Govind S/O. Maroti Sapkal And Anr vs The State Of Maharashtra And Anr
2017 Latest Caselaw 4768 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                CRIMINAL APLICATION NO.1742 OF 2017


 1) Govind s/o Maroti Sapkal,
    Age-29 years, Occu:Business,
    R/o-Kanhergaon,
    Tq-Basmath, Dist-Hingoli,

 2) Sakharam s/o Narayan Bochkari,
    Age-65 years, Occu:Business,
    R/o-New Mondha, Basmath,
    Tq-Basmath, Dist-Hingoli.
                                 ...APPLICANTS 
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station Officer,
    Police Station Basmath,
    Tq-Basmath, Dist-Hingoli,

 2) Jitendra s/o Rameshsa Kamlu,
    Age-28 years, Occu:Education,
    R/o-Ganesh Peth, Basmath,
    Tq-Basmath, Dist-Hingoli   
                                 ...RESPONDENTS

                      ...
    Mr.Gajendra G. Kadam Advocate for  Applicants.
    Mr.M.M. Nerlikar, A.P.P. for Respondent No.1.
    None present for Respondent No.2.       
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 12TH JULY, 2017.

DATE OF PRONOUNCING JUDGMENT: 20TH JULY, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Application is filed by the

Applicants praying therein to quash and set aside

the First Information Report bearing Crime No.75

of 2016 registered against them on 24th May, 2016

at Police Station Basmathnagar for the offence

punishable under Section 306 read with 34 of the

Indian Penal Code.

3. It is the case of the Applicants that the

deceased has taken hand loan from Applicant No.2

for the purpose of business to the tune of

Rs.1,11,000/- and Rs.1,00,000/- and owing to the

liability of repayment, the deceased Surendra has

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delivered two post dated cheques to Applicant

No.2. Upon presentation for encashment, the said

cheque was dishonoured for the reason of "funds

insufficient" and therefore the Applicants

resorted to legal proceedings against the deceased

Surendra by filing complaint under Section 138 of

the Negotiable Instruments Act. The learned

J.M.F.C. by its order dated 3rd November, 2015

issued process against Surendra. It is submitted

that the allegations against the Applicant No.1

are vague and general in nature and the same are

false. It is the case of the Applicants that they

never threatened Surendra nor caused any

harassment. The Applicants were pursuing legal

remedies available to them as per law but

unfortunately Surendra committed suicide on 24th

May 2016. Brother of deceased Surendra lodged

complaint with police station, Basmathnagar for

the offence punishable under Section 306 read with

34 of the Indian Penal Code against in all five

persons who offered loan to the deceased. The

Applicants are amongst those five persons named in

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the First Information Report (in short "FIR"). The

informant complained that Surendra committed

suicide as those five persons were threatening and

harassing Surendra on the count of repayment of

loan. It is the case of the Applicants that they

have not committed any offence and they are

falsely implicated in alleged offences and

therefore the present Application is filed seeking

quashment of the complaint/ FIR.

4. Learned counsel appearing for the

Applicants submits that the Applicants are

innocent persons and they have not committed any

offence as alleged in the FIR. The First

Information Report is lodged with a view to cause

harassment to the Applicants and to avoid

repayment of loan amount. The complaint is vague

and no any overt act proximate to date and time of

alleged commission of suicide is alleged, but

general allegations are made against all the

persons who advanced loan to Surendra. He further

submits that though the offence is registered

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under Section 306 of the I.P. Code, but in fact

the ingredients of Sections 306 and 107 are not

attracted and therefore the cognizable offence

ought not to have been registered at all. It is

submitted that, false case is filed to avoid

proceedings that may be taken out against

informant and to avoid repayment of loan.

5. Learned counsel appearing for the

Applicants further submits that bare reading of

the complaint shows that there was no abetment to

commit suicide at the hands of the Applicants. The

loan was advanced in the year 2014, the complaint

under Section 138 of the Negotiable Instruments

Act was filed in the year 2015, in the said case

the process was issued on 3rd November, 2015, and

Surendra committed suicide on 24th May 2016, and

therefore there is no immediate and proximate

abetment to suicide. An ingredients in the

complaint do not show that Surendra was not having

any option but to commit suicide. From the year

2014 till 24th May 2016 Surendra has never made

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any grievance against the Applicants nor he ever

alleged that the cheque was misused by the

Applicants by mentioning exaggerated amount.

6. Learned counsel appearing for the

Applicants further submitted that a false

complaint is lodged by alleging an inherently

improbable story, and thus the continuance of

proceedings based on the said FIR would be abuse

of process of law. Lastly, the learned counsel

appearing for the Applicants prayed to quash and

set aside the FIR against the Applicants.

7. Learned counsel appearing for the

Applicants placed on record the copy of the

Judgment and order passed by the Division Bench

(CORAM: S.S. SHINDE AND K.K. SONAWANE, JJ.) of

this Court pronounced on 15th March, 2017, in

Criminal Application No.3865 of 2016. The learned

counsel submits that the co-accused in this crime,

namely Suhas @ Pappu s/o Sarjerao Kakade and

Sachin s/o Vithalrao Dagdu, had filed said

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Criminal Application No.3865 of 2016 for quashing

and setting aside the FIR registered against them,

and this Court allowed the said Criminal

Application No.3865 of 2016 and quashed the

impugned FIR bearing Crime No.75 of 2016 to the

extent of the Applicants therein. Learned counsel

appearing for the Applicants submits that the

allegations made against the present Applicants

are also made similar as that of co-accused who

were applicants in Criminal Application No.3865 of

2016 and therefore the present Applicants are

also entitled for the same relief of quashing of

the FIR to their extent.

8. Learned A.P.P. appearing for the State,

on the basis of investigation papers, submitted

that the allegations in the FIR are supported by

the statement of the witnesses and therefore the

prayer of the Applicants for quashing the FIR may

not be favourably considered.

9. We have heard learned counsel appearing

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for the Applicants and learned A.P.P. appearing

for the State. It is a matter of record that, the

co-accused in the present Crime No.75 of 2016,

registered at police station, Basmathnagar,

namely, Suhas @ Pappu s/o Sarjerao Kakade and

Sachin s/o Vithalrao Dagdu, had filed Criminal

Application No.3865 of 2016 for quashing and

setting aside the FIR registered against them.

Both the Applicants herein are also accused in the

said Crime No.75 of 2016, which was registered

against in all five persons including present

Applicants and Applicants in Criminal Application

No.3865 of 2016. The Division Bench (CORAM: S.S.

SHINDE AND K.K. SONAWANE, JJ.) of this Court by

its Judgment and Order dated 15th March, 2017,

allowed the said Criminal Application No.3865 of

2016 and quashed the FIR bearing Crime No.75 of

2016 to the extent of the Applicants therein. The

allegations made against the present Applicants

are similar to that of the allegations made

against the Applicants in Criminal Application

No.3865 of 2016. Said position is not disputed by

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learned A.P.P. appearing for the State.

10. Hence, for the same reasons stated in

Para Nos.13 to 20 in the Judgment dated 15th

March, 2017 while allowing Criminal Application

No.3865 of 2016, this Application deserves to be

allowed and accordingly the same is allowed. The

FIR bearing Crime No.75 of 2016 registered on 24th

May, 2016 at police station, Basmath, Dist-Hingoli

for the offences punishable under Sections 306

read with 34 of the Indian Penal Code is quashed

and set aside to the extent of present Applicants.

Rule made absolute in above terms. The Application

stands disposed of accordingly.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUL17