Madhya Pradesh High Court
Vikalp Deriya vs The State Of Madhya Pradesh on 11 April, 2023
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 11 th OF APRIL, 2023
CRIMINAL REVISION No. 298 of 2021
BETWEEN:-
1. VIKALP DERIYA S/O SHRI JAI HIND DERIYA,
AGED ABOUT 49 YEARS, OCCUPATION:
BUSINESSMAN R/O DERIYA LINE, BABAI, P.S.
BABAI, DISTT. HOSHANGABAD M.P (MADHYA
PRADESH)
2. KAYAKALP DERIYA S/O JAI HIND DERIYA, AGED
ABOUT 48 YEARS, OCCUPATION: BUSINESSMAN
R/O DERIYA LINE, BABAI, P.S. BABAI, DISTT.
HOSHANGABAD M.P (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI SHREYASH PANDIT - ADVOCATE WITH SHRI MARTAND
PALIWAL - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR THE P.S.
KOTWALI DISTT. HOSHANGABAD (M.P.)
(MADHYA PRADESH)
2. SMT.SUNITA SARATHE W/O LATE RAJENDRA
S A R A T H E MAIN ROAD AMAR CHOWK
HOSHANGABAD (MADHYA PRADESH)
3. NITIN SARATHE S/O LATE RAJENDRA SARATHE
AMAR CHOWK MAIN ROAD SARATHE COMPLEX
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI Y.D.YADAV - GOVERNMENT ADVOCATE )
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Signature Not Verified
RESERVED ON : 15.03.2023
SAN
PRONOUNCED ON : 11.04.2023
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
Date: 2023.04.13 18:04:07 IST
2
This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
In this revision under Section 397/401 of the Code of Criminal
Procedure, the applicants have challenged the validity of the order dated
11.01.2021 passed by learned 1st Additional Sessions Judge, Hoshangabad in
ST No. 32 of 2020 whereby charges for commission of offence punishable
under Sections 306, 506 (I)/34 of the Indian Penal Code and Section 4 of the
MP Riniyon Ka Sanrakshan Adhiniyam, 1937 have been framed.
2. As per the prosecution case, Rajendra Sarathe (since deceased)
committed suicide by hanging himself on 01.06.2019. An FIR has been lodged
on 01.06.2019 at police station - Kotwali, Hoshangabad and on the basis of
statements of sons of the deceased namely, Rahul Sarathe and Nitin Sarathe
wherein they stated that Vikalp Deriya, Kayakalp Deriya, Keerti Mishra, Deepak
Parsai, Rajeev Dubey and Mukesh Agnihotri used to torture and harass
Rajendra Sarathe (since deceased) for demand of money and they also
threatened him that they would kill the entire family. From the aforesaid accused
persons, Rajendra Sarathe (since deceased) had borrowed certain amount of
loan and the accused persons were torturing and pressurising the deceased for
repayment of the said amount of loan. It is alleged that deceased had purchased
the material from the shop of the accused persons worth Rs. 1,73,000/- and had
issued many cheques as guarantee of the balance amount. Thereafter he
returned money to the accused persons in cash but the applicants and other
accused persons did not return the cheques issued by the deceased as
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guarantee. Despite the entire amount was paid by the deceased, the accused
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SHARAN SHUKLA
Date: 2023.04.13 18:04:07 IST
persons filed complaint case for offence under Section 138 of the Negotiable
Instruments Act in the Court of CJM, Hoshangabad only to harass the
deceased.
3. Learned counsel for the applicant submits that the trial Court has
committed apparent error in framing charges under Sections 306 and 506 (I)/34
of the Indian Penal Code and Section 4 of the M.P. Riniyon Ka Sanrakshan
Adhiniyam, 1937. From the documents of the prosecution itself, it is apparent
that the deceased had borrowed certain money from the applicant and other co-
accused persons but he could not refund the same and committed suicide.
Hence, keeping in view the provision of Section 107 of the IPC, no offence is
made out. Therefore, prayer has been made to quash the impugned order dated
11.01.2021 by which charges have been framed against the applicant. In
support of his contentions, counsel for the applicants has placed reliance on the
decisions in the cases of Amit Asthana v. State of MP , (M.Cr.C. No.18945
of 2022 decided on 05.07.20222); Vishnu Prasad v. State of MP 2005 (5)
MPHT 62; Ram Naresh and Another v. State of MP, 2002 (2) MPLJ 360;
M. Arjunan v. State, AIR 2019 SC 43; and Mayank Sharma v. State of
MP, (M.Cr.C. No.3107 of 2018 decided on 06.12.2018).
4. On the other hand, learned counsel for the State as well as counsel for
the objector opposed the contentions raised by the counsel for the applicant. It
is contended that if the suicide note and statements are perused, a clear case of
framing of charges exists in the present scenario.
5. Heard learned counsel for the parties and perused the record as well as
the decisions relied upon by the applicants and other decisions in the field. The
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police has seized a suicide note of four pages from the spot. Along with the
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said suicide note, another 13 pages written note addressed to the wife by the
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SHARAN SHUKLA
Date: 2023.04.13 18:04:07 IST
deceased was also annexed. In the suicide note and in the statements of the
witnesses recorded by the police, it is apparently clear that the deceased had
entered into an registered agreement for sale of his plot with accused Kirti
Mishra. The deceased had borrowed a sum of Rs.15 Lacs from Kirti Mishra
on the guarantee of his agricultural field. The said amount was lent at the rate of
4% and the deceased was paying Rs.60,000/- to accused Kirit Mishra. The
deceased had already paid an amount of Rs.18 Lac to Kirit Mishra but still the
accused Kirit Mishra was threatening him to give more money. The trial Court
found that against the each accused person, there is sufficient material to frame
charges.
6. During investigation, the police found that the deceased had borrowed
the amount from Vikalp Deriya, Kayakalp Deriya, Kirti Mishra, Deepak Parsai,
Rajeev Dubey and Mukesh Agnihotri and these persons were continuously
pressurising him to repay the amount with heavy interest.
7. In the suicide note, Rajendra (since deceased) stated that Vikalp Deriya
and Kayalap Deriya had given Rs.36 Lac to the deceased. As the deceased
could not repay the amount in time, they forcibly got the sale deed executed in
respect of the land of the deceased. Thereafter on 01.09.2018 again they came
to the deceased and asked him to give Rs. 1.5 Crore. The deceased requested
the accused persons that he would regularly pay Rs.5 Lac per annum but Vikalp
Deriya and Kayalap Deriya did not accede to his prayer and got his signature in
blank papers. Thereafter he has written about act of Kirti Mishra. Accused
Mukesh Agnihotri got the œGarden run by the deceased and did not pay
about Rs.25 - 30 Lacs which were due to the deceased. On the other hand, he
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lodged a case under the Negotiable Instruments Act against the deceased.
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SHARAN SHUKLA
Similarly, Rajeev Dubey and Deepak Parsai had given grocery items of about
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Rs.1.65 Lacs but despite the fact that the deceased had returned the entire
amount, they did not return the cheque issued by the deceased and lodged a
false criminal case under the Negotiable Instruments Act. The deceased had
given a chart of calculation how he borrowed and repaid the amount of the
accused.
8. At this juncture, it is apposite to refer to the decisions in the field. In the
case of M. Arjunan (supra) it has been held as follows:
"8. The essential ingredients of the offence under Section
306 IPC are: (i) the abetment; (ii) the intention of the
accused to aid or instigate or abet the deceased to commit
suicide. The act of the accused, however, insulting the
deceased by using abusive language will not, by itself,
constitute the abetment of suicide. There should be
evidence capable of suggesting that the accused intended
by such act to instigate the deceased to commit suicide.
Unless the ingredients of instigation/abetment to commit
suicide are satisfied the accused cannot be convicted under
Section 306 IPC."
9. In this context, it is appropriate to refer to the decision in the case of
Mahendra K.C. v. State of Karnataka and Another, (2022) 2 SCC 129,
wherein Hon'ble the Supreme Court in paragraphs 16 and 18, it has been held as
follows:
1 6 . On reading the judgment of the Single Judge, it would
appear that the Single Judge has failed to notice the distinction
between a petition for quashing under Section 482 (which was
being considered) and a criminal trial or an appeal against a
conviction on a charge under Section 306. The Single Judge
has transgressed the limits of the jurisdiction under Section
482 of the CrPC. The judgment is replete with hypothesis and
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surmises on the basis of which the Single Judge has reached
an inference on facts. The Single Judge has tested the veracity
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SHARAN SHUKLA
Date: 2023.04.13 18:04:07 IST
of the allegations in the criminal complaint and in the suicide
note left behind by the deceased without having the benefit of
an evidentiary record which would be collected during the
trial. At the stage when the High Court considers a petition for
quashing under Section 482 of the CrPC, the test to be
applied is whether the allegations in the complaint as they
stand, without adding or detracting from the complaint, prima
facie establish the ingredients of the offence alleged. At this
stage, the High Court cannot test the veracity of the
allegations nor for that matter can it proceed in the manner
that a judge conducting a trial would, on the basis of the
evidence collected during the course of trial. The High Court
in the present case has virtually proceeded to hold a trial,
substituting its own perception for what it believed should or
should not have been the normal course of human behavior.
This is clearly impermissible.
xxx xxx xxx xxx xxx
1 8 . In this backdrop, it is impossible on a judicious
purview of the contents of the complaint and the suicide
note for a judicial mind to arrive at a conclusion that a case
for quashing the FIR had been established. In arriving at
that conclusion, the Single Judge has transgressed the well
settled limitations on the exercise of the powers under
Section 482 CrPC and has encroached into a territory
which is reserved for a criminal trial.
10. Thereafter, in the aforesaid decision, Hon'™ble the Supreme
Court in paragraphs 27 to 29 has held thus:
œ27. While adjudicating on an application under Section
482 CrPC, the High Court in the present case travelled far
away from the parameters for the exercise of the jurisdiction.
Essentially, the task before the High Court was to determine
whether 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 did or did not prima facie constitute
an offence or make out a case against the accused.
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Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
2 8 . Instead of applying this settled principle, the High
Date: 2023.04.13 18:04:07 IST
Court has proceeded to analyze from its own perspective
the veracity of the allegations. It must be emphasized that
this is not a case where the High Court has arrived at a
conclusion that the allegations in the FIR or the complaint
are so absurd and inherently improbable on the basis of
which no prudent person could ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused. Nor is this a case where the criminal
proceeding is manifestly mala fide or has been instituted
with an ulterior motive of taking vengeance on the accused.
On the contrary, the specific allegations in the FIR and in
the complaint find due reflection in the suicide note and
establish a prima facie case for abetment of suicide within
the meaning of Sections 306 and 107 of the IPC. The entire
judgment of the High Court consists of a litany of surmises
and conjectures and such an exercise is beyond the domain
of proceeding under section 482 of the CrPC. The High
Court has proceeded to scrutinize what has been disclosed
during the investigation, ignoring that the investigation had
been stayed by an interim order of the High Court, during
the pendency of the proceedings under section 482.
2 9 . The High Court observed that a prima facie case for
the commission of offence under Section 306 of the IPC is
not made out since: i) the suicide note does not describe the
specific threats; ii) details of the alleged demand of Rs. 8 lacs
from the deceased by the respondent-accused are not set out
in the suicide note; and iii) no material to corroborate the
allegations detailed in the suicide note has been unearthed by
the investigating agency. The High Court observed that since
the deceased took considerable time to write a twelve page
suicide note, Âœit would have been but natural for the author
to set out the details. The High Court has evidently travelled
far beyond the limits of its inherent power under Section 482
CrPC since instead of determining whether on a perusal of the
complaint, a prima facie case is made out, it has analysed the
sufficiency of the evidence with reference to the suicide note
and has commented upon and made strong observations on
the suicide note itself.
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11. In this context, it is thought appropriate to refer to the decision in the
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case of State of Madhya Pradesh v. Deepak (2019) 13 SCC 62 wherein in
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paragraph 18 it has been held as follows:
1 8 . In the present case, there is sufficient material on
record to uphold the order framing charges of the trial
Court. The discharge of the accused was not justified. The
High Court has evidently ignored what has emerged during
the course of the investigation. The material indicates that
several complaints were filed by the deceased. The last of
them was filed a few days before the suicide. It is alleged
that the respondent had taken a loan of Rs.5 Lakhs through
fraudulent means in the name of the deceased and an
altercation took place between him and the deceased in that
regard. Moreover, the respondent is alleged to have got the
deceased evicted from a rented house as well as terminated
from her employment at Central Bank. There is a dying
declaration.
12. In the decision rendered in the case of Daxaben v. State of
Gujarat and Others, 2022 SCC OnLine SC 936, in paragraph 16 it has been
held that it is not necessary for this Court to go into the question of whether
there was any direct or indirect act of incitement to the offence of abetment of
suicide. Suffice it to mention that even an indirect act of incitement to the
commission of suicide would constitute the offence of abetment of suicide
under Section 306 of the IPC.
13. Now, it is deemed appropriate to refer to the law in the field
pertaining to scope of interference by this Court with the order of framing of
charge. At the stage of framing of charge, the Court has to consider prima facie
evidence available on record. It cannot consider the evidence extraneously.
The evidence is not to be weighed meticulously at this stage. A strong
suspicion, if found upon the material and presumptive value supports; the Court
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should frame charge against the accused person. The defence of the accused is
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not to be looked into at the stage when the accused seeks to be discharged
SHARAN SHUKLA
Date: 2023.04.13 18:04:07 IST
under Section 227 CrPC. The Code does not give any right to the accused to
produce any document at the stage of framing of the charge. At the stage of
framing of the charge, the submission of the accused is to be confined to the
material produced by the police. (See: State of Orissa v. Debendra Nath
Padhi (2005) 1 SCC 568 : AIR 2005 SC 359 and State of J& K v.
Sudershan Chakkar (1995) 4 SCC 181 : AIR 1995 SC 1954). Bhawna Bai
Ghanshyam and Others, (2020) 2 SCC 217.
14. What is required to be seen for framing of charges is whether there is
strong suspicion which may lead to the court to think that there is ground for
presuming that the accused has committed an offence. The above proposition
is supported with law laid down in the cases of Union of India v. Prafulla
Kumar, (1979) 3 SCC 4; State of Maharashtra v. Som Nath Thapa, (1996)
4 SCC 659; State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, Kamlendra
Bahadur Mishra v. State of UP, 2021 SCC OnLine All 503; and
Shakiluddin v. State, 2022 SCC OnLine Del 52.
15. In the instant case, the police has seized a suicide note of four pages
from the spot. In the suicide note and in the statements of the witnesses
recorded by the police, it is apparently clear that all the accused persons were
continuously harassing Rajendra (since deceased). The deceased claimed in the
suicide note that he had already returned the amount but still the accused
persons were threatening the deceased with dire consequences and to kill him
and his family. As a consequence of which, Rajendra (since deceased) has
left with no option but to commit suicide. The trial Court found that against the
each accused person, there is sufficient material to frame charges.
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16. In view of the aforesaid legal principles set out by the Supreme Court.
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SHARAN SHUKLA
In the instant case, prima facie consideration of the prosecution case raises a
Date: 2023.04.13 18:04:07 IST
grave suspicion. While examination of charge sheet shows that there are
sufficient grounds to proceed. It is settled principle that at the time of framing
of charges, the probative value of the material on record cannot be gone into
and the material brought on record by the prosecution has to be accepted as
true.
17. In view of the preceding analysis, this revision is dismissed.
(SMT. ANJULI PALO)
JUDGE
ks
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Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
Date: 2023.04.13 18:04:07 IST
