Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 497

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 LLP, Mr. Parvez Memon, with Mr. Zulfiquar Memon, Mr. Waseem Pangarkar, Mr. Ravi Mishra, Ms. Drishti Singh, Mr. Siddhant Dhavale and Mr. Mahesh Ahire, i/by MZM Legal LLP
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 satisfy the essential ingredients of the offences under the IPC and the MCOC Act to constitute a prima facie case. The court emphasized the need for evidence to support the allegations and the presumption under Section 22 of the MCOC Act.

Headnote:
Extortion - Quashing of FIRs and Approval Order - Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act - The court found that the allegations did not satisfy the requirements of the offence of extortion and did not constitute an offence punishable under Section 387 of the IPC. The court also found that the offence of criminal conspiracy and criminal intimidation were not prima facie made out against the applicants. Therefore, the court quashed the impugned crimes and the approval order under Section 23(1)(a) of the MCOC Act.
Fact of the Case:

The case involved allegations of extortion, criminal conspiracy, and criminal intimidation against the applicants, Hemant Banker and Meenakshi Banker. The allegations included threats issued by a notorious goon on behalf of the Banker family, fraudulent withdrawal of funds, and involvement in organized crime.
Finding of the Court:

The court found that the allegations did not satisfy the requirements of the offences of extortion, criminal conspiracy, and criminal intimidation. It concluded that the impugned crimes and the approval order under Section 23(1)(a) of the MCOC Act were quashed and set aside.
Issues: The main issues revolved around the prima facie commission of offences punishable under Sections 387 and 506 of the IPC, criminal conspiracy, and criminal intimidation, as well as the application of the MCOC Act. The court also considered the presumption under Section 22 of the MCOC Act.
Ratio Decidendi: The court applied the legal principles related to the essential ingredients of the offences of extortion, criminal conspiracy, and criminal intimidation as defined under the IPC. It also considered the requirements for the offence of organized crime under the MCOC Act, including the presumption under Section 22.
Final Decision: The court allowed the criminal application and writ petition, quashed the impugned crimes, and set aside the approval order under Section 23(1)(a) of the MCOC Act.

JUDGMENT :

Sunil B. Shukre, J.

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