1 APL-488-20.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.488 OF 2020

Hemant Dhirajlal Banker …. ApplicantVersus

The State of Maharashtra and another …. Respondents

....Mr. Aabad Ponda, Senior Advocate a/w. Majeed Memon, WaseemPangarkar, Ravi Mishra, Mahesh Ahire, Drishti Singh, SwapnilSrivastava 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 27th

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

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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 22nd 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

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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 16th 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

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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 10th 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 22nd 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

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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.

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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 22nd 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

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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 22nd 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.

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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.

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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

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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

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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

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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 others1 and (ii) Dhananjay

alias Dhananjay Kumar Singh Vs. State of Bihar and another2 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

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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 threatensanother with any injury to his person, reputation orproperty, or to the person or reputation of any onein whom that person is interested, with intent tocause alarm to that person, or to cause that personto do any act which he is not legally bound to do, orto omit to do any act which that person is legallyentitled to do, as the means of avoiding theexecution of such threat, commits criminalintimidation. Explanation.--A threat to injure the reputationof any deceased person in whom the personthreatened 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 criminalintimidation shall be punished with imprisonmentof either description for a term which may extend totwo 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 grievoushurt, or to cause the destruction of any property byfire, or to cause an offence punishable with death or

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imprisonment for life, or with imprisonment for aterm which may extend to seven years, or toimpute, unchastity to a woman, shall be punishedwith imprisonment of either description for a termwhich may extend to seven years, or with line, orwith 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

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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]

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“22. Presumption as to offences under section 3..-(1) In a prosecution for an offence of organisedcrime punishable under section 3, if it is proved-

(a) that unlawful arms and other materialincluding documents or papers wererecovered from the possession of theaccused and there is reason to believe thatsuch unlawful arms and other materialsincluding documents or papers were usedin the commission of such offence; or

(b) that by the evidence of an expert, thefinger prints of the accused were found atthe site of the offence or on anythingincluding unlawful arms and othermaterial including documents or papersand vehicle used in connection with thecommission of such offence,

the Special court shall presume, unless thecontrary is proved, that the accused hadcommitted such offence.

(2) In a prosecution for an offence oforganised crime punishable under subsection (2) ofsection 3, if it is proved that the accused renderedany financial assistance to a person accused of, orreasonably suspected of, an offence of organisedcrime, the Special Court shall presume, unless thecontrary is proved, that such person has committedthe 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

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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.

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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

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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

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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

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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 UnderSection 24(1)(a) of the 2000 Act, therefore, thecompetent authority is not required to wadethrough the material placed by theInvestigating Agency before him along with theproposal for grant of prior approval to ascertain

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the specific role of each accused. Thecompetent authority has to focus essentially onthe factum whether the information/materialreveals the commission of a crime which is anorganized crime committed by the organizedcrime syndicate. In that, the prior approval isqua offence and not the offender as such. Aslong as the incidents referred to in earliercrimes are committed by a group of personsand one common individual was involved in allthe incidents, the offence under the 2000 Actcan be invoked. This Court in Prasad ShrikantPurohit v. State of Maharashtra, (2015) 7 SCC440 in paragraphs 61 and 98 expounded thatat the stage of taking cognizance, thecompetent Court takes cognizance of theoffence and not the offender. This analogyapplies even at the stage of grant of priorapproval for invocation of provisions of the2000 Act. The prior sanction under Section24(2), however, may require enquiry into thespecific role of the offender in the commissionof organized crime, namely, he himself singlyor jointly or as a member of the organizedcrime syndicate indulged in commission of thestated offences so as to attract the punishmentprovided Under Section 3(1) of the 2000 Act.However, if the role of the offender is merelythat of a facilitator or of an abettor as referredto in Section 3(2), 3(3), 3(4) or 3(5), therequirement of named person being involved inmore than two chargesheets registered againsthim in the past is not relevant. Regardless ofthat, he can be proceeded under the 2000 Act,

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if the material collected by the InvestigatingAgency reveals that he had nexus with theaccused who is a member of the organizedcrime syndicate or such nexus is related to theoffence in the nature of organized crime. Thus,he need not be a person who had direct role inthe 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

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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

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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

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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

stage, we do not find any infirmity in according approval under

Section 23(1) of the MCOCA.

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)

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