made out the case of the
offence alleged against all the accused. Said allegations were
supported with the documents enclosed with the complaint.
Whatsoever shortcoming is pointed in respect of the verification of
the complaint, the same is removed by the investigation report
filed by the police under Section 202 of Cr.P.C. However, the
learned Additional Sessions Judge set aside the issue process
Order against A-2, A-5 and A-7, which is erroneous. Therefore, to
that extent the impugned Order dated 11.08.2022 is illegal and it
may be quashed and set aside. Accordingly, the Order of issue
process be restored as against the said accused.
To support these submissions, Mr. Naphade has cited the
following decisions. i) Nirman Raltors & Developers Ltd. v.
Amrutlal Premji Patel reported in 2019 SCC OnLine Bom 2378, ii)
Kamal Shivaji Pokarnekar v. State of Maharashtra reported in
(2019) 14 SCC 350, iii) Sm. Madhu Loyalka and Ors v. The State of
Jharkhand and Ors., reported in 2014 (3) J.L.J.R.661 and iv)
Narasimha Uppal & Anr. v. The State Karnataka (Through its Sub
Inspector of Police) & Others, Passed in Criminal Petition
No.200629/2017 C/W Criminal Revision Petition No.
200071/2018, Order dated 21st Februrary, 2022.
11. I have considered the rival submissions, perused the
impugned Orders and gone through the reported cases cited by the
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learned counsel appearing for the parties. It is trite that each case
shall be decided on the basis of its own facts and circumstances.
12. On perusal of the record it revealed that, since 2001, the
complainant used to purchase the insurance from A-1. In the year
2019, the policy No.13100046160700000359 was renewed as
policy No.13100046180700000032 w.e.f. 14.01.2019. The sum
insured under Section-I was Rs.7.05 crores and under Section-II
was Rs.2.50 crores. The policy documents and the relevant emails
show that Anil Maji was goldsmith/ Karigar of the complainant
and shown in the proposal form and the policy document of 2019,
in the list of “sub-contractor/goldsmith/employees/sundry-
debtors”. There was correction in the policy as the names of all the
nine employees were prefixed with the title “Mrs” which mistake
was latter on removed with the intervention of the A-3, Kirti Patel.
13. On 5th and 22nd February 2019, the complainant had
requested the A-1 and A-3 to add the risk cover of Rs.2.5 crores
and Rs.5 crores towards “Logistic & Angadia” and “Fidelity”
respectively. On 25.02.2019, a Yes Bank cheque with limit of
Rs.1,25,000/- was sent to the MRO-IV office of A-1 for enhancing
the insurance cover as aforesaid. However, it is not the case of the
accused that said cheque was not encashed.
14. Between 18.04.2019 to 4.05.2019 the complainant handed
over the gold worth Rs.7 crores to Anil Maji for the purpose of
making fine jewelry/ornaments. As alleged, Anil Maji and his
associates misappropriated that gold and caused wrongful loss to
the complainant. Therefore, the complainant filed a complaint
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with the Crime Branch and EOW on 13.05.2019 and with L.T Marg
Police station on 14.05.2019. Consequently, an FIR bearing C.R.
No.171/2019 was registered on 28.05.2019 under Sections 409
and 120B I.P.C. However, the police could not recover the gold.
Meanwhile, on 11.05.2019, the complainant informed the A-3, Mr
Kirti Patel about misappropriation of the gold. The complainant
then filed the insurance claim vide email dated 24.06.2019. He
also supplied the necessary documents and information to
facilitate the survey for assessment of the loss.
15. Record indicates that, after lodging of the insurance claim,
the A-1 has not appointed the surveyor with promptitude. The
insurance risk cover was reduced by Rs.3 crore altering its original
Sections I & II but without complainant’s consent and informing
him that change in the advance. The accused side did not show
any justifiable reason for reducing the risk cover. This was
completely in contrast to the complainant’s request to add the
extra risk in the insurance policy which request was made much
before the gold was misappropriated. It is only when the
complainant followed up with the office of A-1, certain other
accused and complained to the IRDA, “Nil Endorsement Policy
Document” was issued on 31.01.2020. However, the accused side
has not explained that if this policy document was issued on
31.01.2020, then why, in this policy document the period of
insurance was shown from 14.01.2019 to 13.01.2020 and why it
was to be effective from the backdate, i.e., 12.01.2020.
16. At no point of time, the accused side objected the complaint
for declaring Anil Maji as his goldsmith/Karigar nor it is explained
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as to why Anil Maji’s name was maintained on the record for the
purpose of the risk cover. The Survey Report filed by A-8
concluded that the complainant has suffered the gross loss of the
gold worth Rs.7.61 crores. However, the A-8 recommended to
reject his claim giving reasons that, Anil Maji’s name is not
appearing in the employees’ list attached with the policy; that,
there exist no relationship as “Employer-Employee” between the
two; and that, negligent business approach of the complainant
while dealing with Anil Maji. Nevertheless, it is an admitted fact
that the terms and conditions of the insurance policy in question
were never provided to the complainant alongwith the original
policy document. That apart, as stated in the police report, after
repudiating the claim, the accused representing the office of A-1
took the stance that the repudiation was at the instance of their
high authority.
17. The complainant has specifically alleged that the accused
persons in furtherance of their common intention fabricated the
insurance policy and related documents for the purpose of denying
his rightful insurance claim. The original policy document appears
to have been digitally signed by Mr. Srinivasan Vaideswaran.
However, it is not the case of the accused side that the alleged false
policy document thereby reducing the risk cover was also digitally
signed by Mr. Srinivasan Vaideswaran himself. Both the policy
documents are falling within the definition of “valuable security”
stated in I.P.C. Because said documents are sufficient to create,
restrict and extinguish necessary legal right in relation to the
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criminal conspiracy of the accused persons.
18. However, it is material to note that the verification
statement of the complainant was not recorded by the learned
Magistrate but said statement was provided to the Court by the
learned Advocate for the complainant and the same statement the
learned Magistrate took on record. This fact is distinctly recorded
in the Roznama of the complaint which is not disputed by the
complainant. Therefore, it is apparent that the verification
statement was not recorded in accordance with the provisions of
Section 200 of Cr.P.C.
19. In case of Amarnath Baijnath Gupta & Anr . (supra), this
Court considered the decision in Nirmaljit Singh Hoon v. State of
W.B., reported in (1973) 3 SCC 753. Therein, in paragraph 22 it is
observed and held that, “The object of such examination is to
ascertain whether there is a prima facie case against the person
accused of the offence in the complaint, and to prevent the issue of
process on a complaint which is either false or vexatious or
intended only to harass such a person. Such examination is
provided therefore to find out whether there is or not sufficient
ground for proceeding.” Reference was also made to the decision
in Captain Lance Irwin Lobo v. Ismail D’Souza @ Angelo Ismail de
Souzla and another, reported in 2007 All. M. R. (Cri.) 623. Therein
in paragraph 16 it is observed and held that :
“16. … The recording of the statement on oath of the
complainant under Section 200 Cr.P.C. is not an
empty formality. Commonly it is nicknamed asPage 19 of 28
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MANOJ 1-WP-3626-2022 & OTHERS.DOCverification. To verify means to establish the truth. In
other words, verification is done in order to ascertain
as to what is pleaded by the complainant is true or not.
It is with a view to separate chaff from the grain as
many a times complaints do contain unfounded
allegations and it is the duty of the Court to ensure
that what is stated in the complaint is also stated by
the complainant on oath and it is only then that based
on such statement that process can be issued. The
corollary of this would be that unless offences are
disclosed from the statement on oath, no process can
be issued only based on averments in the complaint.
The complainant is bound to make a statement on
oath as to how the offence was committed and how the
accused persons are responsible therefore. After the
statement on oath is recorded, a Magistrate is required
to apply his judicial mind to the facts of the case and
the law applicable thereto and find out what offence/s
is made out, notwithstanding that the other party at
that stage is unrepresented. As observed by the Apex
Court time and again, summoning of an accused in a
criminal case is a serious matter and criminal law
cannot be set into motion as a matter of course. A
Magistrate is required to examine the nature of the
allegations made in the complaint and the evidence
both oral and documentary to see if it is sufficient for
the complainant to succeed in bringing charge home to
the accused. In other words, the examination of the
complainant on oath is for the purpose of ascertaining
whether a prima facie case is made out against the
accused to issue process so that the issue of process is
prevented on a complaint which is either false or
vexatious or intended only to harass.”
In view of the aforesaid observations, in case of Amarnath
Baijnath Gupta & Anr. (supra) in paragraph 24 this Court has held
that, “On plain reading of Section 200 of the said Code it appears
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that it is the obligation of the Magistrate to examine the
complainant which means that the learned Magistrate is obliged to
put questions to the complainant for eliciting the truth from him.
The said provision enjoins a judicial duty to be performed by the
Judicial Magistrate which requires an application of judicial mind.
… Generally, the complaints are drafted by the lawyers as per the
instructions of the complainants. Thus, a complaint is the
translated version or a formulated version made by the advocate
on the instructions received from the complainant. Therefore, the
examination of the complainant under section 200 by the learned
Magistrate is very important. During the course of such
examination the complainant tells the truth. In fact, the object of
the learned Magistrate recording such statement is of eliciting the
truth from the complainant. Therefore, while recording a
statement under section 200 of the said Code in such a complaint,
the learned Magistrate cannot merely reproduce the data in a pre-
conceived format. He must give an opportunity to the complainant
to state and describe the role played by the accused especially
when directors/officers of a company are sought to be held
vicariously liable. The object of examination is that a true version
on oath of the complainant is brought on record.” In paragraph 26
it is observed that, “… The learned Magistrate has to perform his
duty under section 200 of the said Code by putting questions to
the complainant so that the complainant can state before the
Court as to how the accused named in the complaint are liable.”
20. The examination of the complainant and his witness under
Section 200 of Cr.P.C. is not a mere formality but said
examination is to be done intelligently and in such a manner as to
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enable the Magistrate to determine whether there is a prima facie
sufficient ground for proceeding. Thus, in such a determination
Section 200 of Cr.P.C. plays a very crucial role.
21. Now turning to the case in hand. In the instant case, the
careful reading of the verification statement of the complainant
clearly show that it was prepared/drafted by the learned Advocate
for the complainant. However, neither in the Roznama of the
complaint case nor in the complaint or on the verification
statement the learned Magistrate has endorsed that he questioned
the complainant as required under Section 200 of Cr.P.C. and
confirmed that verification statement from his answers. On the
contrary, on the said verification statement the learned Magistrate
merely endorsed as “Before me” and signed below it. Thus, it is
evident that the learned Magistrate has not performed his duty as
ruled by Section 200 of Cr.P.C. but mechanically. Therefore, the
verification is not acceptable in law because it cannot be taken aid
of to ascertain the truth or otherwise about the allegations made in
the subject complaint.
22. Now coming to the impugned Order of issue process. Bare
perusal of said Order show that not a single reason is recorded by
the learned Magistrate as to how the alleged offence punishable
under Sections 406, 420, 465, 468, 471 and 120B of I.P.C. has
been made out and against which accused. In this regard reference
is required to be made to the cited decision in Lalankumar Singh
and Others (Supra), therein in paragraph 28 the Hon’ble Supreme
Court has observed and held that, “The order of issuance of
process is not an empty formality. The Magistrate is required to
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apply his mind as to whether sufficient ground for proceeding
exists in the case or not. The formation of such an opinion is
required to be stated in the order itself. The order is liable to be set
aside if no reasons are given therein while coming to the
conclusion that there is a prima facie case against the accused. No
doubt, that the order need not contain detailed reasons. …”.
In this context, a reference was made to the decision in Sunil
Bharti Mittal v. CBI, reported in (2015) 4 SCC 609. Therein in
paragraph 53 it is held that, ” … the words “sufficient grounds for
proceeding” appearing in the Section are of immense importance.
It is these words which amply suggest that an opinion is to be
formed only after due application of mind that there is sufficient
basis for proceeding against the said accused and formation of
such an opinion is to be stated in the order itself. The order is
liable to be set aside if no reason is given therein while coming to
the conclusion that there is prima facie case against accused,
though the order need not contain detailed reasons. A fortiori, the
order would be bad in law if the reason given turns out to be ex
facie incorrect.”
(emphasis supplied)
In case of State of Orissa vs. Dhaniram Luhar, reported in
2004 (5) SCC 568, in paragraph 8, the Apex Court has observed
that :
“Even in respect of administrative orders Lord
Denning M.R. in Breen v. Amalgamated Engineering
Union (1971 (1) All E.R. 1148) observed “The giving ofPage 23 of 28
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MANOJ 1-WP-3626-2022 & OTHERS.DOCreasons is one of the fundamentals of good
administration”. In Alexander Machinery (Dudley)
Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was
observed: “Failure to give reasons amounts to denial
of justice”. Reasons are live links between the mind of
the decision-taker to the controversy in question and
the decision or conclusion arrived at”. Reasons
substitute subjectivity by objectivity. The emphasis on
recording reasons is that if the decision reveals the
“inscrutable face of the sphinx”, it can, by its silence,
render it virtually impossible for the Courts to
perform their appellate function or exercise the power
of judicial review in adjudging the validity of the
decision. Right to reason is an indispensable part of a
sound judicial system; reasons at least sufficient to
indicate an application of mind to the matter before
Court. Another rationale is that the affected party can
know why the decision has gone against him. One of
the salutary requirements of natural justice is spelling
out reasons for the order made; in other words, a
speaking out. The “inscrutable face of a sphinx” is
ordinarily incongruous with a judicial or quasi-
judicial performance.”
As held in Pepsi Foods Ltd. v. Judicial Magistrate, reported
in 1998 (5) SCC 749, summoning of an accused in a criminal case
is a serious matter. Criminal law cannot be set into motion as a
matter of course. The order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of
the case and the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the evidence both
oral and documentary in support thereof and would that be
sufficient for the complainant to succeed in bringing charge home
to the accused. In the case in hand, this enunciation has been
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overlooked by the learned Magistrate while passing the impugned
Order of issue process against the accused persons.
In view of above discussion, the impugned Order of issue
process is liable to be set aside. The learned Additional Sessions
Judges who have decided the said Criminal Revisions Applications
also failed to consider that the learned Magistrate has not fulfilled
his statutory obligations while recording the verification statement
and the Order of issue process. As a corollary, the impugned
Orders dated 11.08.2022 and 05.04.2023 in Criminal Revision
Application No.488 of 2022 and No.639 of 2022 respectively are
liable to be quashed and set aside. Nevertheless, while exercising
the power under Article 227 of the Constitution of India and under
section 482 of the said Code, this Court will have to ensure that
the complainant should not suffer due to that error on the part of
learned Magistrate and the learned Judges.
23. In the case of Mona Panwar v. High Court of Judicature of
Allahabad reported in (2011) 3 SCC 496, the Hon’ble Supreme
Court held that, taking cognizance does not involve any formal
action or indeed action of any kind but occurs as soon as a
Magistrate applies his mind to the suspected commission of an
offence. Cognizance, therefore, takes place at a point when a
Magistrate first takes judicial notice of an offence. This is the
position whether the Magistrate takes cognizance of an offence on
a complaint or on a police report or upon information of a person
other than a police officer. Before the Magistrate can be said to
have taken cognizance of an offence under Section 190(1) (b) of
the Code, he must have not only applied his mind to the contents
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of the complaint presented before him, but must have done so for
the purpose of proceeding under Section 200 and the provisions
following that Section. Taking cognizance is a different thing from
initiation of the proceedings.
(emphasis supplied)
In Vinubhai Haribhai Malaviya v. The State of Gujarat ,
reported in (2019) 17 SCC 1, the Hon’ble Supreme Court has
referred Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai
Patel reported in (2017) 4 SCC 177 wherein in para 51 it was
observed that, the direction for investigation by the Magistrate
under Section 202, while dealing with a complaint, though is at a
post-cognizance stage, it is in the nature of an inquiry to derive
satisfaction as to whether the proceedings initiated ought to be
furthered or not.
24. In the instant case in hand, the complaint was filed on
02.12.2020. When the complaint came before the learned
Magistrate on 05.12.2020, he had ordered to put up the complaint
for consideration. The Roznama dated 22.03.2021 recorded that
the complaint was adjourned to date 06.04.2021 for recording
verification statement. Thus, the learned Magistrate had already
applied his mind to the contents of the complaint and thus, taken
it cognizance, therefore, he had adjourned the complaint for
verification statement. Considering the aforesaid reported cases,
the stage of recording the verification statement and the stage for
passing direction for the investigation under Section 202 of
Cr.P.C. occurring post taking cognizance. The purpose of both the
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action is the same. However, herein, there is no irregularity in
respect of the order for investigation under Section 202 of Cr.P.C.
It is not the case of the complainant that said investigation done
by the police is faulty. Nor the accused party pointed anything
erroneous about that investigation.
Therefore, although, the impugned Order of issue process
will have to be set aside, the complaint will have to be remanded
and relegated to the stage of recording statement under Section
200 of Cr.P.C with a direction to the learned Magistrate to record
the statement under Section 200 of Cr.P.C afresh in accordance
with law and to pass an appropriate Order on the complaint, in the
facts and in view of the applicable law, I am of the view that there
is no need to again direct for the investigation under Section 202
of Cr.P.C. which appears to have been properly done. This will
help to avoid the situation of taking advantage. Additionally, it will
prevent the police from pressing the same investigation with the
parties again.
25. In view of above discussion, Writ Petition No.3626/2022,
No.6246/2024 and No.525/2023 succeed partly. Hence, following
Order is passed:
i) The impugned Order of issue process dated
07.04.2022, passed by the 28th Court of Metropolitan
Magistrate, at Esplanade, Mumbai in complaint case
No.2800098/SW/2020, is quashed and set aside.
ii) Consequently, the impugned Order dated 11.08.2022
in Criminal Revision Application No.488/2022 and
the impugned Order dated 05.04.2023 in Criminal
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Revision Application No.639/2022 passed by the
learned Additional Sessions Judge, City Civil and
Sessions Court, Greater Mumbai are quashed and set
aside.
iii) The learned Metropolitan Magistrate, 28 th Court, at
Esplanade, Mumbai will record the statement of the
complainant under Section 200 of the Code of
Criminal Procedure, 1973 afresh in accordance with
law in the light of the observations made in this
judgment. After recording of the verification
statement, the learned Magistrate will pass
appropriate order on the complaint in accordance
with law.
iv) There is no need to direct for an investigation under
Section 202 of Cr.P.C.
v) All Petitions are partly allowed in aforesaid terms.
vi) It is made clear that the observation of this Court in
this Order are prima facie in nature.
vii) All questions on merits are kept open to be decided by
the trial Court.
(SHYAM C. CHANDAK, J.)
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