Calcutta High Court (Appellete Side)
Sri Aurobinda Seva Kendra & Ors vs State Of West Bengal & Anr on 13 July, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No.J.(1)
In the High Court at Calcutta
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
CRR No.4162 of 2012
Sri Aurobinda Seva Kendra & Ors.
Vs.
State of West Bengal & Anr.
For the petitioners : Mr. Sandipan Ganguly,
: Mr. Rajdeep Majumder,
: Mr. Somopriyo Chowdhury
For the Opposite Party No.2 : Mr. Tapendra Narayan Roychowdhury, Sr. Adv.,
Mr. Ayan Bhattacharjee,
Ms. Rama Ghosh Dastidar
Heard on : 29.03.2017; 04.04.2017; 18.04.2017;
24.04.2017 and 19.06.2017
Judgment on : 13.07.2017.
Ashim Kumar Roy, J.
On August 17, 2011 the opposite party No. 2 made a complaint in writing to the learned Chief Judicial Magistrate, Alipore against the 5 petitioners herein and against one Dr. Debasish Chatterjee alleging commission of offences punishable under Sections 304A/406/420 IPC. In the said complaint allegations made against the accused persons in substance are as follows, In the later part of February, 2009 the wife of the petitioner started suffering from muscular pain and developed skin leisons in nailbed, fingers and swollen face (Oedma) and on and from February 28, 2009 she was treated by Dr. Sarbani (Ghosh) Zoha, petitioner No. 2 and subsequently, for a brief period by Dr. Sukumar Mukherjee (not an accused) and then by Dr. Samar Ranjan Pal, petitioner No. 3 herein and Dr. D. Chatterjee and finally on June 15, 2009 she breathed her last at Sri Aurobinda Seva Kendra. According to the said complainant his wife was negligently treated by the Doctors - Dr. Sarbani (Ghosh) Zoha, Dr. D. Chatterjee and Dr. S.R. Pal, who did not follow the medical protocol and treated the patient quite negligently and prescribed wrong medicines and that caused her death. It was also alleged the Nursing Home Authority Sri Aurobinda Seva Kendra, the petitioner No. 1 and two others namely Dr. S.K. Maulik, Medical Director and Tirthanath Sanyal, Chief Executive Officer of that Nursing Home not only responsible for deficiency in service but in collusion with her attending doctors has raised inflated bills for medicines and realised the payment against such bills without actually administering such medicines to the patient and no unused medicines were returned to the complainant.
Following the receipt of the aforesaid complaint, the Court took cognizance and transferred the case to the Court of the learned Additional Chief Judicial Magistrate, Alipore.
The learned Additional Chief Judicial Magistrate recorded the initial depositions of the complainant and by his order passed on September 20, 2012 directed the issuance of process against the accused persons coming to a finding a prima facie case for the offence punishable under Section 406/420 IPC has been made out against them. No summon, however, been issued calling upon the petitioner to face their trial for the offence punishable under Section 304A IPC.
However, the complainant has not challenged the order of the learned Magistrate refusing to issue summon under Section 304A IPC against the petitioners and such order has already reached its finality, which was passed on September 20, 2012.
The petitioners in this criminal revision challenged the said order of issuance of process and have also sought for quashing of the complaint in connection whereof summon was issued.
It appears from the record admittedly the National Consumer Disputes Redressal Commission refused to entertain the complaint filed by the complainant/opposite party No. 2 against the petitioners, over the self-same allegations, claiming compensation to the tune of Rs.10 crores and returned the complaint to him with a liberty to file the same before the concerned State Consumer Disputes Redressal Commission. The complainant/opposite party No. 2 challenged the said order before the Hon'ble Supreme Court but the SLP was dismissed and order passed by the National Consumer Disputes Redressal Commission has been upheld.
The sole question that arises for decision in this criminal revision, as to whether, impugned proceedings under Sections 406/420 IPC arising out of the aforesaid complaint case against the petitioners is fit to be quashed in the light of well settled principle of criminal jurisprudence.
Any criminal proceeding instituted on a private complaint can very well be quashed, even before the commencement of the trial, if on the face of the allegations made in such petition of complaint coupled with what transpires from the initial depositions of the complainant and his witnesses, no offence for which the accused have been called upon to face their trial is made out. At this stage probity of evidence tendered by the complainant before issuance of process cannot be gone into nor the defence of the accused can be entertained.
It is now well settled a juristic person, a company or a corporation, cannot escape its liability for a criminal offence merely because mandatory imprisonment is prescribed as punishment for such offence and by applying the principle of "alter ego" mens ria can also be attributed to a juristic person (Iridium India Telecom Limited vs. Motorola Incorporated and Others reported in (2011) 1 SCC 74).
The learned counsel for the petitioners vehemently contends that the learned Magistrate while rightly refused to entertain the complaint against the petitioners for the offence punishable under Section 304A IPC, erroneously issued summons against them for the offences punishable under Sections 420/406 IPC. He further submits not only the allegations are false and baseless, at the same time no case for cheating or criminal breach of trust can said to have been committed on the allegations of overbilling. He further submits the nature of allegation if at all, tends to make out a case of civil dispute. He adds with reference to the annexure-P/1 to this application, that pursuant to an order passed by National Consumer Disputes Redressal Commission an expert committee was constituted by the Director General of Health Services, Medical Hospital, II Section, Government of India and according to such report, there was no negligence. He further submits only after losing the case before the National Consumer Disputes Redressal Commission and dismissal of SLP on May 2, 2011, this false complaint has been lodged in August, 2011 maliciously by manipulating facts and giving a criminal profile to a very natural incident.
On the other hand, the learned counsel for the complainant/opposite party No. 2 vehemently refutes that only after dismissal of his client's SLP, his client falsely and manipulating the facts lodged the complaint. He further submits that when the court below after perusal of the petition of complaint and recording the initial deposition of the complainant was fully satisfied that a prima facie case of the commission of offence has been made out, this court ought not to have interfered with such order and more particularly when the same does not suffer from any patent infirmity. He further submits that the nursing home authority, in collusion with the Doctors, who were treating the patient, fraudulently and dishonestly raised bills for the medicines, which were never administered to her and realised the costs thereof from the complainant/opposite party No. 2 and even the medicines, which were purchased but not used for the treatment, were also not returned to him and thus, the accused persons, the petitioners herein are guilty of the offence of criminal breach of trust and cheating. He further submits it is the accused petitioner No. 2 Dr. Sarbani (Ghosh) Zoha, who insisted and compelled the complainant/opposite party No. 2 to take his wife to Sri Aurobindo Seva Kendra and got her treated there, knowing fully well that the said hospital was not adequately equipped for treatment of the disease, the deceased suffering from, with a view to cheat him and also committed criminal breach of trust. He then adds that his client, the complainant/opposite party No. 2 here, from the very beginning, when his wife was advised for hospitalisation, requested the petitioner No. 2 to get her admitted at AMRI. But she declined to do that on one pretext or other. Lastly, he submits that this criminal revision is liable to be dismissed.
Heard the learned counsel appearing on behalf of the parties, considered their respective submissions. Perused the content of the petition of complaint and the initial depositions of the complainant.
On the face of the petition of complaint, it is found the commission of offence punishable under Section 406/420 IPC by the accused/petitioners is sought to be made out on the averments contained in Paras-32, 33, 34 and 35 thereof and the same are as follows:-
Para-32:- That the complainant on diverse dates made payment of approximately Rs. 4 lacs in favour of SASK Hospital both by cheques and cash. The details of the payment and receipts are enclosed and marked as Annexure-"G" collectively.
Para-33:- That out of the total sum of Rs. 3,52,029/- lakh appearing from the cash memos provided by the hospital it shows payment of approximately Rs. 2,08,424/- lakh on account of medicine.
Para-34:- That it further reveals from the accompanying facts emerging from the document supplied by the hospital authority and scanning there from it indicates that the hospital authority particularly the Medical Director and Chief Executive Officer who are responsible for looking after the day to day affairs at SASK in collusion and connivance with the accused Doctors and other staffs cheated the complainant and thereby dishonestly induced him and deceived him to deliver the considerable amount and they are liable to be punished for committing the offence punishable under Section 420 of the IPC as well.
Para-35:- That the details regarding misappropriation of the sum of Rs.1,09,800/- are available from the cash memo and amount of administered medicine as documented in the treatment sheet supplied by hospital and compilation of the same are set out herein below.
In his initial depositions, the complainant in support of his case against the petitioner amongst others alleged as follows:-
I worked out the details of medicines used administered on my deceased wife Deepa Ghosh by the hospital on the basis of vouchers and cash memos provided by the hospital. The cost of medicines incurred as received by Aurobindo Seva Kendra is Rs. 2,08,424/-. This amount was reflected from cash memos and vouchers etc. given by the hospital concern. The amount of medicines administered given by their document of treatment sheets by the hospital showed at the cost of medicines which were administered was Rs. 1,09,800/-. It did not tally. The short fall was Rs.98,624/- about 50 per cent of the cost medicines provided by me. I did not receive back any unused medicines from the said hospital nor I know where those unused medicines were gone. No refund was given to me in this regard as cost of unused medicines. I paid the cost of medicines at the campous of Sri Aurobindo Seva Kendra on the medicine shop, situated within the campous of the said hospital. I was definitely deceived by the hospital authority. The opposite party of my case, the Aurobindo Seva Kendra Dr. S.K. Maulik, Medical Director, Shri Tirthanath Sanyal, CEO of Aurobindo Seva Kendra in connivance with Dr. Sarbani (Ghosh) Zoha, Dr. Samar Ranjan Pal and other doctors as given in the treatment sheet. I have high level of expectation in admitting the patient in Sri Aurobindo Seva Kendra because from the web site of the internet, I found they mentioned they possessed all medical facilities and the latest state of art equipment and also from the insistence of Dr. Sarbani (Ghosh) Zoha who assured that the patient will be treated as per internation scenario. But in reality this is far from the true.
To mention the minimum point the I.C.U. did not have the minimum facility the C.T. Scan for ventilated patient for which Dr. Samar Ranjan Pal and the hospital authority mislead me by playing hide and seek and ultimately it was not possible to have a C.T. scan of the patient for which diagnosis was not made at all. Further serious infection Psuedomonus came from the instrument of the I.C.U. for which the patient ultimately died at the age of 50 when she had excellent physical condition and no major medical ailment suffering from the small skin disease due to the negligence of errant doctors and reckless hospital They assured me that the patient will be cured within a few days and they stopped coming upon my son from the U.S.A for which he was unable to see his mother except on coma condition on ventilation. So, I feel I was strongly deceived by the doctors and hospital for which the status of the hospital is far below the level of any civilised I.C.U. Thus, according to the initial deposition of the complainant/opposite party No. 2, the nursing home authority, Sri Aurobindo Seva Kendra raised a bill for Rs.2,08,424/- as the costs of medicines incurred for the treatment of wife of the complainant/opposite party No. 2 as have been reflected from cash memos and vouchers given to him. However, from the treatment sheet supplied by the nursing home authority it is found the cost of medicines administered to the patient was around Rs.1,09,800/-. Therefore, the hospital authority realised excess sum of Rs.98,624/- as the costs of medicines. Neither the unused medicines were returned to him nor any amount was refunded.
It is further alleged that from the documents supplied by the nursing home authority and on scanning thereof, it indicates that the hospital authority particularly the Medical Director and Chief Executive Officer who are responsible for looking after the day to day affairs at SASK in collusion and connivance with the accused Doctors and other staffs cheated the complainant and thereby dishonestly induced him and deceived him to deliver the considerable amount and they are liable to be punished for committing the offence punishable under Section 420 of the IPC as well.
Before proceeding any further, to adjudicate the question whether impugned proceeding should be quashed or not this court is of the opinion the principle of law laid down by the Apex Court in its numerous decisions may once again be recapitulated.
A complaint can be quashed where on the face of the allegations made therein together with the allegations made by the complainant and his witnesses in their initial depositions on the face of it do not disclose commission of any offence far less the commission of offence for which the accused persons have been summoned to face their trial. Neither a detailed inquiry nor a meticulous analysis of the materials nor an assessment of the reliability of the materials or its genuineness i.e., the genuineness of the allegations either can be gone into or be considered. Although complainant is not required to reproduce in verbatim the legal ingredients of the alleged offence but the factual foundation which makes out the offence ought to be laid in the petition of complaint and to be said in the initial deposition. In other words, while it is not necessary to quote in verbatim the ingredients of the offence but it is essential that the factual foundation i.e., the basic facts, which constitutes the offence, ought to be disclosed.
Coming to the case in hand, it first be noted that the complainant/opposite party No. 2 has lost his case that his wife was rashly and negligently treated at the Sri Aurobinda Seva Kendra against the petitioners. The court below refused and declined to issue process for such offence punishable under Section 304A IPC against the petitioners and the order so passed has reached its finality. Therefore, in no event any iota of allegation as regards to that can be taken into account while adjudicating this criminal revision for quashing.
So far as the allegation that the hospital authority has raised an inflated bill for the medicines, claiming to have been administered to the wife of the complainant/opposite party No.
2 for her treatment and unused medicines, if any, were not returned to him and thereby offences punishable under Sections 406/420 IPC has been made out, is correct or not, is a pure question of facts and the claim of the petitioners that those allegations are false is a matter of defence and accordingly, cannot be gone into at this stage. Therefore, the only question left for consideration whether the petitioners can be prima facie held responsible for commission of such offences.
It is true the petitioner No. 1, Sri Aurobinda Seva Kendra, a juristic person and both the offences involve presence of mens ria and the offence punishable under Section 420 IPC prescribes mandatory imprisonment. However, in the light of the decisions of the Apex Court in the case of Iridium India Telecom Limited vs. Motorola Incorporated and Others reported in (2011) 1 SCC 74 that would not operate as a bar in prosecuting the nursing home, Sri Aurobinda Seva Kendra, the petitioner No. 1 on the face of the allegation against it that the nursing home authority raised inflated bills for the medicines and realised payment against such bills without actually administering such medicines to the patient and unused medicines were not returned to the complainant. The question that those allegations are false, are pure questions of facts and essentially the defence of the accused, therefore, the same cannot be gone into. So far as the petitioner Nos. 4 and 5 are concerned, who are the Medical Director and Chief Executive Officer of the petitioner No. 1, from their designations itself it is apparent that they were the persons, who were managing, running and looking after the day-to-day affairs of Sri Aurobinda Seva Kendra, a juristic person, at that material point of time, when the offence allegedly committed. Thus, the question of quashing of the impugned criminal proceeding against them does not at all arise.
Against the petitioner Nos. 2, 3 and 4 it has only been alleged that the other accused persons in collusion and connivance with these accused doctors have cheated the complainant/opposite party No. 2, without anything more. However, except the allegation that the other accused persons cheated the complainant/opposite party No. 2 in connivance with these three petitioners, no basic facts as to how the other accused persons colluded and connived with these petitioners has nowhere been indicated. The mode and manner of collusion and connivance has nowhere been spelt out. It is pertinent to note although allegation of cheating and criminal breach of trust has been directed against the nursing home, Sri Aurobinda Seva Kendra and its Medical Director and the Chief Executive Officer and against the petitioner Nos. 2, 3 and 4 it is alleged that the other accused while committing such offence colluded and connived with them, neither any cognizance of an offence of criminal conspiracy punishable under Section 120B IPC has been taken nor any summon was issued thereunder against them. There has been no allegation against these petitioner Nos. 2, 3 and 4 that they have wrongfully and dishonestly shared and gained anything out of the proceeds of crime. In such view of the matter, the impugned criminal proceeding against the petitioner Nos. 2, 3 and 4 stands quashed.
In the result, this criminal revision stands partly allowed. While the impugned proceeding against the petitioner Nos. 2, 3 and 4 is quashed, the prayer for quashing of the proceeding as against the petitioner Nos. 1, 5 and 6 stands rejected.
The office is directed to send down the lower court records at once to the court below and trial court is directed to proceed with the matter expeditiously.
Urgent certified Photostat copy of this judgment, if applied for, be given supplied to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )