Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 493

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUNIL B. SHUKRE, M.M. SATHAYE, JJ.
Hemant Dhirajlal Banker – Appellant
Versus
State of Maharashtra – Respondent
Criminal Application No.488 of 2020 Along With Interim Application No.1252 of 2023
Decided on : 22-06-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Aabad Ponda, Sr. Advocate, with Mr. Parvez Memon, Mr. Zulfiquar Memon, Mr. Waseem Pangarkar, Mr. Ravi Mishra, Ms. Drishti Singh,
Mr. Siddhant Dhavale and Mr. Mahesh Ahire, i/by MZM Legal
For the Respondent: Ms. A.S. Pai, P.P., with Ms. M.H. Mhatre, Mr. Nitin Gaware-Patil

The main legal point established in the judgment is that the allegations must fulfill the essential ingredients of the offences as defined by the relevant legal provisions. The court emphasized the need for prima facie evidence to support the charges and highlighted the importance of meeting the requirements for each specific offence.

Headnote:
Extortion - Criminal Application No.488 of 2020 and Criminal Writ Petition No.1296 of 2023 - Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act, 1999 - The court quashed the FIRs and approval order based on lack of prima facie evidence for the offences of extortion, criminal conspiracy, and criminal intimidation. The court found that the allegations did not fulfill the essential ingredients of the offence of extortion as defined under Section 383 of IPC. It also concluded that there was no prima facie commission of offences of criminal conspiracy and criminal intimidation. The court held that the impugned order passed under Section 23(1)(a) of the MCOC Act was illegal and could not be sustained in the eye of law.
Fact of the Case:

The case involved allegations of extortion, criminal conspiracy, and criminal intimidation against the applicants, Hemant Banker and Meenakshi Banker. The complainant alleged that the applicants, along with others, were involved in fraudulent financial activities and issuing threats. The Anti-Extortion Cell, Crime Branch, Mumbai sought approval under Section 23(1)(a) of the MCOC Act for registration of MCOC offences against the accused.
Finding of the Court:

The court found that the allegations did not fulfill the essential ingredients of the offence of extortion as defined under Section 383 of IPC. It also concluded that there was no prima facie commission of offences of criminal conspiracy and criminal intimidation. The court held that the impugned order passed under Section 23(1)(a) of the MCOC Act was illegal and could not be sustained in the eye of law.
Issues: The main issues revolved around the prima facie evidence for the offences of extortion, criminal conspiracy, and criminal intimidation, and the legality of the impugned order passed under Section 23(1)(a) of the MCOC Act.
Ratio Decidendi: The court applied the legal principles related to the essential ingredients of the offence of extortion as defined under Section 383 of IPC, the requirements for the offence of criminal conspiracy, and the elements of criminal intimidation. It also considered the provisions of Section 22 of the MCOC Act regarding the presumption in a prosecution for an offence of organized crime.
Final Decision: The court quashed the FIRs and approval order based on lack of prima facie evidence for the offences of extortion, criminal conspiracy, and criminal intimidation. The court held that the impugned order passed under Section 23(1)(a) of the MCOC Act was illegal and could not be sustained in the eye of law.

JUDGMENT :

Sunil B. Shukre, J.

1. Heard Mr. Ponda, learned Senior Advocate for the applicant-Hemant Banker and the petitioner-Meenakshi Banker, Ms. Pai, learned Public Prosecutor for the respondent no.1-State and Mr. Gaware-Patil for respondent no.2-original complainant.

2. For the sake of convenience, the applicant - Hemant Banker and the petitioner - Meenakshi Banker are hereinafter called as “the applicants” and Criminal Application No.488 of 2020 and Criminal Writ Petition No.1296 of 2023 are hereinafter referred to as “the applications”.

3. By these applications, the applicant – Hemant Banker, accused no.4 in Crime No.303 of 2020 registered at Worli Police Station, Mumbai and accused no.2 in FIR No.122 of 2020 registered by Anti-Extortion Cell, D.C.B., C.I.D., Mumbai, and other applicant – Meenakshi Banker, accused no.3 in Crime No.303 of 2020 registered at Worli Police Station, Mumbai and Wanted Accused in Crime No.122 of 2020 registered by the Anti- Extortion Cell, D.C.B., C.I.D., Mumbai, have sought quashing of both the FIRs and also quashing of the order dated 22nd September 2021 of the Joint Commissioner of Police (Crime), Mumbai granting approval under Section 23(1)(a) of the Maharashtra Control of Organized Crime Act, 1999 (for short, “MCOC Act”), to initiate proceedings under the MCOC Act against the applicants and other accused persons.

4. It all began with filing of a complaint with Worli Police Station on 27th August 2020 by respondent no.2-Kailash Aggarwal. The respondent no.2 alleged that, through a common acquaintance, one Akash Mehta, he was introduced to Rupin Banker (Accused No.2 in Crime No.303 of 2020 and Wanted Accused in FIR No.122/2020) and family of Rupin Banker in the year 2018. He alleged that he extended some financial assistance to Rupin Banker. He further alleged that Rupin Banker and his wife - Meenakshi submitted forged documents at Bar Dubai Branch of Bank of Baroda and fraudulently withdrew Rs.35 crores from the account of respondent no.2, in respect of which respondent no.2 has filed a complaint against Rupin Banker, Meenakshi Banker and Hemant Banker at Police Station, Dubai. The applicant further alleged that, during that period of time, Rupin Banker and Meenakshi Banker ran away to London, while this applicant continued to stay in Dubai. The respondent no.2 further alleged that on 15th July 2019, he was in Mauritius and on the next day, i.e. 16th July 2019 at 5:30 p.m. Mauritius time, he received on his mobile phone a call from international number “+8244” and the caller disclosed his name as “Vijay”. The respondent no.2 further alleged that since he was busy in a meeting, he told the caller to call him back after some time and thereafter again, call from the same number was received by respondent no.2 on his mobile number and at that time, the caller told him that he was Vijay Shetty, a notorious goon, who had committed six murders, including one at Kala Ghoda, Mumbai. The applicant further alleged that the caller asked respondent no.2 to not take any police action against Rupin Banker.

5. The respondent no.2 then stated that he returned to Dubai on 20th July 2019 and while at Dubai, he received call on his mobile number from the same international number on 22nd July 2019. The respondent no.2 further alleged that he recognized the voice of the caller and thought it to be of Vijay Shetty. This time, respondent no.2 has alleged, the caller hurled abuses at him and threatened him to not demand money from Banker family or otherwise, he would have to lose his life. Respondent no.2 stated that the caller knew that he had returned to Dubai from Mauritius and that the caller was in touch with Rupin Banker and his father Hemant Banker and that the caller had issued threat to him at the behest of one of them. Respondent no.2 further alleged that about two days thereafter, he received another call from the same international number and at that time, Vijay Shetty started threatening him on behalf of Ru