Pressurising Someone To Give Up Demand For Repayment Of Money Is Not 'Extortion' As Per Section 383 IPC : Bombay High Court

“…this threat was not for what is understood as the offence of extortion but for pressurizing respondent no.2 (Aggarwal) into giving up his demand for repayment of money, which was out of the scope of offence of extortion, as defined under Section 383 IPC”, a division bench of Justice Sunil B Shukre and Justice MM Sathaye said.

Referring to Supreme Court precedents such as Isaac Isanga Musumba and Ors. Vs. State of Maharashtra and Ors (2014) 15 SCC 357, the Court observed "not only putting a person under fear of any injury and dishonestly inducing the person so put in fear to deliver the property but also actual delivery of property are a sine-qua-non of the offence of extortion, as defined under Section 383 IPC". In this regard, the division bench also distinguished the judgment of a coordinate bench in Bhagwan Gajanan Phandat Vs. State of Maharashtra by holding that it was contrary to the Supreme Court precedent. 

The court observed that such a threat is prima facie criminal intimidation, but as Banker was not the one who actually made the alleged threats, no offence is prima facie made out against him.

The court also quashed the case against Rupin Banker’s wife Menakshi, as well as the sanction order to prosecute the Bankers for organised crime under the Maharashtra Control of Organized Crime Act, 1999 (MCOCA).

Aggarwal alleged that Rupin and Meenakshi Banker submitted forged documents at Bar Dubai branch of Bank of Baroda and fraudulently withdrew Rs. 35 Crores from his account. The criminal court, Dubai has found Rupin and Meenakshi Banker guilty regarding the fraudulent withdrawal and imposed punishment.

He further alleged that in July 2019, when he was in Mauritius and a few days later in Dubai, he received calls from gangster Vijay Shetty who threatened him not to demand money from Banker family or else, he would have to lose his life. Aggarwal claimed that the calls were made at the behest of Rupin Banker or Hemant Banker.

After his return to India, Aggarwal allegedly received a call on August 8, 2019, from Hemant Banker, who denied making Vijay Shetty threaten him and sought time to return the money. Aggarwal alleged that Vijay Shetty called him on August 10, 2019, and told him not to demand any money from Rupin Banker and to give him 6 months for repayment.

A case under section 387 (punishment for extortion) of the IPC was registered against Vijay Shetty, Rupin Banker, Meenakshi Banker, and Hemant Banker. The Anti-Extortion Cell also registered a crime under sections 387 and 120B (punishment for criminal conspiracy). The Anti-Extortion Cell got sanction to prosecute the Bankers and Vijay Shetty for organized crime via an order under section 23(1)(a) of the MCOCA. The order was based on alleged offences of extortion, criminal intimidation, and criminal conspiracy against the accused. Thus, sections 3(1)(ii), 3(2) and 3(4) of the MCOCA were added against the Bankers and other accused.

Hemant and Meenakshi Banker challenged the sanction order and sought to quash the FIRs against them.

The court said that for the offence of extortion under section 383 of IPC to be made out, it is not only necessary that the person must be put in fear of death or grievous hurt, but it is equally necessary that the person was dishonestly induced to deliver property or valuable security.

The court said that while an FIR is not an encyclopedia for all facts related to the case, it has to mention basic facts from which a commission of a cognizable offence can be inferred in order to set the criminal law in motion.

The FIR at its face value does not disclose that the threats issued were to compel Aggarwal to give something or that Agarwal actually delivered property or valuable security because of those threats, the court observed. As these ingredients are missing from the allegations, no offence of extortion is made out, the court opined.

For criminal conspiracy, there must be an agreement between two or more persons for doing an illegal act or legal act by illegal means. The court noted that Aggarwal never alleged that there was any agreement for issuing threats or death threats to him between Vijay Shetty and the Bankers. Though criminal agreement need not always be express and can be inferred by surrounding circumstances, in the present case there is no material to show prima facie existence of criminal agreement, the court opined. Further, since the offence of extortion has not been prima facie made out, even the offence of criminal conspiracy in the context of extortion is not prima facie made out against any of the applicants, the court held.

The court opined that the ingredients of criminal intimidation are prima facie present in the case, but not against the Bankers, as there is no allegation that they themselves made any of the threat calls. Therefore, even the offence of criminal intimidation is not prima facie made out against the Bankers, the court held.

Even otherwise, criminal intimidation is non-cognizable and bailable, the court said. The court noted that criminal intimidation is only cognizable and non-bailable in Greater Mumbai as per state government notification dated October 4, 1962. The FIR does not show that the threat calls were made by callers in Greater Mumbai, the court said. The initial threats were made outside India, but there was one threat call that might have been made in Greater Mumbai, the court said. However, the applicants are not the ones who allegedly made the threat calls, the court noted.

Criminal intimidation as disclosed in the FIR is prima facie non-cognizable and bailable and no criminal law could have been set in motion without approval of a Magistrate, the court held. Hence, there could not have been offence of criminal conspiracy in the context of criminal intimidation the court said.

Organised crime is any continuing unlawful activity by anyone either as a member of an organised crime syndicate or on behalf of it by violence or other unlawful means to gain economic or other benefit. The court noted that without their being any continuing unlawful activity, there would be no offence of organised crime.

The court having already held that there is no cognizable offence is made out against Hemant and Meenakshi Banker, opined that there is no continuing unlawful activity and offence of organised crime is not prima facie made out against them. The sanction to proceed against them under the MCOCA is illegal, the court held.

Under section 22 of the MCOCA, if any material, fingerprints, unlawful arms, etc. having a reasonable link to commission of organised crime is recovered from the accused, the accused is presumed to be guilty of organised crime. The court said that this presumption requires commission of offence of organised crime in the first place. As prima facie offence of organised crime is not made out against the applicants, presumption under section 22 against them will not apply, the court held.

Senior Advocate Aabad Ponda along with Advocates Parvez Memon, Zulfiquar Memon, Waseem Pangarkar, Ravi Mishra, Drishti Singh, Siddhant Dhavale and Mahesh Ahire represented Hemant and Meenakshi Banker.

Public Prosecutor A.S. Pai and APP M.H. Mhatre represented the State while Advocate Nitin Gaware-Patil represented Kailash Aggarwal.

Case no. – Criminal Application No. 488 of 2020 and Criminal Writ Petition No. 1296 of 2023

Case Title – Hemant Dhirajlal Banker v. State of Maharashtra with Meenakshi Rupin Banker v. State of Maharashtra