|MISUSE OF MCOCA - COMPLAINT TO CBI|
1st Reminder written to Mr. Ashwani Kumar (Director, Central Bureau of Investigation)
Dated : 21st September 2009
Subject : Complaint against senior police officers from mumbai who after taking huge amount of bribe put me in a false MCOCA (as I do not have a single criminal case, no phone tapping was done, no link with underworld was established and when the F.I.R. was filed I was out of India).
With reference to the
above, I have to state that I had forwarded my complaint to you on 23rd
June 2009. But I am sorry to say that there is no response to it and also
no action has been taken till date.
recent statement by the Prime Minister of India on 25th August 2009 where
Honourale Manmohan Singhji has urged the CBI to go after the big fish and
not focus on petty cases.
In my case a big builder, politicians and senior IPS officers who formed nexus to arrest me in a false case of MCOC act (meant only for hardened criminals or terrorists) will be found. They wanted to grab a piece of land worth crores which I had purchased and was unwilling to give it for free to the front man (Santosh Mithgaonkar of Santosh Builders, Mumbai who is more powerful than Dawood) of the politician. So after taking huge amount of money to the tune of more than 35 lakhs the Mumbai Police arrested me in a false MCOC Act. I don’t have a single NC or any case from last 50 years, neither they taped my phone and established the fact that I was connected to underworld, no money or nexus was found and when they lodged the first FIR I was out of India (all this have been proved in MCOCA court and I was acquitted).
the Welcome Address by you at the XVIIth Conference of Heads of State
Anti-Corruption Bureaux and CBI on 26th August, 2009 at Vigyan Bhawan, New
Delhi, you have clearly stated that (an aware public is the best safeguard
against corruption. To create the desired awareness among the people, CBI
has launched a large scale public awareness campaign against corruption by
use of technology through the internet and mobile phones. This campaign
has yielded good results)
Here I am personally
giving you the complaint against big Mumbai Police officers by risking my
life. So I request that my
case has to be handled by CBI as after the arrest of sitting MP Padam
Singh Patil and Sarobjit Singh alias Sweety (Son of Bhuta Singh) I have
high regard for CBI.
The Mumbai Police is
not scared of Anti Corruption of Police enquiry, or by State Police CID or
by State Home Department in Maharashtra,
but they are shit scared of CBI and hence my complaint should be
handled by CBI.
Please treat this
letter as a reminder to my old complaint and initiate some action to
ensure justice is been done to me.
Herewith is attached the zerox copy of my complaint given to you on 23rd June 2009 and Speed Post POD dated 24/6/2009.
|(Below article has been sent as an attachment with the reminder letter)|
'big fish' firmly and without fear: PM tells CBI
Sending a clear signal to CBI and anti-corruption officials, Prime
Minister Manmohan Singh on Wednesday asked them to go after the "big
fish" and not just focus on petty cases.
often, the fear of harassment and damage to reputation make public
officials unduly timid and slow and the whole government machinery
ineffectual," Singh said opening a two-day conference of CBI, state
anti-corruption bureaux and vigilance agencies here.
corruption should be pursued aggressively. There is a pervasive feeling
that while petty cases get tackled quickly, the big fish escape
punishment. This has to change," he said.
Singh said the
government has recently decided to set up 71 new CBI courts and expected
them to function as model courts, hold day-to-day proceedings and avoid
"Rapid, fair and
accurate investigation of allegations of corruption in high places should
remain your utmost priority. The nation expects you to act firmly, swiftly
and without fear or favour. And you have the constitutional and legal
protection and safeguards to do so," he said.
Noting that the conduct of the CBI has come under severe public criticism on certain occasions in past, the Prime Minister asked the agency to have critical look at itself and introspect deeply to further improve its functioning.
The Prime Minister said
while quick investigation was important and necessary, it was not
sufficient to bring the guilty to book.
"Trials should be
conducted expeditiously and judgements delivered quickly. To begin with
the aim should be to conclude the trial in two years so that punishment
could be given to the offenders within a period of three years or
so," he said.
He said there was no
single remedy for fighting corruption which has to be combated at many
levels, one of which was making existing systems less discretionary.
Singh, who gave medals
to 20 officials for their outstanding service, said the constant refrain
that much of what government provides like subsidised food grains,
fertilisers or seeds never reaches the intended beneficiaries was a matter
of serious concern.
anti-corruption agencies must make the cost of corruption unacceptably
high for those indulging in it...Systems and procedures which are opaque,
complicated, centralised and discretionary are a fertile breeding ground
for the evil of corruption," he said adding they should be made
simple and less discretionary.
The conference is being
attended by heads of CBI, state anti-corruption bureaux and vigilance
agencies from all states and Union Territories.
CBI director Ashwani Kumar said the weak criminal justice system encouraged corruption. Departmental trials of corruption cases went on for years and these delays encouraged the dishonest to indulge in corrupt practices with impunity.
|(Below mentioned speech has been sent as an attachment with the reminder letter)|
Welcome Address by Director, CBI, Shri Ashwani Kumar at the XVIIth Conference of Heads of State Anti-Corruption Bureaux and CBI on 26th August, 2009 at Vigyan Bhawan, New Delhi
Hon'ble Prime Minister of India, Dr.
Bail Judgement of Mr Thipsay
IN THE SPECIAL COURT – II FOR GREATER BOMBAY
(UNDER THE MAHARASHTRA CONTROL OF ORGANIZED CRIME ACT, 1999)
BAIL APPLICATION NO.9 OF 2006
M.C.O.C C.R.NO.53 OF 2006 OF DCB CID
1. Shri Mahendra Jagdish Agarwal ]
2. Shri Madhukar Ramchandra Musle ]
3. Shri Vishnu Krishna Dutt ]
4. Shri Surendra Khurdan Pasi ]
5. Shri Ramdas Manohar Masurkar ]
6. Shri Ajay Damodar Sharma ] … Applicants
The State of Maharashtra ]
(at the instance of DCB CID, ]
Unit-VIII, Mumbai, ]
in C.R.NO.53 / 06) ]. Respondents
Coram : His Honour The
Special Judge, (Under
The MCOC Act, 1999).
Dated : September 07, 2006.
Shri H.H.Ponda, Advocate for the applicants.
Shri J.R. Madon, Special Public Prosecutor for State.
O R A L O R D E R
1. The applicants, who are arrested and detained in custody on the allegations of having committed offences punishable under sections 387 of the I.P.C., 506 Part II of the I.P.C. read with section 120(B) of the I.P.C., and offences punishable under sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 19999 [hereinafter referred to as ‘MCOC Act’ for the sake or brevity], seek bail.
2. Since the bail application was filed at an early stage of the investigation and since the investigation that was being carried out was resulting in collection of further and new material, the bail application was kept pending for quite some time, as it was felt that the material that was being collected, could not be ignored. In fact, the material, which was not available with the investigating agency when the bail application was argued and which was collected only thereafter, has also been taken into consideration by me. On the last date of hearing, it was stated that the investigation was over and the process of filing a charge sheet was in progress.
3. I have heard Shri H.H.Ponda, learned Advocate for the applicants. I have heard Shri P.R.Rane, Assistant Commissioner of Police, DCB CID, Mumbai who is the Investigating Officer in the matter. I have also heard Shri J.R.Madon, learned Special Public Prosecutor for the State. Shri Madon submitted that as the matter was at the investigation stage, the Court may peruse the entire case-diaries and the statements recorded during investigation in the light of the say filed on behalf of the investigating agency, and then decide the bail application. As a matter of fact, Shri Madon did not advance any arguments based on the material collected during investigation; rather, he submitted that the Court may peruse the entire material as collected during investigation and in the light thereof, decide the bail application.
4. I have gone through the say filed by the police, opposing the application.
5. I have also extensively gone through the F.I.R., the statements of witnesses recorded during investigation and the case-diaries. I have also taken into consideration the contents of the remand applications that were filed before the Court from time to time.
6. The applicant nos.1 and 2 are the Directors of M/s. Vertex Warehousing and Constructions Pvt.Ltd. [hereinafter referred to as the ‘Vertex’ for the sake of brevity], a company which owns a land admeasuring more than 8,000 square meters, situate at Village Mulgaon, Taluka Borivali, which has been declared as falling in Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971. They are interested in redevelopment of the said property under the Slum Rehabilitation Scheme. The applicant nos.3, 4 and 5 are the office bearers of a proposed co-operative housing society – Jai Ambe Mulgaon Dongri Housing Society [hereinafter referred to as ‘Jai Ambe Society’ for the sake of brevity] of the occupants / slum dwellers of the said property. The applicant no.6 is a member of the said society. The first informant is the Secretary of Shree Siddhivinayak Juna Aashram Rahivasi Seva Sangh [hereinafter referred to as ‘Siddhivinayak Sangh’ for the sake of brevity], another co-operative housing society of the occupants/slum dwellers of the said property
7. It appears that redevelopment of a property under the Slum Rehabilitation Scheme provides for certain benefits to the developers, enabling them to make good profits, and is, therefore, attractive from the point of view of the developers and builders. It also appears that as per the scheme, the redevelopment project can be carried out under certain circumstances by the occupants/slum dwellers of the locality if a society of occupants/slum dwellers for that purpose is formed and at least 70 percent of the occupants/slum dwellers join the same.
8. The case of the investigating agency, in brief, is as follows.
9. First informant is a businessman and also a social worker residing at Juna Aashram, Dongri, MIDC Cross Road, Andheri (East). In November-December 2005, applicant no.4 – Surendra Pasi, applicant no.5 – Ramdas Masurkar, applicant no.6 – Ajay Sharma, and absconding accused Pyarelal Patel started taking signatures of the persons in the locality forcibly on certain agreements. That the residents of the said locality complained about this to the first informant and therefore, the first informant and others formed a society by name ‘Siddhivinayak Sangh’. That in January 2006, applicant no.3 – Vishnu Dutt @ Vishnu Nepali, applicant no.4 – Surendra Pasi, applicant no.5 – Ramdas Masurkar and applicant no.6 – Ajay Sharma and some other accused started threatening the residents of the locality to become members of ‘Jai Ambe Society’. The first informant and the residents supporting him, got the said ‘Siddhivinayak Sangh registered and the first informant became the Secretary thereof. The applicant nos.2, 3, 4 and 5 and some other accused started giving serious threats to the residents of the said locality as they were unable to get sufficient members for their cooperative housing society – viz. ‘Jai Ambe Society’. The residents were being threatened that unless they would become members of the said ‘Jai Ambe Society’ they would be killed by notorious gangster Ravi Pujari. That on 09/04/2006, the first informant received a call on his mobile telephone from the said Ravi Pujari. That Ravi Pujari threatened him that he should withdraw from the committee; and that the entire work should be allowed to be handled by Vishnu Dutt @ Vishnu Nepali – the applicant no.3.
10. Since the first informant knew Ravi Pujari since his childhood, from the manner of talking, he identified the caller to be none else but Ravi Pujari only. The first informant, however, did not do as directed by Ravi Pujari and as such, he started receiving on his mobile telephone, threatening calls from the said Ravi Pujari. That sometime in June 2006, the arrested accused Suresh Bhavangir and his brother – wanted accused Kishor Bhavangir – came to the first informant and threatened that he should give up the work of his society or else, they would tell ‘Bhai’ [meaning Ravi Pujari] to eliminate him. That he should not enter into any agreements with the residents of the locality, was told to him by the applicant no.4 – Surendra Pasi, applicant no.5 – Ramdas Masurkar, Applicant no.6 – Ajay Sharma and Pyarelal Patel [absconding accused]; and that they told him that Ravi Pujari was interested in the said place; and that the applicant no.1 was to construct a building there. That in second week of June 2006, the first informant was called by the applicant no.2 – Madhukar Musle – in the office of Monarch Builder at Marol. The first informant were there because the applicant no.2 had expressed a desire that they all should work together. That when the first informant went there, the applicant no.1 – Mahendra Agarwal – and applicant no.3 – Vishnu Dutt @ Vishnu Nepali – were present there with the applicant no.2 – Madhukar Musle. The applicant no.2, in a threatening tone, asked the first informant as to why he was interfering in their work. The first informant claimed that he had support of the residents of the locality and if the applicant no.2 wanted, he was at liberty top hold a meeting and see if the residents were ready to join him. That thereupon, the applicant no.2 threatened by saying that the first informant should not try to be over-wise; and that he should take whatever money he wanted to, and go to his native place. Applicant no.2 also threatened that if he would come in their way, by telling to ‘Bhai’ [meaning Ravi Pujari]’ the first informant would be eliminated. That the applicant no.2 also stated that ‘Bhai’ wanted to do the project; and that the project will be undertaken by the applicant no.2 only, and not by anybody else. At that time, the applicant no.1 also threatened that the first informant should leave the ‘Siddhivinayak Sangh’, otherwise, the matter would be reported to ‘Bhai’. At that time, the applicant no.3 stated that if the first informant was not ready to leave the society, he would have to pay Rs.10.00 crores and thereafter commence further work, otherwise, the consequences would be bad. This, the applicant no.3 stated as the message of ‘Bhai’. Since the first informant was afraid of Ravi Pujari, he did not lodge any report with the police initially.
11. On going through the case-diaries and the statements recorded during investigation, it does appear that a number of occupants/slum dwellers of the locality have spoken about the threats allegedly given by the applicants to them. There is also a confession of a co-accused Suresh Bhavangir, recorded under the provisions of section 18 of the MCOC Act on which, reliance has been placed by the investigating agency. I have gone through the said confession. It does speak of the applicants threatening the residents of the locality and forcing them to sign certain agreements in connection with the redevelopment scheme.
12. Shri. H.H.Ponda. the learned Advocate for the applicants, advanced a number of arguments, contending the allegations leveled against the applicants are false and the entire case against the applicants is a concocted and false one. He elaborately pointed out how the property was purchased by ‘Vertex’ only in January 2006 and how the applicant nos.1 and 2 became the Directors of ‘Vertex’ only on 06/03/2006. It is pointed out that it is only on 14/03/2006 that the applicant nos.1 and 2 took over the affairs of the said company ‘Vertex’. By this, what is contended is that the allegations of threats being given in November-December 2005 or January 2006, on behalf of the applicant nos. 1 and 2, cannot be accepted, in as much as, till 14/03/2006, the applicant nos. 1 and 2 had no interest in the scheme at all; and that it would, therefore, be unlikely that they would instigate the other applicants and the other accused to threaten the residents. Shri Ponda also contended that, that the allegations are bogus, is further clear from the fact that in spite of the claim of threats being given, actually, nor report was lodged with the police by any of the occupants/slum dwellers and even by the first informant till 01/07/2006.
13. I have considered this contention. Though it cannot be doubted that ‘Vertex’ became the owner of the property in question only in January 2006; and that the applicant nos. 1 and 2 took over as Directors thereof only in March 2006, this aspect is not conclusive, in my opinion. It is because the applicant nos.1 and 2 are builders, and even though they actually became owners of the land in question later, that they already had interest in the Slum Rehabilitation Scheme, cannot be rule out. As a matter of fact, the property appears to have been acquired by ‘Vertex’ with the object of redeveloping it under the said scheme, and therefore, the planning in that regard could have been made prior to that.
14. It is pointed out that there had been no complaint of any of the residents of the locality about the alleged threats given to them, as spoken by the first informant. Though not conclusive, this is significant.
15. Shri Ponda contended that, in fact, the first informant and some other persons are obstructing the legitimate work which ‘Vertex’ intends to carry out. It is pointed out that the ‘Vertex’ had written letters to the Senior Inspector of Police, MIDC Police Station, in March 2006, apprehending that some persons from the vicinity might create problems and would not permit ‘Vertex’ to put their board on site regarding the purchase of the land in question by them. According to Shri Ponda, some occupants are preventing ‘Vertex’ from exercising its right over the property; and that ‘Vertex’ have been properly appointed as developers for the said property under the Slum Rehabilitation Scheme, in a meeting of the residents of the locality. Shri Ponda emphasizes that he has the support of more than 70 percent of the occupants which is sufficient for enabling ‘Vertex’ to carry out the redevelopment project. It is further pointed out that fearing that obstruction would be caused and ‘Vertex’ would be prevented from displaying their board on the site, a civil suit was filed by ‘Vertex’ against the ‘Siddhivinayak Sangh’ and the ‘Jai Ambe Society’ praying inter-alia, for an injunction, restraining the ‘Siddhivinayak Sangh’, their office bearers and servants, etc., from causing obstruction to the plaintiffs from carrying out the survey of the said property through private Surveyor, as well as Government Surveyor. It is also pointed out that the first informant, who appeared before the Court, did not make any grievance before the Court at that time – i.e. on 13/04/2006. The observations made by the Court in its order date 13/04/2006 are relied upon by Shri Ponda in support of his claim that the whole dispute is subsequently created and false allegations have been leveled against the applicants. There is undoubtedly substance in this contention. Since it is claimed that it was fear of Ravi Pujari that prevented the first informant from making allegations against the applicants, even if this factor – viz. failure to make any complaint prior to 01/07/2006, even when the parties were before a Court of law – is held as not conclusive; it cannot be helped observing that in spite of the fear of Ravi Pujari, the first informant, though was frightened, did not pay any heed to the demands made on him by Ravi Pujari. Though he did not report the matter to the police, he also did not do as allegedly directed by Ravi Pujari. Thus, the fear of Ravi Pujari does not seem to have prevented him from doing what Ravi Pujari threatened him not to do, but only prevented him from lodging a report with the police.
16. It is also pointed out by Shri Ponda that is claimed in the remand application that the first informant speaks of having been threatened, inter-alia, by the applicant no.1 in second week of June 2006, which is obviously false, as the applicant no.1 was out of India from 28/05/2006 till 29/06/2006; and that this can be verified from the passport of the applicant no.1, which is now in the custody of the investigating agency. The Investigating Officer, when questioned, agreed that this is so, but claimed that the first informant has subsequently clarified that the date ‘second week of June’, as mentioned by him, was wrong; and that, actually, the incident had taken place sometime in second week of April 2006.
17. Shri H.H.Ponda, learned Advocate for the applicants, also pointed out that a letter had been addressed to the Senior Inspector of Police, MIDC Police Station, on 30/03/2006 on behalf of the ‘Siddhivinayak Sangh’, and that, that letter which is signed by the first informant and some others, is totally silent about the treats allegedly given by Ravi Pujari. It is contended that the letter had been falsely written to obstruct the work of redevelopment that was intended to be carried out, but in any case, there is not even a whisper of any threat allegedly given by Ravi Pujari, either to the first informant, or to any other occupants/slum dwellers.
18. I have glanced through a copy of the said letter which is annexed to the bail application. That such a letter had indeed been written by the first informant and some others, is not in dispute. It may be observed that the contents of the said letter given an impression that the signatories thereto were ‘terrified’ because of the threats that ‘Jai Ambe Society’ would develop the property under the Slum Rehabilitation Scheme. The grievances of the signatories, as reflected from the contents of the said letter, seems to be that they had not been shown the relevant documents of the ownership or title of ‘Vertex’ or ‘Jai Ambe Society’; and that the residents were being misguided or mislead and ‘terrified’. There is a mention in the ‘subject’ column about threatening to kill the residents of the locality generally, but there is no mention of there being any threats by Ravi Pujari.
19. The substance of the contentions advanced by Shri Ponda, learned Advocate for applicants, is that the applicant nos.1 and 2 being owners of the property and having the support of the requisite number of occupants/slum dwellers, are entitled to carry out the redevelopment project; and that, as such, they have no reason to take the help of any ‘organized crime syndicate’ for doing that. Shri Ponda also submitted that, that the developers had support of the particular percentage of occupiers, is clear from the total number of occupiers, as found in the survey dated 03/05/2006, carried out as per the order of the Court. It is submitted that actually, it is the first informant, who is connected with a political party and who, on his own admission, knows Ravi Pujari, is creating obstacles in the path of the applicant nos.1 and 2 by making false complaints against them.
20. It is contended by Shri Ponda that actually, the applicants have been the victims of the extortion of Ravi Pujari. In fact, one of the applicants – i.e. applicant no.3 – had already lodged a report against Ravi Pujari in the year 2002, alleging that the said Ravi Pujari was demanding ransom from him and was threatening to kill the applicant no.3 if the demand was not fulfilled.
21. Since the attempt of Shri Ponda is to show that the allegations that are being levelled against the applicants cannot be, prima-facie, believed, it was contended by Shri J.R.Madon, the learned Spl.P.P. for State, that the Court should not weigh or evaluate the material collected during investigation; and that it should be taken at face-value. There can be no dispute as regards this proposition, but this does not mean that the material is not be assessed at all.
22. The Supreme Court of India, in Ranjit Singh V/s. State of Maharashtra and another, 2005, Supreme Court of India, 1057, has laid down that the duty of the Court at the stage of bail was not to weigh the material meticulously, but to arrive at a finding on the basis of broad probabilities of the case; but that while dealing with a statute like the MCOC Act and having regards to the special provisions contained in sub-section (4) of section 21 of the said Act, the Court may have to probe into the matter deeper. It appears from the observations made by Their Lordships of the Supreme Court of India that where there are drastic provisions regarding grant of bail, a deeper probe into the matter, than is normally expected to be made at the stage of bail, would be necessary and justified.
23. In my opinion, even at this stage, the following factual aspects of the matter, which cannot be disputed, are required to be taken into consideration.
i) The matter was reported to the police by the first informant very late.
ii) Though the fear of Ravi Pujari is given as the reason for not reporting the matter to the police earlier, it is not that a complaint was not made to the police at all. In the letter dated 30/03/2006, addressed to the Senior Inspector of Police, MIDC Police Station, and signed by the first informant and others, thee is no reference to the threats given by Ravi Pujari.
iii) None of the residents of the locality had lodged report against the applicants or any of them till the first informant lodged the report on 01/07/2006.
iv) Applicant nos.1 and 2 are owners of the land in question and are interested in redevelopment project under the Slum Rehabilitation Scheme. The first informant is also interested in the redevelopment and wants to carry it out by getting a different developer appointed.
v) There is no material to suggest that if the redevelopment is allowed to be handled by the ‘Siddhivinayak Sangh’, the occupants/slum dwellers would get more benefits than that are promised by the ‘Jai Ambe Society’ through ‘Vertex’. There is nothing to show that the occupants/slum dwellers are being forced to join a disadvantageous project by giving threats to them.
vi) The statements of the first informant as regards the alleged threats given to him in the second week of June 2006, inter-alia, by the applicant no.1, is incorrect, at least to that extent.
vii) There are grounds for presuming that the relations between Ravi Pujari and the applicant no.3 are not likely to be good or cordial.
Though the Court should not evaluate or assess the evidential value of the material collected during investigation, it does not mean that the statements of the first informant and witnesses are to be taken as gospel truth, even if they are inconsistent with the other facts revealed during investigation and the undisputed circumstances of that particular case. It is not that while arriving at a prima-facie finding on the basis of the broad probabilities of the case, the arguments and contentions advanced by the accused are to be totally ignored. Though these factors – singly or collectively – may not be sufficient to create a belief that the case against the applicants is false, they collectively certainly create some doubt - based on reason and logic – that certain parts of the prosecution case may not be true.
24. Anyway, in the view that I am taking, it is not necessary to discuss this aspect any further. It may only be observed that there are a number of factors which require serious consideration as to whether the applicants, or any of them, can be said to have committed an offence punishable under the MCOC Act.
25. After going through the entire material collected during investigation, and also the case-diaries, it is observed that it is nobody’s case that Ravi Pujari had threatened any of the residents or occupants to join a particular society only. The allegations are against the applicants to the effect that they have threatened some of the occupants/residents in the name of Ravi Pujari.
26. It may be observed that the remand applications proceed on the footing that it is Ravi Pujari who is interested in doing the redevelopment project; and that the applicants are the members of the ‘organized crime syndicate’ headed by him. The allegation against the applicants is that the threats that are allegedly being given by them, are at the instance of the said Ravi Pujari. This stand is a little modified later to suggest that the applicants have taken the aid or Ravi Pujari to ensure the success of their redevelopment project.
27. I have categorically asked the Investigating Officer on the date of last remand as to whether there was any material to show that the applicants, or any of them, were, or was, in contact with Ravi Pujari; or that the threats that were being given by the applicants to the residents were after having discussed the matter with Ravi Pujari. It was conceded by the Investigating Officer that in spite of making efforts to collect such material, no such material could be collected. Even today, I have asked the Investigating Officer as to whether in the investigation carried out since then, any such material could be found. Today also, the answer is in negative. In other words, there is absolutely no material to suggest that the applicants, or any of them, had contacted Ravi Pujari; or that Ravi Pujari had contacted any of them in connection with the present matter.
28. An ‘organized crime’ has been defined as under. “organized crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.”
In this case, there is nothing to suggest that the alleged acts attributed to the applicants are part of the activities of the ‘organized crime syndicate’, headed by Ravi Pujari; or that the activities in question have been undertaken by them on behalf of the ‘organized crime syndicate’, headed by Ravi Pujari. The money invested in the project is also borrowed by the applicant nos.1 and 2 from some other source and not from the said Ravi Pujari or his ‘organized crime syndicate’. Thus, the alleged activity by the applicants cannot, prima-facie, be said to be having undertaken by them as a member of an ‘organized crime syndicate’ or on behalf of the said syndicate.
29 When this is the position, what can be, at the highest, alleged is that the applicants, are abetting the commission of an ‘organized crime’; but even for supporting such allegation, there ought to be some material indicating the actual contact between at least one of the applicants and the said Ravi Pujari, or somebody proved to be from his ‘organized crime syndicate’. As already observed, there is no such material; and that too in spite of the applicants being in custody right since 05/07/2006. Moreover, none of the residents, except the first informant, has received any threats from Ravi Pujari, or from anybody, proved to be a member of his ‘organized crime syndicate’. Threatening calls from Ravi Pujari have been received only by the first informant and by no other resident or occupant.
30. In his confession, the co-accused – Suresh Bhavangir – states that the applicant nos.1 and 2 were in contact with Ravi Pujari, but this is merely asserted by him – as a fact – without showing in what manner and for what they were in touch with him. If the confession is read as a whole, it is doubtful whether it can be termed as a ‘confession’ in its true meaning, but apart therefrom, this accused himself appears to be in touch with Ravi Pujari; and that it was from him (and not from any of the applicants) that Ravi Pujari got the telephone number of the first informant. This material certainly suggests that the applicant nos.1 and 2 had not given the telephone number of the first informant to Ravi Pujari. If they were in touch with Ravi Pujari, it would not, ordinarily, be that difficult for them to procure the telephone number of the first informant and give it to him.
31. None of the conversations between Ravi Pujari and the first informant are recorded. Even after registering of the F.I.R., the first informant is said to have received threatening calls from Ravi Pujari, but even the conversation in respect of the said calls has not been recorded. In the light of the contentions advanced by Shri Ponda and the admitted positions that the first informant himself knows Ravi Pujari, this aspect of the matter is required to be taken into consideration.
32. A person, without knowing the gangster, or without having conspired with him, may threaten another in the name of such gangster by taking advantage of the notoriety attached to the name of such gangster, which is likely to frighten that another. That, however, would not be an ‘organized crime’ unless the threat is given on behalf of the gangster, or his ‘organized crime syndicate’, or to assist or facilitate the commission of an offence of ‘organized crime’ by the syndicate or its members.
33. Merely on the allegation of someone that the accused threatened him by taking the name of a gangster, if the offence punishable under the MCOC Act is to be held as committed, even prima-facie, on the contention that the Court is not assess or evaluate the material collected during investigation’, it can result into serious injustice. It may be observed that it is quite easy to allege that an accused threatened the victim by taking the name of the gangster. For instance, it is not difficult for the applicants to allege that the first informant, who is admittedly interested in doing redevelopment project independently, had threatened them by taking the name of Ravi Pujari and warning them to give up the redevelopment project. The telephonic contacts between the first informant and Ravi Pujari, then, would be brought in aid to support such allegation against the first informant. That the relations between the applicants no.3 and the said Ravi Pujari are not good, can also be emphasized to add weight to such allegation. It is not for a moment suggested that it might actually be so, but what is being emphasized is that when allegations in respect of serious offences are easy to be made, when motives for making the allegations apparently exist, then, at least, after sufficient investigation has been carried out, there ought to be some support to such an allegation. It would be necessary to insist on at least some material showing the connection of the ‘organized crime syndicate’ and the person accused, for prime-facie, accepting, that the accused by giving threat to another has committed an ‘organized crime’.
34. Thus, merely because a person threatens another by taking the name of a gangster, even if repeatedly, it cannot be presumed that his act of threatening has been undertaken on behalf of the ‘organized crime’ headed by such gangster; or that he has conspired with such gangster or the members of his ‘organized crime syndicate’ to give such threat. Further, merely by the reason of such threat being given, the person giving such threat cannot be said to have conspired, or attempted to commit, or advocated, or abetted, or knowingly facilitated the commission of an ‘organized crime’.
35. The penal statutes are to be construed strictly. The MCOC Act being a special statute, the principle of strict construction applies more vigorously. It would be necessary, therefore, to see whether the act allegedly committed by the applicants, squarely fall within the offences defined under the MCOC Act. Since there are drastic provisions as regards bail in the MCOC Act, a higher responsibility and duty is cast on the Court to make sure that a prima-facie case of offences under the MCOC Act is made out before the application for bail is rejected, merely because of the special provisions regarding bail under the MCOC Act.
36. The Supreme Court of India, in the aforesaid case of Ranjit Singh Sharma, has observed that the restrictions on the powers of the Court to grant bail should not be pushed too far; and that the wording of section 21(4) of the MCOC Act does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the MCOC Act.
37. Upon taking a prima-facie view of the matter, in my opinion, there are reasonable grounds for believing that the applicants are not guilty of any offence under the MCOC Act. It may be observed that the phrase ‘reasonable grounds’ is not the same as ‘sufficient grounds’.
38. Considering all the relevant aspects of the matter; I am inclined to release the applicants on bail.
39. When the bail order was about to be pronounced, Shri J.R.Madon, the learned Spl.P.P for State, submitted that since the matter was at investigation stage, in order that he should not associate himself with the investigation, he had not seen the statements recorded during investigation and that he had no opportunity to argue and oppose the bail application by referring to the statements recorded during investigation. He submits that this be recorded in the order. It has already been observed that Shri Madon had contended, when the bail application was heard, that the Court might go through the case-diaries and the statements recorded during investigation before considering the question of bail. I have already gone through the entire material collected during investigation. Since Shri Madon has not chosen to argue the bail application by referring to the statements recorded during investigation on the ground that he did not desire to associate himself with the investigation, it cannot be said that he has had no opportunity to go through the same if he wanted to. In any case, the Investigating Officer has been heard in the matter and even today, certain specific questions were put to him.
40. Under the circumstance, following order is passed.
O R D E R
Applicants are ordered to be released on bail in the sum of Rs. 25,000/- [Rupees twenty five thousand only] each, with one surety in like amount, on the following conditions.
i) The applicants shall make themselves available for investigation / interrogation as and when required by the Investigating Officer.
ii) The applicants shall not leave the limits of Brihan Mumbai till the filing of the charge sheet, without the express permission of the Investigating Officer.
iii) The applicants shall not contact, meet and/or approach the first informant and/or the witnesses in any manner whatsoever.
Under MCOC Act, 1999,
September 07,2006 Greater Bombay, at Sewree
IN THE SPECIAL COURT
( UNDER M.C.O.C. Act ) FOR GREATER BOMBAY AT MUMBAI.
M.C.O.C. SPECIAL CASE NO. 11 OF 2007
Mahendra Jagdish Agarwal, aged 50 yrs., resident of 201, Acropolis,
Apartment, Church Road, Marol, Andheri ( E ), Mumbai-59,
Madhukar Ramchandra Musale, aged 50 yrs. resident of Ramayya Jivan
CHS, Plot no. 33, Shanta Nivas, Mahakali Caves Road, Andheri ( E ) ,
Vishnu Krishna Dutta @ Vishnu Nepali, aged 54 yrs., resident of
204, Accord Building, A-wing, Dr. Charatsingh Colony, Andheri Kurla Road,
Andheri ( E ), Mumbai-93,
4. Ajay Damodar Sharma,
Suresh Padmakar Bhavangir, aged 57 yrs., resident of Sankalp
Society, A-2, 504, Nayapada, Marol Naka, Andheri ( E ), Mumbai 99,
6 Ramdas Manohar
Surendra Khurdan Pasi,
( j – mcoc – 11/07 )
CORAM : HIS HONOUR THE SPL. JUDGE
( Under M. C. O. C. Act )
SHRI M. P. KUKDAY ( C. R. NO. 52 ).
DATE : 05. 3. 2009.
Mr. Joshi, learned APP for the state.
Mr. H. H. Ponda, learned advocate for accused nos.1 and 2.
Mr. Girish kulkarni, learned advocate for accused nos. 3, 4, 6 and 7.
Mr. Bhanushali, learned advocate for accused no. 5.
1. Accused nos. 1 to 7 have pleaded not guilty to the charge for commission of
offences along with absconding accused Ravi Pujari, Kishor Padmakar Bhagangir,
Pyarelal Patel and others punishable u/s. 387, 506( ii ), 467, 468, 474 r/w. 120 – B in
alternative r/w. 34 of Indian Penal Code ( I. P. C. ) and section 3 ( 1 ) ( ii ) r/w. 3 ( 2 ),
3 ( 2 ) and 3 ( 4 ) of the Maharashtra Control of Organised Crime ( M. C. O. C. ) Act,
1999 and claim to be tried. Hence, this trial.
2. The prosecution case as it appears from the record placed before this Court is
that, M. I. D. C. Police Station has registered the F. I. R. vide crime no. 53/ 2006 on
05. 7. 2006 for commission of offences punishable u/s. 387, 120 – B, 506 ( ii ) of IPC
r/w. Sec. 3 ( 1 ) ( ii ), 3 ( 2 ), 3 ( 4 ) of MCOC Act. Duration of the offence is said to be
from 01. 1. 2006 to 01. 7. 2006.
3. The information is said to have been received by MIDC Police Station on 5. 7. 2006 around 03. 30 hrs. By written script. The report is dated 01. 7. 2006. Complainant Brijilal Shaligram Tiwari, aged 46 yrs., occupation – business, resident of Mulgaon, Juna Ashram, Dongri, Jagat Tiwari Chawl, MIDC, Cross Road, “ A “, Andheri ( East ), Mumbai – 93, has lodged a report that he is residing on the given address since his birth, along with his family members. He has two Qualis cars for renting out. He has four rooms and a shop rented out by him. It is the source of income for his livelihood and he is also doing social work.
Earlier the complainant was working at Banarasi Dairy Farm owned by his paternal aunt, which was adjoining Amita Hotel. In that hotel, accused Vishnu Dutta Nepali, Ravi Pujari, Bala Zalte, Padu Naik used to gather for chit – chatting. He knows all said persons by face. So also, complainant was also knowing Suresh Bhavangir Bhau and his brother Kishor Bhavangir by name and face.
4.After giving up the job at the hotel, the complainant was running a rickshaw and since then he is doing social work. The complainant, thereafter, for about eight years was salesman for Pepsi. Complainant used to help and solve problems of residents of the locality.
5.In the month of November – December 2005, persons namely Surendra Pasi, Ajay Sharma, Pyarelal Patel and Baba Masurkar were obtaining signatures forcibly from the persons of the locality for making their housing society. Aforesaid persons Surendra Pasi, Ajay Sharma, Pyarelal Patel and Baba Masurkar were working at the instance of Madhu Musale. Madhu Musale has a construction company by name ' Monarch Builders ' and Mahendra Agarwal is his partner. They have their builders office at Marol. Complainant know Madhu Musale since 1996. The residents complained the complainant regarding obtaining of their signatures on the agreement by aforesaid persons. They all, therefore, decided to unite under the banner of “ Siddhivinayak Juna Ashram Seva Sangh “.
6. In January, 2006, Surendra Pasi, Pyarelal Patel, Baba Masurkar, Suresh Bhavangir, Vishnu Nepali started rounds in their locality for getting occupants to become members of their housing society. Complainant, therefore, got embers of Juna Ashram Seva Sangh of which he was secretary for forming out their own housing society. In that locality, there are about 425 houses and 324 consented to be members of Siddhivinayak Juna Ashram Seva Sangh, a housing society ( proposed ). complainant became the Chief Promoter. Above named persons formulated “ Jai Ambe Housing Society “ but had very less numbers/membership. Aforesaid persons, therefore, started threatening of severe nature including killing persons rejecting to become the member of Jai Ambe Soceity. Vishnu was instigating aforesaid persons for extending threats to the persons those who have not become their members. Aforesaid members further has opened their office in the vicinity and subsequently in front of the office of housing society promoted by the complainant. Aforesaid persons were keeping watch on each resident who are visiting the office of the complainant. Said persons i.e. accused before the court were threatening those who have not become members of their society saying that they would receive trouble from Bhai and were extending threats to the occupants.
7. On 09. 4. 2006, around 10.34 the complainant had gone to Palghar, Tarapur. Complainant has a mobile cell bearing no. 9324270332. On the given date and time he has received call from cell having no. 0060388880802. By seeing the number, complainant came to know that the call is from abroad. Complainant answered call. Caller said “ Brijlal, Ravi Pujari speaking “. Complainant inquired who is Ravi Pujari. Caller answered, “ Bhai Ravi Pujari speaking “. Caller asked about committee and members of the committee. Complainant was avoiding to give information then that caller said that, ' to get away from the society otherwise result would be bad ' and further said ' hand it over to Vishnu Nepali '. Complainant answered that he will think of it. Caller then extended abuses and threatened, to listen and follow him, otherwise he will send shooter and would shoot at the complainant. Caller want to develop a land saying that, ' you do not know what happened with Karim, do it early' and disconnected the phone. and from the talk he got that it is the call from Ravi Pujari. Complainant did not contact Complainant being known to Ravi Pujari Vishnu or Bhai and therefore, Ravi Pujari used to make call on the said cell by threatening, “ committeese hat jao varna anjam bura hoga “. Complainant also complained of call from Vishnu Nepali on the same cell phone threatening with filthy language and he is giving complainant short date by asking Bhai to do so saying that “ you are aware what happened to Karim, settle out the matter “.
8. Complainant received 8 – 9 calls from April 2006. All the times, they were threatening with the directions to quit the society and hand over to Vishnu or Suresh Bhavangir. 10-12 days before April 2006, Suresh Bhavangir and his brother Kishor arrived at the office of the complainant and said give up the work and be clever and go away otherwise they will inform Bhai to shoot out the complainant. Surendra, Ajay, Pyarelal, Baba Masurkar were threatening the people of the locality saying that Bhai has interest in that land and he is to make a building in partnership with Mahendra Agarwal ( accused ).
9. In June 2006, complainant received a call from Madhu Musale calling him at builder's office at Marol. Complainant asked him reason. On that Madhu replied that they will work together. Complainant attended the office at Marol and Madhu Musale, Vishnu, Mahendra were present at the Marol builders office. Madhu Musale asked complainant why he is interfering in their work. Complainant replied why people are supporting him if they want meeting will be called of the occupants and if they are coming along with you people ( accused people ) then find it out. Madhu replied, ' do not be clever tell how much money you want take money and go away to village, make your life, do not come in their way otherwise he will get complainant killed by telling to Bhai, Bhai wants to make this project ', saying that ' he will be doing the building otherwise nobody could do it '. Then Agarwal said, ' give up the society otherwise it will be informed to bhai '. On that, Vishnu said that if the complainant is not willing to quit the society then he will have to pay Rs. 10 Crore to Bhai then only start with the project otherwise he will have to face severe consequences.
10. The complainant has stated in the complain that, he heard the news of shoot out at the office of Mahesh Bhatt and he being frightened lodged a report of the incident and now he is lodging the report.
11. Additional statements correcting the mistake in the report was made on 8. 7. 2006 that he had not gone to the office of Mahendra Agarwal in second week of June, but he had gone to the office of Mahendra Agarwal in the second week of April and on 8. 7. 2006 around 5. 15 Ravi Pujari has called him twice and 401 number was flashed on his mobile.
12. Investigation proceeded with search-cum-seisure in the house search of accused Vishnu while arresting him at his house – room no. 204, A – wing, Acord Building, Dr. Charansingh Colony, Andheri Kurla Road, Andheri ( E ). In the search at the house, police officer found an agreement mentioning developer M/s. Vertex Warehousing and Construction Pvt. Ltd., office No. 2, ground floor, Reliance Arcade, Ramkrishna Mandir Road, Kondivita, Andheri ( E ), Mumbai – 59, agreements 23 in numbers and blank agreements 11 in numbers. Mobile of Samsung Company, black color having cell no. 9869001774. Other mobile of Bird Company, silver color, model no. 51602 cell no. 9892779900 came to be seized by seisure memo Exh. 47 dated 5. 7. 2006. The Developers M/s. Vertex Warehousing and Construction Pvt. Ltd. and at Jai Ambe Mulgaon Dongri Sahakari Grihanirman Sanstha, Mulgaon, Andheri ( E ), having registered with the names of members in total 202. It is along with Exh. 47.
13. Arrest panchanama in respect of accused Madhukar Musale, Mahendra Agarwal, Ramdas Masurkar, Surendra Pasi, Ajay Sharma has been drawn. While their arrest their cell phones bearing no. of Madhukar Musale, cell no. 9820758105, Samsung Company, model no. SGHD 600, Mahendra Agarwal of Nokia model no. 9300 - cell no 9892219724, of Ramdas Masurkar – Nokia model no. 6670 cell no. 9969162938 ( there is scoring over no. 19238 ), of Surendra Pasi – Nokia Model no. 2600 cell no. 9869984365, of Ajay Sharma – two mobiles; Nokia model 2255 cell no. 9324587740 and Tata Indicom Model no. C-150, cell no. 9223318149 and from Suresh Bhavangir nothing was seised. Arrest made on 5. 7. 2007 vide panchanama Exh. 17.
14. The panchanama regarding Pimpaleshwar Mahadev Mandir for conducting the meeting of 250 persons by members of Jai Ambe Housing Society is drawn vide Exh. 15 on 01. 8. 2006.
15. During the investigation, PW-22 Prashant Burde, Addl. C.P., has recorded confessional statement of accused Suresh Padmakar Bhavangir vide Exhs. 39 and 40 ( part-I and Part – II ). The cheque bearing no. 856415- Article-A has been seized on production by PW-42 Prakash Kishorsagar. It appears that, the approval is received vide Exh. 63 under order dated 6. 2. 2007 – Article-B-1.
16. Investigating officer has recorded the statements of the witnesses and on completion of the investigation, charge-sheeted the accused for aforesaid offences.
17. Accused nos. 1 to 7 have filed their written reply during their examination u/s 313 of Cr. P. C. vide Exhs. 65 to 71 along with certified copy of order in suite no. 1562/06 and vide Exh. 73 and certified copy of order in N. M. No. 1764/06 in Suit no. 1977/06 vide Exh. 74 with written submission of the accused nos. 2 to 4, 6 and 7 vide Exhs. 75 to 79.
18. Following points arise for my determination and my findings with reasons thereon are as under :-
( i ) Whether the prosecution has proved that accused nos. 1 to 7 along with wanted accused Kishor Padmakar Bhavangir, Pyarelal Patel, Ravi Pujari and others between November 2005 and June 2006 at Brihanmumbai being the members of the organised crime Syndicate headed by wanted accused Ravi Pujari did conspire to continue unlawful activities and to commit organised crime to wit to commit extortion by threatening to eliminate the complainant, who had undertaken to work of SRA project, in order to force him to leave this work to the developer of the choice of the aforesaid Organised Crime Syndicate with the objective of gaining pecuniary benefits or undue economic or other advantage to themselves or any other person and for that objective committed forgery?
( ii ) Whether the prosecution has proved that, accused nos. 1 to 7 along with
wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction being the members of the Organised Crime Syndicate headed by wanted accused Ravi Pujari, did commit criminal intimidation in order to the commission of extortion to the tune of Rs. 10 Crores by threatening to eliminate the complainant with the objective of gaining pecuniary benefits or undue economic or other advantage to themselves or any other person and did commit forgery?
( iii ) Whether the prosecution has proved that, accused nos. 1 to 7 along with wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction were the members of the Organised Crime Syndicate headed by wanted accused Ravi Pujari?
( iv ) Whether the prosecution has proved that, accused nos. 1 to 7 along with wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction in order to the commission of extortion of a sum of Rs. 10 crores did commit criminal intimidation by putting the complainant Shri Brijlal Tiwari in fear of death or of grievous hurt in order to force him to leave the SRA Project to the developer of the choice of Organised Crime Syndicate of wanted accused Ravi Pujari?
( v ) Whether the prosecution has proved that, accused nos. 1 to 7 along with wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction committed criminal intimidation by threatening the complainant with injury to his person ( reputation or property in whom he is interested with intent to cause alarm to the complainant or to cause him to do an act which he is legally bound to do or to cause him to omit to do an act which he is legally bound to do ) ?
( vi ) Whether the prosecution has proved that, accused nos. 1 to 7 along with wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction dishonestly forged certain documents purported to be a valuable security to wit the minute book of Jai Ambe Society?
( vii ) Whether the prosecution has proved that, accused nos. 1 to 7 along with wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction dishonestly forged certain document to wit the minute book of Jai Ambe Society for the purpose of cheating?
( viii ) Whether the prosecution has proved that, accused nos. 1 to 7 along with wanted accused and others in furtherance of their common intention and in pursuance of the aforesaid criminal conspiracy on the aforesaid period and place in the course of same transaction had in their possession a docement/ valuable security to wit the minute book of Jai Ambe Society, which they fraudulently or dishonestly intended to use as genuine and that the said document falls under one of the descriptions mentioned in Section 466 of IPC (mentioned in sec. 467 of IPC )?
( ix ) What order?
19. Findings:- ( i ) In the negative.
( ii ) In the negative.
( iii ) In the negative.
( iv ) In the negative.
( v ) In the negative.
( vi ) In the negative.
( vii ) In the negative.
( viii ) In the negative.
( ix ) As
per final order.
R E A S O N S
20. PW-3 Brijlal Shaligram Tiwari is the complainant. He depose that, since birth he is residing at Mulgaon. Witness states that he was earlier working in a hotel and then was driving his own auto-rickshaw. Thereafter, he carried business of sell of Pepsi and presently he is engaged in travel business. Travel office is at the residential address. S. R. A. Project in the hutment area was to be developed in their locality. Persons from Vertex Builders started overpowering the slum dwellers on S. R. A. Project. Persons were Ajay Sharma, Surendra Pasi, Baba Masurkar and Pyarelal. These persons were also threatening and saying that project would be worked out by Vertex Builders.
PW-3 further states that, he is also doing social work. People from hutment locality come to him. They have created “ Siddhivinayak Mulgaon Juna Ashram Sangh “. He was General Secretary of that committee. Majority of the hutment dwellers started mobbing at him and therefore, they have raised proposed Housing Society ( Griha Nirman ). The name was “ Mulgaon Juna Ashram Griha Nirman Sanstha-Niyojit “. PW-3 is elected as Chief Promoter.
On 09. 4. 2006, complainant had gone to Palghar. He has his cell having no. 93242700332. He has received a call from Ravi Pujari on his cell. Caller said he is Ravi Pujari. PW-3 questioned him, “ kaun ( who ) Ravi Pujari “. Answer was, ' Bhai Ravi Pujari '. Caller asked who are members of the committee. Caller said that he is doing that project, so PW-3 should hand over the project to the named persons. It is further stated that, PW-3 has received about 8-10 calls during the month of April, 2006. Calls were in the similar nature.
21. It is further deposed by PW-3 that, in the second week of April 2006, Mahendra Agarwal, Madhu Musale and Vishnu Dutta called PW-3 in the office of Vertex Builders at Marol Maroshi Road. PW-3 went to the office of Vertex Builders. Mahendra then said that he is doing project and PW-3 should not be obstacle ( tang mat adao ). PW-3 returned by saying “ okay “. It is further deposed that, persons named above i. e. accused opened their office opposite to the office of the Siddhivinayak Society of which PW-3 is the Chief Promoter. Persons were sitting in their office and threatening the members of PW-3's society to join them. PW-3 states that, he lodged many letters with the police chowki but there is no response. It is approximately sometime in the end of sixth month of 2006, persons from Crime Branch had come to the office of PW-3. PW-3 was telling his members that he is getting threatening calls from Ravi Pujari. PW-3 narrated the story to the persons from Crime Branch. PW-3 accompanied those persons to the office of Crime branch at Teli Galli, Andheri. They have recorded statement of PW-3. PW-3 has signed the statement.
22. In the cross examination of PW-3, its answered that, activities of S. R. A. were started by Vertex Builders and till then neither PW-3 or any of the persons had showed interest in the SRA Project. PW-3 has received information and knowledge that Vertex Builders had purchased land for SRA project and had filed civil suit. PW-3 is party to that suit. Vertex Builders attempted to fix their board at the site. These activites commence before April 2006. PW-3 learnt that Vertex Builders has purchased land on 27.1.2006. PW-3 answered that he has no idea whether accused nos.1 and 2 are the Directors of the Vertex Builders elected in the month of March, 2006. Suit papers are served on him as party in that suit. Suit papers disclosed accused nos.1 and 2 are directors of Vertex Builders. Suit has mentions of parties of land by Vertex Builders but then subject of the suit was of displaying of the board at the site. Court has granted permission to display the board. Suit has mention that accused nos.1 and 2 are elected as Directors on 6.3.2006. It is answered that PW-3 has no idea that when allegations of threatening to the hutment dwellers were made before that Vertex Developers has purchased that site. It is there further answered that PW-3 has not seen any man or any of his members being threatened by accused nos. 1 and 2 or by any persons on their behalf. It is answered that he has not shown any document to the police before making statement to show that PW-3 had majority of the people with him. PW_3 further deposed that he did hand over copies of complaint lodged by him to the various authorities when he made the statement to the persons from Crime Branch. PW-3 has not lodged any complaint against Ravi Pujari. Some complaints were lodged against accused Madhu Musale and Mahendra Agarwal and those complaints were prior to lodging of the suit and not after the suit.
23. It is further answered by PW-3 that there was second suit for survey of the land and under the order of the Court survey was made. First suit was filed in he month of April 2006 and second suit was filed in he month of May 2006.
24. Omissions marked as about threats from Vertex Builders to the hutment dwellers. It is answered that he has not lodged any complaint after he was threatened at the office of the Vertex Builders when has visited it. Ommissions marked and proved are about call by accused to PW-3 at the office of Vertex Builders at Marol. It is further answered that PW-3 is not aware when Committee and Society was formed but it was aware when Committee and Soceity was formed but it was prior to filing of the suit. It is further answered that he has not applied for any permission for executing SRA scheme till filing of the complaint and on 21. 7. 2006 he has filed an application for permission for SRA scheme i.e. for acquisition of the land in the name of the society and under his signature as office bearer. It is answered that, PW-3 learnt of the threats from Ajay, Surendra, Baba and Pyarelal when people complained. It is answered that these four persons had no right or interest in the Vertex Builders. It is further answered that these four persons are also occupants and residents of the locality in question. It is answered that Vishnu was secretary of Jai Ambe Society having interest in executing SRA project.
25. PW-4 Satyawan Patil deposed that, people of the locality had first formed a committee by name Siddhivinayak Juna Ashram Niyojit Committee and then formed Siddhivinayak Juna Ashram Grihanirman Society. He was member of that committee and society. There is another society by name Jai Ambe formulated by Monarch Builders and by refreshing of memory of the witness, he states that, formulated by society by name Vertex Builders. There are 425 huts at Mulgaon of which SRA scheme was to be executed. Occupants were confused with whom they should go whether with Siddhivinayak Society or with Jai Ambe Society because of the dispute between the societies. Meeting of the society was headed over by PW-3 Tiwari and member PW-4 used to be in the evening in the office. Then Tiwari used to tell that he is receiving phone from outsiders to stop the activities. Once PW-3 has disclosed that phone was from Ravi Pujari and therefore, they have decided to take help of the police. They were then called by ACP Rane, to whom things were narrated.
26. Omissions marked and proved by the defence that Jai Ambe society is formed by the Vertex Builders. It is answered that, initially Jai Ambe Society was formed by occupants of Mulgaon for whom SRA scheme was to be executed. It is answered that members of Jai Ambe society were interested in giving project to Vertex Builders and members of Siddhivinayak Society were interested to give that project to Santosh Enterprises. It is answered that Vertex Builders has not formed Jai Ambe Society.
27. The prosecution has also examined witnesses i. e. PW-5 Shrikant Vategaonkar, PW-6 Vinayak Mirajkar, PW-10 Subhash Nalawade, PW-11 Jitendra Pawar, PW-12 Vijay Amre, PW-13 Rajendra Kashinath, PW-14 Prabhakar Phanase, PW-15 Bansu Rajbhar, PW-19 Nitinkumar Shah, PW-26 Ganesh Jadhav, PW-30 Vinodkumar Singh, PW-32 Nitin Deshmukh, PW-35 Harischandra Garasion, PW-37 Nitin Rathod and PW-38 Neena Datt. Evidence of these witnesses are somewhat similar and identical disclosing that there are two societies i.e. Siddhivinayak Juna Ashram Society, proposed society, and there is another society by name Jai Ambe. There was tussle between them and both were interested in getting more members for their society so that execution of SRA Project can be made by them respectively. Some of them have made statements of threatening on the strength by hirelings, but none of them have been threatened by any of the accused before the Court.
PW-36 Shantidevi Prasad is the member of Siddhivinayak Society. This witness is regarding putting signature on the application for getting boring water vide Exh. S-2. He has his signature in Article P-1 at Sr. No. 44.
Evidence of all the aforesaid witnesses majority of them are interested in executing SRA scheme under the name and style of Siddhivinayak Housing society for gaining maximum benefit to them. Needless to state that it is more tussle for earning money and profits in between promoters of Jai Ambe Hsg. Society much less Vertex Builders on the one side and PW-3 and his 3-4 associates for claiming the implementation of the scheme or the other side.
28. PW-7 Saikumar Sadashiv Malode deposes that he is doing social work and was Karyalay Pramukh Shakha No. 103 i.e. Shiv-Sena Shakha. He deposed that Suresh Bhavangir phoned to him and called him at Pallavi Hotel he was called when there was some work at Malpa Dongri hutment area, Andheri ( E ). Suresh then made a call from the cell and handed over cell to him. At the other end call was answered by Ravi Pujari. It says that, his wife sister's husband is executing work and PW-7 should inform to Patil, a Nagarsevika, that nobody should obstruct the work including B.M.C. and police officials. Caller further said that if his directions are not followed he will make broad day light shootout and before disconnecting the phone, he gave some abuses to PW-7 answered that he is nowhere interested in the affairs. Police has recorded his statement and PW-7 was produced before M.M.
In the cross examination, it is answered that affairs of Malpa Dongri is altogether different than the project in question.
29. PW-8 Vijay Sharma states that he is residing in Mulgaon Dongri, MIDC, Andheri. In 2006, SRA project was to be executed in their locality. There used to be meeting at the house of PW-3 Brijlal Tiwari. He has given documents of his house to Mr. Tiwari. Other party formed Jai Ambe society. Ajay Sharma obtained signatures from him and his father. Matter is informed by PW-8 to members of the Siddhivinayak Society. On 11. 7. 2006, he was called at Bandra police station. Police showed him the register. There was signature in English in front of his name and of Ajay Sharma. Witness states that, he has never signed in English. He always sign in Hind and signature shown to him is not his signature.
30. PW-9 Shashikant Tambat is a teacher by profession. He testified that in the month of November-December ( probably 2006 ) in their locality they all come together and formed Siddhivinayak Committee and subsequently they have formed Siddhivinayak Housing Society. Mr. Tiwari was head of their group. Other persons were forcing to have agreement with them. Some of the persons were from their locality. Discrepancies were in respect of known of SRA scheme. They opened their office as well opponent also opened their office opposite to their office. Opponent threatened him and persons of their society. Mr. Tiwari used to tell that he is receiving threatening calls and then complaint was lodged. In the cross examination, it is answered that in his presence nobody threatened Mr. Tiwari. He has only hearsay information.
31. PW-39 Narhari Bhatkar is Upper Additional Collector, Encroachment, Mumbai Suburban as Nayab Tehsildar. He deposes that, acquisition of land is undertaking by their office. Their office has received application from Siddhivinayak Society on 24. 4. 2006 for SRA Scheme and their application is still pending.
In the cross examination, it is answered that if the land owner is developing the land, there is no question of land acquisition.
32. It is not to be stated that PW-4 and his associates are the parties to the suit initiated by the accused nos. 1 and 2. It is not in dispute that said land is purchased by them.
33. The evidence of PW-16 Manohar Surve discloses that, he was president of Jai Ambe Housing Society. The scheme was to be implemented by Vertex Builders. They all occupants started coming to him informing that some builder has purchased land under locality. They have gathered at Shiv Temple on 22nd march, 2006. Meeting was attended by about 150-200 residents. In that meeting, issue of development of the land was discussed and it was decided that whoever is satisfying their requirement will develop the land. Accordingly, PW-16 and three others were nominated for contacting builders and convey they facilities required by residents/occupants. Then meeting was arranged on 27.3.2006. For his own problem, he was required to leave the place permanently and witness has left for his native place.
It is in the cross examination answered that, accused nos. 3,4,6 and 7 were office bearers of Jai Ambe Society and they all were interested in formulating a scheme. PW-16 has communicated Mahendra Agarwal and Masurkar the facilities required by the occupants/ dwellers and he was satisfied with the discussion between them.
34. In the light of aforesaid evidence, what is made out is differences between two groups regarding implementation of the SRA scheme and nothing more. Evidence of PW-3 Tiwari also does not disclose that he has reported the matter to the police after getting threatening calls and or he has jotted down or recorded or stored the cell no. of the caller which is normally flashed on the screen of the cell phone to make it known to the police for lodging the complaint and or any time during the inquiry.
35. PW-1 Sayyadali Sayyed is a panch witness of drawing of the panchanama of the place of occurrence of Datta Mandir wherein PW-16 has conducted the meeting. Panchanama is at Exh.15.
36. The evidence of drawing of the panchanama of place of occurrence appears to be for the purpose of threatening to some members of the society or obtaining signature, but then in the light of the evidence of PW-16 purpose of the prosecution for drawing the panchanama appears to have been completely defeated.
37. PW-2 Suresh Khedekar is another panch witness for arrest-cum-seisure of the articles from the accused. It is deposed by him that, Mahendra Agarwal was arrested and one mobile was seized. Mobile probably of Nokia Company. PW-2 is not remembering the cell no., but it is mentioned in the panchanama Exh.17 the cell no. as 9892219724.
Police made arrest of Madhukar Musale and seized one mobile probably of Samsung Company. Witness does not recollect the cell number. ( cell no. of Madhukar 9820758105 as per panchanama Exh.17 ). Police then arrested Masurkar and seized one mobile of Nokia make. Witness is not recollecting the cell no. ( cell no. 99691629385 as per panchanama Exh. 17 ). Police arrested Surendra Pasi with mobile of Nokia make, he does not remember the cell no. ( cell no. 9869984365 as per panchanama Exh. 17 ) . Police further arrested accused Ajay Sharma and seized two mobiles of Nokia Company. He does not remember his cell no. (cell no. 9324587740 and 9223318149 as per panchanama Exh. 17). Then police arrested accused Suresh Bhavangir, but nothing found from his person. Panchanama Exh. 17 is signed by him.
38. PW-17 Prakash Musale discloses that, he was working as Nagar Sevak of adjoining locality and knowing about SRA scheme of Mulgaon through his friends. He was asked to help those persons for their work. Baba Masulkar and Ajay Sharma had a society and they are his friends. As his handwriting was good he was making writing work for them. There were meetings of executives and he had made writing work for them. Evidence of this witness is of no use to the prosecution.
39. PW-18 Smt. Mangala Desai deposes that, he know accused Mahendra Agarwal and Narendra Agarwal. They have obtained loan of Rs. 12 lacs from her husband. After death of her husband, she inquired about the money. In lieu of Rs. 12 lacs they gave her flat at Jagdish Apartment and one shop. She has sold out that flat to one Mr. Thakur and Mahendra obtained her shop premises. The amount received by him out of sale proceed of the shop were paid by him to Ravi Pujari. Witness got only cheque of Rs. 90,000/- but flat was sold for Rs. 3 lacs. The cheque was encashed by her by depositing it in the joint account of her with her daughter. Her husband Shrikant Desai and Vishnudhar were running a hotel. She has no knowledge to whom hotel was sold. Witness is owning a car and said car sold to Govind Desai and she is residing on the given address.
In the cross examination, she answered that there is no writing that her husband has given Rs. 12 lacs to Mahendra Agarwal. Mahendra of his own has stated of obtaining money. It is answered that, she does not know to whom she sold shop. She has not done any writing about sell of the shop. It is answered that no amount has been paid to Ravi Pujari in her presence nor she has directed to pay the amount to Ravi Pujari. She has not issued any notice to Mahendra for getting loan amount out of sale proceed of the shop. Evidence of this witness appears to have been brought on record to show that Mahendra Agarwal has direct connection with underworld person Ravi Pujari.
40. Evidence of PW-9 absolutely possess no evidential value because nothing was in her knowledge except that Agarwal gave her flat which was sold by her. In short, connection attempted to be established between Mahendra Agarwal and Ravi Pujari is not made of this witness. Hence, there is no evidential value to the statement of this witness.
41. PW-20 Narendra Agarwal deposes that, he has sold the flat in Jagdish Apartment in the name of Mangala Desai. Earlier she was tenant in the premises. It was given in exchange to her out of the direct transaction between them and rest is not known to him.
In the cross examination, it is answered that he has separate business from Mahendra Agarwal and no relations with Mahendra Agarwal that is to say, he has no business relations with Mahendra Agarwal.
42. PW-21 Vilas Sawant testified that, land at Mulgaon Dongri was owned by Hiren Tadiya and he was to sold that land. He had arranged a meeting of Musale and Hiren for transaction. The deal of sale-purchase was settled at 3.60 Crores. He has gone to meet them for 2-4 times and rest is not known to him. Evidence of this witness discloses that land owned by Hiren Tadiya and which has been purchased by Musale party for filing the suit. Evidence, therefore, discloses that occupants of Mulgaon were having their huts on the land of Hiren Tadiya.
43. PW-22 Prashant Burde, Addl. C.P., has recorded confessional statement of accused Suresh Bhavangir vide Exh. 39 ( part-I ) and Exh. 40 ( part-II ) . Cross examination of this witness loudly sound that statement recorded by PW-22 is a mechanical approach. Required care is not being attended before recording of the statement. Evidence on record further discloses that, on production of this accused before C. M. M., accused has retracted from the statement that nothing has been stated by him.
44. Evidence of PW-23 Madhukar Jamble is that, he has a garage at Andheri. He was knowing deceased Shrikant Mama. Shrikant and he were employed at one office. Ravi Pujari, Dinesh Kamble, Raja Kamble, Milind Pednekar used to visit the house of Shrikant. PW-23 know Suresh Bhavangir and Kishor Bhavangir. They were residing at Andheri. Accused Madhu Musale and Mahendra Agarwal is known to this witness because they were visiting the hotel of Leo Karwarlo and he was also going to that hotel. Witness has been declared hostile and in the cross examination by the prosecution. Nothing is extracted from this witness. The attempt of the prosecution to bring accused nos. 1 and 2 in contact with Ravi Pujari again failed.
45. PW-24 Dinesh Kambli deposed that he know Ravi Pujari. He was visiting the place of Shrikant. Mahendra Agarwal and Musale were also visiting the place of Mama. Suresh Bhavangir, Kishor Bhavangir, Kamble brothers were also visiting the place of Mama. They are before the court. Agarwal and Musale are having occupation of construction. Mama was helping them by giving them financial assistance. Mama died in an encounter. After death of Mama, Ravi Pujari was looking after business of Mama and Mama had given Rs. 12 lacs to accused Mahendra Agarwal. In lieu of that money, Mahendra had given him a flat and a gala. Prosecution put question to this witness that, to whom Ravi Pujari was telling work? This witness answered that, to the brother of this witness Raja Kamble. On every Diwali, Mahendra Agarwal used to pay Rs. 50,000/- to Ravi Pujari through his brother Raja Kamble.
In the cross examination, it is answered that the transaction between Mama and accused Mahendra Agarwal never taken place in the presence of this witness. Similarly Raja has not obtained money from Mahendra and paid it to Ravi Pujari in his presence. Evidence of this witness being in the nature of the accomplice as well as hearsay can have hardly any evidential value. Prosecution again marked its failure to establish connection between Mama and Ravi Pujari as well Mahendra and Mama. Evidence further discloses that it was transaction through others. It does not speak or whisper about Mahendra Agarwal dealing with Ravi Pujari directly.
46. PW-25 Jitendra Siddhpura is a Sub-Engineer in Slum Rehabilitation Authority. He is examined to show that minimum 70% under the slums are required for implementation of SRA scheme. Requirements as per DC Regulation 33 ( 10 ) are to be completed for getting Occupation Certificate. It is answered that procedure under Land Acquisition may commence if owner is not party to the proposal. It is, therefore, further answered that if owner moves the authority for development proposal showing 70% of the membership then even if there is opposition 30% persons he can develop the scheme.
47. PW-27 Dattatray Zunjarrao deposed of knowing Madhukar Musale and Mahendra Agarwal, accused before the court. He was employed by them as site supervisor. Witness is declared hostile. Prosecution marks failure to have anything beneficial to the prosecution in his cross examination.
Evidence of this witness is not useful to either of the party.
48. PW-28 Sabhaji Kamble, panch witness of house search of accused Vishnu. It is answered that two mobiles and 202 files were seized under panchanama Exh. 47. It appears that these 202 files correspondents to the agreements of slum dwellers out of 425 slum dwellers. PW-28 discloses that, he does not recollect the mobile numbers.
49. Evidence of PW-29 Divakar Shetty is of undertaking job of SRA development. Gondivali village, Andheri ( E ) was under the redevelopment. PW-29 received phone call from Ravi Pujari. On 10th May, 2006 Ravi Pujari inquired whether he is developing Gondivali Village. Witness answered in the affirmative. Caller asked for the ransom amount. PW-29 replied that, he has no money, wherefrom he will give money. He has lodged a report to Andheri Police Station. It is stated that, phone numbers flashed on his cell were 501/404/175 last three digits out of 13 digits. It is further deposed that he knows Suresh Bhavangir and Madhu Kamble. They were residing behind his hotel. They had shown him papers for redevelopment of their land. PW-29 gave them visiting card.
Site at Gondivali for redevelopment is nothing to do with the SRA scheme at Mulgaon i.e. over disputed land. It appears that prosecution has attempted to get from the mouth of this witness that one of the accused had approached him for contract to redevelop the land. Needless to state that, evidence of this witness is contrary to the prosecution witness because land was to be developed by Vertex Builders and not by any other persons.
50. PW-31 Hashmukh Thoriya is an estate agent, who testified that he know accused Suresh Bhavangir since 5-6 yrs. as estate agent. Accused Suresh Bhavangir come to him in connection with the development of the property where he was residing. PW-31 met a builder known to him who developed SRA property at Gondivali Village with Suresh. They have settled the deal for development including the brokerage. Needless to state that, attempt is made to have consistent evidence with the evidence of PW-29. Here again, the evidence appears to be of contrary proposition to put forth by the investigation agency that Jai Ambe Society is formed for the implementation of SRA scheme and it was to be developed through Vertex Builders. Approach of accused Suresh to this witness therefore appears to be doubtful or atleast cannot be made basis to draw conclusion that accused Suresh made attempt to have get that land for redevelopment independently or with consultation of the co-interested persons in Jai Ambe Society.
51. PW-33 Hemantkumar Dantakale deposed that since January 1996 he is residing in a building Monarch Manor. PW-33 knows Madhukar Musale, builder of this building. The building has commercial premises on the ground floor and residential premises on the upper floors. To his information, some portion of building was developed by Madhu Musale and some by Siddhivinayak Group. For better maintenance occupants of the building formed their separate society. He is secretary of that committee. In the list of the occupants, there was name of Vandana Desai showing she is owner of shop no. 14A. Witness has not produced any document showing that any committee was formed or that they had list of members. No document is filed on record showing that Mrs. Desai owns shop no. 14-A. Oral evidence of this witness in the absence of any of the supporting document appears to be for connection with the earlier piece of evidence of sale of shop by the accused Mahendra Agarwal for making payment to Ravi Pujari. That piece of evidence has already been discussed and denied. Evidence of this witness therefore stands neither corroborative to the earlier piece of evidence nor to be attributed any evidential value.
52. PW-34 is Jagdipsing Attra, a driver, testified that Shrikant Mama was rickshaw driver and therefore he knows PW-34. PW-34 was working with Ravi Pujari, Ashok and Jamble. He also know accused Musale and Mahendra Agarwal being landlord of PW-34. Ravi Pujari used to come to the hotel Imperial Palace with Shrikant Mama. Madhu Musale and Mahendra Agarwal are present in the court. The evidence of knowing Shrikant Mama, knowing Ravi Pujari and one Ashok and Jamble is nothing to do with his knowledge about Madhu Musale and Mahendra Agarwal, landlord. Evidence regarding Ravi Pujari and Mama coming to the hotel cannot be linked or connected with the accused Musale and Mahendra . Attempt of the prosecution to connect accused Madhu Musale and Mahendra Agarwal with Ravi Pujari, on the basis of statement of PW-34, to my knowledge, is not acceptable under any of the provisions of the Evidence Act and as such no evidential value can be attached to the testimony of this witness.
53. PW-40 Vinayak Sawade, PI, attached to Crime Branch deposed that on 1. 8. 2006 he was attached to DCB CID Unit. One Brijlal Tiwari made statement to him, which is recorded by him. It was placed before A. C. P. Rane. Later on, said statement treated as FIR for registration of the crime. Omissions are proved from this witness.
54. PW-41 Jaggit Jagdipsing working as Sales Executive in Reliance L.G. at Parel. It is deposed that, Suresh Bhavangir was friend of his father. Suresh had given him document to get cell phone. He was supplied one cell bearing no. 932225539. Upon refreshing the memory, PW-41 stated that, cell no. was 9322255393 and said Bhavangir is present before the Court. Evidence of this witness even if it is accepted it can at the most of sell of sim card by PW-41 to Suresh Bhavangir and nothing more.
55. PW-42 Prakash Kishorsagar is the branch manager at UCO Bank, Vile Parle Branch. Zunjarrao had issued a cheque in the name of Sonal Desai which was passed by their bank. On the request of police that cheque was produced before the police. It was seized by them. It was in the sum of Rs. 90,000/- vide Article-A. Evidence of this witness is again an attempt to earlier piece of evidence discussed hereinbefore of receiving of Rs. 90, 000/- by Sonal Desai. Needless to state that, assuming that sum has been issued by Zunjarrao it would not mean that it was issued by transaction claimed by the prosecution because it is not supported by any other related evidence either circumstantial and or any evidence which can otherwise be treated as evidence relevant to the offence under charge.
56. PW-43 Pramod Rane, PSI attached to Detection Crime Branch, Unit no. IX, Andheri, deposed that, there were lot of complaints against Ravi Pujari for threatening. PW-43 and PI Saudhe were inquiring in the matter of threats by Ravi Pujari. During their inquiry they came in contact with one Brijlal Tiwari much less in contact of Saudhe who complained of threatening to him by Ravi Pujari. Inspector Saudhe has recorded statement of Tiwari. Saudhe thought that matter falls within the ambit of the M.C.O.C. Act and therefore, forwarded with his remark to this witness. Papers were submitted by PW-43 to the Jt. Commissioner Crime for approval. On the direction and order dated 4. 7. 2006 offence came to be registered under M.C.O.C. Act. Statement of Tiwari treated as F.I.R. by registering offence on 5. 7. 2006 at MIDC, DCB CID police station. Subsequently, crime no. 293 is registered as crime no. 53/06. He has arrested all seven accused before the Court in Crime no. 53 of 2006, seized mobile phones, documents by house search. He has recorded statement of number of witnesses during the investigation and on completion of the investigation, papers were submitted. Ater receiving of sanction vide order dated 6. 2. 2007, he has charge sheeted the accused. Omissions in the statements of the witnesses recorded by this witness are proved. They are accordingly discussed hereinabove while discussing their evidence independently.
57. Section 3 ( 1 ) ( ii ), 3 ( 2 ) and 3 ( 4 ) of M.C.O.C. Act read as before:-
“ 3 ( 1 ) ( ii ) :- whoever commits an offence of organized crime shall,
( ii ) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.”
3 ( 2 ) :- “ Whoever conspires or attempts to commit or advocates, abets or knowingly facilities the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.”
3 ( 4 ) :- “ Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.”
58. Needless to state that the evidence is not touching the ingredients of the offence under charge. Hence, no grain of evidence to show that accused Mahendra Agarwal and accused Madhu Musale either independently and or in connection with anybody has committed any act along with Ravi Pujari. There is no grain of evidence.
59. Section 2 ( d ) of M.C.O.C. Act reads as before:-
“ Continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheet have been filed before a competent Court within the preceding period of ten years and that Court has taken cognisance of such offence “.
60. Section 2 ( e ) of M.C.O.C. Act reads as before:-
“ organized crime “ means any continuing activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation of coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency “.
61. Section 2 ( f ) of M.C.O.C. Act reads as before:-
“ organized crime syndicate “ means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime.”
62. Needless to state that, there is no grain of evidence which will satisfy that any of the accused has committed any offence which is cognisable much less punishable for imprisonment for three years or more. There is no grain of evidence which will indicate that any of the accused either singly or jointly and or as member of organised crime syndicate have either acted or supported to any of the act which can be called offence is proved by the prosecution. Needless to state that, there is no iota of evidence to indicate that any of the accused has committed unlawful activity individually or singly or jointly and or with members of Organised Crime Syndicate by use of violence or threat of violence or intimidation or coercion which can be termed as unlawful act for gaining pecuniary benefits and or undue economic or other advantage for himself and or for other persons or person promoting insurgency. The evidence of I.O makes it clear that there were complaints regarding ransom amount by Ravi Pujari and his aids. They were on hunt. Dispute between two societies i.e. Jai Ambe Society and Siddhivinayak Society formulated by occupants Mulgaon upcoming group headed by Mr. Tiwari has traced out by the I.O and or coincidently came in contact with the officers of the Crime Branch, but safely to be said came in contact with each other for reasons the allegations. At the cost of repetition, the evidence forthcoming is absolutely point blank to connect any of the accused to punish under charge. Points are, therefore, answered in the negative.
Heard learned counsels for the parties and in sequence, I proceed
to pass following order:-
O R D E R
1. Accused no. 1 Mahendra Jagdish Agarwal, aged 50 yrs., resident of 201, Acropolis, Apartment, Church Road, Marol, Andheri ( E ), Mumbai-59, accused no. 2 Madhukar Ramchandra Musale, aged 50 yrs. resident of Ramayya Jivan CHS, Plot no. 33, Shanta Nivas, Mahakali Caves Road, Andheri ( E ) , Mumbai-93, accused no. 3 Vishnu Krishna Dutta @ Vishnu Nepali, aged 54 yrs., resident of 204, Accord Building, A-wing, Dr. Charatsingh Colony, Andheri Kurla Road, Andheri ( E ), Mumbai -93, accused no. 4 Ajay Damodar Sharma, aged 36 yrs., resident of Room no. 3 and 4, Vikrama Pasi chawl, Mulgaon, Dongri, AK road, Andheri ( E ), Mumbai -93, accused no. 5 Suresh Padmakar Bhavangir, aged 57 yrs., resident of Sankalp Society, A-2, 504, Nayapada, Marol Naka, Andheri ( E ), Mumbai 99, accused no. 6 Ramdas Manohar Masurkar, aged 40 yrs., resident of Shiv Poojan Mistry Chawl, Mulgaon, Dongri, MIDC, Andheri ( E ), Mumbai -93 and accused no. 7 Surendra Khurdan Pasi, aged 45 yrs., resident of Room no. 1, Khurdan Pasi Chawl, Mulgaon, Dongri, A.K. Road, Andheri ( E ) , Mumbai-93 are hereby and do hereby acquitted of the offences punishable u/s. 387, 506 ( ii ), 467, 468, 474 r/w. 120-B in alternative r/w. 34 of Indian Penal Code and section 3 ( 1 ) ( ii ) r/w. 3 ( 2 ) and 3 ( 4 ) of the Maharashtra Control of Organised Crime Act, 1999.
2. Their bail bonds stand cancelled and sureties are discharged.
3. Property be preserved for trial of absconding accused as and when they are arrested.
and pronounced in the open court in presence of accused, learned
prosecutor and defence counsel.)
( M. P. KURDAY )
Spl. Judge ( under M.C.O.C. Act ) ,
Date:- 05. 3. 2009
DATE OF DICTATION : 3/4/5. 3. 2009
DATE OF TRANSCRIPTION : 4/5/6. 3. 2009
DATE OF SIGNATURE :
DATE OF DELIVERY TO :
THE CERTIFIED COPY SECTION.