Prakash S/O Madhawrao Bankar And ... vs State Of Maharashtra Thr. Pso Ps ...
2021 Latest Caselaw 221 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

               CRIMINAL APPLICATION (APL) NO. 558 OF 2020

  1. Prakash s/o Madhawrao Bankar
  Aged 43 years, Occupation - Doctor,
  R/o. 138A, Old Dastur Nagar Bypass,
  Samra Nagar No.1, Vidharbh Primeyar
  Nagar Road, Rukmini Nagar, Amrvati,
  District - Amravati (M.S.)

  2. Smt. Jyoti w/o Prakash Bankar
  Aged 40 years, Occupation - Teacher,
  R/o. 138A, Old Dastur Nagar Bypass,
  Samra Nagar No.1, Vidharbh Primeyar
  Nagar Road, Rukmini Nagar, Amrvati,
  District - Amravati (M.S.)                    .... APPLICANTS

                                 // VERSUS //

  1. State of Maharashtra
  Through P.S. Rajapeth,
  Amravati, Dist. Amravati (M.S.)

  2. Sanjay s/o Vasantrao Shedke
  Age 44 years, Occ. LIC Agent,
  R/o Shrikrupa Colony,
  Parag Layout, Rahatgai Road,
  Amravati (M.S.).                              .... NON-APPLICANTS

  Mr. R.S. Agrawal, Advocate for applicants.
  Mr. M.J. Khan, APP for non-applicant/State.
  ________________________________________________________________

           CORAM : V. M. DESHPANDE AND ANIL S. KILOR, JJ.

DATE : 6th JANUARY, 2021.

ORAL JUDGMENT: [PER: V.M. Deshpande, J.]

Rule. Rule is made returnable forthwith. Heard finally

by consent of the learned counsel for the parties.

Judg.apl558.2020.odt

2. This application was presented before this Court by two

applicants who are husband and wife. They set a challenge and

prayed for quashing of the First Information Report vide Crime

No.314/2020 registered against them with Police Station, Rajapeth,

Amravati, for the offence punishable under Section 306 read with

Section 34 of the Indian Penal Code.

3. On 31.07.2020, this Court (Coram: A.S. Chandurkar

and Amit B. Borkar, JJ.) issued notice to the non-applicants and

observed that though the investigation may go on, chargesheet

against the present applicants shall not be filed.

4. The Investigation Officer has filed detailed reply which

was duly sworn by Police Inspector of Rajapeth Police Station,

Amravati. The non-applicant No.2 was also served and he sent his

reply to the Court through post. It is available on record.

5. During the pendency of the application, the applicant

No.1- Prakash s/o Madhawrao Bankar passed away. His death

certificate is placed on record by the learned counsel for the

applicants under Pursis Stamp No.3/2020, a copy of which was also

given to the Office of the Government Pleader on 07.12.2020. The

Judg.apl558.2020.odt

learned Additional Public Prosecutor is not disputing about the

factum of death of applicant No.1- Prakash s/o Madhawrao Bankar.

In view of death of applicant No.1 - Prakash s/o Madhawrao

Bankar, the crime registered against him for the offence punishable

under Section 306 stands abated.

6. Now, the Court has to examine whether the prosecution

against the applicant No.2 needs to be continued or it requires to be

terminated at this stage only.

7. We have heard Shri R.S. Agrawal, learned counsel for

the applicants and Shri M.J. Khan, the learned Additional Public

Prosecutor for the non-applicant No.1/State. Also perused the

detailed reply filed on behalf of the Investigating Officer. The

learned Additional Public Prosecutor made us available the entire

investigation papers san. Formal chargesheet which could not be

filed because of the order passed by this Court. We have also

perused the reply tendered by the non-applicant No.2. After

hearing the learned Additional Public Prosecutor and after perusing

the investigation papers and the reply of the non-applicant No.2, we

are of the view that for final decision of this proceeding, personal

hearing of non-applicant No.2 is not required.

Judg.apl558.2020.odt

8. The First Information Report is lodged by non-applicant

No.2 - Sanjay s/o Vasantrao Shedke on 06.05.2020. His complaint

would show that the complainant is a LIC agent and deceased

Vasantrao was his father. As per the complaint, on 05.05.2020 at

about 10:30 am, deceased informed that he is visiting the house of

applicant No.1- Prakash s/o Madhawrao Bankar (now deceased) for

demand of ₹ 15,00,000/- which were given to him in the year 2015 15,00,000/- which were given to him in the year 2015

on interest. He went on his moped having registration No.MH-27

BM-509 however, he did not return to the house till late night.

Resultantly, the family members of the first informant made search

however in vain and therefore, missing report was filed.

The complaint further recites that on 06.05.2020 at

9.00 O'clock in the morning, the first informant-Sanjay received a

phone call from his friend Abhijeet and in the said telephonic

conversation, it was made known to the informant that the moped

of first informant's father is parked near the lake which is known as

"Chhatri talav". On getting this information the first informant along

with his relatives went there to notice the vehicle as well as shoes of

deceased Vasantrao. In the meantime, after getting phone call from

first informant, police reached on the spot. Body of deceased

Vasantrao was seized. The police personal made search of the

Judg.apl558.2020.odt

moped and in its dikky, two suicide notes were found. In the

suicide notes, as per the report the reason for committing suicide is

given and that the reason is that since applicant No.1- Prakash s/o

Madhawrao Bankar (now deceased) took ₹ 15,00,000/- which were given to him in the year 2015 15,00,000/- on interest

in the year 2015 and failed to refund the said amount and

therefore, he is being abated to commit suicide by Prakash (now

deceased) and his wife.

9. The suicide notes are the part and parcel of the

investigation papers. The statements of various witnesses are also

recorded by the Investigating Officer. The statements of the

prosecution witnesses, who are close relatives of the deceased, show

that deceased gave ₹ 15,00,000/- which were given to him in the year 2015 15,00,000/- to applicant No.1 (now

deceased) on interest and applicant No.1 used to give interest

regularly however, subsequently he failed to pay the interest and,

therefore, when the amount was demanded by the deceased,

applicant No.1 failed to refund the same and therefore, the first

informant's father was under tension and he has committed suicide.

On oath, in paragraph No.3 of the reply of the prosecution, role of

applicant No.2 is given. We are reproducing the entire paragraph

No.3 of the reply filed on behalf of the State.

Judg.apl558.2020.odt

"3. It is humbly submitted that, as far as the applicant No.2 is concerned, as per the suicide note, the deceased had given Rs. 15,00,000/- to the applicant No.1 who had handed over the amount to the applicant No.2 in her keeping. The money was handed over by the deceased to the applicants considering God as witness."

10. Even the perusal of the suicide note which was

addressed to Police Station Officer, Rajapeth, Amravati, shows that

the role of the applicant No.2 is that when the amount was given by

deceased Vasantrao to deceased applicant No.1- Prakash s/o

Madhawrao Bankar, he kept that amount of ₹ 15,00,000/- which were given to him in the year 2015 15,00,000/- on

16.10.2015 in a carry-bag, the said amount was given to the

applicant No.2, who is his wife to keep in the Almirah. Except that,

there are no allegation of whatsoever nature against the applicant

No.2 - Smt. Jyoti w/o Prakash Bankar albit in the last three lines, it

is stated by the deceased that the applicant No.2 also abated him to

commit suicide.

11. The reply filed on behalf of the non-applicant No.2 also

shows that there are no allegation against the applicant No.2. The

additional reply of the non-applicant No.2 is reproduced herein

below:

Judg.apl558.2020.odt

"That the applicant always use to go to the temple and the deceased being an age old person regularly goes to temple having good time. There the applicant No.1 and deceased get close and cordial relation. That the applicant No.1 help and facilitate for selling of his house. By this selling the amount received by the deceased which was invested by the applicant No.1 in business of construction of flats and a he used to profit income to the deceased and also being applicant being Naturopathy doctor he use to give treatment to the deceased being senile. Therefore the applicant and deceased were to familiar with each other and having cordial relationship with each other"

12. The law on the issue is well crystallized by the Hon'ble

Apex Court in various judicial pronouncements. The last word of the

Hon'ble Apex Court on the issue of abetment is in the case of Arnab

Manoranjan Goswami vs. State of Maharashtra & others in Criminal

Appeal No.724/2020.

13. Admittedly, the deceased gave an amount of ₹ 15,00,000/- which were given to him in the year 2015

15,00,000/- to Prakash s/o Madhawrao Bankar (applicant No.1-

now deceased) on interest. Even the suicide note shows that from

November-2015 to November-2016 the applicant No.1- Prakash s/o

Madhawrao Bankar used to pay ₹ 15,00,000/- which were given to him in the year 2015 15,000/- per month by way of

interest to deceased Vasantrao. The suicide note further shows that

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there was an income tax raid on the premises of one Rathi and due

to that raid, as per the suicide note, applicant No.1- Prakash s/o

Madhawrao Bankar used to give interest sometime ₹ 15,00,000/- which were given to him in the year 2015 10,000/- or

sometime ₹ 15,00,000/- which were given to him in the year 2015 15,000/- from January-2017 till November-2019. The

suicide note further says that thereafter, from October-2019 to April-

2020, he did not receive any interest and therefore, there was

mental pressure on him and ultimately he committed suicide.

14. In our view, the suicide note clearly spell out a

commercial transaction in between the deceased applicant No.1 and

deceased Vasantrao, the father of the first informant. It is also clear

from the suicide note that for some period, the accrued interest was

also paid and subsequently, which was stopped. In such a situation,

it was already open for deceased Vasantrao to take recourse as

available under the law for recovery of the amount. Of course, the

mental stress for any issue differs from person to person. There

cannot be a straight jacket formula that in a particular situation, a

person is having mental tension and that does not mean that every

other living person shall have mental tension in such a situation

and vice versa. Suffice to say, in our view, it cannot be termed as an

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abetment in view of Section 107 of the Indian Penal Code, which

reads as under:

"Section 107 - Abetment of a thing.--A person abets the doing of a thing, who--

(First) -- Instigates any person to do that thing; or (Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing."

15. It shows that to constitute abetment, there should be :

(i) instigation (ii) conspiracy (iii) intentionally aiding or there an

act or illegal omission, to do that thing.

Merely because a person committed suicide, the person

who is allegedly responsible for suicide, cannot be held guilty for

abetment unless there is sufficient material. Evidence on record,

should show that the person who is charged, is fully covered under

the definition of abetment.

16. In the present case, since the applicant No.1 is passed

away, the crime is abated against him and there is nothing in the

entire prosecution case to hold that applicant no.2 is responsible for

commission of suicide by deceased Vasantrao.

Judg.apl558.2020.odt

17. In such a situation, it would be futile to continue the

proceedings against the applicant No.2 since it will be a sheer

wastage of judicial time. Consequently, we are of the view that the

proceedings against the applicant No.2 requires to be terminated at

this stage only. Resultantly, we pass the following order:

ORDER

1. Crime No.314/2020 registered with Police Station

Rajapeth, Amravati, for the offence punishable under

Section 306 read with Section 34 of the Indian Penal Code

stands abated sofaras accused/applicant No.1- Prakash s/o

Madhawrao Bankar is concerned.

2. The First Information Report vide Crime No.314/2020

for the offence punishable under Section 306 read with

Section 34 of the Indian Penal Code is hereby quashed and

set aside in relation to applicant No.2 - Smt. Jyoti w/o

Prakash Bankar wife of the applicant No.1- Prakash s/o

Madhawrao Bankar.

3. The criminal application is disposed of. Rule is made

absolute in above terms.

                             JUDGE                                JUDGE
Prity