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2023 Supreme(Online)(Bom) 27750
APPELLATE SIDE,BOMBAY
Sunil B. Shukre, M.M. Sathaye, JJ
Hemant Banker – Appellant
Versus
State of Maharashtra – Respondent
CRIMINAL APPLICATION NO.488 OF 2020|INTERIM APPLICATION NO.1252 OF 2023|CRIMINAL WRIT PETITION NO.1296 OF 2023
For the Appellants/Petitioners: Aabad Ponda, Parvez Memon, Zulfiquar Memon, Waseem Pangarkar, Ravi Mishra, Drishti Singh, Siddhant Dhavale, Mahesh Ahire
For the Respondents: A.S. Pai, M.H. Mhatre, Nitin Gaware-Patil
Extortion under the penal code requires the actual delivery of property following a dishonest inducement triggered by a threat. In the absence of a prima facie case for underlying cognizable offences, the invocation of special anti-organized crime legislation is unsustainable as the requirements for continuing unlawful activity remain unfulfilled.
Headnote:(A) Extortion - Sections 383 and 387 of the Penal Code - Definition of extortion requires intentionally putting a person in fear of injury and dishonestly inducing the delivery of property - Actual delivery of property is a sine-qua-non for the completion of the offence. (Paras 14, 15, 18)
(B) Organized Crime - Sections 2(1)(d), 2(1)(e) and 3 of the Maharashtra Control of Organized Crime Act - Continuing unlawful activity - Necessity of underlying cognizable offence involving imprisonment of three years or more - In the absence of such activity, provisions for organized crime remain inapplicable. (Paras 30, 31)
(C) First Information Report - Essential requirements - Must disclose skeletal features of cognizable offence to set criminal law in motion - Investigative failure to establish ingredients of alleged offences warrants quashing. (Para 23)
Facts of the case:
The applicants challenged the registration of criminal cases and the subsequent approval for proceedings under special anti-organized crime legislation. The prosecution alleged that the applicants conspired with a known offender to issue threat calls to the complainant, thereby committing extortion and intimidation. The applicants sought to quash the proceedings on the ground that the basic elements of the alleged offences were absent as the complaint did not disclose facts sufficient to constitute the alleged crimes.
Findings of Court:
The court found that the allegations failed to satisfy the legal definition of extortion, specifically the requirement of dishonest inducement to deliver property. Furthermore, the court held that mere threats to refrain from debt collection or to demand repayment do not amount to extortion. As the predicate offences were not prima facie established, the invocation of special legislation for organized crime was held to be unsustainable in law.
Issues: The primary issues were whether the allegations in the complaint satisfied the essential ingredients of extortion and criminal intimidation, and whether the statutory prerequisites for invoking special anti-organized crime legislation were met by the state.
Ratio Decidendi: The court concluded that the delivery of property is an essential ingredient of extortion under the penal code. Since the complaint failed to allege any dishonest inducement resulting in the delivery of property or demonstrate the commission of a cognizable offence sufficient to trigger special legislative provisions, the criminal proceedings and the subsequent approval for the special trial were legally flawed and liable to be quashed.
Result: Applications allowed and proceedings quashed.
| Table of Content |
|---|
| 1. summary of procedural history and factual background. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 11) |
| 2. parties' arguments regarding quashing of firs. (Para 8 , 9 , 10) |
| 3. legal requirements defining the offence of extortion. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 4. absence of basic extortion elements in allegations. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 5. invalidity of mcoc act application and conspiracy charges. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. the final court order allowing the petitions. (Para 34) |
JUDGMENT : ( Per 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, respo
