Gujarat High Court
Bharat Purshottam Chimnani vs The State Of Gujarat] on 28 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 428 of 2007
With
R/CRIMINAL APPEAL NO. 438 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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BHARAT PURSHOTTAM CHIMNANI
Versus
THE STATE OF GUJARAT]
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Appearance in Criminal Appeal no. 428 of 2007:
MS POONAM M MAHETA for the Appellant(s) No. 1
MS. KITTY S MEHTA for the Appellant(s) No. 1
MR ROHANKUMAR H RAVAL, APP for the Respondent(s) No. 1
Appearance in Criminal Appeal no. 438 of 2007:
MR VICKY B MEHTA for the Appellant(s) No. 1
MR ROHANKUMAR H RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/11/2025
COMMON ORAL JUDGMENT
1. Appeals are filed by both the accused separately who came to be convicted by the learned Additional Sessions Judge, Fast Track Court no.2, Surendranagar on 9.1.2007 in Sessions Case no.60 of 2005. The trial against both the Page 1 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined accused proceeded under Sections 306, 406, 420 read with Sections 120B and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short).
1.1 Criminal Appeal no.428 of 2007 was filed by accused no.1-Bharatbhai Parsottambhai Chimnani, while Criminal Appeal no.438 of 2007 is by accused no.2 - Dahyabhai Alubhai Solanki.
2. Accused no.1 was ordered to face sentence for seven years rigorous imprisonment under Section 306 read with 120B and 114 of IPC and further the Trial Court ordered fine of Rs.25,000/- with the default stipulation of further one year rigorous imprisonment. The fine amount was to be paid to the widow of the deceased. Under Section 406 read with 120B and 114 of IPC, accused no.1 was ordered to undergo sentence of two years rigorous imprisonment, while for the offence punishable under Section 420 read with 120B and 114 of IPC, three years rigorous imprisonment Page 2 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined was imposed with a fine of Rs.5,000/- and in failure to pay the fine amount, further six months rigorous imprisonment was ordered. 2.1 Accused no.2 was ordered to face 10 years rigorous imprisonment for the offence punishable under Section 306 read with Section 120B and Section 114 of IPC with fine of Rs.25,000/- and in default of payment of fine, further one year rigorous imprisonment was ordered, with a direction that the fine amount was to be paid to the widow of the deceased. Under Section 406 read with 120B and 114 of IPC, two years rigorous imprisonment and for the offence punishable under Section 420 read with 120B and 114 of IPC, three years rigorous imprisonment with the fine of Rs.5,000/- and in failure to pay fine, six months further rigorous imprisonment was ordered.
2.2 The sentences against the accused were ordered to run concurrently.
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3. The learned Judge had also issued direction for departmental inquiry against the police investigating officer - Shri J.K. Bhagora and Police Sub-Inspector - Shri B.M. Tank observing unpardonable negligence in investigation.
4. The endorsement by the Nazir on the judgment reflects accused no.1 having deposited the fine amount of Rs.30,000/- on 3.3.2007.
5. The facts of the case, as could be succinctly narrated by gathering from the record, disclose that deceased Kalubhai Punjabhai Rathod was the Secretary in the Cooperative Society - Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani. Chhaganbhai Laljibhai Jadhav-PW9 was the President of the Cooperative Society. The prosecution case was that the President and the Secretary used to purchase cotton yarns for the Cooperative Society for manufacturing of hand-weaved fabric, for selling them in the Page 4 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined market. For the purpose of purchasing cotton yarn, in routine, they used to sign cheques jointly and used to give blank cheques to accused no.2 - Dahyabhai Alubhai Solanki.
6. The President and the deceased Secretary received one notice from Metropolitan Magistrate of Mumbai. Thus, they apprehended that accused no.2 - Dahyabhai Alubhai Solanki might have misused the cheque as he was doing the business with Bharat Parsottam Chimnani (accused no.1).
7. The prosecution case was that both the accused had purchased cotton yarn with the cheques given to them and had not supplied the yarn to the society and thereby, had committed the offence of cheating with the Cooperative Society. The yarn, which was purchased by cheque of the society, was sold away directly and when the firm at Mumbai had not received the money, the case was filed. It is also the prosecution case that the blank cheque was misused by accused Page 5 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined no.1 - Bharatbhai Parsottambhai Chimnani who had withdrawn a large sum of Rs.1,25,000/- from a Shroff firm at Ahmedabad and since the Shroff had not received the amount of the cheque, the Shroff had sent a notice to the President and Secretary.
8. The complaint was filed by Keshavbhai Punjabhai Rathod, the brother of the deceased who was examined as PW1. His complaint was produced in evidence at Exh.22. His evidence as a witness suggests that his deceased brother had informed him after receiving the notice from the Mumbai Court that the Cooperative Society for their business had given blank cheques to accused no.2 and both the accused, from the firm at Mumbai, had purchased cotton yarn with the cheques of the society, the yarn was not delivered to the Cooperative Society and therefore, they had received the notice. According to the complainant, the deceased brother had informed Page 6 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined that both the accused had directly sold away the goods by misusing the cheques of the Company and thereby, had cheated the society. The witness also stated that one blank cheque was misused by accused no.1 and he had on that cheque withdrawn an amount of Rs.1,25,000/- and as the cheque was of the society and since the money was not received by the Shroff, notice was issued to the President and Secretary of the society. The deceased brother had informed the complainant that the accused had cheated them and he, being the Secretary of the society, now could not face the world and that the accused had tarnished his image. The complainant stated that because of that, his brother was always remaining in stress and was sad, telling him that rogue lives in this world and that it is better to die. His brother expressed that he had no interest to stay alive.
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9. According to the complainant, on 26.12.2003, in the afternoon between 02.30 to 03.00 p.m., his elder brother - Kalubhai consumed medicine, thereafter, he was taken to Limdi Government Hospital and for further treatment, was admitted in the hospital of Dr. Lakum - PW14 at Surendranagar, where he died during the treatment on 4.1.2004.
10. According to the complainant, both the accused had cheated the society, and his brother was under mental stress and therefore, consuming medicine, he committed suicide. The amount quantified by the complainant of cheating and misappropriation is stated to be of Rs.8,65,000/-. The complainant contended that his brother was entrapped and the debt was thrown on the brother's head who was forced to commit suicide by consuming medicine.
11. The FIR was registered on 7.1.2004 at 18.00 hrs. The facts, as could be drawn from the cross- Page 8 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined examination, suggest that the complainant was also the member of Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani. The Resolution was passed for the purchase of yarn. According to the complainant, after the Resolution, the cheques were given to accused no.2. The complainant affirmed that there was no such Resolution that accused no.1 was to purchase the cotton yarn and that the blank cheques were to be given to him. Accused no.1 was resident of Ahmedabad who was a big trader in yarn.
11.1 Learned advocate Ms. Poonam M. Maheta with learned advocate Ms. Kitty S. Mehta for the appellant-accused no.1 in Criminal Appeal no.428 of 2007 submitted that the case has been tried on the alleged financial irregularity and fraud on the Cooperative Society, which is attributed to the accused persons. Advocate Ms. Poonam Maheta submitted that the society comprised of Page 9 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined 51 members and deceased was the Secretary, while Chhaganbhai Jadav was the President. Both were engaged jointly in purchase of cotton yarn, manufacture of clothes and sale in the market. For the business, cheques were jointly signed. Since a notice was received from the learned Metropolitan Magistrate, Mumbai, the President and the Secretary alleged the misuse of the cheque by the accused no.2 - Dahyabhai in collusion with accused no.1-Bharatbhai Chimnani, proprietor of "Jelam Yarn". Advocate Ms. Maheta submitted that the allegation is of executing the transaction in Mumbai without supplying the goods to the society and misuse of cheque by accused-Bharatbhai withdrawing Rs.1,25,000/- from the Shroff firm. Distressed by this act, Kalubhai (deceased) repeatedly expressed anguish that his life has been ruined and ultimately, allegedly drunk poison on 26.12.2003, dying after ten days. Advocate Ms. Maheta stated that the examination of 24 witnesses producing 18 Page 10 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined exhibits does not prove the case of abetment to suicide, which requires clear proof of instigation or intentional aid. Advocate Ms. Maheta stated that cheating requires dishonest intention at the inception, and criminal breach of trust requires entrustment and dishonest misappropriation. Advocate Ms. Maheta submitted that there is no evidence to prove on record any instigation, conspiracy or intentional aiding. The cause shown is that Kalubhai was distressed by the notice from the learned Metropolitan Court, Mumbai, while the prosecution has not proved any case of harassment, demand or quarrel, which could constitute any form of abetment. Advocate Ms. Maheta submitted that direct nexus with mens rea was required to be established.
11.2 Referring to the evidence of the witnesses, Advocate Ms. Maheta submitted that PW1 - brother of the deceased as a complainant has materially Page 11 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined contradicted the complaint. There are improvements and exaggerations, which become apparent. The evidence of the complainant at the most would establish that notice under Section 138 of the Negotiable Instruments Act, 1881 was received jointly by the deceased and the President-PW9, while no notice or complaint was served upon the appellant regarding misappropriation. Advocate Ms. Maheta submitted that the deceased and PW9 had never filed any case under Section 406 or 420 read with 120B IPC against both the accused. PW9 has not proved the misappropriation of Rs.1,25,000/-, while PW20 - Dilip Kanjibhai Bhandari categorically deposed that he had personally handed over proceeds of the cheque to deceased Kalubhai. Hence, the allegation of the appellant misappropriating money stands disproved. Advocate Ms. Maheta submitted that mere allegation of business cheating or misuse of cheque cannot be equated with instigation for the commission of suicide, Page 12 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined where the prosecution fails to prove the essential ingredients of abetment. Advocate Ms. Maheta submitted that without clear proof of abetment, no conviction under Section 306 IPC would stand.
11.3 To support her argument, Advocate Ms. Maheta relied upon the decision of (i) Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605, (ii) S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190, (iii)Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628,
(iv) Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200, (v) Randhir Singh v. State of Punjab & Haryana, AIR 2004 SC 5097, and (vi) Ramesh Kumar v. State of Chhattisgarh, AIR 2001 SC 3837 to submit that instigation must mean active encouragement; a word uttered in anger without intent cannot be treated as instigation. Mere harassment or ordinary quarrels do not amount to abetment unless they leave no option Page 13 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined except to commit suicide. Mere allegations of harassment or demand for money do not ipso facto constitute instigation under Section 306 IPC. Proximity and casual link between alleged conduct and suicide must be clearly established. Abetment involves mental process of instigating or intentionally aiding; a more active role is necessary. Instigation is to goad, urge forward, provoke, incite or encourage; there must be reasonable certainty that accused's acts compelled suicide.
11.4 For her argument in context with the provision of Section 405/406 IPC for criminal breach of trust, Advocate Ms. Maheta submitted that entrustment is sine qua non. The evidence shows that the cheques were handed over to accused no.2 - Dahyabhai Solanki, while no such entrustment of the cheques were made to the appellant. No proceedings were initiated by the society or the office bearers against the Page 14 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined appellant, on the contrary, the society demanded delivery of goods from the mill, treating it as a commercial transaction. Dishonour of cheque and non-supply were the issues, which arose much earlier than the suicide almost one year prior. The prosecution has failed to prove even the casual connection, where the necessity is to prove the proximate cause.
11.5 Advocate Ms. Maheta submitted that strangely, postmortem attributes death by organophosphorus poison, while FSL report does not support any poison. In fact, the viscera report of the FSL does not find any poison. Thus, there is serious doubt about the cause of death.
11.6 To support the argument with regard to committing criminal breach of trust, Advocate Ms. Maheta has placed reliance on the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 and State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661.
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NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined 11.7 Advocate Ms. Maheta has also relied upon the case of Lavjibhai Sukhabhai Gohil v. State of Gujarat, passed in Criminal Appeal no.1131 of 2003 decided on 1.8.2025 by this Court to submit that mere allegation of harassment, uncorroborated letters or general discord would not attract Section 306 IPC and has also placed reliance on the judgment of Ashvinbhai Premjibhai Vispara v. State of Gujarat, Criminal Appeal no.445 of 2006 decided on 22.7.2025 by this Court to submit that even a dying declaration referring to a single incident of quarrel or rebuke is insufficient to establish abetment and that continuous oppressive act with mens rea creating a proximate link between the alleged conduct and the suicide is required to be proved.
11.8 In the present case, Advocate Ms. Maheta submitted that the essential ingredients of Section 306 IPC are conspicuously missing and Page 16 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined mere filing of the case under Section 138 of the Negotiable Instruments Act, 1881 by the representative of the Shroff firm or receiving a notice from the Court at Mumbai more than a year before the suicide, would not connect the case to prove any abetment. Filing of the case by taking the legal recourse cannot be considered as a ground for any cause for suicide, where actually the facts of the case proves the commercial transaction.
12. Mr. Vicky Mehta, learned advocate for the appellant-accused no.2 in Criminal Appeal no.438 of 2007 adding to the arguments of learned advocate Ms. Maheta submitted that the purchase of cotton yarn was a common routine and often the blank cheques were given to accused no.2 with joint signature of the President and Secretary. It was only under apprehension, on receipt of the notice from Metropolitan Court at Mumbai, the President and Secretary assumed that Page 17 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined accused no.2 might have misused the cheques as he was having business with accused no.1-Bharat Chimnani. Advocate Mr. Vicky Mehta submitted that the case of misuse of blank cheque by accused no.1 for withdrawing the amount of Rs.1,25,000/- has not been proved rather the shroff had filed a case against the accused no.1 as well as the deceased and the President-PW9. The version in the complaint and the deposition are totally different. Mr. Mehta submitted that it is pertinent to note that it was a case of dishonour of cheque and the deceased and PW9 though were the authorities of the society, had failed to give reply, nor any grudge was raised regarding the alleged non-supply of goods by accused no.1. Mr. Mehta submitted that even after receipt of notice from Arunoday Mills Ltd., no notice was served to the present appellant alleging any misappropriation of goods or misuse of cheques. The deceased and PW9 appeared before the learned Chief Metropolitan Page 18 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Magistrate Court at Mumbai, while no application for dropping the proceedings or quashing the complaint was initiated by them, nor had they filed any FIR against the appellant at the appropriate Police Station. Mr. Mehta submitted that the appellant was not concerned with the society at all. The facts on the contrary suggest that the society has taken the goods supplied by the Company and the depositions of the witnesses nowhere suggest that the appellant had received the goods. Dharmendrasinh Dilipsinh-PW13, the driver has not deposed that the goods were delivered to the appellant. The second allegation of misappropriating the amount of Rs.1,25,000/- has also not been proved, as PW20 - Dilipbhai Kantibhai Bhandari had deposed in clear terms that the amount on discounting of cheques was paid to deceased Kalubhai. Thus, Mr. Mehta submitted that the deceased had collected the amount belonging to the society, and that the cash was never received by the appellant. Page 19 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Nothing has come on record, as per advocate Mr. Mehta, to show any abetment for the commission of suicide.
12.1 Mr. Mehta submitted that the offence under Section 406 also does not appear to have been proved, where as provided under Section 405 of IPC, for criminal breach of trust, entrustment of property has to be proved and that further has to establish that the property entrusted was converted for his own use or had disposed of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract expressed or implied. Mr. Mehta submitted that the evidence does not prove of any misappropriation of amount belonging to the society and further stated that for holding a person guilty under Section 420 IPC, the inducement to deliver the property has to be proved. The evidence does not prove that the appellant had approached the Page 20 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined society for the delivery of cheques or for the delivery of the amount. Secondly, no evidence has been brought on record of any deceit with fraudulent and dishonest intention. On the contrary, the appellant was nowhere connected with accused no.1 for the transaction of delivery of any property or entrustment of the cheque.
12.2 Advocate Mr. Vicky Mehta further stated that from the evidence, no criminal conspiracy hatched by the accused to commit the offence had been proved and therefore, no conviction can be recorded under Section 120B of IPC, further submitted that Section 114 IPC can only be attracted if the offences under punishable sections are proved. Mr. Mehta submitted that the complaint before the learned Metropolitan Magistrate Court at Mumbai as well as the Court at Ahmedabad was not filed by the society or any of the authority and hence, there cannot be any Page 21 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined complaint for breach of trust or for cheating by the State. On the contrary, when the notice was received from Arunoday Mills under Section 138 of the Negotiable Instruments Act, 1881, the society ought to have demanded the goods from the mill and from the deposition, it could transpire that no evidence has come on record of any such fact informed to the mill of non- delivery of goods to the society. Mr. Mehta further stated that the amount discounting the cheque was collected by the deceased. So far as the case of the misuse of cheque is concerned, the case was filed for dishonour of cheque, where the goods were actually supplied so there was no loss to the society.
13. Learned APP Mr. Rohan H. Raval for the State submitted that the case had been proved very clearly against the accused before the Trial Court. The witnesses, as the complainant brother, son, father and widow of the deceased Page 22 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined had given cogent and satisfactory evidence before the Trial Court to explain the cause of deceased consuming pesticides, as has been deposed by the Doctor. Learned APP Mr. Raval submitted that the opinion of the Doctor is required to be believed, who concludes that the death was because of the consumption of organophosphorus poison. The treating Doctor had also stated of the same fact and the prosecution could prove the death by suicide. 13.1 Learned APP Mr. Raval stated that the diary maintained by the deceased was proposed to be proved through the witnesses. The father as well as the widow of the deceased had tried to place the document on record, however, the same could not be accepted as an evidence, Mr. Raval submitted that such document as marked would require consideration to know the immediate cause of suicide and the cause creating proximity to the incident.
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NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined 13.2 Learned APP Mr. Raval further stated that the deceased was cheated by the accused. The blank cheque had been misused and the goods were directly sold away by the accused with the money of the society and the deceased was facing the criminal trial for no fault of his, which had led him to suffer stress and the ultimate cause was the cheating and misappropriation and criminal breach of trust of the accused, which had been the cause for the suicide. Learned APP submitted that the learned Trial Court Judge has rightly appreciated the evidence on record and had found the direct cause being accused act for the commission of suicide.
14. Having heard learned advocate Ms. Poonam Maheta, learned advocate Mr. Vicky Mehta for the appellants-accused and learned APP Mr. Rohankumar H. Raval, the evidence recorded during the trial would require a detail analysis to examine whether the offences as alleged were Page 24 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined proved to consider whether the sentence awarded is sustainable. The complainant affirmed that the cases were filed for the cheques in the Court of Mumbai as well as in Ahmedabad against his brother, and on adjournments, his brother as well as Chhaganbhai, the President attended the Court. The complainant was staying along with deceased brother. Prior to the case at Mumbai, the notice was received by his brother who had replied the notice. The witness does not have the copy of the reply. The case was filed six months prior to the death of his brother. The complainant affirmed that his brother had not filed any case against accused no.1 prior to his death, nor any complaint has been filed from the date of consuming poison till his death. Prior to the death of his brother, the police has recorded the statement of the complainant. He denied the suggestion that his brother and the President - Chhaganbhai had taken money of Rs.1,25,000/- from the Shroff at Ahmedabad by Page 25 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined giving a cheque. The complainant affirmed that the time period between the case filed at Mumbai and the date of his death was one and a half years. He also affirmed that after the case at Mumbai, his brother, Chhaganbhai, Dahyabhai and the lawyer, four of them had gone to Mumbai. He denied the suggestion that his brother had taken a writing from accused no.2 after the case was filed. A suggestion was raised that his brother died not because of the tension owing to the cheque, but because of the mental illness, which the complainant denied. He had given the copy of the Resolution passed by the society to the police and affirmed that the Resolution was not passed in his presence, nor does it bears his signature. The complainant also affirmed that his brother had given the cheque to accused no.2-Dahyabhai.
15. The case against the accused was proceeded under Section 306 of IPC, where the offence is under Page 26 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined the heading of abetment of suicide, along with Sections 406 and 420 of IPC for criminal breach of trust and cheating and dishonestly inducing delivery of property in criminal conspiracy to be considered under Section 120B IPC. Section 114 of IPC was also invoked, which refers to abettor being present when offence is committed.
16. Section 114 of IPC is prescribed with reference to any person, who is absent would be liable to be punished, as an abettor is present, when the act or offence for which he would be punishable in consequences the abetment is committed, he shall be deemed to have committed such act or offence. Section 306 of IPC for the abetment of suicide has two basic ingredients i.e. suicidal death and the abetment thereof. The Hon'ble Supreme Court in Gurucharan Singh v. State of Punjab, (2017) 1 SCC 433 has expressed the view that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to Page 27 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option.
17. In Rajesh v. State of Haryana, (2020) 15 SCC 359, the Hon'ble Court held that conviction under Section 306 IPC is not sustainable with the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compel the person to commit suicide.
18. Here, in the present case, the complainant had clarified that the case of cheque against the President and the deceased Secretary was filed one and a half year prior to suicide. The case was not only against the deceased, as a Secretary of the Cooperative Society, it was also against PW9 - Chhaganbhai Laljibhai Jadav. The record shows that even accused no.1- Bharatbhai Chimlani was joined as accused in the said criminal proceedings under Section 138 of Page 28 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined the Negotiable Instruments Act, 1881.
19. In Gurucharan's case (supra), while reproducing the Section, the Hon'ble Supreme Court has clarified the offence of abetment for the commission of suicide predicating existence of live link or nexus between the two. Abetment being the propelling positive factor. It has been recorded in Paragraphs 20 and 21 as under:-
"20. Section 306 of the Code prescribes the punishment for abetment of suicide and is designed thus:
"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."
21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the Page 29 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."
20. The prosecution, during the trial, had examined son, father and widow of the deceased, as PW6, PW8 and PW18. The witnesses so examined had proposed to place on record certain writings of the deceased. The son - Pravinbhai Kalubhai Rathod as PW6 had stated that a letter of about 10 pages were written by his father and thereafter, he consumed poisonous medicine. Here, it is required to be recorded that the complainant does not refer to the medicine Page 30 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined consumed by his brother as poisonous. The son as PW6 stated that his father consumed medicine because he had given blank cheque of the Mandli. PW6 was playing cricket in the afternoon. He had come home to drink water, at that time, he had seen his father in the house vomiting and therefore, he had called his grand father and others, and took father to Limdi hospital and thereafter, to the hospital of Dr. Lakum Shah at Surendranagar, where he remained admitted for 6- 7 days and thereafter, died. The witness stated that since his father had given blank cheque to accused no.1 - Bharat Parsottam for purchase of yarn, as Bharat Parsottam had sold away the yarn directly and the fault had come on his father and being disturbed, he consumed poisonous medicine. The witness stated that the day on which his father had consumed medicine, no complaint was filed. The witness has no knowledge of date and year of giving the cheque to accused no.1 - Bharatbhai. He is not the Page 31 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined member of the society.
21. It appears that son has no personal knowledge with regard to the sale of yarn. He further affirmed that he has got it recorded in his police statement that his father had given blank cheques to accused no.1 - Bharatbhai. He also affirmed that when his father was alive, a case was filed under Section 138 of the Negotiable Instruments Act against his father and Chhaganbhai by yarn mill of Mumbai and also affirmed that the Sharafi firm had filed a case in the Court at Ahmedabad. The witness also affirms of the legal notice by the advocate prior to filing of the case. He has no knowledge to the suggestion that his father had taken Rs.1,25,000/- from the Sharafi firm of Ahmedabad. The witness further affirmed that he has not got it recorded before the police that his father, prior to his death, has written a letter consisting of 10 pages. The defence had Page 32 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined tried to project that deceased was not mentally well and was taking treatment from Dr. Laxman Garg of Ahmedabad for the last 10 years, which the son denied. However, the son affirmed that no one had seen his father drinking medicine.
22. The evidence, which comes on record, was that when the son entered the house in the afternoon, he saw his father vomiting, while none had seen his father consuming any medicine.
23. The Panchnama which was drawn on 27.12.2003 placed in evidence at Exh.27 was in connection of Janvajog entry no.45/03 dated 26.12.2003. The place is the house consisting of two rooms. There was an open Varanda. Entering the house, on the right side, a hand-woven shawl and a cupboard was recorded in presence of the Panch, and besides that, a wooden cot, whereupon it was informed that the deceased had consumed medicine. There were other domestic household articles. It was recorded in the Panchnama that Page 33 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined there was vomit on the mattress of the cot. The police had not seized any article. The Panchnama categorically recorded that in the room of 10 X 15, length and breadth even after checking, no medicine was found.
24. The case of the prosecution was that the deceased had consumed poisonous medicine, while no such medicine was found in the room even after the search. The son had seen the father vomiting. Though the emesis was noted in the mattress, the police had failed to recover the same in presence of the Panchas to verify that the deceased had thrown up after consuming poison. Though the Panchnama was drawn immediately on 27.12.2003, no washout of the contents from gastric lavage was recovered of the patient from the hospital by ASI-PW16 - Dhirajlal Gangarambhai Parmar who was on duty on 26.12.2003 at R.R. Hospital, Limdi as was deputed by a written order by PSO. The Page 34 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined instruction was that Kalubhai Punjabhai, aged about 48 years, resident of Shiyani had consumed poison and was in an unconscious state and therefore, ASI was ordered to undertake further proceedings. ASI visited the hospital, since the victim was in an unconscious state, he met the son - Pravin Kalubhai, aged 23 years and recorded his statement who had put the signature in the presence of ASI on the statement and the witness stated that the documents were forwarded to Limdi Police Station for the proceedings. The statement of the son was produced in evidence at Exh.50, which is dated 26.12.2003. The ASI affirmed that according to the statement, no complaint was filed against the accused.
25. The ASI was ordered to undertake necessary proceedings on visiting the hospital, inspite of that, he had not thought fit to even collect the sample of the vomit, nor had demanded the contents of lavage of the victim from Dr. Lakum- Page 35 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined PW14. While Dr. Lakum, in his deposition, has categorically stated that the victim had consumed poisonous substance and for that reason, was unconscious. The victim was kept under ventilation in his hospital. 'PAM Injection' and antibiotics medicines were given. Perforation was made in the neck and tracheostomy was done. Till his death, he was in unconscious position. Dr. Lakum has produced a certificate dated 23.3.2005 at Exh.47. The certificate reads as under:-
"This is to certify that I have admitted Kalubhai Punjabhai Rathod on dt.26/12/03 at 7.00 PM and was expired on dt.4/1/04 at 1.30 PM.
He was treated primarily at Limdi Govt Hospital and transferred here. He was unconscious during admission. Treated with atropine+PAM+ventilator & symptomatic treatment.
He was send to postmortem at Govt hospital, Surendranagar."
26. Unfortunately, the Doctor has not produced the treatment papers.
Page 36 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined
27. PAM injection, which contains the active ingredient pralidoxime, is an antidote primarily used to treat poisoning caused by organophosphate pesticides and chemicals (including nerve agents). It is often used in combination with another medicine called atropine. The certificate Exh.47 is not the one which was issued during the period of hospitalization which, as per his deposition, was 26.12.2003 to 4.1.2004. In the cross- examination, the Doctor affirmed that the relative had not informed him the reason of Kalubhai consuming poison. The description of the PAM injection in milligrams would explain the purpose of the use for the treatment. The treatment papers would have become very obvious documents when the postmortem report disclosing the cause of death as per the FSL report dated 9.6.2005 received by the Chief Medical Officer, Surendranagar as was handed over by Police Sub- Page 37 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Inspector, Limdi on 31.8.2005, records, no poison could be detected by Ext. No.I and 2-30, which were bottles for viscera examination. The cause of death is "Cardio respiratory failure due to O.P. poisoning which could not be detected by F.S.L." The cardio respiratory failure was considered because of organophosphate poisoning. However, the same could not be detected by the FSL report.
28. The FSL report is at Exh.58, wherein the Scientific Officer, Forensic Science Laboratory, Junagadh has very clearly stated in the analysis conclusion that they had not found the presence of chemical poisoning in sample Marks-1 and 2. The Medical Officer - PW17 - Dr. Kanubhai Keshav Vasani is the person who has conducted the postmortem at Gandhi Hospital, Surendranagar. The hospital has received dead body along with police yadi and the original letters, which were produced at Exhs.53 and 54, the death form and Page 38 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined the inquest panchnama Exhs.55 and 56. The body was identified by the younger brother-Valjibhai Pujabhai.
29. While conducting the autopsy, the Doctor had not found presence of any liquid in the nose or ears, except the tracheostomy cut, the Doctor had not seen any external injury. The Doctor, on internal examination, had found the lungs as enlarged, while other organs as head, brain, skull, chest, windpipe, pericardium of the heart, veins, stomach and the food pipe were found normal. In Bottle-I, (i) stomach, and (ii) Ct piece of small intestine and in Bottle-2, (i) Ct piece of kidney, (ii) Ct piece of liver, and
(iii) Ct piece of spleen was taken for viscera, which gets corroborated by document at Exh.59, sent by the Chief Medical Officer, Surendranagar.
30. The Doctor, in his deposition, opined that the lungs and heart and the breathing stopped Page 39 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined because of consumption of poison organic phosphorous, which the Doctor stated that the presence could be found from the FSL report. However, in the cross-examination, the Doctor stated that both the bottles, wherein he has sent the viscera as Marks-1 and 2 did not find any presence of poison and affirmed again that the bottle Marks-1 and 2 of the viscera, did not detect the poison. The opinion of the Doctor who conducted the postmortem is not supported by the FSL report. How the witness gave such an opinion about consumption of organophosphorus poison could not be found from the record of the case. The treating Doctor - Dr. Lakum - PW14 had not produced any treatment documents. The postmortem report relied upon by Dr. Vasani shows all the organs, as referred hereinabove, in a normal condition.
31. Organophosphates are chemicals that feature in agricultural products, such as herbicides, Page 40 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined pesticides, and insecticides. Organophosphorus poisons are derived from phosphoric acid and form two series of compounds, (A) Alkyl phosphates, and (B) Aryl phosphates. "The Essentials of Forensic Medicine and Toxicology"
by Dr. K.S. Narayan Reddy, in Sixteenth Edition, 1997 deals with agricultural poison in Chapter-
25, which contains details about Organophosphorus poisons. The description deals with the postmortem appearance on Page-422 as under:-
"Post-mortem Appearances:
Signs of asphyxia are found. The face is congested and there is cyanosis of the lips, fingers and nose. Blood-stained forth is seen at the mouth and nose. The stomach contents may smell of kerosene. The mucosa of the stomach is congested with submucous petechial haemorrhages. Respiratory passages are congested and contain frothy haemorrhagic exudate. The lungs show gross congestion, excessive oedema and subpleural petechiae. Heart is sometimes soft and flabby. The internal organs are congested. The brain and meninges are congested.Page 41 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Petechial haemorrhages are present. The cholinesterase in erythrocytes and at myoneural junctions is below normal. Organophosphorus can be detected in putrefied bodies."
32. PW8-Punjabhai Devabhai Rathod, father of the deceased when he came back home had seen many people gathered near the house. The father stated that there was stench from the mouth of his son-Kalubhai. His another son - Pravin told the witness that the deceased Kalubhai had made efforts to speak, but failed. Kalubhai was brought in Chhakado rickshaw to the dispensary at Limdi since nothing could happen there, therefore, he was taken to Surendranagar at Lakumsha. The father had tried to produce the letters stating to be written by his son, produced at Mark-A. However, the same could not be exhibited. The widow-Amarben was examined as PW18. She stated that she along with her husband and children were residing at Shiyani and were doing hand weaving work. Her husband was Page 42 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Secretary in Jai Girnari Cooperative Society. They have two sons and two daughters. She also has two younger brothers-in-law who were staying separately.
33. She stated that her parents-in-law were also earlier residing separately. The President of the society was Chhaganbhai Laljibhai Jadav. The wife could not state about the physical condition of her husband after the consumption of poison. In her examination-in-chief, she had relied upon a photocopy of the affidavit of the accused no.2 - Dahyabhai Alubhai Solanki, which was produced at Mark-C.
34. The widow, as PW18, has given the cause for suicide as the scam of Rs.8,00,000/-. The witness stated that accused no.2 as a broker would purchase yarn for the society and according to her, in that, there was a scam of the money. Her husband had informed her that the debt of Rs.8,00,000/- had come on his head. The Page 43 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined widow stated that the society was dealing in yarns and weaving. The society used to give cheques to accused no.2 - Dahyabhai and accused no.2 used to give it to accused no.1-Bharatbhai. The witness stated that both of them had not delivered yarn to the society and had usurp the money. The notice had come from Mumbai Court, her husband was not in a position to pay Rs.8,00,000/-. The President had informed that Dahyabhai and Bharatbhai have cheated her husband got offended and drank poisonous medicine.
35. The witness stated that she was illiterate and could not read. She was member of the society. She affirmed that one year prior to the death of her husband, the notice had come from Mumbai and also affirmed that her husband as well as Chhaganbhai used to attend the Court.
36. According to the father-PW8, his son had taken this step because of the Mandli. The father had Page 44 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined not stated of any cheating by the accused, nor has he stated about Court cases. The son - PW6 is not the member of the society. According to son, his father had given blank cheques to Bharat Parsottam (accused no.1) for the purchase of yarn. The son stated that accused no.1 directly sold the yarn and the blame came on his father and since he was feeling tensed, father drank poisonous medicine. The cause for the suicide are different for all the family members referred hereinabove, however, all of them linked the issuance of cheque with the cheating by accused.
37. The prosecution, during the trial, examined the driver of the Eicher of N.J. Rana. PW13- Dharmendra Jadeja who stated that they had to transport as per the Vardhi given by his employer. He would not maintain any record of such an order, while such record would be with his employer. He stated that many a times, he Page 45 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined had delivered goods from Arunoday Mills in accordance to the 'bilty' to the person who would be the receiver. There had been no occasion to go to Village Shiyani. In cross, he stated that the people of Devki would load goods in the vehicle.
38. PW19-Mahendrakumar Bhimjibhai Joshi was in Morbi Arunoday Mills looking after work of excise and dispatch. He worked from 3.4.1995 to 31.10.2006. According to him, from their factory, the hosiery yarn was dispatched to Jai Girnari Cooperative Society, Shiyani by three different invoices. He stated that the invoice would disclose the details of the truck in which the goods were sent. He stated that Arunoday Mill was sealed on 17.10.2006 and the records were with the IDBI Bank since the Company was declared as Sick unit. He had produced the letter Exh.62 of the Managing Director - K.K. Sheth dated 14.11.2006. The witness had produced Page 46 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined jointly vide Mark-B three cheques and Bank documents in connection with the bill of the Mandli and even two letters and three invoices and since it was secondary evidence, it could not be exhibited. The witness stated that the agent of their mill was Devika Hosiery and that the goods would travel through them to the places, where the bills were directed.
39. The evidence of this witness-PW19 becomes relevant as it does not say that the orders for the goods were not placed by the accused. Copies of three cheques and Bank documents as well as the communication of the Mandli and three invoices were placed at Mark-B. The communication of the Mandli - Jai Girnari Hathshal Vankar Cooperative Soci. Ltd., Shiyani, though could not be exhibited, refers to the bills as well as the cheques of Dena Bank, Maskati Market Branch with the amount of the individual cheque. As per the bills dated Page 47 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined 26.12.2003, cheque no.294306 for the amount Rs.4,08,152.40, cheque no.294308 for the amount of Rs.1,27,548.00, cheque no.294311 for the amount of Rs.2,04,077.20 were issued, a copy of the same were produced at Mark-B along with three invoices of Arunoday Mills Ltd., which were dated 9.8.2002, 12.8.2002 and 29.8.2002. According to the witness - PW19, their main agent was Devika Hosiery.
40. PW21-Tejasbhai Virendrabhai Shah stated that he used to run his business on Ashram road, Ahmedabad in the name of Devika Hosieries and Tejas Hosieries. As per his deposition, accused- Bharatbhai used to regularly purchase cotton yarn and they are the agent of Arunoday Mill, Morbi. As soon as order was given in "Kha" form with the cheque, they used to send the order to the mill and the mill would dispatch the goods to the address given by Bharatbhai (accused no.1). As per the witness, four years prior, the Page 48 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined transaction had taken place. The deposition notes that accused - Bharatbhai's godown was in the compound of Naroda Bharatkhand Mill, where they used to dispatch the goods and the goods would go to the person named in "Kha" form. According to the witness, accused-Bharatbhai used to purchase goods for Shramyogi Sahakari Mandli, Jai Girnari Sahakari Mandli, Shiyani, Poonam Textiles, Ahmedabad. In the cross- examination, it has been recorded that the person from the concerned society would come for the delivery of the goods. The witness has to sell the goods as per the rate authorized by the mill and the goods would be directly dispatched by the mill. The deposition of this witness does not suggest that no goods were sent as per the order, the deposition states that he is the agent of Arunoday Mill. The necessary documents with regard to supply of goods and the invoices as well as the cheque with full details were jointly produced at Mark-B. Page 49 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined
41. The case under the Negotiable Instruments Act, 1881 was filed against the deceased, PW9 as well as accused no.1-Bharatbhai Parsottambhai Chimnani by the Shroff firm while nothing is coming on record of Criminal Case registered by Arunoday Mill, which was declared sick unit.
42. The President of Jai Girnari Hathshal Vankar Co.
Operative Soci. Ltd., Shiyani, Chhaganbhai Laljibhai Jadav was examined as PW9. He is also the person against whom Criminal Case was filed. He being the President and the deceased being the Secretary had jointly issued signed cheques for purchase of yarn. His deposition itself suggest that the total administration of the society was under him and deceased's signature. According to him, when the deceased had consumed poison he was at Village Paliyad. He stated that the yarn of their society was drawn away by accused no.1 - Bharatbhai Parsottambhai. The Mumbai Police had come with the summons in Page 50 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined connection with the mill from where the yarn was taken. According to the President, under such distress, the deceased had consumed poison. He identified accused no.1 in the Court. As per his evidence in the deposition, the Bank account of the society was at Ahmedabad. Blank cheques were given to the accused no.2 - Dahyabhai Alubhai for the purchase of yarn. Those cheques got returned and the yarn was sold away. Thereafter, the mill person had filed a case against them and since the police has come, under that shock, witness stated that Kalubhai consumed poison. The blank cheques were of Dena Bank, Ahmedabad. In the examination-in-chief, the witness has not made any allegation of siphoning of money by any of the accused. The witness, in the cross- examination, has stated about the Resolution passed by the society for the purchase of yarn and accused no.2 - Dahyabhai Alubhai was appointed for that purchase for the society. He affirmed that there was no resolution for Page 51 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined accused no.1 - Bharatbhai to purchase yarn for the society and the cheques were to be given to accused no.2 - Dahyabhai Alubhai.
43. The analysis of the evidence of the President would suggest that the authority was given to accused no.2 to purchase the yarn and even the cheques were handed over to accused no.2.
44. Dilipbhai Kantilal Bhandari-PW20 had filed Criminal Case no.1719 of 2003 in the Metropolitan Magistrate Court, Ahmedabad against accused no.1-Bharatbhai Parsottambhai Chimnani of the present matter, joining the President of the society - PW9 - C.L. Jadav and the deceased- K.P. Rathod as accused nos.1, 2 and 3 respectively.
45. PW20-Dilipbhai Kantilal Bhandari had stated that he is having the business as Shroff and Commission Agent in the name of Shukan Corporation, Ahmedabad. According to his Page 52 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined evidence, he knows accused no.1-Bharatbhai Parsottam Chimnani, but stated that he had no transaction with him. According to PW20, deceased and PW9, i.e. the Secretary and the President of the Mandli had come to him for discounting cheque. They had given the reference of Bharatbhai Chimnani (accused no.1). The cheque was of Rs.1,25,000/-. The witness does not remember the cheque number, the name of the Bank or the date. He stated that after taking the exchange value, he had given the amount of the cheque, and as per the date, the cheque was deposited in the Bank, but it got returned. The witness has further stated that for their business transaction, they have maintained the vouchers and the notes could be on the voucher regarding the transaction. He had filed the complaint because of the cheque getting bounced, and after the death of Kalubhai, he had withdrawn the case. He identified accused no.1 - Bharatbhai in the Court. He had denied of any Page 53 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined transaction with accused no.1 with regard to the cheque amount of Rs.1,25,000/-. The witness was confronted with the police statement, he denied of giving any such statement before the police that accused no.1 as per his requirement after giving the commission would give advance cheque and would take the money and in the present matter too, he had taken the advance cheque for the money of Rs.1,25,000/- for which had taken the commission. The witness also denied of the cheque no.294312 dated 1.10.2002 of Dena Bank, Maskati Market with the signature of C.L. Jadav (President) and K.P. Rathod, (Secretary) of Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani being cross-bearer cheque taken by him. Witness stated that the President and the Secretary in the period of 09/2002 had taken the amount of Rs.1,25,000/- and had assured him to pay the money on the matured date, but while depositing the cheque in the Bank on 28.2.2003, it got returned with an endorsement "opening Page 54 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined balance insufficient". Witness denied that through his lawyer, Dilipbhai Songhela, he had filed case under Sections 406 and 420 of the IPC against Bharatbhai Parsottambhai Chimnani as the main accused or as an abettor - K.K. Rathod and C.L. Jadav. He denied the suggestion that the accused no.1 - Bharatbhai Parsottambhai Chimnani had taken the amount of Rs.1,25,000/- and given him a cheque. According to him, he had given the amount of the cheque to deceased Kalubhai and that Criminal Case no.17 of 2003 was filed in the Metropolitan Magistrate Court, Ahmedabad and after death of Kalubhai, he had withdrawn the case on 22.8.2006.
46. The withdrawal purshis was placed on record at Mark-C. The President - Chhaganbhai Laljibhai Jadav has denied the suggestion that the deceased Kalubhai had taken the money from the Shroff at Ahmedabad and affirmed that the Shroff had withdrawn the case on the death of Kalubhai. Page 55 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined President stated that he has not got it recorded in his statement before the police that Bharatbhai Parsottambhai (accused no.1) had taken away the yarn from the mill and therefore, the person at Mumbai had filed the case and because of that, Kalubhai had consumed poison. He has also denied of stating in his statement of giving the cheques through Dahyabhai (accused no.2). He denied the suggestion that the accused no.2 stood besides them in defending the case at Mumbai. In the cross-examination by the advocate of accused no.2, the President affirmed that he himself had gone to Ahmedabad Sharafi firm and had brought the money, while denied the suggestion that he himself has made the purchase, but to ensure that no case could be filed against him, a false complaint has been lodged and denied the suggestion that the deceased died because of his own mental illness. Page 56 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
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47. PW22 - Police Inspector, Jivabhai Khimabhai Bhagora had received the order for investigation on 8.1.2004 from DSP. The investigation was taken over from PSI, S.M. Varotariya. Thereafter, he recorded the statement of the President - Chhaganbhai Laljibhai of Girnari Sahakari Mandli and of Amarben, RAtilal, Manjibhai, Kanuben Manjibhai, Valjibhai Punjabhai, Babubhai Punjabhai. According to PW22, the witnesses were corroborating the complaint. Since he had to attend the training, the investigation was handed over to PSI, B.M. Tank-PW24. In the cross-examination PW22, affirmed that he had not seized any documents against accused no.1 Bharatbhai from the society. He had visited Jai Girnari Cooperative Society. According to him, during his investigation, it was found that accused no.2 had misused the cheque. The extent of his investigation has been stated. However, the police witness could not clarify as to how Page 57 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined accused no.2 had misused the cheques.
48. PW24 - Police Inspector - Bharatsinh Madhavsinh Tank on 27.01.2005 received the investigation on the order of S.P. from PW22. After he took the charge, he arrested the accused and had prayed for remand of the accused to seize the amount, however, the application was rejected. Thereafter, he had visited Morbi Arunoday Mill, on the documents presented by the accused's father. There in the mill he recorded the statement of Mahendra Joshi. The communication by Arunoday Mill through Devki Hosieries, Ahmedabad and the photocopy of the document regarding the dispatch of the goods were kept in investigation. From witness Chhaganbhai Laljibhai of Jai Girnari Cooperative Society, the Investigating Officer took the copy of the stock statement of the society. Thereafter, he visited the owner - Tejasbhai Shah of Devki Hosieries to record his statement and also Page 58 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined recorded the statement of Bhanvarlal who according to the Investigating Officer was the person who had unloaded the goods at the godown, purchased by Bharatbhai Parsottambhai Chimnani- accused no.1 from Arunoday Mills. The Investigating Officer had also recorded the statement of the driver who had taken the goods. The Resolution no.5 for the purchase of yarn passed by Jai Girnari Cooperative Society was produced in evidence at Exh.68, which the Investigating Officer has procured. The FSL report is at Exh.58. The evidence with regard to the viscera taken during the postmortem of the deceased was also recorded.
49. The Investigating Officer has also produced bill Mark-B of the goods which were dispatched from Arunoday Mill and the invoices on the letter pad of the society, photo copy of the documents regarding the cheque, which had been seized during the investigation.
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50. In the cross-examination, the Public Prosecutor had demanded to exhibit Mark-B the photocopy of documents, which consisted 10 pages, which was stated to be taken from the original record of the mill, which had gone in bankrupcy, on the ground that the originals were in possession of the Bank. The said request was rejected by the learned Trial Court Judge, nor the income expense stock register photocopy produced at Mark-B was exhibited. The communication between Arunoday Mill, Tejas Hosiery, Devika Hosiery were produced at Marks-E and F.
51. In the cross-examination, the Investigating Officer could state that he had not seized any document against accused no.1-Bharatbhai from the society and that prior to 7th i.e. the date of the complaint, no complaint was filed in connection with the offence. The witness stated that A.D. complaint was filed. He further stated that he had not seen the Resolution book of the Page 60 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Company and has also stated that no evidence was received of any ill intention of accused no.2 and that during the course of investigation, nothing has come on record of any benefit received by the accused no.2, but denied the suggestion that there was no evidence against the accused no.1 and denied the suggestion that both President and Secretary personally had gone for the purchase.
52. The evidence of the Investigating Officer would show that the documents, which were procured and the statements were recorded, were with regard to the transaction of the society with Devki Hosiery and Arunoday Mill. The Investigating Officer had not procured other Resolutions of the society to verify the earlier practice of the society for the purchase of yarn. Whether accused no.2 was often handed over the blank cheques for purchasing yarn could have been reflected from such documents. The Investigating Page 61 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Officer appears to have concentrated only on Resolution no.5 and the transaction, which has been alleged. The connection of accused no.2 with that of accused no.1 and both being in conspiracy to cheat the society has not been proved. The financial health of the society appears to have been weak, since the evidence of the Shroff - PW20 suggests that the deceased had come to exchange the cheque and the evidence of the President-PW9 would rather clarify that it was he the President who had personally gone to take the money from the Sharafi firm. The amount involved of the cheque is Rs.1,25,000/- for which case under Section 138 of the Negotiable Instruments Act, 1881 was filed by PW20 and after the death of Kalubhai, Criminal Case no.1719 of 2003 came to be withdrawn from the Court of Metropolitan Magistrate, Ahmedabad. As laid down in the case of Hridaya Ranjan Prasad Verma (supra) relied upon by learned advocate Ms. Poonam Maheta, cheating requires dishonest Page 62 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined intention from the very inception. It has been noted as under in Paragraphs 14 and 15:-
"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is Page 63 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
53. For the offence under the criminal breach of trust, the entrustment of property and dishonest misappropriation are the elements to be proved as noted in the case of State of Kerala v. A. Pareed Pillai (supra), where the Hon'ble Supreme Court has observed in Paragraph 16 that "..... It may be that the accused could not keep up the delivery of the oil tins to the railways and no tins could be despatched in respect of the said thirteen railway receipts but that fact can give rise only to a civil liability of the accused. It is not sufficient to fasten a criminal liability on them. To hold a person guilty of the offence of cheating, it has to be shown that Page 64 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfill the promise."
54. The prosecution has failed to prove any dishonest intention of accused no.2, while receiving the blank cheques. It was by resolution of the society the decision was taken to hand over the responsibility to purchase yarns. As the price of the yarns remain fluctuating, so blank cheques were handed over to accused no.2.
55. The prosecution here in this matter has also failed to prove that the suicide was owing to the consumption of organophosphate poison. The medical evidence of the treating Doctor has not proved the gastric lavage. The FSL report does not prove the presence of poison on the examination of viscera. The deceased was alive for about nine days. His attempt to commit Page 65 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined suicide on 26.12.2003, could have been the ground to lodge a complaint against him, had the constitutional validity of Section 309 IPC could not have been put to test.
56. In the case of Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750, the Hon'ble Supreme Court has dealt with the concept "suicide" and even with the "attempt" to commit suicide. The legality and correctness of Section 309 of IPC punishing the attempt to commit suicide have always been the subject matter of discussion from decades. Law Commission of India during 1970-71 in the 42nd Report had recommended the relation of offence of committing suicide. In the case of Maruti Shripati Dubal v. State of Maharashtra, 1986 Mh.L.J. 913 : 1987 Cr.L.J. 743, the Bombay High Court had declared Section 309 of IPC as ultra vires to Articles 14 and 21 of the Constitution of India. The judgment of Bombay High Court was challenged before the Page 66 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Hon'ble Supreme Court and in State of Maharashtra v. Maruti Shripati Dubal, (1996) 6 SCC 42, considering the decision of the Constitution Bench in the case of Gian Kaur v. State of Punjab, (1996) 2 SCC 648, a Five Judge Bench decision observed that Section 309 IPC does not offend Article 14 because of the inbuilt flexibility in Section 309 IPC.
57. In P. Rathinam v. Union of India, (1994) 3 SCC 394, the judgment of the Hon'ble Supreme Court held Section 309 not violative of Article 14 on grounds of attempt to suicide being undefined and of treating all attempts to commit suicide by the same measure and considered the punishment for attempt to commit suicide violative of Article 21 and hence held, the provision of Section 309 IPC as void. It was in Paragraphs 109 and 110 observed as under:-
"109. On the basis of what has been held and noted above, we state that Section 309 of the Penal Code Page 67 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the persons concerned is not called for.
110. We, therefore, hold that Section 309 violates Article 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanisation, which is a need of the day, but of globalisation also, as by effacing Section 309, we would be attuning this part of our criminal law to the global wavelength.
58. P. Rathinam (supra), the referred judgment was overruled later by Hon'ble Supreme Court in the case of Gian Kaur (supra), where the Hon'ble Supreme Court was considering the conviction of the appellant, assailed inter-alia on the ground Page 68 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined that Section 306 IPC is unconstitutional.
59. Despite overruling, the Government decided to delete Section 309 from the statute book recognizing it as barbaric and irrational provision. The deletion of Section 309 is being implemented through the Bharatiya Nyaya Sanhita, 2023, which will entirely remove Section 309 from the Indian Penal Code. In Common Cause (a registered society) v. Union of India & Anr., (2018) 5 SCC 1, the Hon'ble Supreme Court had recommended the Parliament to consider decriminalizing attempt to suicide saying the provision had become anachronistic while giving guidelines to passive euthanasia. Common Cause, (2018) 5 SCC 1 found modification and clarification of the directions to the guidelines and safeguards laid down. The petitioner, Indian Society of Critical Care Medicine sought clarification of the judgment, which was reported as Common Cause (a registered Page 69 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined society) v. Union of India, Indian Society of Critical Care Medicine, (2023) 14 SCC 131.
60. A reference is required to be made, that under Section 226 of Bharatiya Nyaya Sanhita, 2023, 'Attempt to commit suicide to compel or restrain exercise of lawful power,' is being made punishable act. So an attempt to commit suicide remains a punishable offence if it is made to stop a public servant from exercising lawful power.
61. The Mental Healthcare Act, 2017, which came into force in 2018 tries to decriminalize suicide. Section 115 of the Mental Healthcare Act, 2017 has made the following provision:-
"115. Presumption of severe stress in case of attempt to commit suicide.--
(1) Notwithstanding anything contained in section 309 of the Indian Penal Code (45 of 1860) any person who attempts to commit Page 70 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide."
61.1 Section 115, thus, states that any person who attempts to commit suicide unless otherwise proved shall be presumed to have serious stress and shall not be tried and punished under Section 309 IPC.
61.2 Thus, Section 115 provides that Section 309 IPC could be used to punish attempted suicide only as an exception. The Mental Healthcare Act, 2017 by way of provision of Section 18 gives right to access to mental health care. Mental illness has been described under Section 2(s) as under:-
"2(s) "mental illness" means a substantial disorder of thinking, mood, perception, orientation or Page 71 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;"
62. The complainant brother-PW1, the widow of deceased-PW18, as well as the President of the Mandli-PW9, the Committee members-PW10, PW11. PW12 who is the Committee member as well as the brother of deceased, all in one voice has deposed that the deceased Kalubhai was under
stress. PW9-President specifies that after receiving summons from Mumbai police, deceased was in mental stress. Section 115 of the Mental Healthcare Act, 2017 enjoins upon the Court to presume serious stress in case of attempt to commit suicide.
63. Here, in the present case, the death has not occurred immediately. On 26.12.2003, Kalubhai Page 72 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined consumed alleged poisonous medicine. He died on 4.1.2004 during the course of treatment at Dr. Lakum's hospital. The complaint was filed on 7.1.2004. Sub-section(2) of Section 115 of the Mental Healthcare Act, 2017 mandates the Government to provide care, treatment and rehabilitation to the person having serious stress and who attempted to commit suicide. Dr. Lakum could not prove that deceased Kalubhai had actually consumed pesticide, which was named by the P.M. Doctor-PW17-Kanubhai Vasani as organophosphate. The police had not found any such pesticide from the place of incident. The viscera does not detect any poison. It may have happened that deceased may have been suffering from his own physical weakness or the effect on the physical body may have been because of the mental stress. Actual consumption of the poison by deceased has not been proved by the prosecution.
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64. Death by suicide as mentioned hereinabove cannot become a criminal act since the person attempting an act of suicide would not survive to face any action for the attempt to commit suicide.
65. While answering the validity of Section 306 IPC in Gian Kaur (supra), it has been observed in Paragraphs 37 and 38 as under:-
"37. Section 306 prescribes punishment for "abetment of suicide"
while Section 309 punishes "attempt to commit suicide". Abetment of attempt to commit suicide is outside the purview of Section 306 and it is punishable only under Section 309 read with Section 107 IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there, provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest Page 74 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision. The arguments which are advanced to support the plea for not punishing the person who attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt. This plea was strongly advanced by the learned Attorney General as well as the amicus curiae Shri Nariman and Shri Sorabjee. We find great force in the submission.
38. The abettor is viewed differently, inasmuch as he abets the extinguishment of life of another person, and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision."
The law makes abetment for the commission of suicide as penal offence. Section 107 IPC defines abetment of a thing.
66. In the case of Bhaveshbhai Jayantilal Modi v.
State of Gujarat, rendered in Criminal Misc. Application no.22562 of 2022, it has been observed as under:-
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NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined [9.1] Section 306 of IPC penalises abetment of suicide. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which along will become an offence. In order to invoke the provisions of Section 306 of Indian Penal Code, section 107 of Indian Penal Code is required to be satisfied by the prosecution. Section 107 of the Indian Penal Code includes the acts, omissions and commissions and also instigation with the deliberation and intention. Instigation consists in actively suggesting and stimulating another to act. It may be personal or through a third party. Instigation necessarily indicates some active suggestion, or support or stimulation to the commission of the act itself. There has to be a reasonable certainty in regard to the meaning of the words used by the 'inciter' in order to judge whether or not there was an incitement, but it is not necessary, in law, to prove the actual words used for the incitement. The word 'abetment' includes clause-3 namely 'abetment by aiding'. The third way of abetting is by intentionally aiding the doing of a thing by an act or illegal omission. In abetment by 'aid', it is not the intention to aid the commission of crime, that is punished, but the fact that something is done or not done, whereby the commission of a crime is rendered more easy. In instigation, Page 76 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined the criminal intention is punished; in conspiracy, the intention plus some act; in aid, the act itself. Reading Cl. 3 of the section with Expl.2, which goes with it, for abetment by aid, four things must be combined:
(i) aid must be actually afforded by means of an 'act or illegal omission';
(ii) there must be an intention to aid thereby;
(iii) the commission of the offence must be facilitated thereby; and
(iv) the act or omission must take place either prior to, or at the time of, the commission of the act intended to be aided.
[10.1] The Hon'ble Supreme Court in the case of Kishori Lal vs. State of Madhy Pradesh reported in (2007)10 SCC 797 has held that instigation literally means to provoke, incite, urge on or bring about by persuasion to do anything. Hon'ble Supreme Court has noted that before a person may be said to have abetted the commission of suicide, he must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide.
[10.2] In the case of S.S. Chheena vs. Vijay Kumar Mahajan reported in (2010)12 SCC 190, the Hon'ble Page 77 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Supreme Court observed as follows:― "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 I.P.C. 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".
[11.2] Further, the question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behavior, each case is required to Page 78 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. 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 with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 I.P.C. [11.4] It is apposite to refer to the decision of the Hon'ble Supreme Court in the case of Mariano Anto Bruno vs. State reported in (2023)15 SCC 560, wherein in paragraph 45, the Hon'ble Supreme Court observed Page 79 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined thus:
"45. ... 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 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."
66.1 In the case of Kishori Lal v. State of M.P. reported in (2007) 10 SCC 797, it was thus held as under:
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, Page 80 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted.
Therefore, the offence for the
abetment of which a person is
charged with the abetment is
normally linked with the proved
offence."
66.2 In the case of Gangula Mohan Reddy v. State of
A.P. reported in (2010) 1 SCC 750 it was held as under:
"17. 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 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 this act must have been Page 81 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined intended to push the deceased into such a position that he committed suicide."
66.3 In the case of Sanju @ Sanjay Singh Sengar v.
State of Madhya Pradesh, (2002) 5 SCC 371, it has been observed as under:-
"12... 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 mens 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. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-7-
1998 ensued by a quarrel. The deceased was found hanging on 27-7- 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25-7- 1998 drove the deceased to commit Page 82 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined suicide."
66.4 In the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605, it is observed that to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. The Court summed up the constituents of 'abetment' as under:-
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.Page 83 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Undoubtedly, presence of mens rea is the necessary concomitant of instigation. 66.5 Prakash v. State of Maharashtra, 2024 SCC Online SC 3835 : 2024 INSC 1020 is a case, where Court after analysing various decisions on the point summed up the legal position in the following manner:
"14. Section 306 read with Section 107 of IPC, has been interpreted, time and again, and its principles are well established. To attract the offence of abetment to suicide, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and should put the victim in such a position that he/she would have no other option but to commit suicide."
66.6 In the aforesaid judgment, the Court referred to its earlier decision in Sanju @ Sanjay Singh Sengar (supra) and held that in a given case, Page 84 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined even a time gap of 48 hours between using of abusive language by the accused and the commission of suicide would not amount to a proximate act.
66.7 In the case of Ude Singh v. State of Haryana, [(2019) 17 SCC 301], the Hon'ble Supreme Court insisted for looking for cogent and convincing proof of the act of incitement to the commission of suicide, the Hon'ble Supreme Court has held as under:
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice Page 85 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to Page 86 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide..."
66.8 In the case of State of West Bengal Vs. Orilal Jaiswal, [(1994) 1 SCC 73], the Hon'ble Supreme Court has cautioned in Para-17 with regard to Court's duty in assessing facts and circumstances of the case as under:
"17. ... The Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was Page 87 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty...."
66.9 In the case of M. Mohan v. State Represented by the Deputy Superintendent of Police, [AIR 2011 SC 1238 : (2011) 3 SCC 626], the Hon'ble Apex Court has made the following observations regarding the ingredients of Section 306 IPC, referring to the word 'suicide', which reads thus:
"If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Page 88 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Edition, p.686, "A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient."
66.10 In the case of Mahendra K.C. v. State of Karnataka and another, [(2022) 2 SCC 129], it has been held by the Hon'ble Supreme Court that the essence of abetment lies in instigating a person to do a thing or the intentional doing of that thing by an act or illegal omission. 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 Page 89 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined spelt out. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
66.11 The Hon'ble Supreme Court in the case of S.S. Chheena Vs. Vijay Kumar Mahajan, [2010 (12) SCC 190] in regard to the abetment has held as under:
"25. 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 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."Page 90 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined 66.12 In the case of Nareshkumar v. State of Haryana, (2024) 3 SCC 573, wherein it was held that the basic ingredient to constitute an offence under Section 306 IPC are suicidal death and abetment thereof. Abetment involves the mental process of instigating a person or intentionally aiding a person in doing of a thing. Thus, without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Thus, in order to convict a person under Section 306, there has to be a clear mens rea to commit the offence and mere harassment, held, cannot be sufficient to hold an accused guilty of commission of suicide. Further, it was held that the prosecution has to prove an active act or direct act which led the deceased to commit suicide. It was held that ingredients of mens rea cannot be assumed to be ostensibly present, but has to be visible and conspicuous.
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67. The prosecution in the present case has failed to prove any instigation from the accused providing the deceased to commit suicide. PW9 - President of the Mandali was also in a similar situation as of the deceased. PW9 though similarly situated had not taken any such extreme step. Purshis dated 22.8.2006 given by PW20 in the Court of Metropolitan Magistrate, Ahmedabad in Criminal Case no.1719 of 2003 notes that deceased and PW9 had come at his shop and both said that they were knowing Bharatbhai Chimnani (A1). They had given only oral introduction, while no written recommendation was given by Bharatbhai Chimnani (A1), nor had Bharatbhai orally undertaken any responsibility. The deceased had given cheque no.294312 of Dena Bank, Maskati Branch, Ahmedabad and had taken Rs.1,25,000/- from PW20 who was informed to deposit the cheque on its maturity date. The case was filed as the cheque got returned, Page 92 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined however, owing to death of Kalubhai, PW20 as the complainant preferred not to give further evidence and urged the Court to decide the case.
68. What emerges from the purshis was that deceased had borrowed money Rs.1,25,000/- from Shroff PW20. While PW9, the President in his deposition says that he had personally on his own accord brought money from Ahmedabad Sharafi firm. The resolution to purchase yarn was passed in favour of Dahyabhai Alubhai (A2), while PW20 does not refer to accused no.2, nor the President-PW9 alleged anything against accused no.2-Dahyabhai. PW9 alleged that accused no.1-Bharatbhai had directly taken away the Yarn, which means the yarn was not deposited in the society, while on the other hand, deceased and PW9 both appears to have contacted PW20 and introduced themselves with the identity of accused no.1-Bharatbhai, who had not taken any responsibility of payment of amount, still PW20 had made present accused Page 93 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined no.1-Bharatbhai and PW9 and deceased Kalubhai accused in Criminal Case no.1719 of 2003.
69. On the contrary, widow of deceased Kalubhai as PW18 had introduced photocopy of affidavit of accused no.2-Dayhabhai Alubhai Solanki dated 30.6.2003 signed before a notary. Affidavit has been only marked, not exhibited in evidence inspite of that if considered in brief, the content suggests that accused no.2 affirmed of five blank cheques given to accused no.1 who had written false figures and purchased goods from Arunoday Mills Ltd. and has stated that the blank cheques of the society with signature were given to Arunoday Mills, from where the goods were taken on credit. The copy of cheque and the bills are with dated transactions. There has been no case filed by deceased or PW9 against accused no.2. The collaboration was with Arunoday Mills, which had gone under SICA. After being declared sick company, what was the Page 94 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined position of supply of goods does not get proved. The police had not proved the place, where accused no.1 allegedly sold away the goods. Accused no.1 rather appeared to be assisting deceased and PW9 for procuring money from Shroff-PW20.
70. So the case as could be drawn from the evidence, along with the evidence of PW20 and PW9, would transpire that the amount of Rs.1,25,000/- was taken from Shroff PW20 by the deceased and PW9 and they had gone to PW20 with the introduction of accused no.1 as recommendation. So all the three were made accused in the proceedings under Section 138 N.I. Act in the Court of Ahmedabad.
71. The dealing with Arunoday Mills were proved by PW19. The cheques of various amounts, as had been mentioned hereinabove, were issued. The yarns were allegedly not supplied. How the debt of Rupees Eight Lacs fell only on the deceased could not be clarified, when equally the Page 95 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined responsibilities would have fallen even on the head of PW9, the President of the society. On Arunoday Mill being declared sick mill, SICA proceeding was initiative, PW9 would state that the shock to the deceased was only after Bombay police had come with summons, so deceased consumed poison.
72. PW10 - Ratilal Manjibhai Makwana was the committee member of the cooperative society. He states of blank cheques given to accused no.2. According to PW10, deceased used to gather all the people and would tell that the society now have to pay the money for yarn and that since society had no money, deceased expressed his concern as to how they would pay. PW11-Kamuben Kanjibhai, the member said that as the yarn had not come, deceased had expressed his sorrow telling as now what they would do, and how would they pay the money and therefore, he had consumed poison.
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73. Suicide by poison was required to be proved. In case of consumption of poison, FSL report has to prove the presence of element of poison from the samples of vomit or through gastric lavage. Nothing had been procured. The viscera report of FSL does not prove the presence of poison.
74. In Kumar @ Shiva Kumar v. State of Karnataka, 2024 INSC 156, the Hon'ble Supreme Court opined that in a case of death due to consumption of administering of poison, be it homicidal or suicidal, recovery of the trace of such poison is crucial. The Hon'ble Supreme Court expressed thus:-
"46. ...As a general principle, it can be said that in a case of death by poisoning, be it homicidal or suicidal and which is based on circumstantial evidence, recovery of the trace of poison consumed by or administered to the deceased is of critical importance. It forms a part of the chain, rather it would complete the chain to prove homicide or suicide."Page 97 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
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75. The Doctor who was treating the deceased had not proved the treatment details by producing the treatment sheet. The issue of directly selling the yarns and not unloading at the society, by accused no.1 does not get prima facie proved by the witnesses so examined to consider as cheating or criminal breach of trust. What was the financial health of the society was also not proved. Why deceased and PW9 had to borrow money from the Shroff is not getting clear.
76. The resolution passed under the signature of PW9 was placed on record during the trial by the investigating officer - PW24 - Bharatsingh Madhavsinh Tank at Exh.68. The resolution no.5 of the society is dated 11.12.2001 with the subject regarding purchase of yarn. The document reflects that it was decided to give blank cheques under the signature of President and Secretary to Dahyabhai Alubhai (A2) of Motatimbala for the purchase of yarns. The Page 98 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined resolution further clarifies the purpose of giving blank cheques, noting that there was no limit in the price of yarns and therefore, no price can be decided prior.
77. The evidence as referred to hereinabove, as analyzed by scrutinizing the oral and documentary evidences makes the facts clear that the complaint under Section 138 of the Negotiable Instruments Act, 1881 was filed one and a half year prior to the date of consuming the medicine. The filing of case cannot be considered ground to be considered as abetment, further the case was filed by PW20, which was even against accused no.1. The said case had not disturbed accused no.1, nor PW9, the President of the Mandli. The alleged amount of Rs.1,25,000/- was taken away by PW9 as per his own evidence. The affidavit of accused no.2, Dahyabhai Alubhai Solanki at Mark-C dated 30.6.2003 produced by widow of deceased, had Page 99 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined shifted all the burden alleging accused no.1 having received both the cheques who was running his yarn business as 'Jalaram Yarns Ltd.' cheque no.601065 and 601066 of Ahmedabad District Cooperative Bank Ltd. of Income-Tax Office, Gandhi Pool Branch, and had stated that cheques nos.294306, 294308 and 294311, three cheques of Dena Bank of Maskati Market, Ahmedabad were given to accused no.1. Thereafter, no yarn was purchased by the Mandli from 'Jalaram Yarns'. According to accused no.2, accused no.1 had purchased yarns on credit from Arunoday Mills, and had committed criminal breach of trust by misusing the advanced cheques given to accused no.1, and had in turn given the blank cheques with the signature of President and Secretary of the Mandli to Arunoday Mills, Mumbai.
78. PW9 deposed that deceased was in shock seeing Mumbai police, that had led to mental stress for suicide.
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79. PW19 officer of Arunoday Mills was examined to prove the invoices, who has given evidence of Arunoday Mills declared as sick unit and had also given evidence of "Devaki Hosiery' being their agent. PW19 had affirmed of dispatching thrice, the hosiery yarn from their factory on three different invoices. He had placed the photocopy of the documents, invoice-cum-challan, two letters of Mandli and the Mandli bill and document of the bank. All the three invoices- cum-challans were addressed to Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani with the amount of the bill as written on the letter pad of the Mandli signed by the President and deceased Secretary. Three cheques of Dena Bank were given to pay the bills. PW19 does not state of dishonour of these cheques.
80. The two cheques of Ahmedabad District Cooperative Bank Ltd., Gandhipool Branch nos. 601065 and 601066 were of Shramyog Vankar Page 101 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Cooperative Nadli. PW9 evidence notes that they were President and Secretary of Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani.
81. The case filed by PW20 was for cheque no.294312 of Dena Bank, Maskati Market Branch, Ahmedabad, which was not referred by accused no.2 in his affidavit.
82. These all aspects would have no connection to prove the fact, of any abetment for the commission of suicide. The instances of transaction of goods cannot be considered as any instigation from the side of accused, goading him to commit suicide. The similarly situated PW9 had not taken such an extreme step though was also placed in the same situation.
83. The documentary evidence on record produced by PW19 - the official from Arunoday Mill who was authorized to give the deposition working in Page 102 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined Excise and Dispatch Department shows that the three invoices-cum-challans were addressed to the consignee - Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani. As referred to hereinabove, three Dena Bank cheques of Maskati Market Branch were given. PW21 - Tejas Shah who is having his agency under the names of Devki Hosiery and Tejas Hosiery has referred accused - Bharatbhai as regular customer. According to PW21, they were the agents of Arunoday Mill, Morbi and according to him, the goods would be dispatched at the address informed by Bharatbhai and he stated that the godown of Bharatbhai was in Naroda Bharatkhand Mill Compound, where the goods would be dispatched and "Kha" form would be executed for the person in whose name the goods would be delivered. He affirmed that the authorized person of the Mandli would come to receive the goods. This witness has not stated that the alleged goods of those three invoices- cum-challans produced at Mark-B were never Page 103 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined delivered to Jai Girnari Hathshal Vankar Co. Operative Soci. Ltd., Shiyani.
84. The case under Sections 406 and 420 of IPC could not be proved by the State. The deceased as well as PW9 had never filed any such complaint against the accused and more specifically against accused no.1. The cheques were handed over to accused no.2, but the referred cheques appeared to have already been received by Arunoday Mills. What was the case against the deceased at Mumbai has not been brought on record. PW19 of Arunoday Mill does not state of any case filed by them against the deceased and PW9. The case that was filed by PW20 for cheque no.294312 does not find any mention in the copy of the affidavit of accused no.2 filed by the widow of the deceased. The proximate cause for the alleged suicide to consider as abetment does not stand proved. The prosecution has failed to prove any act, omission or commission by the Page 104 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined accused to consider any conspiracy. Any illegal omission of the act has to be proved to consider it as an intentional aid to be established by the prosecution. Instigation with deliberate intention is vital component, which has to be proved on record. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without the positive act on the part of the accused to instigate or to aid in committing suicide, conviction cannot be sustained. There must be clear mens rea for the commission of such offence. No such act of the accused has been proved to consider that the accused kept on irritating or annoying the deceased by words and deeds or that they had pushed or forced the deceased by their deeds, words or willful omission or conduct to consider it as goading for the deceased to commit suicide. Page 105 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025
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85. As laid down in the judgment of Prakash v. State of Maharashtra (supra) to attract the offence of abetment to suicide, it is important to establish proof by way of direct or indirect act or instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. In case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the acts of incitement to the commission of suicide. Mere allegation of harassment would not suffice. Here the deceased appears to have lowered his own self-esteem. The witnesses could give evidence of his sensitiveness for their failure to pay the dues. However, such constraint in the business had not affected PW9 or the other members of the Mandli who all would be responsible for the business of the Mandli. It would be the joint responsibility of all to pay the dues and debts.
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86. The evidence on record does not prove any abetment from the side of the accused rather the evidence shows that the deceased was under
severe stress and therefore, had committed suicide.
87. In view of the assessment and evaluation of the facts and evidences on record, the observation of the learned Trial Court Judge in convicting the accused becomes erroneous. To satisfy the requirement of instigation, accused by act or omission or by continued course of conduct, should have created such circumstances, that the deceased was left with no other option, except to commit suicide. The similarly situated person who had been examined as witnesses in the matter, found no such instigation by any act or omission of the accused to have any cause for commission of suicide. The level of tolerance differs from person to person. The similarly circumstanced individual may not react in the Page 107 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025 NEUTRAL CITATION R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025 undefined same manner, as the present deceased in the facts of the case has reacted. The judgment of the learned Trial Court Judge requires to be set aside.
88. In the result, in view of the above discussion, the appeals are allowed. The judgment and order of conviction and sentence dated 9.1.2007 passed by the learned Additional Sessions Judge, Fast Track Court no.2, Surendranagar in Sessions Case no.60 of 2005 is set aside. The appellants are acquitted of all the charges. Bail bond stands discharged. Registry is directed to send the record and proceedings back to the concerned Court forthwith.
(GITA GOPI,J) Maulik Page 108 of 108 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:45:04 IST 2025