Bombay High Court invokes presumption of guilt under Section 22 MCOCA, refuses to quash FIR against businessman

The Bombay High Court recently invoked presumption of guilt under Section 22(2) of Maharashtra Control of Organised Crime Act (MCOCA) while refusing to quash a first information report (FIR) against a businessman accused of being a part of a crime syndicate and committing extortion by giving threats of murder [Hemant Dhirajlal Banker v. State of Maharashtra & anr]..The plea filed by one Hemant Banker, had challenged the sanction granted under Section 23(1) of MCOCA for the court to take cognisance of and for investigating agency to probe the offence under Sections 3(1)(ii) and 3(4) of the MCOCA.Senior Advocate Aabad Ponda appearing for Banker, argued that the approval which was granted did not show proper application of mind by the authority and had been granted in a belated manner against him.On the other hand, advocate Nitin Gaware Patil for the complainant pointed out that presumption regarding certain offences is important in the context of the present facts.Ponda responded that there are necessary pre-conditions to be satisfied before the presumption could be raised such as whether accused has rendered any financial assistance to a person accused of or reasonably suspected of an offence of organized crime..A Bench of Justices Nitin Jamdar and SV Kotwal, however, noted that the presumption as defined under Section 22 of MCOCA was important and applicable to the present case. The Court said that there sufficient material which existed to show that there was a financial transaction involving the complainant when money was taken by the applicant's son and wife. Threats were issued to the complainant and there was a link connecting the applicant to those threats as per the prosecution.In light of this observation, the sanction granted suffered from no infirmity and hence required no intervention by the Court, it was held..The factual matrix was that the complainant, one Kailash Agarwal, when in Dubai for business, was introduced to Rupin Banker, son of the applicant and his family. The bankers were purportedly helped by Agrawal and there were smooth financial transactions between them.Agarwal claimed that the Bankers forged signatures and removed ₹35 crores from Agarwal’s bank account in Dubai. In this regard, a separate complaint was filed in Dubai..After that, Agarwal received a call from one Vijay Shetty, wanted accused in present case, who claimed he had committed six murders. He threatened Agarwal to “not insist on police investigation against Rupin Banker otherwise the informant would be killed when he returned to Mumbai”..Agarwal claimed in his complaint that Shetty was threatening him at the behest of Banker. Shetty again called Agarwal and threatened him not to demand repayment from Rupin Banker and that Rupin should be given period of six months for making repayment.Based on the audio clip recorded over the call, Agarwal filed the complaint, which was lodged as an FIR under Section 387 (towards committing extortion) of the Indian Penal Code..The applicant approached the High Court seeking quashing of the FIR. While the petition was pending, the Additional Chief Metropolitan Magistrate granted him bail.The applicant was summoned and asked to appear as the prosecution approached the Court for cancellation of bail after it got sanction under Section 23(1) of the MCOCA for cognisance and investigation into the offence under Sections 3(1)(ii) and 3(4) of the MCOCA.The applicant then amended the present petition and challenged the sanction granted under MCOCA..The Bench noted that the applicant had contacted co-accused Anant Shetty, who in turn, had contacted Vijay Shetty and that there was a telephone call record showing this connection.From the record which granted sanction under Section 23, the Bench noted that the officer in authority had referred to material placed regarding the arrested and wanted accused and concluded that they are active members of organized crime syndicate headed by wanted accused Vijay Shetty."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," the order said..The Bench was informed that the earlier two offences against Vijay Shetty were lodged under Sections 387 and 302 of the Indian Penal Code and were very similar to the present offence.It was contended by the prosecution that the prior approval is given against 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," Chief Public Prosecutor Aruna Pai argued. .The Bench opined that in the present case, that the prosecution needs to be given chance to prove the basic fact that the accused 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," the order stated. .Ponda was briefed by team from MZM Legal which included advocates Majeed Memon, Waseem Pangarkar, Ravi Mishra, Mahesh Ahire, Drishti Singh and Swapnil Srivastava.[Read order]