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2016 DIGILAW 67 (KAR)

Arunabha Bandyopadhyay v. State of Karnataka

2016-01-19

RATHNAKALA

body2016
ORDER : Rathnakala, J. 1. The petitioner/6th accused, is charge sheeted along with co-accused in respect of the offence punishable under Section 306 read with Section 34 of IPC. 2. The allegation of the prosecution is, the accused No. 2 and 4 took the title deed pertaining to the house property from the father of the complainant viz. Late Venkatesh; in connivance with the co-accused fabricated the documents pertaining to said property in the name of 1st accused and availed a loan of Rs. 8.40 Lakhs(Rupees Eight Lakhs Forty Thousand Only) from the State Bank of Travancore. Thereafter, the Bank Authority and also accused persons started pestering the deceased Venkatesh which drove him to frustration so as to commit a suicide. At the relevant point of time, the petitioner herein was working as Manager in State Bank of Travancore and 5th accused was the Field Officer. 3. Sri C.H. Jadhav, learned Senior Counsel for Smt. Rashmi Jadhav, appearing for the petitioner submits that the petitioner being the Bank Manager was not the final authority to sanction the loan. At the relevant point of time, A1-Siddana Gowda applied for loan on the basis of the documents which is now alleged to be false document created on the basis of the title deed that stood in the name of the deceased M.R. Venkatesh. His role was limited only to the extent of physical inspection of the property described in the documents, and to issue an Inspection and Valuation Report. After Title Clearance Certificate given by the advocate, he inspected the house. He was transferred from State Bank of Travancore on 05.06.2007 and deceased Venkatesh committed suicide on 29.06.2009. Subsequent to his transfer, he had no communication of whatever nature with the deceased. His name was not mentioned in the FIR and statements of the witnesses will not make out a case of abetment. In view of the nature of his duty, he could not be present at Bengaluru for a long stretch of time. The initiation of the criminal proceedings against him has resulted in deterioration of his health condition. Assuming that the entire charge sheet material is true and real, no case under Section 306 of IPC is made out against him. The continuation of criminal proceedings against him amounts to abuse process of law and liable to be quashed. 4. The initiation of the criminal proceedings against him has resulted in deterioration of his health condition. Assuming that the entire charge sheet material is true and real, no case under Section 306 of IPC is made out against him. The continuation of criminal proceedings against him amounts to abuse process of law and liable to be quashed. 4. Sri Chetan Desai, learned HCGP for R1 supported with Sri Ashok Shetty, learned counsel for Sri S. Vishwajith Shetty, appearing for R2 submits though the petitioner was not stationed at Bengaluru on the day the deceased committed suicide, he connived with the accused to create a false document in the name of A1 in respect of house property of the deceased, thereby he was instrumental for sanction of loan. As per materials collected by the IO, because of coercion exerted on the petitioner to repay the loan amount, the deceased was driven to a situation, that there was no other go for him except to commit suicide. The contention advanced on behalf of the petitioner can at the best be availed by him as his defence during the trial and the case cannot be quashed at the threshold. 5. In the charge sheet except statements of the complainant and witnesses, no other material pertaining to the indulgence of this petitioner in creating forged document and coercing the deceased are to be found. The witnesses cited are one Chandrakanth/Complainant/CW 1, CW 2 and 3 the spot mahazar witnesses, CW 4 to 6/the panch witnesses, CW 7 to 10/the witnesses to the inquest mahazar. CW 11 and 13/circumstances witnesses to the transaction between the deceased and 1st accused, CW 15 to 23/the police witnesses, CW 24/doctor who conducted the autopsy and CW 25/I.O. Going by the version of the circumstantial witnesses, they are neighbors of the deceased. Their knowledge of incident is hearsay. Accordingly, deceased was a weaver by profession and had purchased a residential site from one Krishnappa and constructed a building on said site and had put-up looms. A1 assured the deceased to assist for availing loan from the Bank and obtained Xerox copy of the Title Deed of his house property. Sometimes thereafter, the Bank officials of State Bank of Travancore, MG Road, Benglauru, approached the deceased and demanded for repayment of the loan amount. They had disclosed that one Siddana Gowda had availed the loan. A1 assured the deceased to assist for availing loan from the Bank and obtained Xerox copy of the Title Deed of his house property. Sometimes thereafter, the Bank officials of State Bank of Travancore, MG Road, Benglauru, approached the deceased and demanded for repayment of the loan amount. They had disclosed that one Siddana Gowda had availed the loan. Said Siddana Gowda confided with the deceased that he had forged the title deed of his house property, and by using the same, raised loan from the Bank. He assured that he would repay the same within three months. He returned the title deed and executed an agreement in this regard, but failed to re-pay the loan amount. In this regard, the deceased lodged a private complaint in the Court in PCR No. 191/2006 and also filed a police complaint. In view of non-clearance of the loan amount, the Bank official used to insist the deceased for repayment of the loan amount. The petitioner along with Field Officer/Suresh was insisting him over phone to re-pay the loan amount, otherwise to commit suicide, due to which he was subjected to mental cruelty. Despite noticing that the 1st accused-Siddana Gowda was not residing in the concerned building during spot inspection by the petitioner and Suresh, loan could not have been sanctioned in favour of the 1st accused, still it was sanctioned. The accused persons are responsible for the suicide of the deceased by their torture and incitement. 6. Section 306 of IPC vexed in this proceeding reads thus: 306. Abetment of Suicide:- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 'Abetment' is contemplated under Section 107 of IPC, thus: 107. Abetment of a thing:-A person abets the doing of a thing, who Firstly Instigates any persons to do that thing; or Secondly-Engages with one more other person or persons takes place in pursuance 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. 7. In the case of S.S. Chheena Vs. 7. In the case of S.S. Chheena Vs. Vijay Kumar Mahajan, reported in 2010 (12) SCC 190 , the Apex Court has elaborated 'Abetment' at para-28 as under: 28. ABETMENT involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 8. In the case of Ramesh Kumar Vs. State of Chhattisgarh, reported in (2001) 9 SCC 618 , the larger bench of the Apex Court defined the meaning of Instigation at para-20 of its judgment as follows: 20. Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation". 9. In the case of Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605 , the Apex Court observed that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. Admitting for awhile that the entire materials brought on record by the prosecution is true and real version, then also there is no abetment as contemplated under Section 107 of IPC. 10. It is beyond comprehension that the accused who insisted for repayment of the loan amount over telephone would incite the deceased to commit suicide for not making payment. Basically there are no eyewitnesses who saw or heard the petitioner stating so to the deceased. Even if the petitioner had uttered that the deceased should die if he is unable to clear the loan, then also it cannot be in word as a good to drive the deceased to suicide. 11. In the case of Sanju Alias Sanjay Singh Sengar Vs. State of M.P. reported in 2002 SCC (Cri) 1141, the Apex Court has observed that "..........Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of means rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion......." 12. It is not the case of the prosecution that immediately prior to commission of the suicide, the petitioner had used those inciting words. Active role of the petitioner if any in sanctioning the loan to 1st accused on the fabricated documents and his connivance ay amount to some other offence, but certainly not an offence under Section 306 of IPC. The High Court in exercise of its jurisdiction under Section 482 of Cr.P.C. is empowered to interfere when the material on record fails to make out a cognizable offence. Pendency of such case is abuse process of law. The High Court in exercise of its jurisdiction under Section 482 of Cr.P.C. is empowered to interfere when the material on record fails to make out a cognizable offence. Pendency of such case is abuse process of law. Hence, I am convinced that this is a fit case to quash the proceedings in exercise of jurisdiction under Section 482 of Cr.P.C. The petition is allowed. The criminal proceedings in CC No. 12316/2013, on the file of the C.M.M. Court, Bangalore, in so far as this petitioner is concerned, is quashed.