1 Crim-Appeal No.265.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 265 OF 2010 Nazeem Ahmed Wahid Ahmed Khan. @ Raju ! Aslam, age 38 years. Residing at 103, Kulsum Aparts., A-Wing, Western Park Sciety, Kashmira, Ghod Bunder Road, Thane (presently lodged at Nasik Central Prison). ... Applicant. (Org.Accused No.1) V/s. State of Maharashtra (D.C.B. CID Anti Extortion Cell, C.R.No.142/05). ... Respondent. Jagdish Shetty for the appellant. P.S.Hingorani, APP for the respondent-State. CORAM : V.M.Kanade, J. DATED : 23rd November 2010. ORAL JUDGMENT : The appellant- original accused No.1 has filed this appeal challenging the judgment and order 2 Crim-Appeal No.265.10 passed by the Special Judge under the MCOC Act, City Civil and Sessions Court, Greater Bombay dated 20th March, 2010. By the said judgment and order, the learned Special Judge was pleased to convict the appellant for the offence punishable under section 3(1)(ii) of the M.C.O.C. Act and sentenced to suffer R.I. for five years with fine of Rs.5,00,000/- and, in default, to suffer further R.I. for three years. He also convicted him for the offence punishable under section 3(2) of the M.C.O.C.Act and sentenced to suffer R.I. for five years with fine of Rs.5,00,000/- and, in default, to suffer further R.I. for three years. He also convicted him for the offence punishable under section 3(4) of the M.C.O.C.Act and sentenced to suffer R.I. for five years with fine of Rs.5,00,000/- and, in default, to suffer further R.I. for three years. He also convicted him for the offence punishable under section 386 read with section 34 of I.P.C. and sentenced to suffer R.I. for seven years with fine of Rs.25,000/- and, in default, to suffer further imprisonment for three years. He also convicted him for the offence punishable under section 465 read with section 471 of I.P.C. and sentenced to suffer R.I. for two years. The appellant- accused, however, was acquitted from the offences punishable under sections 466, 468, 420 read with sections 120-B and 34 of I.P.C. 3 Crim-Appeal No.265.10 2. Brief facts are as under: The complainant Manish Vinod Shah; his brother Ashit Shah and father Vinod Shah were the Directors of the company known as M.C.I. Securities and Consultancies. According to the complainant, on 25th June 2005, one Iqbal Sura called him on his cell phone and invited him to the Esplanade Court Room No. 37, first floor. However, the complainant told him that he would not be in a position to meet him on that day. Therefore, he called him to the Court on 26th October 2005. The complainant’s case is that on 26th October, 2005, when he arrived at Court No.37 at about 4.00 p.m., Iqbal Sura was present there accompanied by one more person. The complainant was taken to the first floor and was introduced to one Tariq Parveen where he was threatened to pay whatever amount was due to Iqbal Sura and if the said amount was not paid he was threatened that he would be killed. The complainant told him that all his properties are seized by the Economic Offence Branch of Police. According to the complainant, on 29th October, 2005, he received phone call of a person called Fazlubhai who again asked him to pay money. Thereafter, again on 9th November, 2005, he received phone call and he was asked whether he has decided how much money was to be paid. Thereafter, on 17th November, 2005, again the 4 Crim-Appeal No.265.10 complainant received phone call. The person calling told him that his name is Raju and he is a man of Fazlubhai. The demand of Rs.50 lakh was made on behalf of Fazlu Rehman. Again he was threatened on phone that unless the said amount is paid he would be killed. Thereafter, again he received phone call on 22nd November, 2005 and in the evening another phone call at about 8.55 p.m. The caller said that his name was Raju. Again a demand of Rs.50 lakh was made. He was also threatened by the caller that if the amount of Rs.25 lakh was not paid he would be killed. A report was lodged with the Anti Extortion Department. Thereafter, again on 23rd November, 2005, a telephone call was received from a person who gave his name as Raju and a demand of Rs.25 lakh was made. The complainant was told to come to Sapna Cold Drink House at 7.00 p.m. sharp. He was threatened that if the amount is not paid he would be shot dead. The caller informed him the dress he would be wearing. The complainant, accordingly, informed the police about the phone call. Pre-trap panchanama was made. Panch witnesses were called. A bundle of currency notes was prepared and it was kept in a plastic bag. The raiding party waited in front of Sapna Cold Drinks. At about 7.00 p.m., one person came near the complainant and asked him to hand over the plastic bag. The complainant gave signal to the police who 5 Crim-Appeal No.265.10 were waiting in the civil dress and the said person was arrested. He gave his name as Nazeem Ahemad Wahid Ahemad. The trap panchanama was drawn vide Exh.48. In the personal search of the accused, a mobile phone of Bird Company, model No.190, Dolphin Sim Card, one half railway ticket torn, pieces of papers having writing in Urdu language including telephone numbers over chit and other three Sim Cards of BPL, Orange and Airtel Companies. Panchanama was, accordingly, made. The person arrested informed the police that he is a man of Fazlubhai. The complainant submitted two audio cassettes having record of conversation between him and Fazlu Rehman as well as between him and Raju. The statement of P.C.O. owner recorded from where the call for extortion was made. Upon report being made by the Senior Officer for application of the provisions under the M.C.O.C.Act, an approval was granted by the competent authority on 6th December, 2005. Statements of witnesses were recorded. Voice sample test was performed. Handwriting samples of the accused were collected. Sample articles were sent to the handwriting expert. In all, three persons were made accused. The present appellant- accused No.1; Tariq Parveen- accused No.2 and Iqbal Sura- accused No.3. The trial of accused No.2- Tariq Parveen was separated. The prosecution examined 12 witnesses. On the basis of evidence adduced by the prosecution, the 6 Crim-Appeal No.265.10 Special Judge acquitted accused No.3 and convicted the accused No.1, the present appellant. 3. Heard learned counsel for the appellant- accused and learned A.P.P. for the respondent- State. 4. The learned counsel appearing for the appellant has taken me through the order of the trial Court and also the evidence adduced by the prosecution. He submitted that the trial Court has not given any reasons for recording findings against the appellant for the various offences for which he is convicted. He submitted that the findings recorded by the Special Judge were not borne out from the records. He submitted that the judgment of the trial Court was, therefore, perverse and liable to be set aside. He also took me through the notes of evidence of the prosecution. 5. The learned A.P.P. appearing for the respondent- State, on the other hand, submitted that the trial Court, after perusing the evidence on record, has recorded his findings. He submitted that the voice sample test clearly showed that the voice found on the audio cassette was that of the appellant. He submitted that Fazlubhai was a member of organised crime syndicate and number of cases were pending 7 Crim-Appeal No.265.10 against him. He submitted that it was established that the appellant was a person who was acting on behalf of Fazlubhai. He submitted that, therefore, the trial Court has rightly held that the offence punishable under the M.C.O.C.Act was established by the prosecution. He submitted that the specimen handwriting of the appellant was sent to the handwriting expert and apart from that learned Judge, after perusing the specimen handwriting, has come to the conclusion that the appellant had filled in a form for obtaining a Sim Card illegally. He submitted that, therefore, the offence of forgery was established by the prosecution. He, then, submitted that the appellant had made phone calls to the complainant and demanded a ransom amount of Rs.25 lakh. A trap was arranged and the appellant was caught red handed while accepting the plastic bag which contained Rs.25 lakh. He, therefore, submitted that no case is made out by the appellant to interfere with the findings recorded by the trial Court. 6. After having heard both learned counsel, I am of the view that the trial Court erred in holding that the prosecution has established a case beyond the reasonable doubt. It is an admitted position that no other case has been filed against the present appellant. The original accused No.2 had invested 8 Crim-Appeal No.265.10 huge amount in the complainant’s company. It has also come on record that several cases were filed against the complainant for the offences punishable under I.P.C. and M.P.I.D.Act. In the complaint, it was alleged that the complainant herein had duped several investors. It is not in dispute that the original accused No.2 also invested huge amount with the complainant. So far as original accused No.2 is concerned, he is absconding and no material is brought on record to show that he is a member of organised crime syndicate. It is, therefore, not established in the first place that the original accused No.2 was a member of organised crime syndicate. That being the position, it cannot be, therefore, held that the appellant is a member of the organised crime syndicate. Admittedly, no case has been registered against the appellant in the past ten years and, therefore, independently there is no material on record to bring the appellant within the ambit of the provisions of the M.C.O.C.Act. 7. The perusal of the judgment of the trial Court indicates that the trial Court has not given any finding or has not discussed any evidence before recording the finding that the offences punishable under the M.C.O.C.Act are attracted in this case and that the case against the appellant under the 9 Crim-Appeal No.265.10 aforesaid provisions is proved. Perusal of the judgment further indicates that in para-41 the learned Judge has reproduced the provisions of sections 2(e) and 2(f) of the M.C.O.C.Act. In para-42, learned Judge has reproduced sections 3(1)(ii), 3(2) ad 3(4) of the M.C.O.C.Act. Thereafter, in para-43, the learned Judge has observed as under: “43. It is not in dispute that the evidence on record does disclose that there were calls from Fazlubhai. Fazlu Rehman is absconding and cannot be arrested for getting his voice sample. The evidence of handwriting expert does disclose that chits having writing is incriminating writing connected with the offence. That is having name and numbers of Fazlubhai. Earlier victim Bharat Shah (PW-7) had received call from Raju as well as from Fazlubhai. Evidence of sound identification is also in the affirmative. Though evidence of writing and voice identification is not substantive piece of evidence, they have good corroborative value. Evidence of nabbing/ apprehending accused Raju @ Nazeem under the trap increases probative value of the evidence of opinion into handwriting as well as voice similarity exami9nation. Connection of Accused Raju @ Nazeem Khan with Fazlubhai is established from the evidence on record. i.e. audio cassettes recorded by the complainant.” 10 Crim-Appeal No.265.10 8. From the aforesaid paragraph, it is evident that no finding has been recorded by the learned Special Judge on this point. In my view, it is a clear case of non-application of mind on the part of the learned Special Judge. The conviction of the appellant for the offences punishable under section 3(1)(ii), 3(2) and 3(4) is, therefore, set aside and quashed. 9. So far as offence of forgery is concerned, the learned Judge in para-49 of his judgment has observed as under: “49. The act alleged against the accused of making false document for getting Sim cards of BPL and Orange Company does not fall within the purview of the offence punishable under Section 466 to 469 of I.P.C. The evidence on record of opinion into handwriting indicates that, a form is submitted in the name of PW-5 Mohd. Iqbal Shaikh. It has similarity with the signature of the accused marked at the place as Q-1 to Q-6. It is in original script. So also, there is similarity of the signature of accused marked as Q-7 to Q-10 with signature on the form of Orange Sim card application and documents thereon. Accused managed to have photograph and details of PW-5. He has forged the document for obtaining the Sim cards. The card obtained by him is for cell no. 11 Crim-Appeal No.265.10 9821934847 of BPL mobile and No.981064588 under range number “98”. It is, thus, proved that Accused No.1 has committed forgery. There is resembles of specimen writing S-1 to S-9 and similarity in signature with specimen writing, as deposed by the witness. Accused, therefore, held guilty for commission of offences punishable under Section 465 r/w. 471 of I.P.C.” 10. In the aforesaid paragraph, the learned Judge has observed that there is similarity in the signature of the accused with the signature on the form for Orange Sim Card application and documents thereof. Surprisingly, the handwriting expert in his evidence has given an opinion that he is not in a position to give any finding on the basis of the specimen signature of the appellant. In his evidence he has stated as under: “In absence of proper and adequate identifying data/material for comparison it has not been made possible to lead any definite opinion as regard the identity or otherwise of the encircled English writing and figures marked as Exhibit Q-15 to Q-22 .....” So far as signature of the appellant is concerned, he 12 Crim-Appeal No.265.10 has given his opinion as under: “Because of want of adequate common identifying data of the material for comparison, it has not been possible to lead any definite opinion as regards the identify or otherwise of the English signatures marked as Exhibit Q-7 to Q-10.” 11. Thus, the finding recorded by the learned Special Judge is contrary to the evidence which is given by the handwriting expert. The learned Judge appears to have recorded the said finding after having examined two documents on his own. This surely is not permissible. Therefore, the said conviction, based on the finding recorded by the learned Special Judge in para-49, will have to be set aside. The conviction of the appellant for the offence punishable under section 465 read with section 471 of I.P.C. is set aside. 12. Lastly, so far as offence punishable under section 386 is concerned, learned Special Judge has recorded finding in para-45 of his judgment as under: “45. Ingredients of Section 386 are; persons commits extortion and he does so by putting any person in fear of death and/or grievous hurt. “Extortion” is defined under 13 Crim-Appeal No.265.10 Section 383 of IPC. I find no need to reproduce this section. Offence is punishable with a term which may extend to 10 years and fine. Ingredients of extortion that a person intentionally puts any person in fear of death. In the present case, Accused no.1 Nazeem @ Raju was calling the complainant by putting him in fear of death, if he fails to satisfy the demand of ransom amount and the call for the person to deliver the property. Accused Raju has accepted a plastic bag containing or believed to be containing the amount of Rs.25 lacs, ransom demanded by him from the complainant and therefore, it completes an extortion though bag may not actually be containing currency notes.” 13. There is no discussion found in the entire judgment except this paragraph and except para-44 wherein the learned Judge has reproduced section 386 of I.P.C. In my view, even assuming for the sake of argument that the plastic bag containing Rs.25 lakh was found in the possession of the appellant that itself does not prove that he had demanded the said money. So far as voice specimen is concerned, surprisingly, the witness examined for that purpose has admitted in his cross-examination that the specimen voice of the complainant was not sent to him. Therefore, in the absence of identification of the voice of the complainant, it cannot be said that the 14 Crim-Appeal No.265.10 prosecution has established that the phone call was made by the appellant and it was received by the complainant. Apart from that, perusal of the transcription of the tape-recorded evidence also does not reveal that the ransom demand was made by the person who had made the telephone call. In my view, therefore, from the evidence on record, the prosecution has not established commission of offence punishable under section 386 of I.P.C. The judgment and order of the trial Court, therefore, will have to be set aside. Hence following order: O R D E R Appeal is allowed. The appellant- accused is acquitted of the offences of which he is charged. The appellant be released forthwith unless he is required in any other case. Appeal is disposed of in the aforesaid terms. (V.M.Kanade, J.) daring