Bail Application No. 8937 of 2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** ## **TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** ## **Bail Appl..No. 8937 of 2017** (CRIME NO.1218/2016 OF CHERUPUZHA POLICE STATION, KANNUR DISTRICT) PETITIONERS/ACCUSED NOS.1 AND 2 ## 1 A.T.V.DAMODARAN AGED 40 YEARS, S/O. CHANDRAN, EDAVARAMB P.O., CHERUPUZHA - 670 511, KANNUR DISTRICT. ## 2 RAJESH.K, AGED 42 YEARS, S/O. DAMODARAN, KOOTHOOR HOUSE, EDAVARAMBA P.O., CHERUPUZHA - 670 511, KANNUR DISTRICT. ## BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN RESPONDENTS/COMPLAINANT & STATE: ## 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. ## 2. THE STATION HOUSE OFFICER, (CRIME NO. 1218/2016 CHERUPUZHA POLICE STATION, CHERUPUZHA, KANNUR DISTRICT, PIN - 670 001. BY PUBLIC PROSECUTOR SRI.C.K.PRASAD THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON 06-02-2018 PASSED THE FOLLOWING: ## B.A.No.8937 of 2017 ------------------------ ## APPENDIX ----------- PETITIONER'S ANNEXURES ------------------------------ AI : A TRUE COPY OF THE AGREEMENT ENTERED BETWEEN THE 2ND PETITIONER AND THE DECEASED. A II: A TRUE COPY OF THE PLAINT IN O.S.NO.33 OF 2016 ON THE FILE OF SUB COURT, PAYYANNUR. A III: A TRUE COPY OF THE STATEMENT FILED BY THE 2ND PETITIONER IN O.S.NO.33 OF 2016 ON THE FILE OF SUB COURT, PAYYANNUR. RESPONDENTS' ANNEXURES -------------------------------- NIL TRUE COPY P.S TO JUDGE **“CR”** ## **R.NARAYANA PISHARADI, J.** *************************** B.A.No.8937 of 2017 -------------------------------Dated this the 6[th] day of February, 2018 ## **O R D E R** This application for anticipatory bail is filed under Section 438 of the Code of Criminal Procedure, 1973. 2. The petitioners are the first and the second accused in the case registered as Crime No.1218/2016 of Peringome police station under Sections 420, 406, 306 and 201 read with 34 I.P.C. 3. Baby, the father-in-law of the informer, was conducting a provision and stationery shop. On 21.08.2016, at about 20.15 hours, he closed the shop and left there. Since he did not reach home even by late night, his relatives made enquiries about him. On that night, that is, on 22.08.2016 at about 00.15 hours, his body was found hanging on a mango tree in his property. On the basis of the statement given to the police by the informer, Crime No.1218/2016 of Peringome police station was registered under Section 174 Cr.P.C. During the B.A.No.8937/2017 2 investigation, a suicide note was found out. It is stated in the suicide note that the petitioners and one Augustine (the third accused) are the persons responsible for the suicide. During the investigation, it was revealed that the deceased had got the suicide note prepared by an Advocate Clerk. A complaint addressed to the Sub Inspector of Police, Cherupuzha police station by the deceased was also found out. The deceased had got this complaint also prepared by the same Advocate Clerk. Later, the case was converted to one under Sections 420, 306, 406 and 201 read with 34 I.P.C. 4. According to the prosecution case, the deceased had advanced a loan of Rs.10,00,000/- to the first accused. He had also given an amount of Rs.14,00,000/- to the second accused, who is the son of the first accused, as advance for purchasing the property of the second accused. The first accused did not repay the money to the deceased. It is also alleged that the second accused did not execute sale deed of the property in favour of the deceased and that he was also not ready to return the amount of advance to the deceased. The first accused had executed a B.A.No.8937/2017 3 document in favour of the deceased as security for the loan availed of by him from the deceased. It is alleged that the third accused had managed to get back this document from the deceased under the guise of a mediator. According to the prosecution, the deceased committed suicide on account of the mental pain and agony caused to him by the petitioners by their acts of cheating. The prosecution alleges that the accused had abetted commission of suicide by the deceased. 5. Heard learned counsel for petitioners and the learned Public Prosecutor. Perused the case diary. 6. The offence punishable under Section 420 I.P.C is alleged against the petitioners for the reason that the first petitioner did not repay the amount borrowed by him from the deceased and that the second accused did not execute sale deed in favour of the deceased pursuant to the agreement entered into by him with the deceased. Even if it is accepted that the first petitioner failed to repay the amount to the deceased and that the second petitioner failed to execute the sale deed in favour of the deceased, prima facie, such acts amount to only acts of B.A.No.8937/2017 4 breach of promise or contract. 7. The prosecution has no case that the deceased had given the entire sale consideration to the second accused and even after payment of the entire sale consideration, the second accused did not execute the sale deed in favour of the deceased. 8. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. Distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused could be found guilty of the offence of cheating. On the other B.A.No.8937/2017 5 hand, if all that is established that a representation or promise made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a Civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction (See International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v. Nimra Cerglass (P) Ltd : (2016) 1 SCC 348). 9. The prosecution case is that the acts of cheating committed by the petitioners had caused mental agony and pain to the deceased and it compelled him to end his life by himself. The question, therefore, arises whether the prosecution has collected any materials which would prima facie show that the petitioners had abetted commission of suicide by the deceased. 10. Section 306 of the IPC deals with abetment of suicide of a person. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self - killing. Each person's suicidability pattern is different from the others. Each person has his own idea of self B.A.No.8937/2017 6 - esteem and self - respect. Human sensitivity of each individual differs from person to person. Different people behave differently in the same situation. Therefore, it is impossible to lay down any straight - jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances (See Mohan v. State : AIR 2011 SC 1238). Suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self (See Chitresh Kumar Chopra v. State : AIR 2010 SC 1446). 11. In this context, the definition of abetment as provided under Section 107 IPC is pertinent. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, B.A.No.8937/2017 7 instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy 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. Explanation to Section 107 IPC states that any wilful misrepresentation or wilful concealment of material fact which a person is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, active or direct act which led the deceased to commit suicide is essential to bring home the offence under Section 306 IPC. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in express words or may be by implied conduct. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. Positive act on the part of the B.A.No.8937/2017 8 accused to instigate or aid in committing suicide is necessary. There has to be a clear mens rea to commit the offence. It also requires an active act or direct act on the part of the accused which led the deceased to commit suicide. The act of the accused must have been intended to push the deceased into such a position to compel him to commit suicide (See Chheena v. VijayKumar Mahajan: (2010) 12 SCC 190). 12. The aforesaid principles have been highlighted in two recent decisions of this Court in Krishnadas v. State of Kerala : 2017 (2) KHC 422 and Sindhu Paul v. State of Kerala : 2017 (5) KHC 543. 13. In the instant case, the main materials collected by the prosecution to connect the petitioners with the suicide of the deceased are the suicide note and the complaint to the Sub Inspector of Police. 14. The suicide note, as stated earlier, was not written by the deceased in his handwriting. He had got it prepared by an Advocate Clerk. It mentions the names of the petitioners as the persons responsible for the suicide. However, it does not state B.A.No.8937/2017 9 the acts committed by the petitioners or the third accused which led and compelled the deceased to commit suicide. Mere mentioning the names of the accused in the suicide note, without particulars of the acts committed by them, is not sufficient to implicate the accused for the offence punishable under Section 306 I.P.C (See Netai Dutta v. State of West Bengal : AIR 2005 SC 1775 and State of Kerala v. Unnikrishnan Nair : AIR 2015 SC 3351). 15. Immediately before committing suicide, the deceased had also got prepared a complaint addressed to the Sub Inspector of Police. It is stated in this complaint that the first petitioner had borrowed Rs.10,00,000/- from the deceased. It is further stated in this complaint that the second petitioner had obtained from the deceased a total amount of Rs.14,00,000/- as consideration for sale of his property to the deceased but he did not take any further steps to execute the sale deed and that the petitioners had cheated the deceased. It is also stated by the deceased in his complaint that on account of the act of cheating committed by the accused, it became necessary for him to end B.A.No.8937/2017 10 his life. These acts allegedly committed by the accused, prima facie, do not amount to instigation to commit suicide or intentionally giving aid in committing suicide. It is also significant that the deceased has stated in the complaint addressed to the Sub Inspector of Police that his wife and children were not allowing him to live with any peace of mind for the reason that the property was not got registered in his name. 16. To sum up, prima facie, the materials so far collected by the prosecution are not sufficient to show that the petitioners had instigated or intentionally aided the deceased to commit suicide. The prosecution has no case that there was any positive act on the part of the petitioners instigating or intentionally aiding the deceased to commit suicide and that they intended the consequence to follow, it being commission of suicide by the deceased. In such circumstances, I am of the view that it is not imperative for an effective investigation of the case to curtail the personal liberty of the petitioners. It appears that custodial interrogation of the petitioners is not necessary. The prosecution has no case that the petitioners have got criminal antecedents. B.A.No.8937/2017 11 The prosecution has also no apprehension that on getting bail, the petitioners would abscond and flee from justice. At the same time, necessary directions can be issued for ensuring free, fair and full investigation. 17. In the result, the application is allowed and it is ordered as follows: 1) The petitioners shall be released on bail on executing a bond for Rs.50,000/- each with two sureties each for the like amount in the event of their arrest by the police in Crime No.1218/2016 of Peringome Police Station. 2) The petitioners shall appear before the investigating officer between 9 a.m and 11 a.m on all Mondays and Thursdays for a period of three months from the date of their release on bail and thereafter, on all Saturdays till final report is filed in the case. 3) The petitioners shall produce their passports in the Magistrate's Court concerned within three days from the date of their release on bail. If they have no passport, they shall file an affidavit to that effect within that period in the B.A.No.8937/2017 12 Magistrate's Court concerned. 4) The petitioners shall not influence or intimidate the prosecution witnesses. They shall not make any attempt to tamper with the evidence in the case. 5) The petitioners shall not leave the State of Kerala without the prior permission of the Court having jurisdiction over the case. 6) The petitioners shall appear before the investigating officer as and when directed in writing to do so. In case of violation of any of the above conditions, the jurisdictional Court is empowered to consider the application for cancellation of bail, if any, made and pass appropriate orders in accordance with law. 18. It is well settled that at the time of consideration of bail application, the Courts are not expected to discuss the merits or demerits of the evidence collected against the accused. A detailed examination of the evidence or an elaborate documentation of the merits of the case has to be avoided (See Puran v. Rambilas : AIR 2001 SC 2023). However, B.A.No.8937/2017 13 there is a need to indicate reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. It is also necessary for the court granting bail to reach prima facie satisfaction of the materials in support of the charge (See Prasad Shrikant Purohit v. State of Maharashtra : AIR 2017 SC 3986). In the peculiar facts and circumstances of the instant case, in order to consider whether the prosecution has got a strong prima facie case in regard to the accusation against the petitioners so as to deny them bail, it became necessary for this Court to consider some items of evidence in detail. Therefore, before parting with the case, I may hasten to clarify that the observations in this order regarding the merits of the prosecution case have been made only for the purpose of deciding the bail application and that the investigating officer, and the trial court in case of trial, shall form opinion untrammelled by such observations. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy