Bombay High Court

Suhas @ Pappu S/O Sarjera Kakade ... vs The State Of Maharashtra And Anr on 15 March, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO.3865 OF 2016


 1) Suhas @ Pappu s/o Sarjerao Kakade,
    Age-35 years, Occu:Business,
    R/o-Bank Colony, Basmathnagar,
    Tq-Basmathnagar, Dist-Hingoli,

 2) Sachin s/o Vithalrao Dagdu,
    Age-35 years, Occu:Business,
    R/o-Power Loom, Basmathnagar,
    Tq-Basmathnagar, Dist-Hingoli.
                                 ...APPLICANTS 

        VERSUS             

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

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

                      ...
    Mr. S.R. Bagal Advocate for  Applicants.
    Mr. S.P. Deshmukh, A.P.P. for Respondent No.1.
    Mrs. Savita P. Kakade Advocate for Respondent
    No.2.       
                      ...




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

DATE OF RESERVING JUDGMENT : 7TH MARCH,2017.

DATE OF PRONOUNCING JUDGMENT: 15TH MARCH, 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

they are partners of Bhagyalaxmi Finance

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Corporation, Basmathnagar. They are license holder

for doing the business of finance i.e. money

lending. The counsel appearing for the Applicants

invites our attention to the copy of license,

which is placed on record. It is the case of the

Applicants that brother of informant i.e. deceased

Surendra obtained loan of Rs.4,00,000/- from the

Applicants on 8th November 2014 and again obtained

loan of Rs.4,00,000/- on 17th November 2014. The

Applicants advanced the loan as said Surendra had

on earlier three occasions obtained loan from them

and also repaid the same without any default. Thus

out of trust and faith, the Applicants have

advanced loan of Rs.8,00,000/- in all to deceased

Surendra. The Applicants paid the loan by two

cheques in the name of deceased after completing

all the formalities. Since the deceased Surendra

did not repay the loans, the Applicants requested

him for repayment of the loan and deceased gave

cheque of Rs.8,43,396 bearing No.873039 dated

19th March 2015 in the name of Bhagyalaxmi Finance

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Corporation. 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 on 1st June 2015

before the learned J.M.F.C. Basmathnagar. The

learned J.M.F.C. by its order dated 29th October

2015 issued process against Surendra. 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 the First Information

Report. The informant complained that Surendra

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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/ F.I.R.

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 First Information

Report. 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 under Section 306 of the

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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. The Applicants are the licensed

financer and money lenders and paid loan to

deceased Surendra by completing all the required

formalities. The amount of said loan was paid

through cheque in the name of Surendra, and there

is entry about the same in the bank account of

Bhagyalaxmi Finance Corporation, and therefore an

allegations in the First Information Report are

false and concocted on the face of it. 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 November 2014, the complaint

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under Section 138 of the Negotiable Instruments

Act was filed on 1st June 2015, in the said case

the process was issued on 29th October 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

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 First Information

Report would be abuse of process of law. Lastly,

the learned counsel appearing for the Applicants

prayed to quash and set aside the First

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Information Report against the Applicants.

7. Learned counsel appearing for the

Applicants submits that the Supreme Court in the

case of Madan Mohan Singh vs. State of Gujarat and

another1, while dealing with the similar fact

situation like in the present case, has taken a

view that the intention of the accused to aid or

to instigate or to abet the deceased to commit

suicide is a must for offence under Section 306 of

the I.P. Code. It is further observed by the

Supreme Court that the Courts have to be extremely

careful as the main person is not available for

cross-examination by the accused. Unless there is

specific allegation and material of definite

nature, it would be hazardous to ask the accused

to face the trial. Learned counsel appearing for

the Applicants further placed reliance on the

ratio laid down by the Supreme Court in the case

of State of Kerala and others vs. S. Unnikrishnan

1 2010 A.I.R. S.C.W. 5101

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Nair and others2. Learned counsel, in support of

his submissions also placed reliance on the ratio

laid down by the Bombay High Court, Bench at

Nagpur in the case of Binod s/o Ratan Sarkar and

others vs. State of Maharashtra and another 3. In

support of his submissions, learned counsel also

placed reliance on the ratio laid down by the

Bombay High Court, Bench at Aurangabad in

unreported Judgments in the case of Tushar s/o

Mahadeorao Arsul vs. State of Maharashtra and

another (Criminal Application No.3683 of 2012)

decided on 26th November 2012, Mahesh s/o

Shashikant Jape and others vs. the State of

Maharashtra and another (Criminal Application

No.4362 of 2015) decided on 11th December 2015.

Learned counsel further placed reliance on the

ratio laid down by the Bombay High Court, Bench at

Nagpur in the unreported Judgment in the case of

Dilip s/o Ramrao Shirasao and others vs. State of

2 (2015) 9 Supreme Court Cases 639 3 2014 ALL M.R.(CRI) 1216

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Maharashtra and another (Criminal Application

No.332 of 2016) dated 5th August 2016. Learned

counsel appearing for the Applicants submits that

the Application deserves to be allowed.

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

on the basis of investigation papers, submitted

that the allegations in the First Information

Report are supported by the statement of the

witnesses and therefore the prayer of the

Applicants for quashing the First Information

Report may not be favourably considered.

9. Learned counsel appearing for Respondent

No.2 invited our attention to the reply filed by

Respondent No.2 and submitted that Surendra

committed suicide due to harassment of the

Applicants. It is submitted that Surendra has not

at all borrowed any loan from said finance

company, but the Applicants used fabricated

documents in order to show that Surendra has

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obtained loan from said finance company. It is

further submitted that in order to find out the

truth, investigation and trial is must in the

present matter. The Application is premature in as

much as remedy is available to the Applicants to

file application for discharge before the

concerned Court after filing of the charge-sheet.

Learned counsel for Respondent No.2 further

submitted that Surendra on various occasions

stated to Respondent No.2 that, he has not at all

obtained loan from the Applicants and he has been

cheated, and therefore thorough inquiry is must,

and therefore the proceedings may not be quashed.

The Applicants are politically influenced persons,

and they are trying to destroy the evidence

against them. It is submitted that the Applicants

are running business of money lending without

following due procedure of law and they have

harassed and threatened Surendra to such an extent

that he has no option than to commit suicide.

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10. Learned counsel appearing for Respondent

No.2 relying on the contentions of the additional

affidavit in reply filed by Respondent No.2

submitted that the Applicants have fabricated the

documents which is apparent from the fact that the

finance company issued two recovery letters to

Surendra wherein no date was mentioned. After

receipt of such notice Surendra got confused as he

had not at all taken any loan from said finance

company and therefore Surendra gave one complaint

to Assistant Registrar, Co-operative Societies and

also to District Co-operative Registrar for

inquiry of said loan which was not taken by

Surendra but no inquiry was made in the same.

Learned counsel for Respondent No.2 invited our

attention to the complaint dated 9th April 2015,

copy of which is placed on record. In respect of

the contention of the Applicants about payment of

previous loan to the deceased Surendra, learned

counsel invited our attention to the copy of pass

book of Surendra and submitted that page No.25 of

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LBD Ledger of finance company do not match with

pass book of Surendra and he was not at all paid

previous loan of Rs.1,00,000/-.

11. The learned counsel appearing for

Respondent No.2 placed reliance on the reported

Judgment of the Supreme Court in the case of Amit

Kapoor vs. Ramesh Chander and another4 in support

of her submissions that whether an offence has

been disclosed or not, must necessarily depend on

the facts and circumstances of each case. If on

consideration of the relevant materials, the Court

is satisfied that an offence is disclosed, it will

normally not interfere with the investigation into

the offence and will generally allow the

investigation into the offence to be completed in

order to collect materials for proving the

offence. The learned counsel submitted that

considering the facts of the present case, it is

apparent that offence is disclosed which needs

4 (2012) 9 S.C.C. 460

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investigation.

12. Learned counsel appearing for Respondent

No.2 lastly submitted that considering the

peculiar facts and circumstances of the present

case, the Criminal Application is devoid of merit

and deserves to be rejected.

13. We have given careful consideration to

the submissions made by the learned counsel

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

appearing for the State and learned counsel

appearing for Respondent No.2 and with their able

assistance, perused the averments in the

Application, grounds taken therein, annexures

thereto, the First Information Report, reply and

additional reply filed by Respondent No.2 and the

exposition of law in the reported and unreported

Judgments relied on by the learned counsel

appearing for the respective parties.

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14. At the outset, it would be appropriate to

reproduce herein below the relevant portion/ gist

of the allegations made in the First Information

Report:-

"----ek>k HkkÅ lqjsUnz ;kus iIiq dkdMs o lfpu foBBy

nxMq ;kapsdMs fclh dk<yh gksrh R;k fclh ps O;olk;klkBh rhu

yk[k :i;s mpyys gksrs- R;k fclh ps dkgh gIrs Hkjys o dkgh gIrs

ckdh jkghY;kus ojhy nks?ks eh o ek>k HkkÅ lqjsUnz vls gkWVsyoj

vlrkuk dkgh fnolkaiwohZ fclh pkyd iIiq dkdMs o lfpu nxMq

vls vkys o R;kauh iS'kkP;k dkj.kko:u ek>s Hkkok'kh okn ?kkyqu

iSls nsr ulyk rj psd ns vls Eg.kqu ekÖ;k HkkokdMqu nksu dksjs

psd lg;k d:u ?ksrys o R;kP;k Qk;UkkUlph mpy Eg.kqu nk[koyh-

R;kuarj ek>s Hkkokyk gkWVsyoj ;soqu rq>s fdrh iSls olqy djrks rs

c?k vls Eg.kqu rhu yk[k :i;kaph ijLij HkkÅ lqjsUnz ;kus

fnysY;k dks&;k psdoj vkB yk[k :i;s Vkdqu gSnzkckn CkWadsr

oVfo.;klkBh Vkdy o R;kuarj rs u oVY;kus dksVkZr dsl nk[ky

dsyh R;kuarj lq/nk gkWVsyoj ;soqu iS'kkP;k dkj.kko:u f'kohxkG

d:u ekufld =kl nsr gksrs R;kauk ek>k HkkÅ njjkst iSls nsr gksrk-

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15. Upon careful perusal of the annexures to

the Application, it appears that the Applicants

are licensed financers doing the business of

finance under the name and style as "Bhagyalaxmi

Finance Corporation". It is the case of the

Applicants that on earlier occasions they had

advanced loan to Surendra (deceased) and he repaid

the loan amount promptly, which is evident from

the copies of cheques placed on record. It further

appears from the perusal of documents placed on

record that Applicants have advanced an amount of

Rs.8,00,000/- by way of loan to Surendra and due

to non-payment of the said amount, which was due

and payable by the deceased as per the say of the

Applicants, Criminal Case No.191 of 2015 was

initiated against Surendra under the provisions of

Section 138 of the Negotiable Instruments Act.

When such legal proceedings were initiated by the

Applicants, it was open for Surendra (deceased) to

contest the said proceedings and put forth his

contentions. It appears that Surendra committed

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suicide on 24th May 2016. If the Applicants have

initiated legal proceedings for recovery of money

advanced by them to Surendra, it cannot be said

that they acted, instigated or intentionally aided

in commission of suicide by Surendra (deceased).

By any stretch of imagination it cannot be said

that the act of the Applicants to give notice

under the provisions of the Negotiable Instruments

Act or further taking out legal proceedings

against Surendra (deceased) by filing complaint

under Section 138 of the Negotiable Instruments

Act, was abetment, instigation or intentionally

aiding in commission of the suicide. Considering

the circumstances brought on record and also upon

perusal of the investigation papers, it cannot be

said that Surendra had no option but to commit

suicide due to either notice given by the

Applicants or for insisting Surendra (deceased) to

repay the amount of loan, which was due and

recoverable as per the say of the Applicants. In

absence of any abetment, instigation or

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intentional aid for commission of suicide in

proximate time and date of the alleged commission

of suicide, the Applicants cannot be forced to

face the trial. The complaint under Section 138 of

the Negotiable Instruments Act was filed by the

Applicants on 1st June 2015 and Surendra

(deceased) committed suicide on 24th May 2016. In

the first place, initiation of legal proceedings

by the Applicants under the provisions of

Negotiable Instruments Act and the act of Surendra

to commit the suicide has no any nexus and

secondly, after gap of almost one year of

initiation of legal proceedings Surednra has

committed the suicide and said act cannot be said

to be in proximate date and time of initiation of

such legal proceedings.

16. The Supreme Court in the case of Madan

Mohan Singh (supra), while considering the prayer

of the appellant therein for quashing the F.I.R.,

has made reference to the suicide note written by

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the deceased who was driver on the official

vehicle of the appellant therein, in Para 5 of the

Judgment. It appears that, in that case the

deceased who was driver, committed suicide by

writing suicide note in following words:-

"I am going to commit suicide due to his functioning style. Alone M.M. Singh, D.E.T. Microwave Project is responsible for my death. I pray humbly to the officers of the department that you should not cooperate as human being to defend M.M. Sigh. M.M. Singh has acted in breach of discipline disregarding the norms of discipline. I humbly request the Enquiry Officer that my wife and son may not be harassed. My life has been ruined by M.M. Singh."

. The Supreme Court considered the contents

of the said suicide note and in Para 8 of the

Judgment, observed thus:

"We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation

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that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result

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of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note."

. The Supreme Court in Para 9 of the

Judgment observed that:

"It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross-examination by the appellant/ accused. Unless, therefore, there is specific allegation and material

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of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature."

17. In the case of Tushar s/o Mahadeorao

Arsul (supra), the Division of the Bombay High

Court, Bench at Aurangabad, in para 6 of the

Judgment observed that:

"We are of the considered view that the act or acts of accused to insult do not by themselves constitute abetment. It has to be shown from a statement in the complaint that these accused have actually instigated and aided in the victim's act of committing suicide. In absence of any such description, the FIR is liable to be viewed as a text which does not contain the ingredients of offence."

18. In the case of Dilip s/o Ramrao Shirasao

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(supra), the Division Bench of the Bombay High

Court, Bench at Nagpur considered the various

Judgments of the Supreme Court and the High Court

and in Para 20 of the Judgment, held thus:

"20. As has been held by Their Lordships of the Apex Court that for permitting a trial to proceed against the accused for the offence punishable under Section 306 of the Indian Penal Code, it is necessary for the prosecution to at least prima facie establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306 of the Indian Penal Code. As has been held by Their Lordships of the Apex Court that abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said persons cannot be compelled to face the trial. Unless there is clear mens rea to commit an offence or active act or direct act, which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the accused under Section 306 of the Indian Penal Code, in our

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considered view, would be an abuse or process of law."

19. The First Information Report, if

considered in proper perspective, would go to show

that according to the prosecution the present

Applicants and three other persons were

persistently demanding moneys from Surendra

(deceased). In our considered view such demand

made from time to time would not amount to

abetment. If according to Surendra (deceased) he

had paid substantial amount to the Applicants and

if the Applicants were demanding moneys from him,

it was open for Surendra to institute a criminal

complaint either at the Police Station or to the