Demand for outstanding dues from a borrower is not a ground for Abetment of Suicide under IPC: Bombay High Court

 on 21 12 2020 on 22 03 apl 1052 18(j).odt 1 8 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPUR.CRIMINAL APPLICATIONNO. 1052 OF 2018 Rohit S o Nawanath Nalawade Aged 27 Years Occupation : Service R o Sadaguru Heights Flat No.17 Pune Tah. And Dist. Pune …. APPLICANT VERSUS 1. The State of Maharashtra Through Police Station Officer Police Station Shripur Tah. Washim Dist. Washim2. Sanjay S o Shivlal Shipane Aged about 37 years Occ. Service Assistant Police Inspector Police Station Shripur Tah. Washim Dist. Washim. ….NON APPLICANTSShri N.B. Kalwage Advocate for the applicant.Shri M.J.Khan Additional Public Prosecutor for the non applicant no.1.________________________________________________________________ CORAM : V. M. DESHPANDE AND ANIL S. KILOR JJ. DATE : 17th DECEMBER 2020.ORAL JUDGMENT:has held thus:“14. The legal position with regard to essential ingredientsnecessary to attract the provisions of Section 306 of thePenal Code 1860 are now well settled. The DivisionBench of this Court in the case of Seema Bhoosreddy V.State of Mah. reported in 2012Mh. L.J.459 relying upon the decisions of the Hon’ble Supreme Courtin Madan Mohan Singh v. State of Gujarat reported in(2010) 8 SCC 628 and in S.S. Chheema v. Vijay KumarMahajan reported in 2010 ALL MR3298 in para 18thereof has held thus 18. It can thus be clearly seen that forproceeding further with the trial against theaccused for an offence punishable underSection 306 it is necessary for the prosecutionto at least prima facie establish that theaccused had an intention to aid or instigate orabet the deceased to commit suicide. In theabsence of availability of such material theaccused cannot be compelled to face trial forthe offence punishable under Section 306. Asheld by the Apex Court an abetment involvesmental process of instigating the person orintentionally aiding the person for doing of athing. Without a positive act on the part of the on 21 12 2020 on 22 03 apl 1052 18(j).odt 6 8 accused in aiding or instigating or abetting thedeceased to commit suicide the said personcannot be compelled to face a trial. Unlessthere is clear mens rea to commit the offenceor an active act or direct act which led thedeceased to commit suicide seeing no option orthe act intending to push the deceased intosuch a position the trial against the accusedunder Section 306 cannot be permitted.15.In the light of aforesaid legal position whenthe material on record is considered on its face value itcan be seen that non applicant no.2 who is brother ofdeceased and the first informant has lodged report on thebasis of contents of suicide note which was shown to himby police that prior to the death deceased had obtainedloan and the loan instalments were outstanding for whichthe executive of the Finance Company had visited himrequesting for making payment of outstanding loanamounts. According to non applicant no.2 complainant he was also aware of said fact and stated that for thisreason deceased used to be under mental stress. In viewof above stated fact thus there appears no reason tocontinue prosecution for the offence under Section 306 ofPenal Code 1860 as it is necessary for the prosecution toat least prima facie establish that accused had an intentionto aid or instigate or abet the deceased to commit suicide.Abetment involves mental process of instigating a personor intentionally aiding a person in doing of a thing andwithout a positive act on the part of the accused in aidingor instigating or abetting the deceased to commit suicide the said persons cannot be compelled to face the trial.”12.This Court in the case of Santoshkumar vs. State ofMaharashtra reported in 2020 SCC online Bom 914 by relying on acase of Dilip s o Ramrao Shirasao vs. State of Maharashtra hasobserved thus: “16. One of leading case on this issue is Dilip s o Ramrao Shirasaovs. State of Maharashtra reported at 2016 ALL MR4328 this on 21 12 2020 on 22 03 apl 1052 18(j).odt 7 8 Court discussed in detail various pronouncements of the HonourableApex Court. The ratio of the said is that it is incumbent uponprosecution to at least show prima facie case that accused had anintention to aid or instigate or abet deceased to commit suicide. Inthe absence of availability of such material the accused cannot becompelled to face trial for the offence punishable under Section 306of the Indian Penal Code.17. Admittedly in this case the Loan Account of the complainantwas showing outstanding to the tune of Rs.2 32 689 . The saidaspect is not denied by the prosecution. Sudhir Gawande thedeceased was not having any loan outstanding in his name. Even according to the prosecution Sudhir Gawande the deceased wentto the Bank of Maharashtra Morshi Branch District Amravati forloan. If previous loan amount is outstanding and if the applicant who is Branch Manager of the said Bank is refusing to grant anyfurther loan can be said as act of a vigilant and prudent banker andif he is not granting any further loan it cannot be termed that bysuch act he instigated and or abetted the person to commit suicide”13.On the aforesaid touchstone if we consider the facts ofthe present case admittedly the allegations are only to the effectthat the applicant demanded outstanding loan amount from thedeceased which was the part of his duty being employee of theFinance Company. In view of that the demand of outstanding loanamount from the person who was in default in payment of loanamount during the course of employment as a duty at any stretchof imagination cannot be said to be any intention to aid or toinstigate or to abet the deceased to commit the suicide. on 21 12 2020 on 22 03 apl 1052 18(j).odt 8 8 14.In that view of the matter we have arrived at aconclusion that in the present matter none of the requirement ofSection 306 of Indian Penal Code is being satisfied and therefore we are of the considered view that in the present matter Section306 of Indian Penal Code does not attract against the applicant.15.In the circumstance it would not be proper to compelor force the applicant to face the trial before the Criminal Court asthe same would be a futile exercise. Accordingly we pass thefollowing order.O R D E Ri. The Criminal Application No. 10518 is allowed.ii. The First Information Report No. 1418 dated 8thAugust 2018 registered with Police Station Shripur Dist. Washim for the offence punishable under Section 306 of Indian Penal Codequa the applicant is hereby quashed and set aside.iii.The Criminal Application No. 10518 is disposedof. No order as to costs. JUDGE JUDGEsknair 

Summary: “The demand of outstanding loan amount from the person who was in default in payment of loan amount, during the course of employment as a duty, at any stretch of imagination cannot be said to be any intention to aid or to instigate or to abet the deceased to commit the suicide.” This ratio was laid down by the Bombay High Court presided over by J. V.M. Deshpande &amp; J. A.S. Kilor, in the case of Rohit S/o Nawanath Nalawade Vs. State of Maharahtra &amp; Anr., [Criminal Application No. 1052 of 2018]. The current application is filed by one Rohit for quashing an FIR registered against him under Section 306 of the IPC by the Maharashtra Police. The facts of the case are that the deceased had taken a loan of Rs. 6,21,000/- to purchase a car from Mahindra and Mahindra Financial Services. He took the loan for a period of four years and had to pay a monthly installment of Rs. 17,800/-. He initially just paid Rs. 15,800/- and promised to pay the amount later. It is alleged in the FIR that the Applicant did not approve of this request and constantly harassed the deceased by calling him and asking him to pay his dues. The suicide note that was seized too indicates involvement of the Applicant in the crime. The counsel for the Applicant firstly placed reliance on the judgment of Amit S/o Ashok Naharkar v. State of Maharashtra, &amp; Anr., 2018 SCC Online Bom 1399, and submitted that the Applicant was only asking for his dues and in no way was responsible for abetment of suicide of the deceased. He stated that, “Abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said persons cannot be compelled to face the trial.”  The Division bench of the Bombay High Court quashed the FIR filed against the applicant on the basis that none of the requirement of Section 306 IPC for abetting a suicide were satisfied. The Court observed that, “if we consider the facts of the present case, admittedly, the allegations are only to the effect that the applicant demanded outstanding loan amount from the deceased which was the part of his duty being employee of the Finance Company. In view of that, the demand of outstanding loan amount from the person who was in default in payment of loan amount, during the course of employment as a duty, at any stretch of imagination cannot be said to be any intention to aid or to instigate or to abet the deceased to commit the suicide.”