Maroti Pralhad Ingole And Another vs State Of Mah. Thr. Pso Kholapuri ...
2023 Latest Caselaw 3809 Bom

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

            CRIMINAL APPLICATION (APL) NO. 1640 OF 2022

 APPLICANTS : 1.               Maroti Pralhad Ingole,
                               Age about 52 years, Occ : Service,
                               R/o Chandika Vesh, Washim,
                               Tq. & Dist. Washim.

                      2.       Tejrao Kaduji Wankhade,
                               Age about 53 years, Occ. : Service,
                               R/o Allada Plot, Washim,
                               Tq. & Dist. Washim.

                               VERSUS

 RESPONDENTS :                 1.    State of Maharashtra
                                     Through PSO, Kholapuri Gate
                                     Police Station, Amravati,
                                     Tq. & Dist. Amravati.

                               2.    Navneet S/o Santosh Sahu,
                                     Age about 21 years, Occ. : Student,
                                     R/o Chhaya Colony, Near Parwati
                                     Nagar, Amravati, Tq. & Dist. Amravati.
 -------------------------------------------------------------------------------------------
 S/Shri K.P. Mahalle and Pranav Deshmukh, Advocates for applicants.
 Shri V. A. Thakare, Additional Public Prosecutor for respondent No.1.
 Shri Bhavin Suchak, Advocate h/f Shri D. S. Khushalani, Advocate for
 respondent No.2.
 -------------------------------------------------------------------------------------------
                               CORAM: VINAY JOSHI AND
                                             BHARAT P. DESHPANDE, JJ.

DATE : 18/04/2023.

ORAL JUDGMENT : (PER VINAY JOSHI, J.) :

1. Admit. Heard finally with the consent of learned

counsel appearing for the parties.

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2. By way of this application in terms of Section 482 of

the Code of Criminal Procedure, applicants are seeking to quash

First Information Repert in Crime No.0190/2022 registered with

Kholapuri Gate Police Station, Dist. Amravati for the offence

punishable under Section 306 r/w Section 34 of the Indian Penal

Code.

3. A crime has been registered at the instance of report

lodged by the son of deceased on 13/07/2022. The deceased -

Santosh was father of the informant. It is prosecution case that in

the year 2017, deceased has availed loan to the tune of

Rs.14,50,000/- from Washim Urban Co-operative Bank Ltd. of

which applicant No.1 - Maroti Ingole is a Chief Manager and

applicant No.2 - Tejrao Wankhade is Authorized Officer and

Manager at Washim Branch. The deceased - Santosh has

constructed a house by raising aforesaid loan. The deceased could

not pay loan installments in regular terms. Therefore, bank has

issued demand notice in the year 2020. From the date of receipt of

notice, deceased - Santosh got worried and remained frustrated. It

was followed by another notice on 06/05/2022 informing that the

possession of the house property will be taken. The deceased again

got frustrated and thus, on 27/05/2022, he has committed suicide

by consuming poisonous substance. The police found suicidal note

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in the pocket of the deceased contending that both applicants are

responsible for his death.

4. Learned counsel appearing for the applicants would

submit that the contents of FIR coupled with suicidal note, even if

accepted at its face value, does not make out an offence of

abetment to commit suicide punishable under Section 306 of the

Indian Penal Code. Learned counsel for the applicants has

attracted our attention to the several documents to indicate that

the applicants who are bank officers had adopted legal recourse

provided under the provisions of Securitisation and Reconstruction

of Financial Assets and Enforcement of Security Interest Act, 2002

(SARFAESI Act).

5. On the other hand, learned APP as well as learned

counsel appearing for informant resisted the application by

contending that the informant has specifically stated about the

harassment meted out to the applicants. Moreover, there is suicidal

note specifically pointing towards the applicants and thus, the case

for putting applicants on trial is made out.

6. It is not in dispute that the deceased has availed loan of

Rs.14,50,000/- from Washim Urban Co-operative Bank Ltd. in the

year 2017. Indisputably, applicants are the officers of concerned

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creditor bank. The applicants' learned counsel has produced notice

dated 12/01/2021 issued by the Bank in terms of Section 13(2) of

the SARFAESI Act and another notice dated 18/03/2021 issued in

terms of Section 13(4) of the SARFAESI Act. It was followed by

Washim Urban Co-operative Bank a Secured Creditor approaching

to the District Magistrate in terms of Section 14 of the SARFAESI

Act to take possession of secured assets. There is no dispute that

the house property was a secured asset for the loan availed by the

deceased. A copy of order dated 11/03/2022 passed by the District

Magistrate allowing the bank to take possession, has been

produced. In pursuance of said order of District Magistrate,

Tahsildar has issued a notice on 06/05/2022 to the applicants

informing that possession of secured asset will be taken on

27/05/2022. In the wake of said position, the matter needs to be

examined.

7. As per the prosecution case, on 27/05/2022 i.e. on the

proposed date of possession itself, borrower Santosh has

committed suicide. Apparently, the bank has adopted legal

recourse as provided by Statute for taking possession of secured

assets. By no stretch of imagination, the same can be termed as an

"abetment" within the meaning of Section 107 of the Indian Penal

Code. Besides that, we have examined the contents of FIR to find

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out whether besides legal action, did applicants do anything which

could be considered as abetment. The First Information Report

only states about the receipt of repeated notices and telephonic

talk between the deceased and bank officers. There are no

allegations that the bank authorities have repeatedly visited the

house of borrower or have given threats. We have gone through

the suicidal note which also exposes the mind of deceased that as

the bank has issued possession notice, therefore, the officers are

responsible. Rather, the deceased made some other grievance that

the bank has not given sufficient time for taking possession or the

interest has not been properly charged. Obviously, those acts even

if presumed to be true, cannot be considered as an intentional act

of applicants to instigate to commit suicide.

8. The abetment involves mental process of instigating a

person or intentionally aiding a person into doing a thing and

without positive act on the part of accused, instigation cannot be

construed. We could only see that an act of applicants is in the

shape of taking statutory steps under the provisions of law and

thus, the allegation does not make out a prima facie case to

constitute the offence punishable under Section 306 of the Indian

Penal Code.

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9. Learned counsel for applicants would submit that under

similar circumstances, this Court in the case of Amit vrs. State of

Maharashtra and another, reported in 2018 SCC OnLine Bom 1399

and in Criminal Application (APL) No.1052/2018 (Rohit s/o

Nawanath Nalawade Vrs. The State of Maharashtra and another)

decided on 17/12/2020 has quashed the FIR holding that the

insistence for return of loan amount, cannot be termed as an

abetment.

10. In view of above, in absence of prima facie case

continuation of criminal prosecution amounts to abuse of the

process of Court. We find it is a fit case to invoke our inherent

jurisdiction.

11. In the circumstances, the application is allowed. We

hereby quash and set aside the First Information Report in Crime

No.0190/2022 registered with Kholapuri Gate Police Station, Dist.

Amravati for the offence punishable under Section 306 r/w

Section 34 of the Indian Penal Code.

12. The application is disposed of accordingly.

            [BHARAT P. DESHPANDE, J.]                       [VINAY JOSHI, J.]


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