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2015 Supreme(Bom) 116
IN THE HIGH COURT OF BOMBAY AT GOA
U.V. BAKRE, J.
Dr. Vivekanand Jawali @ Vivek Jawali, Chief Cardio Vascular and Thoracic Surgeon, Fortis Hospitals Limited & Anr. – Appellants
Versus
State of Goa, through Public Prosecutor & Anr. – Respondents
Criminal Writ Petitions No. 37 of 2014 & 43 of 2014
Decided on: 10-02-2015
Advocate Appeared
For the Petitioners:Arun Bras De Sa, Advocate.
For the Respondents: D. Lawande, Additional Public Prosecutor.
For the Intervenor:S.D. Lotlikar, Senior Advocate with M. Furtado, Advocate.
Headnote:Criminal Procedure Code, 1973 - Section 204 Issuance of process. - Summoning order passed by Magistrate without recording any reason for not improper. There can be no dispute that the summoning order passed by the Magistrate cannot be faulted with only on the ground that the same is not a reasoned order. However, the Hon’ble Apex Court in the case of "Bhushan Kumar and another", 2012 All SCR 1360 has clearly held that the petition filed before the High Court under Section 482 of the Code, against the summoning order, was maintainable. In paragraph 21 of the judgment, the Apex Court has observed that the conclusion of the High Court that the petition filed under Section 482 of the Code is not maintainable cannot be accepted in view of various decisions of the Apex Court vide `Pepsi Foods Ltd. v. Judicial Magistrate’, (1998) 5 SCC 749 : 1998 All MR (Cri) 144 (SC); `Dhariwal Tobacco Products Ltd. v. State of Maharashtra’, (2009) 2 SCC 370 : 2009 All MR (Cri) 234 (SC) and `M.A.A. Annamalai v. State of Karnataka’, (2010) 8 SCC 524 : 2010 All MR (Cri) 2939 (SC). Thus, in the present case it can be said that merely on the ground that the Chief Judicial Magistrate has not given reason for issuing summons to the petitioners, the summoning order cannot be quashed but if the same cannot sustain on merits, it can be quashed and set aside. In the case of "Arvind Kejriwal and others" (supra), an appeal was filed against summoning order in a Private Criminal Case under Sections 500 and 501 of on the ground that the respondent was not aggrieved person within the meaning of Section 199(1) of Cr PC. The Hon’ble Supreme Court held that as observed in various proceedings, the accused are entitled to hearing before Metropolitan Magistrate at the stage of framing of notice under Section 251 of the Code in all the summons cases arising out of the complaints. The Magistrate has to frame notice under Section 251 of the Code only upon satisfaction that prima facie case was made out against the accused. However, if the Magistrate does not find prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. The Hon’ble Supreme Court, therefore, permitted the petitioners to urge pleas raised in the said petition before Metropolitan Magistrate at the stage of framing of notice under Section 251 of Cr PC The Apex Court, in the above case has not held that petition under Section 482 of Cr PC is not maintainable against summoning order in warrant case.
Criminal Procedure Code, 1973 - Section 482 Indian Penal Code, 1860, Sections 120-B, 403 and 420 Quashing of proceedings. - Complaint, containing allegations against petitioners prima facie not disclosing any offence, liable to be quashed. It can certainly be said that merely because there is an opportunity for both the petitioners to apply for discharge or to place their case during arguments before charge, it does not mean that they should be forced to do so, when at this stage itself, it is evident that there is absolutely no material as against the petitioners. The allegation made in the complaint and other material on record, even if given face value and taken to be correct in its entirety, do not disclose any offence, as against the petitioners. Even otherwise, the dispute appears to be of civil nature which should not involve the petitioners. No offence has been made out as against the petitioners from the allegations in the complaint as also in the statements and documents on record. No purpose would be served by directing the petitioners to undergo harassment of litigation, an exceptional case has been made out by the petitioners for exercise of jurisdiction under Section 482 of Cr PC by the Court.
1. Heard Mr. Bras De Sa, learned Counsel for the petitioners, Mr. Lawande, learned Additional Public Prosecutor for the respondents and Mr. Lotlikar, learned Senior Counsel for the intervenor.
2. This common judgment shall dispose of both the above writ petitions since they are filed against the summons dated 10/01/2014 issued to the petitioners by the learned Chief Judicial Magistrate, Panaji in Criminal Case No. IPC/265/2013/A.
3. Rule. Rule made returnable forthwith. By consent, heard forthwith.
4. A complaint dated 21/12/2011 was lodged by Mrs. Antonieta Ribeiro D'Souza (intervenor) to the Officer incharge of Panaji Town Police Station against (i) Fortis Hospitals Ltd. (ii) Dr. Vivek Jawali (iii) Shri Abhinandan N. Dastenavar and (iv) Dr. Selwyn Colaco, in which she alleged as follows :
On or about 30/08/2010, it was diagnosed that the intervenor suffered from heart ailment and a heart surgery was imperative. On 26/09/2010, the intervenor consulted Dr. Vivek Jawali at the clinic of Dr. Francisco Colaco at Margao and he opined that open heart surgery was urgently required followed by AVR (Mosaic Valve) and that she would have to report to the Fortis Hospitals, Bangalore two days before the surgery date for necessary tests. The intervenor was advised by Dr. Jawali to meet Mr. Abhinandan N. Dastenavar, Marketing Manager of Fortis Hospitals, who was with Dr. Jawali in the same room where she was examined and she was asked to discuss further details with said Mr. Abhinandan. Said Abhinandan told her that she had to deposit Rs. 4,00,000/- by way of demand draft in favour of Fortis Hospitals Ltd. on arrival at the Hospital as a security deposit and that in case she was held to be entitled to benefit under the medi-claim scheme of the Goa Government, then, an amount of Rs. 2,50,000/- would be refunded to her. All this was reduced to writing on the letterhead of Dr. Jawali at Dr. Colaco's clinic in Margao. The intervenor, accordingly, reported to Fortis Hospitals, Bangalore on 08/10/2010. She deposited an amount of Rs. 4,00,000/- and presented to the reception desk of Fortis Hospitals a letter from the Director of Health Services of Goa Government undertaking to pay a sum of Rs. 1,50,000/- towards the treatment. The intervenor was given cardiac estimate dated 09/10/2010 amounting to Rs. 2,29,000/-. After regular investigations/tests were conducted, a revised estimate dated 09/10/2010 was given to her wherein the total expenditure was estimated at Rs. 1,48,700/-. On 08/10/2010, she was admitted to a multi bed room, as is done to patients from Goa claiming benefit under mediclaim scheme. On 10/10/2010, at 1.30 p.m., the intervenor was asked to sign a dischargesheet while she continued to be placed in the same multi bed room in which she continued till the end. On enquiries, it was told that it was a mere formality and that she would remain in the same room No. 643 till the date of discharge. The operation was done on 10/10/2010 and she was discharged on 23/10/2010. On the day of discharge, the intervenor was presented with a bill for Rs. 4,36,639/- against the estimate dated 09/10/2010 amounting to Rs. 1,48,700/-. The intervenor was made to pay further sum of Rs. 36,639/- since she had already deposited previously a sum of Rs. 4,00,000/-. Subsequently, the intervenor was shocked to learn that her claim for reimbursement of expenditure had been rejected by the Government of Goa on the ground that she had taken treatment in “Delux Twin Sharing Room”. The intervenor had, in fact, been admitted and remained throughout in multi bed room No. 643. Her enquiries revealed that in the letter dated 24/01/2011, written by the Hospital to the Joint Director of Accounts (Health), Government of Goa, the hospital had falsely and mischievously stated that she had, on admission to the Hospital, requested for “Delux Twin Sharing Room” of her choice. The accused above named, therefore, hatched a conspiracy to cheat her and in the process, first indu
