Bombay High Court
Hemant Dhirajlal Banker vs The State Of Maharashtra And Anr on 14 December, 2021
Author: Sarang V. Kotwal
Bench: Nitin Jamdar, Sarang V. Kotwal
1
APL-488-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.488 OF 2020
Hemant Dhirajlal Banker .... Applicant
Versus
The State of Maharashtra
and another .... Respondents
....
Mr. Aabad Ponda, Senior Advocate a/w. Majeed Memon, Waseem
Pangarkar, Ravi Mishra, Mahesh Ahire, Drishti Singh, Swapnil
Srivastava i/b. MZM Legal for the Applicant.
Ms. A.S. Pai, Public Prosecutor for Respondent No.1-State.
Mr. Nitin Gaware Patil, Advocate for Respondent No.2.
....
CORAM : NITIN JAMDAR AND
SARANG V. KOTWAL, JJ.
RESERVED ON : 03 DECEMBER 2021
PRONOUNCED ON : 14 DECEMBER 2021
JUDGMENT :(Per Sarang V. Kotwal, J.)
1. The Applicant has preferred this application for various reliefs. Initially the substantive prayer was made for quashing of the FIR which was registered vide C.R. No.303/2020 dated 27 th August 2020 at Worli Police Station, Mumbai under Section 387 read with 34 of the Indian Penal Code. It was transferred to Anti- Extortion Cell, Crime Branch, Mumbai and it was registered vide 1 / 26 2 APL-488-20.odt C.R. No.122/2020. Subsequently, by an amendment of the prayers, the Applicant has; in addition, prayed for quashing and setting aside of the order dated 22 nd September 2021 issued by the Joint Commissioner of Police (Crime) granting approval under Section 23(1) of the Maharashtra Control of Organized Crime Act (for short, 'MCOCA') against the Applicant.
2. Heard Shri Aabad Ponda, learned Senior counsel for the Applicant, Smt Aruna Pai, learned Public Prosecutor for the State and Shri Nitin Gaware Patil, learned counsel for the Respondent No.2.
3. The FIR was lodged on 27th August 2020 by the Respondent No.2 Kailash Agarwal. He has stated that he was in the construction business and was having his firm by name 'Nish Developers'. He also had another business by name 'Nishant Import Export' at Dubai. In that connection he has an office in Switzerland. The Respondent No.2 is mainly resident of Dubai. In January 2018, through a common acquaintance, he was introduced to one Rupin Banker and his family. The present Applicant is father of Rupin Banker. It is mentioned in the FIR, that, Rupin Banker was given financial help by the Respondent No.2 and initially there 2 / 26 3 APL-488-20.odt were smooth financial transactions between them. After some time, Rupin and his wife Meenakshi, by using forged stamps and forged signatures removed about Rs.35 Crores from the account of the first informant maintained with the Bank of Baroda, Dubai Branch. In that connection, the first informant-2nd Respondent has lodged a police complaint against the Applicant, Rupin and Meenakshi in Dubai. It is his case that Rupin and Meenakshi had left Dubai and started residing in London. The Applicant was staying in Dubai. Rupin Banker stopped receiving the informant's phone calls. The informant had gone to Mauritius on 15th July 2019 in connection with his business. On 16 th July 2019, at about 5:30 p.m., the informant received a phone call from one Vijay. The informant was busy in a meeting and, therefore, asked the caller to call back after some time. Again after one hour, the same caller called the informant and told him that he was Vijay Shetty and that he had committed six murders. He threatened the informant that the informant should not insist on police investigation against Rupin Banker otherwise the informant would be killed when he returned to Mumbai. The informant returned to Dubai on 20 th July 2019. On 22nd July 2019, again the same caller called and 3 / 26 4 APL-488-20.odt threatened him. The informant realized that the caller was in contact with the Applicant and Rupin Banker and at their behest the informant was threatened by Vijay Shetty. The same thing was repeated after two days. The informant tried to contact the present Applicant who was residing in Dubai, but, the Applicant did not accept his phone call. On 27th July 2019, the informant returned to India out of fear caused by these threats. On 8 th August 2019, the Applicant called the informant and told him that repayment of his dues would be delayed. That time, the informant questioned him about the threatening calls made by Vijay Shetty. At that time, the Applicant had denied about it. On 10 th August 2019, Vijay Shetty again called the informant and threatened him that the informant should not demand repayment from Rupin Banker and that Rupin should be given period of six months for that. On 22 nd August 2019, again Vijay Shetty made a threatening call to the informant. The informant had recorded two clips of these calls. He had also recorded one clip from the Applicant's conversation. On this basis, the FIR was lodged.
4. As mentioned earlier the FIR was lodged at Worli police station and then it was taken over by Anti-Extortion Cell, Crime 4 / 26 5 APL-488-20.odt Branch, Mumbai.
5. The Applicant filed this application for quashing of the FIR, in November 2020. During pendency of this application the Applicant was arrested on 21st August 2021. The Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai vide his order dated 30th August 2021 granted bail to the present Applicant but rejected the bail application of co-accused Anant Shetty. After that on 22nd September 2021, the Applicant's wife was served with a summons from the police stating that approval was granted to initiate proceedings against the Applicant under Section 3(1)(ii) and 3(4) of the MCOCA in connection with the same FIR. The Applicant was asked to remain present before MCOCA Special Court on 23rd September 2021. On that day, the Applicant remained present before the Special Court. The prosecution preferred an application for cancellation of bail qua the Applicant. In the present proceedings, the Applicant is challenging the approval under Section 23(1) of the MCOCA.
The first informant has filed an affidavit opposing this application.
5 / 26 6
APL-488-20.odt Submissions on behalf of the Applicant :
6. In support of this application, the learned Senior Counsel Shri Ponda made his submissions as follows:
i. From careful perusal of the FIR, the offence under Section 387 of IPC is not made out. 'Extortion' is defined under Section 383 of IPC and the essential ingredient of the definition is "delivery of property". In the present case, even as per the prosecution case the threats did not refer to any 'delivery of property'. The first informant was not asked to 'deliver' any property.
Therefore, Section 387 of IPC is not made out from the contents of the FIR.
ii. There is no mens rea as far as the present Applicant is concerned. The Applicant did not know Vijay Shetty and in the FIR also the first informant has stated that the Applicant had denied telling anything to Vijay Shetty.
iii. The last call allegedly was made by Vijay Shetty on 22 nd August 2019. The provisions of MCOCA were applied much belatedly on 22nd September 2021.
iv. No specific role is attributed to the present Applicant. The monetary transactions were allegedly made between the 6 / 26 7 APL-488-20.odt informant and the Applicant's son Rupin. The Applicant had nothing to do with those transactions. Similarly the Applicant had no connection with Vijay Shetty.
v. There is no continuing unlawful activity. The transaction which is the subject matter of FIR has no connection with the alleged activities of a crime syndicate headed by Vijay Shetty.
vi. The requirement of cognizance having been taken by the competent Courts in respect of two offences previously, is not made out.
vii. The approval under Section 23 of the MCOCA granted does not disclose proper application of mind; as in any case the ingredients of MCOCA are not made out at all. The relevant day for satisfying this condition was 22 nd August 2019 i.e. date of last call. In this case this condition is not satisfied.
viii. The prosecution cannot support the correctness and contents of prior approval granted by the competent authority by making oral submissions or by filing an affidavit.
. In support of these contentions, Shri Ponda relied on various judgments, which are referred to in the following paragraphs.7 / 26 8
APL-488-20.odt Submissions on behalf of the State :
i. The learned Public Prosecutor Smt. Aruna Pai made her submissions opposing this application. She submitted that the investigation is still in progress. The FIR need not contain all the details. The FIR is not supposed to be an encyclopedia about the incident. The Applicant's complicity is seen from the investigation carried out so far. The Applicant had contacted co-accused Anant Shetty in this connection. The co-accused Anant Shetty, in turn, had contacted Vijay Shetty, who had issued threats to the first informant.
ii. She submitted that Section 387 of IPC is properly applied as the threats issued to the informant for not claiming his rightful dues will result in wrongful loss to him and, therefore, the offence punishable under Section 387 of IPC is made out from the FIR and the investigation.
iii. She submitted that the scope of judicial review regarding approval of the competent authority under Section 23 of MCOCA is very limited. This is not a case or the stage where the approval can be quashed and set aside. Mrs. Pai also relied on some judgments in support of her contentions. 8 / 26 9
APL-488-20.odt Submissions on behalf of the Respondent No.2 : i. The learned counsel Shri Nitin Gaware Patil made his submissions on behalf of the Respondent No.2-first informant. He submitted that for attracting Section 387 of IPC, the threats need not only be for 'delivery of property'. The effect of the threats is important.
ii. While granting approval, the authority is not obliged to see which section of the Penal Code is actually applied and as to whether it is properly applied. The authority needs to look at the overall material to arrive at his satisfaction as to whether approval under Section 23(1) of MCOCA can be granted. iii. He submitted that, besides Section 387 of IPC, Section 120B of IPC is also attracted in the present case. Apart from these Sections, the allegations show that the ingredients of Section 506 Part II of IPC are attracted.
iv. He submitted that this is an initial stage and the Court should not quash the approval granted by the competent authority for investigation into the offence under the provisions of MCOCA. v. He submitted that Section 22 of MCOCA which raises presumption regarding certain offences is important in the 9 / 26 10 APL-488-20.odt context of the present facts. He particularly relied on Sub- Section (2) of Section 22 of MCOCA. According to him, Section 4 of the Indian Evidence Act mentions relevant categories in this regard.
vi. He further submitted that Section 23 of MCOCA provides sufficient safeguards and there are two different stages under Sections 23(1) & 23(2) of MCOCA.
Rebuttal by Shri Ponda :
7. In response to the submissions made by Smt Pai and Shri Patil; Shri Ponda learned Senior Counsel responded with following submissions:
i. Section 22(2) of MCOCA requires certain conditions to be satisfied before the presumption can be raised. It is necessary to prove that the accused has rendered any financial assistance to a person accused of or reasonably suspected of an offence of organized crime. In this particular case, these important ingredients are missing. There is nothing to show that the Applicant had paid money to any of the accused, and in particular, there is nothing to show that he had paid money before August 2019, which was the last time when a 10 / 26 11 APL-488-20.odt threatening call was received by the informant. ii. He further submitted that from the FIR, second part of Section 506 of IPC is not made out as far as phone call received in Mumbai is concerned. An important distinction will have to be made as the telephonic calls received by the informant in Mumbai did not have an element of threat to cause his murder. Such threats were allegedly given when the informant was in Dubai.
The first part of Section 506 of IPC speaks of general threats which is a non-cognizable offence. Therefore, there was no occasion and no legal basis to lodge an FIR in Mumbai as the case in Mumbai was not in respect of causing death of the informant. iii. According to Shri Ponda, it is the last substantive offence to which MCOCA applied, must necessarily be a cognizable offence, which is the requirement of Section 2(d) of MCOCA. Reasons :
8. We have considered these submissions. One of the main contentions of Shri Ponda was that the ingredients of Section 383 read with 387 of IPC are not made out because there was no question of 'delivery of any property' from the informant. The threats were issued to him for not asking for payment from Rupin 11 / 26 12 APL-488-20.odt Banker and for giving him at least six months' time for repayment.
In this context, Shri Ponda relied on the observations of the Hon'ble Supreme Court in the cases of (i) Isaac Isanga Musumba and others Vs. State of Maharashtra and others 1 and (ii) Dhananjay alias Dhananjay Kumar Singh Vs. State of Bihar and another 2 as also the observations of a Division Bench of this Court in the case of GIC Housing Finance Ltd Vs. State of Maharashtra3.
In all these cases, the ingredients of the offence of 'extortion' as defined under Section 383 of IPC were explained. 'Delivery of property' was one of the main ingredients as defined under Section 383 of IPC.
9. In the present case, it is not necessary to decide whether Section 387 of IPC is applicable to the present facts of the case. We have to examine as to whether any cognizable offence is reflected in the FIR. It is only in the eventuality that absolutely no cognizable offence is made out in the FIR, then only it can be quashed. Wrong application of a particular section cannot be the sole ground for quashing of the FIR. In this case, we find that the 1 (2014) 15 SCC 357 2 (2007) 14 SCC 768 3 2015 SCC OnLine Bom 6231 12 / 26 13 APL-488-20.odt threat of committing murder of the first informant was issued to him by Vijay Shetty. That threat was issued for not asking for repayment from Rupin Banker and at least to wait for six months. In that context, definition of 'criminal intimadation' mentioned in section 503 of IPC is important which reads thus :
"503.Criminal intimidation.-Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
It is made punishable under Section 506 of IPC which reads thus :
"506. Punishment for criminal intimidation. - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 13 / 26 14 APL-488-20.odt imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with line, or with both."
10. Therefore it can be observed with reasonable certainty that offence under Section 506 Part II of IPC is definitely made out, which is punishable with imprisonment of either description for a term which can extend to seven years or with fine or with both. Part II of Section 506 of IPC is made cognizable within the Commissionerate area of Greater Mumbai. Therefore, it cannot be said that no cognizable offence is made out. Therefore, the FIR cannot be quashed.
11. Shri Ponda has submitted that the FIR shows that the Applicant has no role to play at all in the entire transaction. He was not even aware of Vijay Shetty. As pointed out by Smt Aruna Pai, the investigation has progressed further and it has revealed that the Applicant had contacted co-accused Anant Sheety, who in turn, had contacted Vijay Shetty. There is telephone call record showing this connection. Vijay Shetty has given threats to the first 14 / 26 15 APL-488-20.odt informant. Therefore, at this stage, there is sufficient material to show the Applicant's connection with the present crime.
12. Shri Ponda further submitted that the Applicant did not have mens rea and there is nothing to show from the material that he had any such mens rea in commission of the alleged offence. He relied on the observations of a Division Bench of this Court in the case of Surjitsingh Bhagatsingh Gambhir Vs. The State of Maharashtra4 . It is observed in paragraph-16 of the said judgment that before invoking and applying the offences under the said enactment, mens rea is a necessary ingredient for charging a person with an offence under MCOCA. In paragraph-18, it is observed that the offence under MCOCA would necessarily require establishment of mens rea.
However, this judgment does not take note of certain presumptions under Section 22 of MCOCA. The said Section reads thus:
4 Decided on 13.9.2019 in Cr.WP No.913/2019 [Bombay High Court] 15 / 26 16 APL-488-20.odt "22. Presumption as to offences under section 3..-
(1) In a prosecution for an offence of organised crime punishable under section 3, if it is proved-
(a) that unlawful arms and other material including documents or papers were recovered from the possession of the accused and there is reason to believe that such unlawful arms and other materials including documents or papers were used in the commission of such offence; or
(b) that by the evidence of an expert, the finger prints of the accused were found at the site of the offence or on anything including unlawful arms and other material including documents or papers and vehicle used in connection with the commission of such offence, the Special court shall presume, unless the contrary is proved, that the accused had committed such offence.
(2) In a prosecution for an offence of organised crime punishable under subsection (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is proved, that such person has committed the offence under the said sub-section (2)."
In the present case, this presumption, particularly under Sub- Section (2) of Section 22 of MCOCA, in the backdrop of the factual aspects before us, is important and definitely is applicable. As 16 / 26 17 APL-488-20.odt rightly submitted by Smt Pai and Shri Nitin Gaware Patil for Respondent No.2 that it is an initial stage; and the investigating agency needs to investigate the offence in depth.
13. As mentioned earlier, prior approval under Section 23(1)(a) of MCOCA was granted by the Joint Commissioner of Police (Crime), Mumbai on 22nd September 2021. In the initial part of the approval, there are recitals showing how the matter was placed before him for according approval. In that portion, there is a reference to the present C.R. No.122/2020 as 'D.C.B. C.I.D. C.R.' registered under Sections 387, 120B read with 34 of IPC. Thereafter, he has mentioned that after going through the investigation papers, such as, panchnamas, statements of witnesses, evidence against arrested and wanted accused and after applying his mind, he was satisfied that the accused, including the present Applicant, are active members of organized crime syndicate headed by wanted accused Vijay Shetty. He has further recorded his satisfaction that Vijay Shetty was the leader of the organized crime syndicate which was indulging in continuous unlawful activities and that within the preceding period of ten years more than one charge-sheets in cognizable offences i.e. D.C.B. C.I.D. C.R. 17 / 26 18 APL-488-20.odt No.72/2015 under Sections 387, 120B, 34 of IPC read with 3(1)
(ii), 3(2), 3(4) of MCOCA; and C.R. No.92/2015 registered at Barke Police Station, Mangalore, Karnataka under Sections 143, 147, 148, 149, 341, 332, 353, 302, 120B of IPC were filed and the competent Courts have taken cognizance of those charge-sheets. Thereafter he has referred to the facts of the present case and has further mentioned that the crime was committed to terrorize the complainant and other businessmen in the society for gaining pecuniary benefits for continuing nefarious and illegal activities of the organized crime syndicate and that the crime amounted to an organized crime as defined under Section 2(1) of the MCOCA. Observing thus, he has accorded approval to apply the provisions of MCOCA to C.R. No.122/2020 of D.C.B. C.I.D.
14. We have examined this approval within the parameters of limited judicial review as laid down by the Hon'ble Supreme Court in various judgments. The main ingredient of this approval is his satisfaction that there were two previous charge-sheets against Vijay Shetty of which cognizance was taken by the competent Courts and that the activity which is subject matter of the approval was covered by the definition of Section 2(1) of MCOCA. This is 18 / 26 19 APL-488-20.odt sufficient compliance of the requirement of grant of approval.
15. It was neither necessary nor incumbent on the authority granting approval to explain as to how Section 387 of IPC was attracted in the present case. The important consideration was about the facts of the offence under consideration and the previous two charge-sheets. In the facts of C.R. No.122/2020 registered at DCB CID, the offence of issuing threats as defined under Section 503 of IPC is made out. The threat was to cause death and, therefore, Section 506 Part II of IPC is also attracted. Section 506 Part II of IPC is cognizable in Mumbai and, therefore, the FIR can be registered in respect of this offence. Perusal of the FIR does make out commission of cognizable offence and, therefore, we do not find any infirmity in the order of approval in that behalf.
16. In this context, we have taken into consideration the submissions made by Shri Ponda, learned Senior Counsel for the Applicant. He has submitted that ingredients of Section 506 are admittedly made out from the FIR. However, he sought to make a distinction that threats to cause death were issued when the complainant was in Dubai. The threats which were issued when the complainant was in Mumbai did not mention that the 19 / 26 20 APL-488-20.odt complainant would be murdered. Therefore, according to Shri Ponda only the first part of Section 506 of IPC is committed in Mumbai and the FIR could not have been lodged as there was no cognizable offence committed in Mumbai. We are unable to accept the submissions of Shri Ponda. The allegations in the FIR are required to be read as a whole. It was continuing cause of action. In the first part some threats were issued when the complainant was in Dubai and in the later part, threats were issued when the complainant was in Mumbai. These threatening calls cannot be separated from one another as they are part of a common chain.
17. Both Shri Ponda as well as Mrs. Pai relied on the judgment of the Hon'ble Supreme Court in the case of Kavitha Lankesh Vs. State of Karnataka and others5 to support their respective contentions. Shri Ponda submitted that in paragraph-26 of the said judgment it is observed that, what was essential was the satisfaction of the competent authority that the material placed before him did reveal presence of credible information regarding commission of an offence of organized crime by the organized crime syndicate. According to Shri Ponda this particular 5 2021 SCC OnLine SC 956 20 / 26 21 APL-488-20.odt observation helps his cause as there is no credible information regarding commission of an offence of organized crime as far as the Applicant is concerned in the present case.
18. On the other hand, Mrs. Pai relied on the decision in the case of Kavitha Lankesh (supra) to contend that the prior approval is qua the offence and not the offender as such. As long as the incidents referred to in earlier crimes were committed by a group of persons and one common individual was involved in all the incidents, the offence under the MCOCA can be invoked. . This judgment was rendered in connection with the provisions of Karnataka Control of Organized Crimes Act, 2000. The provisions of Section 24(1)(a) in that Act for according approval are similar to those under Section 23(1)(a) of MCOCA. Therefore, observations of the Hon'ble Supreme Court in this judgment are applicable to the present case. The important paragraph-27 of the said judgment reads thus:
"27. At the stage of granting prior approval Under Section 24(1)(a) of the 2000 Act, therefore, the competent authority is not required to wade through the material placed by the Investigating Agency before him along with the proposal for grant of prior approval to ascertain 21 / 26 22 APL-488-20.odt the specific role of each accused. The competent authority has to focus essentially on the factum whether the information/material reveals the commission of a crime which is an organized crime committed by the organized crime syndicate. In that, the prior approval is qua offence and not the offender as such. As long as the incidents referred to in earlier crimes are committed by a group of persons and one common individual was involved in all the incidents, the offence under the 2000 Act can be invoked. This Court in Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 SCC 440 in paragraphs 61 and 98 expounded that at the stage of taking cognizance, the competent Court takes cognizance of the offence and not the offender. This analogy applies even at the stage of grant of prior approval for invocation of provisions of the 2000 Act. The prior sanction under Section 24(2), however, may require enquiry into the specific role of the offender in the commission of organized crime, namely, he himself singly or jointly or as a member of the organized crime syndicate indulged in commission of the stated offences so as to attract the punishment provided Under Section 3(1) of the 2000 Act. However, if the role of the offender is merely that of a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4) or 3(5), the requirement of named person being involved in more than two chargesheets registered against him in the past is not relevant. Regardless of that, he can be proceeded under the 2000 Act, 22 / 26 23 APL-488-20.odt if the material collected by the Investigating Agency reveals that he had nexus with the accused who is a member of the organized crime syndicate or such nexus is related to the offence in the nature of organized crime. Thus, he need not be a person who had direct role in the commission of an organized crime as such."
Therefore we find that the previous charge-sheets against Vijay Shetty of which cognizance was taken by the competent Courts shows continuity of activities as far as the present case is concerned as Vijay Shetty is also one of the main accused in the present case though he is shown as 'absconding'. The approval is accorded qua the offence and not the offender as such. Vijay Shetty is a common individual involved in all the incidents and, therefore, the authority was well within its rights to accord approval.
19. Shri Ponda relied on the judgment of the Hon'ble Supreme Court in the case of Prasad Shrikant Purohit Vs. State of Maharashtra and another6. He relied on the observation that for ascertaining the legal position under Section 2(1)(d) of MCOCA, the date of third occurrence should be the relevant date for counting the preceding ten years. That is because Section 2(1)(d) 6 (2015) 7 SCC 440 23 / 26 24 APL-488-20.odt uses the expression "an activity" which is prohibited by law and the date of such activity. The last one can be taken as the relevant activity for the purpose of considering the two earlier charge-sheets in the preceding ten years. According to Shri Ponda the earlier two charge-sheets against Vijay Shetty had nothing to do with the offence of issuing threats to the informant in this case.
20. Here again it is important to note that the earlier two offences against Vijay Shetty were lodged under Section 387 of IPC and under Section 302 of IPC. In C.R. No.72/2015 of D.C.B. C.I.D. MCOCA provisions were also applied. Thus, there is a common thread between these two previous offences and the present offence where also threats were issued to commit murder of the informant. It cannot be said that the last activity, which is subject matter of the present application, is entirely different and has no connection with the earlier two offences of which cognizance was taken by the competent courts.
21. Shri Ponda further submitted that the charge-sheet pertaining to D.C.B. C.I.D. C.R. No.72/2015 mentions in column No.12 that the co-accused Vijay Shetty was not charge-sheeted because he was residing out of country and that a provision was 24 / 26 25 APL-488-20.odt made for filing supplementary charge-sheet against him. To counter this contention, Mrs. Pai and Shri Patil rightly submitted that cognizance is taken of the offence and not of the offender as mentioned in Kavitha Lankesh's case (supra). Therefore, in that offence of D.C.B. C.I.D. registered vide C.R. No.72/2015 the competent court had taken cognizance of the offence itself. The fact that Vijay Shetty could not be arrested in that offence was immaterial because the cognizance of the offence was rightly taken. Considering the view expressed in Kavitha Lankesh's case (supra), we agree with the submissions of Mrs. Pai and Shri Patil in that behalf. The cognizance of the entire offence was taken by a competent court and Vijay Shetty, not being available, is not a material fact as far as that offence is concerned.
22. As far as the presumption raised under Section 22(2) of MCOCA is concerned, in the present case the prosecution needs to be given chance to prove the basic fact that the accused has rendered financial assistance to a person accused of an offence of organized crime or reasonably suspected of an offence of organized crime. The stage is yet to arise. This is an initial stage in which the investigation is in progress. The stage of trial is yet to arise. At this 25 / 26 26 APL-488-20.odt stage there is sufficient material to show that there was financial transaction involving the informant when money was taken by the Applicant's son and wife. Threats were issued to the informant. According to the prosecution case, there was a link connecting the present Applicant with those threats. The financial angle is a matter of investigation which is still going on. Therefore, at this PRADIPKUMAR PRAKASHRAO stage, we do not find any infirmity in according approval under DESHMANE Digitally signed by PRADIPKUMAR PRAKASHRAO Section 23(1) of the MCOCA.
DESHMANEDate: 2021.12.14 18:09:42 +0530
23. Considering the above discussion, we do not find any merit in the application and same is accordingly dismissed.
(SARANG V. KOTWAL, J.) (NITIN JAMDAR, J.)
Deshmane (PS)
26 / 26