OMPRAKASH S/O. BHUPALSINH @ PAWAN RAJENIMBALKAR AND OTHERSversusTHE STATE OF MAHARASHTRA AND ANR

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      IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

           CRIMINAL APPLICATION NO. 3971 OF 2019

1.    Omprakash s/o Bhupalsinh @ Pawan
      Rajenimbalkar

2.    Anandidevi wd/o Bhupalsinh @ Pawan
      Rajenimbalkar

3.    Ramakant s/o Shrirangrao Tekale

4.    Satishkumar s/o Banshilal Somani

5.    Rajesaheb s/o Givnidrao Patil

6.    Shivaji s/o Mahadeo Magar

7.    Balasaheb s/o Pralhadrao Makode

8.    Appasaheb s/o Venkatrao Patil

9.    Chandraprakash s/o Kurshnath Jamale

10.   Dwarkanath s/o Parasram Mali

11.   Udhav s/o Digambar Madake

12.   Udhav s/o Manikrao Samudre

13.   Shatrughna s/o Dattoba Jaybhay

14.   Gundu s/o Bapu Pawar                    .. Applicants

           Versus

The State of Maharashtra & another            .. Respondents

Mr. M. S. Deshmukh, Advocate holding for Mr. S. A. Wakure,
Advocate for the Applicants.
Mr. S. B. Narwade, APP for the State.
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                             WITH
            CRIMINAL APPLICATION NO. 334 OF 2020 IN
             CRIMINAL APPLICATION NO. 3971 OF 2019

Vandana wd/o Dilip Dhawale
& another                                      .. Applicants

            Versus

Omprakash s/o Bhupalsinh @ Pawan
Rajenimbalkar & others                         .. Respondents

Mr. V. D. Salunke, Advocate holding for Mr. N. V. Gaware, Advocate
for the Applicants.
Mr. M. S. Deshmukh, Advocate holding for Mr. S. A. Wakure,
Advocate for the Respondents.


                            WITH
             CRIMINAL APPLICATION NO. 765 OF 2023

1.    Ramling s/o Dhondippa Karajkhede

2.    Bhima s/o Bhagwanrao Thamane

3.    Elahi s/o Farid Bagwan

4.    Ganesh s/o Datta Bandgar

5.    Pradip s/o Kondiba Munde

6.    Laxman s/o Bhimashankar Nalawade

7.    Kamalakar s/o Baburao Aakoskar           .. Applicants

                  Versus

The State of Maharashtra & another             .. Respondents

Mr. A. T. Jagtap, Advocate for Applicants.
Mr. S. B. Narwade, APP for the State.
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                            WITH
             CRIMINAL APPLICATION NO. 848 OF 2023

1.    Vikram Shamrao Padwal

2.    Sanjay Prakash Nimbalkar

3.    Bhimrao Dattu Salunke                     .. Applicants

            Versus

The State of Maharashtra & others               .. Respondents

Mr. M. R. Deshmukh, Advocate for Applicants.
Mr. S. B. Narwade, APP for the State.
Mr. V. D. Salunke, Advocate holding for Mr. R. V. Naiknavare,
Advocate for Respondent No. 3.

                            CORAM : R. M. JOSHI, J.
                       RESERVED ON : 7th SEPTEMBER, 2026
                     PRONOUNCED ON : 16th SEPTEMBER, 2026

ORDER :


1.      Since these applications are arising out of a single First

Information Report and as the facts involved in these proceedings are

same, by consent of both sides, all applications are heard and

decided together by this common order.


2.    The present Application Nos. 3971/2019, 765/2023 and

848/2023 are seeking quashment of First Information Report No.

0247/2019 dated 15.09.2019 registered with Dhoki Police Station,

Dist. Osmanabad, for the offences punishable under Sections 306,
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406, 409, 420, 120B read with Section 34 of Indian Penal Code, 1860

(for short ‘IPC’) so also for quashment of charge-sheet No. 71/2021

dated 05.07.2021 and to set aside order dated 01.09.2021 taking

cognizance to the effect of issuance of process against the Applicants.


3.    It is brought to notice of this Court that Applicant Nos. 5 and 6

in Criminal Application No. 3971/2019, during the pendency of this

Application, have died, therefore, proceedings stood abated qua

Applicant Nos. 5 and 6 in this Application.


4.    Facts which led to filing of these applications are narrated in

short as under :-


      It is the case of the prosecution that Dilip Shankar Dhavale, a

mukakdam     (contractor)   engaged    by   Terna   Shahakari   Sakhar

Karkhana Ltd., Dhoki, (for short ‘Factory’) died by suicide on

12.04.2019 by hanging himself at his agricultural field. Accidental

Death No. 18/2019 was first registered under Section 174 of Code of

Criminal Procedure.      Two hand-written chits and two diaries

recovered from the spot alleged that in 2010-2011 the Factory had

obtained a loan from Vasantdada Nagari Sahakari Bank Ltd.,

Osmanabad (for short ‘Bank’) and that as security a charge was

created over four acres of the deceased’s agricultural land. The loan
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was allegedly not repaid by the Factory as resolved, resulting in the

Bank auctioning the deceased’s land on three occasions.          It was

further alleged that Rs. 2,93,500/- due to the deceased from Jai

Laxmi Sugar Factory, Nitali whose Chairman, Mr. Vijay Dandniak,

was also Chairman of the Bank, was neither paid to him nor adjusted

against the loan. After the hand-writing expert confirmed the chits

to be hand written by the deceased, First Information Report No.

247/2019 was registered on 15.09.2019 at Dhoki Police Station by

P.I. Bhimrao Ganpati Wevhal, under Sections 306, 406, 409, 420,

120-B r/w 34 of IPC, naming Omprakash Rajenimbalkar, his mother

Anandidevi Rajenimbalkar, then Chairperson of the Factory, the then

Vice-Chairperson Ramakat Shrirang Tekale, then Executive Director

Shahuraje Dhabekar, then administrative officer Sheshrao Chalak

and office-bearers/directors of the Factory, Bank and Jai Laxmi

Sugar Factory.        Charge-sheet No. 71/2021 came to be filed on

completion of investigation against 45 accused persons before the

Additional    Chief    Judicial   Magistrate,   Osmanabad   in   R.C.C.

No.452/2021 and the case was committed to the Court of Session

and is pending as Sessions Case No. 85/2022 before the Additional

Sessions Judge, Osmanabad.          Process is issued vide order dated

01.09.2021.
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5.    Learned Counsel for the Applicants in Criminal Application No.

3971/2019 submitted that the Applicants are falsely implicated in

the present case and the First Information Report, if taken at its face

value, reveals no offence as alleged against the Applicants.         He

further contended that the statements of the witnesses do not

connect the Applicants with the alleged crime.           Thereafter, he

submitted that the allegations are influenced and instigated by the

rivals of Applicant No. 1. He submitted that the dispute is going on

between deceased and Bank since 2012-2013 and in the intervening

period, not any single allegation was made by the deceased against

the present Applicants. He submitted that the deceased committed

suicide on 12.04.2019 after which Accidental Death was registered

on same day, however, First Information Report was lodged on

15.09.2019. Based on this point, he stressed on the fact that since

Applicant no. 1 was contesting election at the relevant time,

Applicant No. 1 as well as the other Applicants for the reason being

politically associated with Applicant No. 1, are deliberately arrayed as

accused in the alleged crime due to political rivalry.


6.    He further submitted that as far as Applicant No. 1 is

concerned, he is neither signatory to the resolution or any

transaction between the deceased and the Bank nor was he Director
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or any office bearer of the said Factory at any point in time and so far

as the other Applicants are concerned, they are the office bearers of

the sugar factory, however, this fact does not make them responsible

for the commission of alleged offence.      He pointed out the Writ

Petitions filed before this Court wherein the deceased stated he had

no grievance against the present Applicants prior to the commission

of suicide so also the present Applicants are nowhere concerned with

the due amount as alleged in the First Information Report. Lastly, he

submitted that since there is no mens rea or any entrustment the

ingredients of Sections 406 and 409 of IPC are not fulfilled and

present Applicants are deliberately roped into the crime. In respect of

other Applicants, it is his contention that there is no case made out

against them of abetment to suicide by deceased nor it could be said

that passing resolutions would amount to offence of cheating or

breach of trust etc.


7.    To support the above comprehensive contention, learned

Counsel for the Applicants in Criminal Application No. 3971/2019

places reliance on the judgment of the Hon’ble Supreme Court in

case of Sanju Alias Sanjay Singh Sengar vs. State of M.P. (2002) 5

SCC 371 and State of West Bengal vs. Indrajit Kundu and others,

(2019) 10 SCC 188.
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8.    Learned Counsel for Applicants in Criminal Application No.

765/2023 submitted that in the present case, there are no specific

overt acts attributed to the present Applicants in the suicide note as

well as in the First Information Report, since the names of the

Applicants are not listed in the First Information Report as accused

persons so also there is no prima facie evidence against the accused

to hold them responsible for death of the deceased. He submits that

the transactions between the deceased person and the bank are legal

since recovery of loan cannot be treated as an illegal act. Therefore,

no offence is attracted against the Applicants.    He stressed on the

fact that the present case between the bank/Applicants and the

deceased is of civil nature and offences alleged in the First

Information Report are not attracted as far as the role of Applicants is

concerned. It is also canvassed that the Bank has no concern with

the agreement between contractors and factory.


9.    The learned Counsel for the Applicants in Criminal Application

No. 848/2023 submitted that this is a case of deliberate implication

of the Applicants on account of them being the directors of the

factory at relevant time though they were not present while the

resolutions dated 04.07.2010 and 13.07.2010, on the basis of which

all the accused persons are arrayed, were passed.       Moreover, they
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opposed the resolution dated 16.11.2010. It is further argued that

offence alleged cannot be made attributable to the present Applicants

since there are no specific allegations of instigating or compelling the

deceased to commit suicide.     By drawing attention of the Court to

charge-sheet on record, it is argued that nowhere in the suicide note

or diary of deceased, the present Applicants are named and in

absence of any proximity/live link so also in absence of any role

played in alleged transactions, the present Application deserves to be

allowed. He further contends that offence under Sections 406 and

420 of IPC cannot be attracted as there was no entrustment of any

property nor can it be said that there was any conspiracy between

present Applicants and Omraje Nimbalkar as they were political

rivals. Only by the reason that present Applicants were Directors of

the factory during the relevant period cannot be held liable for the

offence alleged and made to undergo the ordeals of trial. To support

his contentions learned Counsel for the applicants relied upon the

judgment of Hon’ble Supreme Court in cases of S. S. Chheena Vs.

Vijaykumar Mahajan, 2010 All M.R. Criminal 3298 and State of

Haryana and others Vs. Ch. Bhajan Lal and others,                 1992

Cri.L.J.527.
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10.   Learned APP opposed all the Applications and submitted that

all of the Applicants have acted in collusion to commit the crime

leading to suicide of the deceased. He submits that since the offence

is of serious nature, no relief may be granted to the Applicants. He

drew attention of the Court to the resolutions dated 04.07.2010 and

13.07.2010 so also the undertaking/guarantee dated 01.08.2010

holding the factory liable for the expenses incurred by the contractors

while raising the loan so also assurance given by the factory that in

the event of non-deduction of loan amount from the payable amount

of the contractors, the Factory will pay the entire loan amount

including the interest.


11.   To oppose grant of any relief to all the Applicants, learned APP

places reliance on judgments of the Hon’ble Supreme Court in case of

Mahendra K.C. vs. State of karnataka and another (2022) 9 SCC

129, Rajeev Kourav vs. Baisaheb and others, (2020) 3 SCC 317 and

Chitresh Kumar Chopra vs. State (Government of NCT of Delhi),

(2009) 16 SCC 605.


12.   Learned Counsel appearing for the intervenor in Criminal

Application No. 3971/2019 vehemently opposed grant of any relief to

the Applicants.    He stressed on the fact that the Applicants in
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collusion have committed the fraud with the deceased and other

contractors in the factory leading to this unfortunate event.         He

submitted that all the ingredients of offence under Sections 406, 409,

420 of IPC are fulfilled eventually culminating the offence under

Section 306 of IPC. To support his submissions, he placed reliance

on judgment of Hon’ble Supreme Court in case of Ude Singh and

others vs. State of Haryana, 2019 (17) SCC 301.


13.   In Criminal Application no. 3971/2019, Applicant No. 1 claims

that he was not the office bearer of the Factory.         Rest of the

Applicants in the said application are the Directors and office bearers

of the said Factory.    Some of them are the signatories to the

resolutions in question and some are not.


14.   In Criminal Application No. 848/2023, the Applicants are said

to be the Directors of Factory during the relevant period i.e. 2008 –

2010 and were party to the resolutions in question. Though they

claim to be not present in the said meeting, this becomes their

defence and disputed fact which could only be decided during trial.


15.   Applicants in Criminal Application No. 765/2023 are the

Directors and persons concerned with the Bank.
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16.   Though different roles are attributed to the Applicants in all

these applications, there is a common thread therein insofar as the

offence punishable under Section 306 of IPC is concerned, since all

accused are attributed offence of abetment to suicide committed by

the deceased.


17.   The First Information Report came to be lodged solely on the

ground that the deceased while ending his life left behind a chit that

on account of the resolutions passed by the factory of seeking loan

from Bank, has agreed for repayment of the loans taken in the name

of the contractors. However, the loans were not repaid and as the

land belonging to the deceased was put to auction, he felt

embarrassed. Similarly, there is allegation in the suicide note as well

as other writings left behind by the deceased to the effect that

Applicant No. 1 in Criminal Application No. 3971/2019 in the

capacity of MLA has assured repayment of loan but did not do so.


18.   In order to appreciate the said allegation, insofar as accused

persons abetting the act of commission of suicide by the deceased is

concerned, it would be relevant to take note of provisions of Sections

306 and 107 of IPC which read as under :-
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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.

107. Abetment of a thing – A person abets the doing
of a thing, who-
First – 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      1   –   A     person   who,    by    wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that
thing.
Explanation 2 – Whoever, either prior to or at the time
of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitate the commission thereof, is said to aid the
doing of that act.
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      The above provisions require the prosecution to establish that

the accused instigated any person to commit suicide or intentionally

aided him to do so, either independently or in conspiracy with any

other person. Thus, what is relevant for the purpose of attracting this

penal provision is the intention of the accused person to abet the act

of commission of suicide by the deceased. What is relevant is the

mens rea of the accused and not what was perceived or understood

by the victim. Apart from this, it is also absolutely necessary to

establish a nexus in terms of the act/action of the accused, as well as

the proximity of time between the act of the accused and the

commission of suicide by the victim. For the purpose of deciding the

applicability or otherwise of the said offence, these aspects are

required to be borne in mind by the Court. On this point reference can

be made to the judgment of Hon’ble Supreme Court in case of

Amalendu Pal v. State of W.B. , (2010) 1 SCC 707, wherein while

discussing the essential elements to constitute the offence under section

306 of IPC, the Court observed thus:

      “13. In order to bring a case within the purview of Section 306
      IPC there must be a case of suicide and in the commission of the
      said offence, the person who is said to have abetted the
      commission of suicide must have played an active role by an act
      of instigation or by doing certain act to facilitate the commission
      of suicide. Therefore, the act of abetment by the person charged
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      with the said offence must be proved and established by the
      prosecution before he could be convicted under Section 306
      IPC.”
                                          (emphasis supplied)

      Therefore, it becomes an absolute necessity for prosecution to

establish the above mentioned essentials of the abetment so as to prove

the offence under Section 306 of the IPC.


19.   Here in this case, undeniably record indicates that the

resolutions in question were passed in the year 2010. Pursuant to

the said resolutions, loan came to be disbursed in the name of the

deceased as well as other contractors. There is sufficient material on

record to indicate at this stage that the factory has undertaken for

repayment of the said loan. Further material shows that though no

dues certificate was issued by the factory, infact the loan obtained

from the bank was not paid. Even if all these facts are accepted to be

true, this situation relates back to the year 2014. Writ Petition filed

by the deceased himself in the year 2015 confirms the said fact.

Perusal of the Writ Petition and the pleadings of the deceased also do

not indicate that the said arrangement was forcible. The question

would arise now as to whether in respect of such arrangement which

came into existence as back as in the year 2010, could become a
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ground to attribute offence of abetment to commit suicide by the

deceased against the present Applicants.


20.     Apart from the fact that the deceased had grievance in respect

of the said arrangement made by the Factory being not complied

with, there is also allegation with regard to he being felt embarrassed

by his landed property being put to auction by the Bank.         In this

regard, material collected during the course of investigation indicates

that the property was put to auction for the first time on 11.11.2014

and thereafter twice on 02.01.2016 and 05.03.2016.         There is one

notice of 01.11.2018 indicating the proposal of such auction however,

there is nothing on record to indicate that any attempt to auction the

property was done thereafter.        In the light of these facts, the

unfortunate suicide has been committed by the deceased on

12.04.2019. It would be relevant to refer to the judgment of Hon’ble

Supreme Court which dealt with the issue with regard to the

proximity between the act of commission of suicide and the act on

the part of the accused persons in the case of        Mohit Singhal vs.

State of Uttarakhand, (2024) 1 SCC 417, wherein it is observed

thus:

           “11. In the present case, taking the complaint of the
           third respondent and the contents of the suicide note as
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         correct, it is impossible to conclude that the appellants
         instigated   the   deceased        to   commit   suicide   by
         demanding the payment of the amount borrowed by the
         third respondent from her husband by using abusive
         language and by assaulting him by a belt for that
         purpose. The said incident allegedly happened more
         than two weeks before the date of suicide. There is no
         allegation that any act was done by the appellants in
         close proximity to the date of suicide. By no stretch of
         imagination, the alleged acts of the appellants can
         amount to instigation to commit suicide. The deceased
         has blamed the third respondent for landing in trouble
         due to her bad habits.”

     Similarly, in case of Amalendu Pal vs. State of West Bengal,

(2010) 1 SCC 707, it is observed thus :-

         “12. Thus, this Court has consistently taken the view
         that before holding an accused guilty of an offence
         under Section 306 IPC, the court must scrupulously
         examine the facts and circumstances of the case and
         also assess the evidence adduced before it in order to
         find out whether the cruelty and harassment meted out
         to the victim had left the victim with no other alternative
         but to put an end to her life. It is also to be borne in
         mind that in cases of alleged abetment of suicide there
         must be proof of direct or indirect acts of incitement to
         the commission of suicide. Merely on the allegation of
         harassment without there being any positive action
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         proximate to the time of occurrence on the part of the
         accused which led or compelled the person to commit
         suicide, conviction in terms of Section 306 IPC is not
         sustainable.”

21.   Here in this case, it cannot be said that there is proximity

between the action of commission of suicide by the deceased and acts

of passing of resolutions, making deceased as well as other

contractors to obtain loan, non-repayment of loan as well as putting

the property in auction. The evidence collected during the course of

investigation and confirmed by the charge-sheet leads to the

conclusion that there is no nexus between the suicide committed by

the   deceased   and     the   other   actions   on   the   part   of   the

Applicant/accused. This Court, therefore, has no hesitation to hold

that offence punishable under Section 306 of the IPC would not get

attracted against any of the Applicants.


22.   As far as appearance of name of Applicant in No. 1 in Criminal

Application No. 3971/2019         in the suicide note of deceased is

concerned, it would be relevant to take note of judgment of Hon’ble

Supreme Court in case of Patel Joshnaben Pravinkukmar Patel and

others vs. State of Gujrat and another, 2026 LiveLaw (SC) 835,

wherein it has been observed thus :-
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     “22. In our view, lodging an FIR, even if it is false,
     against a person, per se, does not amount to instigating
     that person to commit suicide. Besides, here the FIR was
     lodged by the deceased’s wife who had suffered injuries.
     Otherwise also, every individual has a right to take
     recourse to appropriate proceedings under law to protect
     his or her rights. Therefore, if a person sets the criminal
     justice delivery system in motion, he cannot be held liable
     for abetment to commit suicide, if the person against
     whom proceedings were initiated commits suicide.

     24.   While assessing whether a prima facie case of
     abetment to commit suicide is made out or not, the court
     must not merely consider the allegations in the suicide
     note but also the surrounding facts of the case. Merely
     because a dejected husband, or lover, out of frustration,
     ends his life and puts the blame on the accused, in his
     suicide note, is not enough to conclude that a prima facie
     case is made out against those who are blamed. The court
     would have to consider whether the conduct of the
     accused complained of in ordinary circumstances would
     have driven an ordinary person, not an over sensitive
     person, to take that drastic step to end his life.

.    Though the above judgment is passed in the facts of

matrimonial disputes, the ratio laid therein would apply to the

instant case. Needless to say that the deceased had grievance against

the persons named in the suicide note as well as writings left behind
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and hence mere naming them therein would not be sufficient to

accept involvement of applicants in the crime, in absence of any other

supporting material to hold so. The only inevitable conclusion which

would be drawn therein is that the applicants cannot be made to

undergo criminal trial in respect of offence punishable under Section

306 of the IPC.


23.   Insofar as allegation in respect of offences punishable under

Sections 406, 409, 420 and 120B of IPC is concerned, it would be

relevant to take note of the provisions of Sections 406, 409 and 420

which read thus :-

      406. Punishment for criminal breach of trust –
      Whoever commits criminal breach of trust shall be
      punished with imprisonment of either description for a
      term which may extend to three years, or with fine, or
      with both.

      409. Criminal breach of trust by public servant, or by
      banker, merchant or agent – Whoever, being in any
      manner entrusted with property, or with any dominion
      over property in his capacity of a public servant or in the
      way of his business as a banker, merchant, factor, broker,
      attorney or agent, commits criminal breach of trust in
      respect     of   that   property,   shall   be   punished   with
      [imprisonment for life], or with imprisonment of either
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     description for a term which may extend to ten years, and
     shall also be liable to fine.
     420. Cheating and dishonestly inducing delivery of
     property – Whoever cheats and thereby dishonestly
     induces the person deceived to deliver any property to any
     person, or to make, alter or destroy the whole or any part
     of a valuable security, or anything which is signed or
     sealed, and which is capable of being converted into a
     valuable security, shall be punished with imprisonment
     of either description for a term which may extend to seven
     years, and shall also be liable to fine.

      In order to constitute offence u/s 406 and 409 of IPC, the

prosecution must show that there is criminal breach of trust done by

the Applicants by showing that they were entrusted with property,

which was later dishonestly misappropriated or converted to their

own use or dishonestly used or disposed of, in violation of any

direction of law or legal contract made in regard to discharge of such

trust. Moreover, to constitute offence under Section 420 of IPC, it is

significant for the prosecution to establish that the Applicants

deceived the deceased and fraudulently or dishonestly induced him

to deliver the property to the Bank or to consent for retainment of

such property or that they have intentionally induced him to do or
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omit to do anything which he would not do or omit if he was not so

deceived thereby causing damage or harm to the deceased.



24.   Coming to the plea sought to be raised by Applicant No. 1 in

Criminal Application No. 3971/2019, though there are statements of

witnesses indicating that Applicant No. 1 in Criminal Application No.

3971/2019 was present in the meetings of the factory, more

particularly, when the resolutions        in question were passed on

04.07.2010 and 13.07.2010, documentary evidence collected during

the course of investigation does not indicate presence of this

Applicant in the said meetings.     Needless to say that in order to

attract provisions of Sections 406, 409 and 420,       there has to be

involvement of this Applicant in the capacity of the Director of the

Factory, since there could be no agreement/contract between the

said applicant and deceased/contractors in the personal capacity. If

it is not so there is no question of meeting the requisite conditions to

constitute this offence, Thus, in his individual capacity, no offence

could be made attributable against him.


25.   The writings of the deceased indicate that this Applicant No. 1

in Criminal Application No. 3971/2019 has assured repayment of

loan obtained in the name of the contractors, even if such assurance
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is accepted to be true, question arises before this Court as to whether

it would be sufficient to attract provisions of Sections 406, 409 and

420 of IPC. The statement of witness also indicates that though in

the year 2014 this Applicant had assured the witness of repayment of

loan, offence under Sections 406, 409 and 420 of IPC would not get

attracted against this Applicant.           For the purpose of seeking

involvement of this Applicant in this crime, it was absolutely

essential for the prosecution to collect evidence during the course of

investigation    indicating   fulfilment     of    requisite    conditions   for

application of these offences, which is absent in the present case.

This Court, therefore, has no hesitation to hold that even in respect

of the offence under Sections 406, 409 and 420 of the IPC,

involvement     of   Applicant   No.   1    in    Criminal     Application   No.

3971/2019 cannot be accepted.


26.   Entrustment for breach of trust and dishonest inducement for

cheating are one of the essential ingredients however, they are

conceptually distinct. Where property is delivered because of an

existing relationship of trust, the case may involve criminal breach of

trust and where property is delivered because the accused deceived

and induced the complainant, the case may involve cheating. Here in

this case, the question of breach of trust might not arise since there
                                     - 24 -
                                                         criappln3971.19.odt

is no misappropriation of property by the entrusted entity i.e. bank,

however as far as the dishonest intention inducing the contractors for

obtainment of loan is concerned, it seems possible in this case by

assuring   the    repayment     by   the      Factory   through   passage   of

resolutions in question and signing the undertaking/ assurance to

repay the loan in case of non-deduction of payable amount towards

loan from the accounts of contractor. However, whether the offence is

made out and which offence is made out is a matter of trial. Prima

facie factual allegations disclose the ingredients of the offence alleged.


27.   As far as Directors / office bearers of sugar factory are

concerned, there is evidence to indicate that resolutions were passed

in the meetings of factory showing that the loan was to be obtained

in the name of the contractors and repayment of the loan was to be

done by the      factory.   There is thus reason to believe that on the

assurance in this manner, deceased as well as other contractors

agreed to obtain loan.          The charge-sheet indicates that after

obtainment of loan, no dues certificates were issued by the           factory

to the contractors however, in fact the amounts towards loan

obtained from the bank were not repaid. Thus, there is reason to

believe that since inception the Directors and office bearers of the

factory had no intention to fulfill the commitment given to the
                                    - 25 -
                                                     criappln3971.19.odt

contractors which is clearly reflected in the resolutions passed by

them. Thus, there is reason to believe that the offence under Section

420 of IPC gets attracted against the Directors / office bearers, who

were the party to the resolutions in question.


28.    Documentary evidence on record collected during the course of

investigation indicates that Applicant Nos. 2, 3, 4, 8, 11, 12 and 13 in

Criminal Application No. 3971/2023 and all the Applicants in

Criminal Application No. 848/2023 are party to the resolutions. At

this stage, therefore, there is evidence to indicate their involvement in

the crime.    As such, by applying the principles laid down by the

Hon’ble Apex Court in case of State of Hariyana Vs. Bhajan Lal, 1992

(Supp) (1) SCC 335, extraordinary powers under Section 482 of the

Code    of   Criminal   Procedure    cannot   be   exercised   qua   these

Applicants.    As far as Applicant Nos. 7, 9, 10 and 14 in Criminal

Application No. 3971/2023 are concerned, since they were not party

to the resolutions in question, question of attributing any offence

against them does not arise.


29.    Insofar as officers of the Bank are concerned, irrespective of the

fact as to what was the understanding between this bank and the

office bearers of the factory, it was always open for the bank to adopt
                                   - 26 -
                                                     criappln3971.19.odt

appropriate remedy as per law for the purpose of recovery of the

amounts advanced to the contractors. As such, all the Applicants in

Criminal Application No. 765/2023 cannot be considered to have

committed the offence in question. Perusal of evidence collected

during the course of investigation though indicates involvement of

some of the office bearers/Directors of the Bank, however there is no

such evidence qua these Applicants. Hence, the following order:

                                  ORDER

     (I)     Applications bearing No. Criminal Application No. 3971
     of 2019, Criminal Application No. 765 Of 2023 and Criminal
     Application No. 848 Of 2023 stand allowed to the extent of
     offence punishable under Section 306 of the IPC qua all
     applicants.

     (II)   Criminal      Application   No.   3971/2026    stands    partly
     allowed qua applicant Nos. (1) Omprakash s/o Bhupalsinh
     @      Pawan    Rajenimbalkar,     (7)   Balasaheb   s/o   Pralhadrao
     Makode,        (9)   Chandraprakash       s/o   Kurshnath      Jamale,
     (10) Dwarkanath s/o Parasram Mali and (14) Gundu s/o Bapu
     Pawar in terms of prayer clauses ‘A-1’, ‘AA’ and ‘B’ and stands
     rejected qua applicant Nos.2, 3, 4, 8, 11, 12 and 13, in respect
     of offences punishable under Sections 406, 409 and 420 of IPC.

     (III) Criminal Application No. 765/2023 stands allowed qua
     applicant Nos.1 to 7 in terms of prayer clauses ‘B’ and ‘B-1’.
                                 - 27 -
                                                  criappln3971.19.odt

      (IV) Criminal Application No. 848/2023 stands rejected in
      respect of offences punishable under Sections 406, 409 and
      420 of IPC.

      (V) Pending application, if any, stands disposed of.



                                                 ( R. M. JOSHI, J.)

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