Bombay High Court
Krishnakumar Balakrishna Nair vs The State Of Maharashtra on 1 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 1913
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
Nisha S. Digitally signed by
Nisha S. Chitnis
Chitnis Date: 2021.03.08
14:12:45 +0530
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1884 OF 2019
Krishnakumar Balakrishna Nair ...Applicant
Versus
The State of Maharashtra ...Respondent
Mr. Kuldeep S. Patil i/b Mr. Ankit R. Takle, for the Applicant.
Mr. A. R. Patil, A.P.P for the Respondent - State.
CORAM : REVATI MOHITE DERE, J.
DATE : 1st MARCH, 2021
P.C. :
1. Heard learned counsel for the parties.
2. By this application, the applicant seeks his enlargement on bail
in connection with C.R. No. 40 of 2018 registered with the D.C.B. C.I.D.
(Anti Extortion Cell), Mumbai, for the alleged offences punishable under
Sections 385, 386, 387 r/w 120B of the Indian Penal Code; under Section
3, 25 of the Arms Act and under Sections 3 (1)(ii), 3(2) and 3(4) of
Maharashtra Control of Organized Crime Act (M.C.O.C. Act).
3. Learned Counsel for the applicant submits that there is no
material to connect the applicant with the alleged offences. He submits that
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the applicant is a permanent resident of Hong Kong and had not even come
to India during the period 2014 to 2018, when the alleged extortion took
place. He submits that the applicant was in the business of finance and
money transfer and had business transactions with accused No.4 - Bipin
Dhotre. He submits that the alleged transfers relied upon by the prosecution
will show that the said transactions were through an authorized money
agent i.e. they were official transactions and not hawala transactions. He
submits that except for being in contact/touch with accused No. 4 - Bipin,
with whom the applicant had business transactions, there is no other
material to connect the applicant with the alleged offences. He submits that
there are no CDR records to show that the applicant was in touch with any
other accused, much less with the gang leader - Guru Satam. He submits
that the material on record will show that the applicant was not aware of the
illegal activities of accused No.4 - Bipin and as such the applicant cannot
be attributed with any knowledge of the illegal activities of accused no.4 -
Bipin. He submits that nor is the applicant concerned with the alleged
extortion by the other accused, at the instance of the gang leader. He
submits that not a single case is registered as against the applicant, except
the present case. He submits that in the facts, the rigors of Section 21 (4) of
the M.C.O.C. Act, will not apply and as such the applicant be released on
bail.
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4. Learned APP opposed the application. Learned APP has filed
an affidavit of Netaji Bhopale, Assistant Commissioner of Police (D
Special), D.C.B. C.I.D. Mumbai dated 4th October 2019 and an additional
affidavit of Shashank Sandbhor, Assistant Commissioner of Police, (D
Special), D.C.B. C.I.D. Mumbai dated 11th January 2021 setting out the
complicity of the applicant. Learned APP submits that there are certain
Whatsapp conversation between the applicant and the money agent, through
whom the money was sent by the accused No.4 - Bipin (from Mumbai) to
Sameer Dewan and Nivendra Fourie (in South Africa). He submits that the
applicant's mobile phone was seized and sent to the FSL and that the FSL
report shows that Guru Satam's name and mobile number was deleted by
the applicant. He submits that at the behest of the applicant, monies were
transferred by the money agent from accused No.4 - Bipin to the aforesaid
two persons. Learned APP however does not deny the fact, that the
applicant has no antecedents. He also does not deny that except for the
applicant being in touch with accused No.4 - Bipin, there are no CDR
records to show that the applicant was in touch with any of the other
accused, including the gang leader.
5. Perused the papers. According to the complainant, his cousin
was in the construction business and that construction work was in progress
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at Wadala, Parel and Thane; and that he was looking after the financial
transactions of the construction company and was also a partner of the said
company/firm. It is alleged by the complainant that soon after construction
of redevelopment of a chawl in Parel commenced, they started receiving
extortion calls from one Guru Satam (gang leader) from different
international numbers. It is alleged that the said accused was threatening to
kill him and his partner, if they refused to pay the extortion money. It is
alleged by the complainant that initially money was not paid to the gang
leader, however, during the period 2014 - 2017, the complainant gave
extortion money to the gang leader through his accomplices on 8 - 10
occasions i.e. total amount of Rs.60,00,000/-. It is alleged that in December
2017, after receiving threatening calls from Guru Satam, the complainant
and his employer gave Rs.8,00,000/- to Guru Satam through his
accomplices, for the last time. The complainant has stated that in
March/April 2018, although, the amount was demanded, they decided not
to pay the said extortion money as their business had gone into losses. On
7th July 2018, when the complainant was in his office, he received 4 - 5
calls from a mobile number, however the complainant did not receive the
said calls. Later, again one person called on his mobile and introduced
himself as an accomplice of Guru Satam, pursuant to which, the
complainant disconnected the phone. The said person again called and
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abused the complainant, however, the complainant disconnected the said
call. On 11th July 2018, the complainant learnt that 3 unknown persons had
visited their Parel site and enquired about the complainant and his employer
and sent a message through their Site Engineer and employee to call the
gangster - Guru Satam. Pursuant thereto, the complainant approached the
Crime Branch, on the basis of which, the aforesaid C.R. was registered
initially with the Azad Maidan Police Station, Mumbai and subsequently
transferred to the Anti Extortion Cell, D.C.B. C.I.D. Mumbai.
6. During the course of investigation on the basis of secret
information, original accused No.1 - Amol Vichare, original accused No.2
- Bharat Solanki and original accused No.3 - Rajesh Ambre, were arrested.
During the course of investigation, the said persons named accused Nos.4
and 5 i.e. Bipin Dhotre and Deepak Lodhiya, pursuant to which, Bipin and
Deepak were arrested on 13th July 2018. During the course of investigation,
police found that various amounts were sent by Bipin from Mumbai to
Sameer Dewan and Nivendra Fourie, who were based in South Africa. The
said amounts were sent through City Foreign Exchange i.e. through a
money agent. It is the prosecution case, that the applicant was helping
accused No.4 - Bipin in transferring the said amounts to Sameer and
Nivendra, through the money agent.
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7. As far as the applicant is concerned, it is not the prosecution
case that the applicant, had at any point of time called the complainant or
had visited the complainant to collect the extortion money. A perusal of the
money receipts/transfers shows that various amounts were sent by accused
No.4 - Bipin (from Mumbai) to Sameer and Nivendra (in South Africa).
Admittedly, the monies were sent through an authorized money agent and
it was not a hawala transaction. A perusal of the statements, which are at
page 148 and 150 shows that there was some business transactions between
the applicant and accused No.4 - Bipin. Learned APP when questioned,
does not dispute the fact, that the money agent who made the money
transfers, his statement has not been recorded to show that it is at the
instance and behest of the applicant that the said money transfers were done
by accused No.4 - Bipin (from Mumbai) to Sameer and Nivendra (in South
Africa). Admittedly, not a single case is registered as against the applicant
with the gang leader, much less with any of the co-accused. Infact, the
applicant has no antecedents. Prima facie, it is doubtful, whether the
applicant was aware of the illegal activities of accused No.4 - Bipin or had
knowledge that the money which was being sent by accused No.4 - Bipin
to South Africa was extortion money. As noted above, the monies were
sent through an authorized money agent and not through hawala. It is not
in dispute that the passport of the applicant is with the Investigating
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Agency. This being the only material against the applicant, there are
reasonable grounds to believe that the applicant is not guilty of the offences
with which he is charged and therefore the rigors of Section 21 (4) of the
M.C.O.C. Act, will not apply.
8. Considering the aforesaid, the application is allowed and
the applicant is enlarged on bail on the following terms and
conditions:-
ORDER
(i) The applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs.1,00,000/- with one or two local sureties in the like amount;
(ii) The applicant shall attend the office of the D.C.B. C.I.D. (Anti Extortion Cell), Mumbai, on the first Saturday of every month between 10:00 a.m. to 12:00 noon, till the conclusion of the trial;
(iii) The applicant shall not leave Mumbai / Thane City, without the prior permission of the trial Court;
(iv) The applicant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of 8/9 14-ba.1884.2019.doc residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(v) The applicant to cooperate with the conduct of the trial and attend the trial Court on all dates, unless exempted;
(vi) The applicant shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
(vii) The applicant shall file an undertaking with regard to clauses (ii) to
(vi) in the trial Court, within two weeks of his release;
(viii) If there are two consecutive defaults either in attending the Police Station or if the applicant fails to appear before the trial Court, or there is breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the applicant's bail.
9. The application is allowed in the aforesaid terms and is accordingly disposed of.
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10. It is made clear that the observations made herein are prima facie, and the trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order.
11. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.