High Court
Legal Reasoning
1 946.Cri.Appln.-3522-2022.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Application No. 3522 / 2022Subhash s/o Dhondiba MundeAge : 56 years, Occu. Business,R/o : Bank Colony, Parli V.Dist. Beed.…Applicant (Original Accused No.1)Versus1.The State of MaharashtraThrough police station officer,Police Station Parli,Dist. Beed.2.Megha w/o Pravin Malewar,Age : 38 years, Occu. Household,R/o behind Nath Talkies, Shivaji Nagar,Parli V., Dist. Beed. (Respondent No.2/Original Informant) ...RespondentsWITHCriminal Writ Petition No. 557 / 2023Shrikrushna s/o Jivan Bhange,Age : 29 years, Occu. Business,R/o Dhardighol, Tq. Sonpeth,Dist. Parbhani.At present : Bank Colony,Tq. Parali V., Dist. Beed.…Petitioner (Original Accused No.12)Versus1.The State of MaharashtraThrough police station officer,City Police Station, Parli,Dist. Beed. 2 946.Cri.Appln.-3522-2022.doc 2.Megha w/o Pravin Malewar,Age : 38 years, Occu. Household,R/o behind Nath Talkies, Shivaji Nagar,Parli V., Dist. Beed. (Respondent No.2/Original Informant) ...Respondents….Criminal Writ Petition No. 603 / 2023Prakash s/o Bharat ChidrewarAge : 55 years, Occu. Business,R/o Madhav Bagh, Parali V.,Tq. Parali V., Dist. Beed....Petitioner Versus1.The State of MaharashtraThrough police station officer,Parali City Police Station, Parali,Dist. Beed.2.Megha w/o Pravin Malewar,Age : 38 years, Occu. Household,R/o behind Nath Talkies, Shivaji Nagar,Parli V., Dist. Beed. (Respondent No.2/Original Informant) ...Respondents….Criminal Writ Petition No. 604 / 2023Vishnu s/o Nathrao MundeAge : 38 years, Occu. Business & Agri.,R/o Indapwadi, Tq. Parli V.Dist. Beed....Petitioner (Original Accused No.5) Versus1.The State of MaharashtraThrough police station officer,Parali City Police Station, Parali,Dist. Beed.
Legal Reasoning
3 946.Cri.Appln.-3522-2022.doc 2.Megha w/o Pravin Malewar,Age : 38 years, Occu. Household,R/o behind Nath Talkies, Shivaji Nagar,Parli V., Dist. Beed. (Respondent No.2/Original Informant) ...Respondents…Criminal Writ Petition No. 729 / 2023Shamrao s/o Manikrao KatkadeAge : 60 years, Occu. Business/Contractor,R/o TPS Colony Road, Shivaji Nagar,Tq. Parli V., Dist. Beed....Petitioner (Original Accused No.7) Versus1.The State of MaharashtraThrough police station officer,Parali City Police Station, Parali,Dist. Beed.2.Megha w/o Pravin Malewar,Age : 38 years, Occu. Household,R/o behind Nath Talkies, Shivaji Nagar,Parli V., Dist. Beed. (Respondent No.2/Original Informant) ...Respondents...Advocate for Applicant in Cri. Application No.3522/2022 : Mr. DhananjayShinde h/f Mr. A.M. ReddyAdvocate for Petitioners in all petitions : Mr. Avinash A. PhadAPP for the Respondent No.1/State : Mr. G.A. KulkarniAdvocate for Respondent No.2 in Cri. Application No.3522/2022 : Mr. R.D.Kawade (Appointed) 4 946.Cri.Appln.-3522-2022.doc Advocate for Respondent No.2 in all petitions : Mr. Avinash S. Londhe… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. DATE : 30 APRIL 2024 FINAL ORDER [Per Shailesh P. Brahme, J.] :.Heard both the sides finally.2.The applicant/petitioners in all these matters are arrayed asaccused in F.I.R. bearing C.R. No.34/2022 registered with Parli CityPolice Station, Beed for offence under Section 306 read with 34 of theIndian Penal Code and under Section 39 of Money Lending Act.They are seeking quashment of F.I.R. and consequential R.C.C.No.279/2022 pending before the Judicial Magistrate First Class,Parli.3.Respondent No.2/Megha is the wife of deceased Pravin who isinformant in the offence in question. The gist of the complaint lodgedby her is that she was residing with her children and deceasedhusband who was running business at Parli. In the year 2013, theyhad purchased a house but due to indebtedness, it was required to besold in 2013. Her husband was constantly under pressure because he 5 946.Cri.Appln.-3522-2022.doc was unable to repay loan despite selling house. It is furthercontended that on 17.02.2022, deceased was under depression and hescribed note stating the names of the creditors, their mobile numbersand outstandings. Informant disclosed that the creditors mentionedin it, were harassing him, despite repayment with the interest. Hefurther expressed his frustration for dishonest claims. The note wasforwarded by the informant to her brother. On 18.02.2022 in themorning, he was found hanged in the shop.4.A report was lodged on 18.02.2022 by the respondent no.2against sixteen persons who are creditors and whose names arementioned in the note given by deceased to the informant. Theapplicants are amongst them who are alleged to have harasseddeceased for repayment of loan. In view of the note scribed by thedeceased, law is set into motion against the applicants. A charge-sheet is filed and Section 39 of Money Lending Act has been added tooriginal Section 306 read with 34 of IPC. 5.Learned Counsel for the applicants/petitioners submits thatdemanding outstandings cannot be said to be abetment ascontemplated by Section 107 of IPC. Mere mentioning of their namesin the note scribed by the deceased would not make out offence under 6 946.Cri.Appln.-3522-2022.doc Section 306 of IPC. It is vehemently submitted that there was nointention on the part of the applicants so as to eliminate thedeceased. They would submit that the statements recorded and thematerial collected during the investigation cannot make out offenceunder Section 306 of IPC. 6.They would further submit that there is correspondencebetween the Investigating Officer and Assistant Registrar, MoneyLending to show that no complaint was ever received against accusedpersons alleging money lending business. Isolated instance of moneylending would not attract penal action under Money Lending Act. Itis further submitted that no case of abetment or torture is made outso as to drive the deceased to commit suicide.7.Learned Counsel Mr. Shinde would rely upon followingjudgments :(i) Netai Dutta Vs. State of W.B. (2005) 2 SCC 659(ii)Amalendu Pal alias Jhantu Vs. State of West Bengal(2010) 1 SCC 707(iii)M. Arjunan Vs. State represented by its Inspector of Police(2019) 3 SCC 315(iv)Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and Others, (2017) 9 SCC 641.(v)Jitendra Mohan Gupta Vs. State of Maharashtra & Anr.Criminal Writ Petition No.138/2019 7 946.Cri.Appln.-3522-2022.doc (vi)Mandubai Vitthoba Pawar Vs. State of Maharashtra through Superintendent of Police and Others, 2016(1) Bom.C.R. (Cri.) 794. 8.Per-contra, learned APP and learned Counsel for therespondent no.2 would oppose the submissions of the applicants. It isbeing submitted that the applicants were insisting for repayment andconstantly pressurizing the deceased though there was repayment.Due to such dishonesty, the deceased was left with no alternative butto commit suicide. Supplementary statements of the informant, herbrother and statement under Section 164 are referred to showinvolvement of the applicants. Learned Counsel would rely on thejudgment of the Supreme Court in the matter of DidigamBikshapathi and Another Vs. State of Andhra Pradesh, (2008) 2SCC 403.9.Learned Counsel for respondent no.2 would submit that full-fledged trial is required to determine involvement or innocence of theapplicants. It would be too hazy to quash the proceeding at thisstage. They would rely upon note scribed by the deceased mentioningdetails of the applicants and the harassment. Learned Counsel forthe respondent no.2 would point out the report contained in thecharge-sheet to show that there were online transactions. 8 946.Cri.Appln.-3522-2022.doc 10.We have considered rival submissions of the parties andrelevant papers of investigation. A note scribed by deceased whichwas handed over to informant shows that names of fifteen personsare mentioned with their mobile numbers with amounts and rate ofinterest. At the bottom of the list, it is scribed that deceasedsustained harassment. We have carefully gone through F.I.R.,supplementary statements of the informant and her brother. Ittranspires that deceased was indebted. He had borrowed money fromthe applicants and other persons. Applicants and others wereinsisting for repayment. Deceased was being harassed on telephoneand by visiting his shop. 11.The note scribed by the deceased except mentioning names andthe amount outstanding does not disclose the manner in which theharassment was caused. Similar is the case with the statementrecorded during the investigation. What emerges is that theapplicants and others were demanding their outstanding andpersisting for the same. There is nothing on record to indicate thatall the applicants conspired together and with common intentionsubjected the deceased to such a torture to drive him to commitsuicide. The magnitude of the harassment is not of such a nature soas to leave no alternative to the deceased but to commit suicide. Wefind no material which satisfies parameters of Section 107 of IPC. 9 946.Cri.Appln.-3522-2022.doc 12.Though it is mentioned in FIR that deceased had repaidoutstandings with interest, no material is collected duringinvestigation to support this allegation. Some endeavour should havebeen made by informant or witnesses to indicate repayment. In allprobability the deceased would not have sustained the claims of theaccused. 13.F.I.R. and supplementary statement of the informant disclosethat she was not even knowing few creditors like Mrs. Aghav, Mrs.Agarwal. We have gone through letter dated 08.03.2022 addressedby the Assistant Registrar to the Investigating Officer stating thatno complaint was received against the applicants for havingundertaken money lending transaction against the applicants andothers. The material on record does not indicate multiple moneylending transaction with individual applicants. At the most it can besaid to be isolated instance of money lending. We are of theconsidered opinion that it does not fall within the purview of Section39 of the Maharashtra Money Lending Act.14.Learned Counsel for the applicants has rightly referred tojudgment in the matter of Mandubai Vitthoba Pawar (supra).Relevant paragraph nos. 11 and 12 are as follows :“11.The above discussion makes it clear that for it to be a business there has to be acontinuous and systematic activity by application of labour or skill with a view of earning 10 946.Cri.Appln.-3522-2022.doc income when it could be called "business". In order to do business of money lending, itwould be necessary for the State to point out multiple activities of money lending done bythe petitioner. Merely referring to one isolated transaction claimed to be a loan transactionor money lending would not be enough to show that the petitioner was involved in"business of money lending" without licence. The FIR in the present matter read as a wholedoes not spell out that the petitioner was doing "business of money lending". This being so,on the basis of such FIR the prosecution cannot be maintained.”“12.We have gone through the various documents put on record by the petitioner as wellas the respondents. There are not even vague allegations, apart from the presenttransaction of 1982, that petitioner was advancing loans to people and getting propertiestransferred. This is apart from the fact that it would be necessary for the FIR itself to spellout in clear terms the transactions which would prima facie show that business as such ofmoney lending was being involved into without there being a valid licence.” 15.Learned Counsel for the applicants have referred to judgmentin the matter of Netai Dutta (supra) to buttress that merementioning names of accused in the suicide note would not besufficient, in the absence of any specific act or incident. We followthe ratio. We have considered judgment of the Supreme Court in thematter of Amalendu Pal alias Jhantu (supra). We follow ratio laiddown in paragraph no.12 which is as follows:“12.At the outset, we intend to address the issue regarding the applicability of Section 306IPC in the facts of the present case. Section 306 deals with abetment of suicide andSection 107 deals with abetment of a thing. They read as follows: 306. Abetment of suicide.--If any person commits suicide, whoever abets the commissionof such suicide, shall be punished with imprisonment of either description for a term whichmay extend to ten years, and shall also be liable to fine.”16.Further reliance is placed on judgment rendered in Jitendra 11 946.Cri.Appln.-3522-2022.doc Mohan Gupta (supra). We are in agreement with a view taken inthat matter. Paragraph no.6 is as follows :“6.We have carefully gone through the charge-sheet and the suicide note. A bareperusal of the suicide note reveals that the debt which the petitioner owed to the deceasedwas only one of the three reasons which had put the deceased under stress. It isnecessary to remember that abetment involves a mental process of instigating orintentionally aiding a person to do a thing. Each person has his own ideas of selfesteemand selfrespect. Merely because a person is unable to bear the stress, one cannot jump tothe conclusion that the act or the circumstance which causes the stress is a situationcreated with an intention that the deceased should commit suicide.”17.Learned APP refers to judgment of Didigam Bikshapathi(supra) to buttress that the suicide note refers to act of harassmentand name of the applicants/petitioners so as to make out a case foroffence under Section 306 of IPC. We have considered relevant factsof that case. There, the suicide note referred to the background inwhich the victim took extreme step of committing suicide and rolesplayed by the accused persons. In the present matter, note is silentregarding role played by the applicants/petitioners as well as extentof harassment. The judgment is distinguishable and cannot be madeapplicable.18.For the reasons stated above, we pass following order :ORDERi.Criminal Application and Criminal Writ Petitions are allowed to the extent of applicants/petitioners. 12 946.Cri.Appln.-3522-2022.doc ii.Impugned FIR and consequential R.C.C. No.279/2022 are quashed and set aside to the extent of applicants/petitioners. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGEN A J E E B...