Padmakar Ramdas Agresar vs The State Of Maharashtra And Anr
2017 Latest Caselaw 344 Bom

                                                  1296.2016 Cri.WP.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1296 OF 2016 

          Padmakar Ramdas Agresar 
          Age - 55 years, Occ-Business 
          R/o. Madhuban Apartment, 
          LIC Colony, Jalgaon,  
          District - Jalgaon.                     PETITIONER

                   VERSUS 

          1.       The State of Maharashtra 
                   Through Police Station Officer,  
                   Ramanand Nagar Police Station, 
                   Jalgaon, District-Jalgaon.  

          2.       Ulhas Lakhichand Pachpol,  
                   Age - 23 years, Occ-Education 
                   R/o. At-Dhar, Post-Zurkheda,  
                   Taluka - Dharangaon, 
                   District - Jalgaon.         RESPONDENTS 

                                ...
          Mr.N.B.Suryawanshi,   Advocate   for   the 
          Petitioner 
          Mr.S.B.Yawalkar,   APP   for   Respondent   No.1/ 
          State
          Mr.G.A.Nagori, Advocate for respondent no.2. 
                                ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 24.02.2017 Pronounced on : 02.03.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

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2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Petition is filed with the

following prayer:

b) Quash and set aside impugned FIR (Exhibit-I) at Crime No.99 of 2016 registered with Ramanand Nagar Police Station Jalgaon for the offence punishable under section 306 of the Indian Penal Code and investigation in pursuance of the same and for that purpose issue necessary orders.

4. Brief facts leading for filing the

Petition are as under:

The petitioner is the Chairman of

Dhanvarsha Co-operative Credit Society for

the second time. The said society has

advanced loan of Rs.23 lacs to Devidas

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Pachpol against mortgage of agriculture land

and house property. After Devidas Pachpol

expired, the loan became outstanding. Since

the said loan was overdue, steps in

accordance with law for recovery of loan

amount were initiated.

5. It is the case of the petitioner

that even father of respondent no.2 had

obtained loan of Rs.9 lacs from the said

society by mortgaging his agricultural land

and dwelling house situated at Dhar and the

same is overdue. Since the cheque given by

father of respondent no.2 towards repayment

of the loan was not honoured, proceedings

bearing Summary Criminal Case No.973 of 2006

came to be initiated against respondent no.2

under Section 138 of the Negotiable

Instruments Act. Since loan was overdue

against father of respondent no.2, recovery

certificate under Section 101 of the

Maharashtra Co-operative Societies Act, was

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applied for and the same was issued in favour

of the society and against respondent no.2.

6. On 09.08.2014, Sagar Pachpol, son of

late Devidas Pachpol, who was enraged due to

recovery of loan outstanding, assaulted the

petitioner with an axe at the instigation of

one Chetan and respondent no.2 Lakhichand and

hence an offence was registered with Zilla

Peth Police Station, Jalgaon, against Sagar,

Chetan and Lakhichand. Sagar was arrested in

connection with the said offence.

7. It is further the case of the

petitioner that after completion of

investigation, charge sheet came to be filed

against Sagar and others and the case is

numbered as Regular Criminal Case No.5 of

2015 and the same is pending for

adjudication. On 30th October, 2014, Special

Recovery Officer was appointed by the society

for recovery of the loan. On 29th December,

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2014, since the land, which was mortgaged by

father of respondent no.2 with said society

was sold by him to one Shanoorbi Akbarkha,

FIR was lodged by the Recovery Officer

against respondent no.2, with Zilla Peth

Police Station. Accordingly, notices in

accordance with law were issued by the

Recovery Officer to the Pachpol family for

repayment of the loan.

8. It is further the case of the

petitioner that in the month of August, 2016,

Chetan, cousin of respondent no.2 committed

suicide by leaving a suicide note that due to

unbearable sorrow of his father, mother and

brother he is committing suicide and nobody

should be blamed or held responsible for the

same. On 7th August, 2016, respondent no.2

lodged FIR with Ramanand Nagar Police Station

against the petitioner for the offence

punishable under Section 306 of the Indian

Penal Code.

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9. It is further the case of the

petitioner that thereafter, the petitioner

filed Bail Application before the learned

Sessions Judge, Jalgaon. The prosecution

filed say at Exhibit 5 opposing the said Bail

Application. The petitioner has been granted

anticipatory bail. The petitioner is innocent

and he is involved in the alleged offence

only with a view to settle personal scores

and to give counter blow to the complaint

filed by the petitioner against members of

Pachpol family and with a view to pressurize

the Officers of the society to stall the

recovery of loan against the members of the

Pachpol family. Hence this Criminal Writ

Petition.

10. It is submitted that the FIR and

investigation conducted so far do not make

out any prima facie case of offence

punishable under Section 306 of the Indian

Penal Code. The involvement of the petitioner

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in the alleged offence is at the behest of

Pachpol family only with a view to give

counter blast to the FIR filed by the

petitioner for the offence punishable under

Section 307 of the Indian Penal Code against

members of said family. During the course of

investigation, a suicide note was found with

deceased Chetan, which categorically states

not to blame anybody for the suicide.

However, in spite of that only due to

previous grudge and with a view to settle

scores with a prejudiced attitude, the FIR

has been lodged by respondent no.2, in

collusion with his father to pressurize the

petitioner and Officers of Dhanvarsha Credit

Co-operative Society for not to effect

recovery from Pachpol family. There is

absolutely no material to warrant

continuation of the proceedings of the FIR,

as no material is there to show abetment in

the present case.

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11. It is further submitted that it is

necessary to mention here that still loan

amount is outstanding against Pachpol family,

which is borrowed from Dhanvarsha Credit Co-

operative Society. For recovery of said loan

outstanding, Dhanvarsha Credit Co-operative

Society has initiated proceedings under

Section 101 of the Maharashtra Co-operative

Societies Act and certificate under Section

101 of the Maharashtra Co-operative Societies

Act has been issued against Pachpol family in

favour of the Dhanvarsha Credit Co-operative

Society and legal recourse is adopted to

recover the unpaid dues. It is submitted that

the FIR or the investigation does not

disclose any ingredient of abetment,

instigation and aid, which are the basic

ingredients of Section 306 of the Indian

Penal Code and in absence of the same,

continuation of the proceedings is an abuse

of process of law and the Court. The suicide

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note found on the person of the deceased,

which states that nobody should be blamed for

the suicide. Taking recourse to legal

proceedings for recovery of loan against a

borrower by following due process of law,

cannot, by any stretch of imagination, be

said to be abetment to suicide and hence no

offence punishable under Section 306 of the

Indian Penal Code can be attributed to the

petitioner. There is absolutely no mens rea

and the petitioner cannot be said to be even

remotely connected with the offence

punishable under Section 306 of the Indian

Penal Code. Whatever proceedings are

initiated for recovery of outstanding loan of

the society are initiated at the instance of

the Recovery Officer specially appointed for

said purpose and hence the petitioner cannot,

even remotely said to be connected with the

said recovery, merely because he is Chairman

of the said society.

1296.2016 Cri.WP.odt

12. It is submitted that the proceedings

are lodged against the petitioner only with a

view to give counter blast to the prosecution

of father of respondent no.2, Sagar and

Chetan and hence continuation of the same is

an abuse of process of law and the court. It

is submitted that only with a view to

pressurize the petitioner and to Officer of

the society from taking legal recourse for

recovery of outstanding dues from Pachpol

family, the petitioner is mala fide involved

in the present crime. In this view of the

matter also continuation of the proceedings

of present crime is an abuse of process of

law and court and the same is liable to be

quashed and set aside.

13. The learned counsel appearing for

the petitioner submits that to attract the

ingredients of Section 107 and 306 of the

Indian Penal Code, it is necessary to prove

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that there was abetment or intention by the

accused that the person should commit

suicide. In the absence of intention to aid

or instigate or abet that the deceased should

commit suicide, the accused cannot be

compelled to face trial for the offence

punishable under Section 306 of the Indian

Penal Code. In support of the said

contention, the reliance is placed on the

unreported judgment of the Bombay High Court

Bench at Nagpur in the case of Dilip s/o.

Ramrao Shirasao and others Vs. State of

Maharashtra and another in Criminal

Application [APL] No.332 of 2016 decided on

05.08.2016.

14. On the other hand, the learned APP

appearing for respondent - State and the

learned counsel appearing for respondent no.2

submits that the allegations in the FIR

attract the ingredients of the alleged

offences. The learned APP invited our

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attention to the investigation papers and

submits that, there is sufficient material

collected by the Investigating Officer and

trial can proceed on the basis of the

material collected by the prosecution.

15. We have given thoughtful

consideration to the submissions of the

learned counsel appearing for the petitioner,

learned APP appearing for respondent - State

and the learned counsel appearing for

respondent no.2. With their able assistance,

we have carefully perused the pleadings in

the Petition, grounds taken therein and

annexures thereto and investigation papers.

It appears that the present petitioner lodged

First Information Report with Zilla Peth

Police Station, Jalgaon on 9th August, 2014,

wherein there are allegations of assaulting

the petitioner by an axe by Sagar Pachpol. It

is also mentioned in the said FIR that prior

to the said incident, Sagar Pachpol, Chetan

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Pachpol and Lakhichand Pachpol came to the

office of Dhanvarsha Patsanstha and

threatened the petitioner that, attempt

should not be made to recover the loan amount

borrowed by the members of the Pachpol

family. Upon careful perusal of the

allegation in the FIR lodged by Ulhas

Lakhichand Pachpol, it is stated thus:

Eg.kqu psru nsfonkl ikpiksG ;kus /kuo"kkZ vcZu dks- vkWi- lkslk;Vh o vxszlj vcZu lkslk;Vh tGxkao ;kaps ojhy''ksrhoj vlysys dtkZps osGksosGh iSls Hk:u lq/nk R;kph Fkdckdh vlY;kps nk[koqu okjaokj rxknk ykowu R;kolqyhps rxk|keqGs o psvjeu inekdj jkenkl vxszlj ;kaps tkpkl daVkGqu vkRegR;k dj.ksl izo`Rr gksoqu ek>k pqyrHkkÅ psru nsfonkl ikpiksG ;kus dky fn- [email protected]@2016 jksth jk=h 07-40 ok- lqekjkl tGxkao 'kgjkrhy f'kjlksyh rs TkGxkao jsYos viykbZuoj fiaizkGk f'kokjkr vlysY;k [kkack dz- [email protected]&24 ps njE;ku /kkoR;k jsYos[kkyh Lorkyk >ksdqu nsoqu vkRegR;k dsyh vkgs-

In order to appreciate the said

allegations, we have carefully perused the

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evidence collected by the Investigating

Officer. The contents of the note written by

the deceased Chetan Pachpol before committing

suicide are as under:

t; nsok Jh x.ks'kk; ue% nhi Hkh pysxk jkt Hkh djsxk dke gqvk rks nhi ejs nhi dj.kkj ukgh ekjsu- eh psru ¼mQZ eqUkk½ nsohnkl ikpiksG vkbZ] oMhy rlsp Hkkokps nq[k% lgu u >kY;keqGs eh vkRegR;k djhr vkgs ;kr dq.kkykgh tckcnkj /k: u;s- ljdkj ts eyk enr djsy rs vukFk vkJe eqykauk n;kos gh uez fouarh-

psru ikpiksG lgh t; egkjk"Vª ;srks ckck

16. Upon considering the facts of the

case and investigation papers in its

entirety, we are of the considered view that,

neither the petitioner instigated, nor

intentionally aided or abetted the act of

commission of suicide by the deceased Chetan.

We find considerable force in the submission

of the learned counsel appearing for the

1296.2016 Cri.WP.odt

petitioner that in order to take revenge for

filing the FIR bearing Crime No.102/2014,

registered with Zilla Peth Police Station,

Jalgaon, on 9th August, 2014 by the

petitioner, the petitioner is falsely

implicated in the alleged commission of the

offences.

17. The Supreme Court in the case of

State of Haryana V/s Bhajan Lal1 held that,

in following categories the Court would be

able to quash the F.I.R.

108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra- ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of

1 AIR 1992 SC 604

1296.2016 Cri.WP.odt

illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the applicant.

1296.2016 Cri.WP.odt

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

18. In our opinion, case of the

petitioner is covered in categories 1 and 7

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of the said categories. In the result, the

Criminal Writ Petition succeeds. The First

Information Report bearing Crime No.99 of

2016 registered with Ramanand Nagar Police

Station for the offence punishable under

Section 306 of the Indian Penal Code to the

extent of petitioner stands quashed and set

aside.

19. The rule is made absolute in terms

of prayer clause-b and the Writ Petition

stands disposed of accordingly.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC