Leena - Kamlesh - Mohanraj - Bail Orders

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON –01.06.2023
% PRONOUNCED ON -11.07.2023
+ BAIL APPLN. 4262/2021

KAMLESH KOTHARI ..... Petitioner
Through: Mr. Vikas Pahwa, Sr. Adv. with
Mr.Pallav Palit, Ms. Raavi Sharma,
Ms. Shreya B., Mr. Paritosh Mandwa,
Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents

Through: Mr. Sanjay Jain, ASG with Ms.
Nandita rao, ASC with Mr. Akhand
Pratap Singh, SPP with Mr. Amit
Peswani and Mr. Saransh, Mr.
Abhinanadan Gautam, Ms. Deeksha
Diwedi, Mr. Nishank Triapthi, Ms.
Harshita Sukhija, Ms. Shruti
Aggarwal, Advs.
ACP Virender Kadyan, Inspector
Shikhar Chaudhary PS EOW
+ BAIL APPLN. 1170/2022

B. MOHAN RAJ ..... Petitioner
Through: Mr. Anand Grover, Sr. Adv. with Mr.
Ravinder Singh, Ms. Raveesha Gupta,
Mr. Arnav Dasgupta, Advs.
versus
THE STATE OF NCT OF DELHI ..... Respondent

BAIL APPLN. 4262/2021, BAIL APPLN. 1170/2022 & BAIL APPLN. 3706/2022 Page 1 of 59
Signature Not Verified
Digitally Signed By:RAJ
BALA
Signing Date:11.07.2023
16:19:02
Aggarwal, Advs.
+ BAIL APPLN. 3706/2022

LEENA PAULOSE ..... Petitioner
Through: Mr. Wills Mathews and Mr. Paul
John Edison, Advs.
versus
STATAE OF DELHI ..... Respondent

Aggarwal, Advs.
.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
S. No Particulars Para Nos.
1. Factual Matrix 1 to 11
2. Submissions on behalf of Petitioners

(i) B.Mohan Raj 12-17
(ii) Kamlesh Kothari 18-25
(iii) Leena Paulose 26-29
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3. Submissions on behalf of State/Respondent 30-34
4. Findings and Conclusion 35-79
JUDGMENT
DINESH KUMAR SHARMA,J :
Factual Matrix
1. The present order shall dispose of the bail application no. 4262/2021 of
Kamlesh Kothari, Bail Application No. of B.Mohanraj and Bail
Application No. Of Leena Paulose. The bail application filed by
Petitioner Kamlesh Kothari in case titled. “State v. Kamlesh Kothari”
was dismissed vide order dated 02.11.2021 by Learned Additional
Sessions Judge. Similarly the bail application filed by Petitioner
B.Mohan Raj in case titled “State v. Sukesh Chadrashekhar & ors” was
dismissed vide order dated 19.01.2022 by Learned Additional Sessions
Judge and the bail application filed by Petitioner Leena Paulose in case
titled “State v. Sukesh Chadrashekhar & ors” was dismissed vide order
dated 02.11.2022 by Learned Additional Sessions Judge.
2. Briefly stated facts of the case are:
i. The present FIR no.208/2021 has been registered under
sections 170, 384, 386, 388, 419, 420, 406, 409, 506, 186, 353,
468, 471, 120-B IPC ; section 66-D of IT Act and sections 3/4
MCOCA at PS Special cell, on the basis of complaint of Ms.
Aditi S.Singh/Complainant alleging therein that on 15.06.2020
she received a call from one landline number on her mobile
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phone in which the caller introduced himself as a senior officer
in Ministry of Law and proposed to help her in securing bail for
her husband who was running in Judicial Custody in cases
related to M/s Religare Enterprises Ltd.
ii. It is alleged that the said caller demanded a sum of Rs.20
Crores from the complainant for getting the work done and
conveyed the modalities regarding delivery of money. The
caller further through his associates extorted money from
complainant on multiple occasions. The extorted money was to
the tune of Rs.214 Crores.
iii. On conducting technical surveillance of the cell phone which
was used by said caller, the identity of the caller was found to
be Sukash Chander Shekhar who was already lodged in Rohini
Jail as UTP in the case of allegedly taking money from
AIADMK leader TTV Dinakaran on the pretext of helping him
retain „two leaves‟ symbol for his party.
iv. The complainant alleged that that she received acall to deliver
Rs 1 Crores on 07.08.2021. On receipt of this information a
trap was laid and accused Pradeep Ramdanee was caught red-
handed while receiving the amount of Rs 1 Crore from the
complainant. Accused Pradeep Ramdanee disclosed that he
collected the money on the instructions of his brother Deepak
Ramnani and at the instance of Pradeep Ramdanee, his
brotherDeepak Ramnani was also arrested. Their interrogation
led to the mastermind Sukesh Chander Shekar who had roped
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both of them to collect the extortion money from the
complainant.
v. A raid was carried out in the intervening night of 07/08.08.2021
by Special Cell and two mobile phones were recovered from
possession of accused Sukesh Chander Sekhar and he was
arrested. The interrogation of the accused, Sukesh Chander
Sekhar led to the identification and arrest of their associates and
co-conspirators. During the investigation, it was revealed that
the accused and his wife Leena Paulose were allegedly
involved in running an organized crime syndicate with their
associates since 2013 with the motive of pecuniary gain by
cheating and extortion. It was further revealed that the accused
Sukesh Chandra Sekhar is involved in several cases of attempt
to murder, criminal intimidation, cheating and extortion by way
of impersonating as high-ranking officials.
vi. During investigation it came in light that accused Leena
Paulose, Kamlesh Kothari, B Mohan Raj, Joel daniel, Arun
Muthu, Subhash Batra and Dharam Singh Meena (both jail
officials) were involved in running the organized crime
syndicate being headed by Sukash and Leena for getting illegal
pecuniary gains and other advantages. As reflected from charge
sheets filed that accused Leena Paulose was earlier involved in
four criminal cases alongwith accused Sukash Chander Shekar
prior to registration of present case.
vii. From the analysis of CDR/IPDR, it was revealed that accused
Leena Paulose was in continuous contact with Sukash through
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cell phone who was using cell phone while in prison with the
help of jail staff. She allegedly procured bank entries in her
account from various entitites/persons to whom she provided
cash, received from Sukash through Hawala transactions with
the help of Joel Daniel Jose, Kamlesh Kothari, B Mohanraj and
Arun Muthu etc. and invested in high end cars, properties and
her business firms. It is stated that 23 High end luxury cars
were seized from her house. Accused Leena allegedly made the
payment of "Silent Calling App" which was being used by
accused Sukash to commit the crime, while he was in jail.
viii. During investigation, accused Leena Paulose, Pradeep ramdani,
Arun Muthu, B. Mohanraj, Joel Danial Jose, Kamlesh Kothari
and Sukashchander Shekar were arrested. The accused
Kamlesh Kothari was arrested on 05.09.2021 and is in judicial
custody since then.
ix. Disclosure statement of accused Arun Muthu, B. Mohanraj,
Joel Danial Jose, Kamlesh Kothari and Sukashchander Shekar
were recorded. During investigation, the confession statement
U/s 18 MCOC Act of accused Sukash chander Shekar, B
Mohan Raj, Dharm Singh Meena, Deepak Ramnani, Avtar
Singh Kochar were recorded.
x. It is mentioned in the charge-sheet as well as report filedthat
accused Deepak Ramdani and his brother Pradeep Ramdani
collected extorted money on the directions of Sukash and
delivered it to pre decided locations and disposed of the
extorted funds obtained from complainant and obtained
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commission on every deal. During investigation, confession
statement of accused Deepak Ramdani was also recorded
wherein he admitted his guilt as well as receiving of proceeds
of crime and that they had knowledge that Sukash was in jail
and the same was ill-gotten money.
xi. It was further revealed inter alia during investigation that
accused Joel Daniel had been facilitating accused Leena in
disposal of cash sent by Sukash while he was in jail in Delhi.
He used to collect the crime proceeds from various HAWALA
Channels on the instruction of accused Leena and B Mohan
Raj. Accused Sukash and Leena invested their ill-gotten money
in jewellery which were purchased in the name of Joel Daniel
Jose. Accused Joel Daniel stated in disclosure statement that Rs
20 Cr, in various tranches, between June, 2020 to October,
2020 were sent through hawala from Dubai by Sukash and the
same were handed over to B Mohanraj for investment in lands
and the same were invested in the name of Raghu, brother in
law of B Mohanraj, land approx 100 acre at Uthiramerur Distt
ChengarPettu. From the documents received from M/s Malabar
Gold Pvt. Ltd. it was found that during the period between
June, 2020to July, 2021 accused Joel and accused Leena have
purchased Gold jewelry worth Rs 4.45 lakh and Rs 2.88 lakh
respectively. Joel Daniel used to reside with Leena and Sukash.
xii. The charge-sheets have already been filed. The role of Kamlesh
Kothari as surfaced in the investigation is that he was
previously involved in two cases. It has further been found that
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Kamlesh Kothari facilitated Sukesh and Leena to purchase the
cars and house out of the extorted funds. He even arranged
Surender Panwar to purchase Lamborgini car in his name from
the extorted funds which was found in the possession of Leena.
He even facilitated in making of rental agreement between
Surender Panwar and M/s Nail Artistry (Leena). After
deducting the tax from the monthly rent Surender Panwar
returned the amount in cash to Kamlesh who delivered the
same to Mohan Raj or Leena. Kamlesh also facilitated to buy
another car „Bentely‟ out of the extorted funds in the name of
M/s Priyanaka Arcade which was found to be in possession of
Leena. Kamlesh‟s brother Manish Kothari also executed hire
purchase agreement with M/s Nail Artistry for three cars to
facilitate the syndicate in turning their black money (extorted
funds) into white money. Kamlesh also introduced his relative
Jitendra Kothari to purchase benami property to the tune of Rs
7 crores on behalf of the syndicate out of the extorted funds in
his name. One rental agreement was also prepared by him with
the aid of another syndicate member namely Mohanraj between
Jitender Kothari and Leena Paulose so that the rental amount
which was transferred by Leena to Jitender can be returned to
her after deducting the tax amount. He and B Mohanraj also
received the cash amount sent by Sukesh through his aids. He
also arranged the bank entries for legitimizing the extorted
funds for the purpose of buying the benami property. Kamlesh
also helped Leena in converting the proceed of crime by
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purchasing the cars bought by Leena from Gaffar Khan with
double the price.
3. During investigation it was found that Leena Paulose was in continuous
contact with her husband and main accused Sukash.It is also a matter of
record that she was previously involved in four cases with
Sukash.Leena also remained in contact with jail officials namely D S
Meena and Subhash Batra and was actively coordinating with Sukesh
and other syndicate members in furtherance of organized crime and
disposal of crime proceeds. It was also revealed that she Procured bank
enteries in her account from various entities/person to whom she
provided cash, received from Sukesh through Hawala with the help of
Mohanraj, Kamlesh, Arun Muthu and Joel Daniel. The investigation
revealed the she purchased high end cars and properties in benami
name. Leena was found in possession of 23 high end cars.
4. The investigation revealed that Leena made the payment of “Silent
Calling App” which was being used by Sukesh in his mobile to commit
the crime while he was in the Jail. In this regard Naufal in his statement
u/s 164 crpc and 161 crpc stated that he used to recharge the mobile
number 9311910260 through his paytm ID 9964666644@paytm with
email address noufuhinda@gmail.com on the instruction of Leena.
Number 9311910260 was found to be used by Sukesh in jail to commit
the crime and was recovered from the possession of Sukesh at the time
of raid in Rohini Jail.
5. During investigation Sarvana Priyan in his statement 161 crpc stated
that he had transferred Rs 1 Crore in the account of Leena Paulose on
his friend‟s direction namely Siva Subramanian. Siva Subramanian
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Chelladurai in his statement 161 crpc stated that he was approached by
Arun Muthu to transfer funds through banking channel in lieu of cash.
He arranged 3 different accounts and transferred Rs 2.20 Cr in the bank
account of Leena Paulose provided by Arun Muthu.
6. During investigation T. Michael in his statement 161 crpc stated that
he had transferred Rs 1 Crore in the bank account of Leena, provided
by Leena to Arun Muthu and Arun Muthu to Siva Subramanian and
finally Siva Subramanian to T Michael. Similarly Jagdish Navin
Kumar in his statement 161 crpc had transferred Rs 2.90 Cr. from
different accounts into the bank account of Leena‟s firm M/s Super Car
Artistry on the commission of 1%. During investigation Alok Damani
in his statement 161 crpc stated that he was contacted by one person
namely Sunil Kumar from mobile No.+17242765376 and he
introduced himself as secretary to accused Leena Paulose and Mr.
Shekhar office and handles their firm M/s LS corporation. After that
Alok Damani received a call from accused Leena Paulose from mobile
No.8011151608 for booking another artist for an event in Kochi. Leena
stated that Mr. Sunil shared his number with her and also advised to
book a celebrity for Kochi event.
7. During investigation Nora Fatehi in her statement u/s 161 and 164 crpc
stated that she attended a charitable event in Chennai organized by
accused Leena Paulose for her firm M/s LS corporation. On the day of
event in Chennai, prior to the event, she was in her hotel room. Leena
came in her Hotel Room and made her talk to her husband Sukash
Chandra Shekar on her mobile phone. During investigation Shoby T.
Paul in his statement u/s 161 crpc stated that through him Leena
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booked charted flights for Sukesh Chandra Shekhar. Investigation
revealed that an amount of Rs. 21 Crores were deposited into the above
mentioned five bank accounts maintained by Leena Paulose which
were either in her own name or in the name of her Proprietorship
concerns.
8. During investigation B. Mohanraj in his confessional statement
revealed that he knew that Sukesh was serial offender and has been
arrested number of times. B Mohanraj knew Sukesh since 2013 and
even appeared for him in Courts. He not only facilitated the purchase of
cars but also handled the delivery of cash. B. Mohanraj organised f
persons who could arrange transactions to route the money through
banking transactions. He was also instrumental in purchase of a huge
property worth crores in Chennai, which was a benami property of
accused Leena which has been purchased in the name of Jitendra
Kothari on the instructions of Kamlesh Kothari, giving the cash back to
Leena after receiving from Kamlesh Kothari. Accused prepared a rent
agreement with the knowledge that he was preparing a sham agreement
for a benami property. The above acts of the applicant do not come
under the discharge of his duties as an advocate. These acts were in the
nature of facilitating the activities of the organized crime syndicate
with the full knowledge that there was no legal source of income for
syndicate headed by Sukesh. Also the presence of B Mohanraj mobile
number in the data provided by Hushed App also clearly establishes
that Sukesh while running into Judicial Custody was in direct touch
with B Mohan Raj to fulfill the objectives of the syndicate.
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9. In his confessional statement petitioner B.Mohanraj stated that while he
was handling the case of Sukash and Leena he found that they were
working as a group and obtaining lots of money from their activities
and he got into managing their funds. Petitioner B. Mohanraj stated
that co-accused Sukash and Leena gave him lots of commissions and
over the time, he became integral part of their group. Petitioner
B.Mohanraj specifically stated that though overtly he was managing
their legal affairs, but covertly he was managing their funds obtained
from their illegal activities. In the disclosure statement petitioner
B.Mohanraj submitted that he was continuously in touch with Sukash
and Leena since 2015 when they were arrested by EOW Mubbai for
running a Ponzi Scheme.
10. It also came in the disclosure statement that petitioner B.Mohanraj had
introduced his friend Kamlesh Kothari, a high-end car dealer in T
Nagar to Leena from whom Leena bought 3 cars, Range Rover Sport,
Bentley and Fortuner. It was stated that the cars were bought in cash
on paper and payments were made by others. Petitioner B.Mohanraj
stated that he and Kamlesh arranged all this and got huge commission.
It has also come in the disclosure statement of Petitioner B.Mohanraj
that Sukash called him on Telegram and asked him to buy a house for
Leena in some other person‟s name during August 2020 which he
discussed with Kamlesh Kothari and finalized the deal. Petitioner
B.Mohanraj stated that Sukash sent cash Rs.7.75 Crores through
Sudheer and Joel and handed over the money to Kamlesh Kothari at his
office at T. Nagar in his presence.
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11. It came in the disclosure statement of B.Mohanraj that Leena occupied
the said house and did the renovation work. It was also came in the
statement that a rental agreement for this house was entered between
Leena and Jitendra Kothari for Rs 2.5 lakhs, from January 2021 and
Leena used to send the monthly rent through RTGS to Jitendra Kothari
and he in turn used to deduct the tax amount and return the balance
amount to Kamlesh Kothari and he used to get that amount and hand it
over to Leena. In confessional statement under Section 18 MCOCA of
Sukesh Chandrashekhar he also indicated the role of petitioner
B.Mohan raj. It came in his disclosure statement that the cash was
delivered to B. Mohan Raj and he further delivered to Kamlesh Kothari
and Arun Muthu. Sukash also stated in his confessional statement that
petitioner B. Mohan Raj arranged some entity for purchasing house
also and petitioner Mohan Raj and Kamlesh connected them to Jitender
Kothari and brought house at 12/13, Kannnathur Village, opp Mayajaal
Cinemas, ECR, Chennai in name of Jitender Kothari in August 2020.
SUBMISSIONS OF BEHALF PETITIONER B.MOHAN RAJ
12. Mr.Anand Grover, learned senior counsel for Mr.B.Mohanraj has
submitted that the prosecution has failed to show any reasonable
ground for believing that petitioner B.Mohanraj has committed the
alleged offence and there are no allegations in the chargesheet of
committing under IPC or IT Act. It has been submitted that the case of
the prosecution against the petitioner is that he helped main accused
Sukesh Chandrashekar, and his wife Leena in conduiting money for the
Main accused and in facilitating the purchase of properties and cars. It
was submitted that even if this allegation is taken at face value as
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contended by the Respondent, prima facie the petitioner has not
committed any offence u/s 170 / 384 /386 /419 /420 /406 /409 /468
/471 /186 /353 / 506 /120B IPC & 66-D IT Act. Learned senior
counsel submitted that the perusal of the charge sheet would not reveal
any act which may constitute an „organised crime‟ as defined under
Section 3 (1) of the MCOCA. It has been submitted that „organized
crime‟ requires ‘continuing unlawful activity’ by an individual, singly
or jointly, as a member of an organised crime syndicate. Learned senior
counsel submitted that in order to constitute ‘Continuing unlawful
activity’ it is necessary that: a) The accused has engaged in activity
prohibited by law, cognizable and punishable with imprisonment of
three years or more; b) The accused has undertaken that activity as a
member of an organized crime syndicate or on behalf of such
syndicate; c) In respect of the accused more than one charge-sheet has
been filed and cognizance is taken by the competent Court in the last
10 years.Learned senior counsel submittedthat there is no allegation
that the Applicant has engaged in continuing unlawful activity. Learned
senior counsel submitted that the list of previous cases of criminal
conspiracy and other offences as stated in the charge-sheet only reflect
on the activities of other co-accused regarding their impersonation as
government officers and such acts cannot be attributed to the applicant
in any of the cases. It has been submitted that therefore no offence
under Section 3(1) \(i) of the Act. Learned senior counsel has submitted
that prosecution has alleged that that the Applicant was in possession of
unaccountable wealth in terms of land and monies however, the
investigation could not substantiate the allegation. It has also been
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submitted that there is no allegation in the chargesheet qua the
applicant before the alleged commission of extortion or during the
course of extortion. It has been submitted that even as per case of the
prosecution, the role of the applicant started after extortion was over on
the ground that he allegedly facilitated the buying of properties for
Leena Paulose, wife of the main accused Sukesh Chandrashekar.
Learned senior counsel submitted that admittedly Petitioner had been
the lawyer for the main accused in many matters and he was acting in
his capacity as the lawyer and therefore there is nothing on record to
suggest that petitioner B.Mohanraj was member in any organised crime
syndicate or had any connection, link or nexus. Reliance has been
placed upon Ranjitsing Brahmajeetsing v. State of Maharashtra
(2005) 5 SCC 294.
13. It has further been submitted that the prosecution has only brought on
record the statements of the Accused and the co-accused that the
petitioner was requested by Sukash to buy properties for his wife
Leena, in the form of cars and houses. It has been submitted that this
alone does not constitute any offence. It has further been submitted that
the prosecution is duty bound to bring legally admissible evidence
against the petitioner and the role attributed to others cannot be
attributed to the petitioner. Learned senior counsel submitted that the
confession as recorded under Section 18 of MCOCA cannot be used
against the petitioner. It has been submitted that the statement of the
petitioner was taken forcibly under coercion. The petitioner was
harassed physically and mentally. In any case, It has been submitted
that the petitioner retracted the statement. Learned senior counsel
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submitted that the procedure prescribed under Section 18 of MCOCA
was not complied with, therefore the confessional statement cannot be
read against the accused. It has further been submitted that the cooling
off period as provided in MCOCA Maharshtra Rules has not been
complied with in this case.
14. Learned senior counsel submitted that even the disclosure statement of
the petitioner establish that the petitioner was not a member of
organised crime syndicate and that he was the lawyer for the Main
Accused, Sukesh Chandrashekhar and his wife, Leena. Learned senior
counsel took the court through the statement of the petitioner
B.Mohanraj to emphasise that he had no role to play in the organised
crime syndicate. Learned senior counsel further submitted that the
disclosure statements by other co-accused co-conspirator namely,
Leena Paulose, Arun Muthu, Kamlesh Kothari, Joel Daniel Jose were
forcibly taken and are not in compliance the sec 18 of MCOCA. It has
been submitted that in any case the confession of co-accused do not
constitute substantive evidence. The reliance has been placed upon
Kashmira Singh v State of HP Cr.MP(M) No.1741 of 2020; Hari
Charan Kurmi v State of Bihar (1964) 6 SCR 623 ; Param Hans
Yadav v State of Bihar (1987) 2 SCC 197; Kalpnath Rai v State
(1997) 8 SCC 732; Jayendra Saraswathi v State of Tamil Nadu
(2005) 2 SCC 13; Mahabir Viswas v State of West Bengal.
15. Learned senior counsel has also submitted that the case of the
prosecution is based on statement/confession recorded under Section
18(3) of MCOCA which requires that a certificate of the police officer
recording the statement must be there at the bottom of the confession
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after the statement is recorded. It has been submitted that in all the
statements that are recorded under Section 18 (3) of the Act, there is no
certificate of the officers and therefore statements which do not comply
with the mandate of Section 18 (3) of the Act cannot be relied upon.
Learned senior counsel further emphasized that the disclosure
statement by co-accused/co-conspirators are not voluntary.
16. Learned senior counsel further submitted that the Facts stated or acts
done after the conspiracy is over are not admissible. It has been
submitted that in the present case, the conspiracy was to extort money
from the Complainant and even as per the Prosecution, it is long after
the alleged extortion that the role of the Applicant allegedly crops up.
Learned senior counsel further submitted that the material against the
Applicant shows that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail. Learned senior counsel has also assailed the
sanction order and stated that it is not valid and even cognizance could
not have been taken. Learned senior counsel submitted that while
granting sanction, authority has to examine the individual role of the
accused. It has further been submitted that the sanction Order merely
stated that the main accused Sukesh and Leena formed an organized
crime syndicate with assistance from arrested members of the syndicate
and even the names of the members of the crime syndicate were not
indicated. Learned senior counsel submitted that the validity of the
sanction is required to be seen even at the stage of bail. Learned senior
counsel further submitted that petitioner was arrested on 05.09.2021.
The investigation is complete. The charge-sheet has been filed and
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charges are yet to be framed. It has further been submitted that the
prosecution has cited 203 witnesses and it will be a very lengthy trial,
therefore, the petitioner may be released on bail. It has been submitted
that the petitioner is a lawyer and has roots in the society and has no
criminal antecedents. It has further been submitted that the petitioner is
married and has a small child and old sick father. It has been submitted
that there is no flight risk.
17. Learned senior counsel has also assailed the arguments of the
prosecution that mobile number of the petitioner B.Mohanraj
9884477669 was found in the data provided by Hushed App. It was
submitted that the plea of the prosecution that Sukesh used virtual
number 44753105176 and +16692594162 to contact complainant of the
present case and both the virtual numbers were subscribed with Hushed
App. is a new case set up by the prosecution only to defeat the right of
the petitioner. In support of his contention, learned senior counsel has
placed reliance upon UOI vs. KA Najeeb 2021 SCC OnLine SC 50,
Junaid vs. State of GujaratSLP Crl. No.11608/2022, Raju Ram vs.
state of Bihar SLP Crl. No.307/2023, Dhiraj Kumar Shukla vs. State
of UP SLP Crl. No.6690/2022, Jitendera Jain vs. NCB & Anr. SLP
Crl.No.8900/2022 and AbulHossain Mondal vs. state of WB SLP Crl.
3400/2022.
SUBMISSIONS ON BEHALF OF PETITIONER KAMLESH
KOTHARI
18. Mr.Vikas Pahwa, learned senior counsel for the petitioner Kamlesh
Kothari submitted that there is no evidence to establish any nexus
whatsoever between the Petitioner and the offences as alleged in the
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FIR. It has been submitted that the petitioner is a law-abiding citizen
who has been wrongfully and maliciously dragged into criminal
proceedings arising out of the FIR. It has been submitted that even if
facts of the allegations as asserted in the FIR are taken to be true, the
offences in the FIR are not made out as provisions of MCOCA, 1999
are not applicable to the petitioner. Learned senior counsel submitted
that the applicant is not an accused in any of the charge-sheet filed
against the accused persons. It has been submitted that in order to
invoke the provisions of MCOCA,1999 against a person alleging him
to be involved in the commission of any „organized crime‟ by acting as
a member of an „organised crime syndicate‟ or on its behalf, it is
necessary for the prosecution to demonstrate that two chargesheets
filed against the accused in question in the preceding 10 years from the
crime in consideration, wherein he/ she has been co-accused with at
least one of the other co-accused persons. Learned senior counsel
submitted that there is neither a single registered crime nor a
chargesheet which has been filed or cognizance has been taken by any
court wherein the present petitioner Kamlesh Kothari is co-accused. It
has further been submitted that theSanction Order dated 31st October
2021 (or 1st November 2021) is illegal and unsustainable. Learned
senior counsel further submitted that the essential ingredients of the
offence u/s 3 of the MCOCA are not made out against the applicant as
the provision requires the applicant to have abetted the commission of
extortion and not the alleged illegal purchase of cars. Learned senior
counsel submitted that the necessary ingredient to attribute Section 3
(2) of MCOCA is „knowingly‟. It has been submitted that therefore it
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is necessary for the prosecution to establish that petitioner had the
knowledge of the crime alleged.
19. Learned senior counsel submitted that the allegations against the
petitioner is limited to arranging/facilitating sale of car and real
property to Leena Paulose, for which he has allegedly received
commission. However, there is no material on record to substantiate
this allegation. Learned senior counsel submitted that even otherwise
selling a car or arranging buyer for such cars for a monetary
commission is not an activity prohibited in law and as such does not
attract the charges levied against the Petitioner. Learned senior counsel
submitted that the roleof the petitioner as per the chargesheet is only
limited to the sale and purchase of luxury cars by Leena Paulose and a
real estate property in Chennai. It has been submitted that there is no
material whatsoever to indicate any connection between the Petitioner
and the principal accused, Sukash or any role of the Petitioner in the
crime of extortion which took place in Delhi in June-July 2020. It has
been submitted that further there is not even a shred of evidence to
show that the Petitioner was the beneficiary of the monies extorted
from the complainant. Learned senior counsel submitted that there is no
allegation that the petitioner had the knowledge, intent or mens rea.
Learned senior counsel further submitted that the petitioner Kamlesh
Kothari was approached by co-accused B.Mohanrajon behalf, Leena
Paulose (proprietor of M/s Nail Artistry and M/s Supercar Artistry),
who wanted to purchase luxury cars on finance for the family. It has
been submitted that the petitioner‟s family has only financed cars
forM/s Nail Artistry under legitimate hire purchase agreements and
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further bought cars from M/s Supercar Artistry, which in the course of
their usual business, where they deal and transact with multiple
customers. Learned senior counsel submitted that even as per charge-
sheet the petitioner has only received a sum of Rs.23,50,000/- as
commission on sale of cars and not the extortion amount of Rs. 200 Cr.
It has been submitted that there is not even an iota of evidence to show
the nexus of the petitioner with the extortion activity alleged to be
committed against the complainant. It has been submitted that even as
per fact the complainant received the first call from the main accused
on 15th June 2020 whereas the first payment of extortion was made by
complainant in July 2020. It has further been submitted that petitioner
had sold the first car to Nail Artistry under hire purchase agreement
dated 15th June 2020 i.e. before the first payment made in the present
crime of extortion. Learned senior counsel submitted that the same
reflects that the Petitioner was merely transacting with the co-Accused
Leena Paulose‟s firms in the regular course of his business.
20. Learned senior counsel submitted that the only evidence sought to be
relied against the petitioner are the Disclosure Statementu/s 18 of
MCOCA of co- accused persons, Sukash and B.Mohan Raj. Learned
senior counsel submitted that even these disclosure statements do not
indicate the Petitioner to be involved in the crimes or having
knowledge of the same that the money being used for purchasing cars
were the proceeds the crime arising from alleged crimes against the
complainant.
21. It has further been submitted that even B. Mohanraj in his confessional
statement revealed that the Petitioner had rejected the offer for taking
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cash of 1 crore and transmitting funds for purchase of vehicle for M/s
Supercar Artistry of Leena. Learned senior counsel submitted that if the
Petitioner was a part of the alleged crime syndicate acting on
instructions of syndicate leaders, then there would been no reason or
occasion for the Petitioner to decline the instruction/ offer extended by
Sukash Chander Shekahr to take 1 crore rupees . It has further been
submitted that even otherwise such disclosure statements are
inadmissible and cannot be relied upon as proper procedure under
Section 18 of MCOCA was not followed by the investigating authority.
It has further been submitted that even otherwise co-accused Sukash
and B.Mohanraj have retracted the statements.
22. Learned senior counsel further submitted that learned trial court
granted the bail to Joel Daniel Jose whereby rejecting the disclosure
statements given bySukash Chandrashekar and B.Mohan Raj. Learned
senior counsel submitted that the confessional statements can only be
acted upon if it has been corroborated by independent evidence.
Reliance has been placed upon Tofan Singh v State of Tamil Nadu
(2021) 4 SCC 1. Learned senior counsel submitted that compliance to
Section 18 of MCOCA has not been followed while recording the
confessional statements and granting the sanction. Learned senior
counsel submitted that that petitioner completely fulfils the triple test. It
has further been submitted that since the trial will take a long time, the
petitioner is entitled to be admitted to bail.
23. Learned senior counsel has placed reliance upon Mohd.Muslim vs.
State of NCT of Delhi, 2023 SCC OnLine 352, where it has been inter
alia held that if the court is reasonably satisfied on a prima facie look at
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the material on record (whenever the bail application is made) that the
accused is not guilty, bail should be granted to the accused. Learned
senior counsel has also placed reliance upon Mohamad Iliyas
Mohamad Bilal Kapadia v The State of Gujrat, SLP (Crl) No. 1815 of
2022 decided on 30th May 2022 to buttress his contention that
minimum two charge sheets are required where applicant/accused has
been previously accused with other members of the alleged crime
synidicate to establish unlawful activity which is an essential
requirement for invoking the crime under Section 3 of MOCOCA in
relation to the applicant/accused. Learned senior counsel also placed
reliance upon State of Maharastra v Lalit Somdatta Nagpal, (2007) 4
SCC 171 in which it was inter alia held that if the material is not
available to show that accused has been involved in any continuing
unlawful activity the MOCOCA should not be invoked. In this regard
reference has also been made to Mahipal Singh v Central Bureau of
Investigation & Anr, (2014) 11 SCC 282. Learned senior counsel has
also placed reliance upon State of Maharastra v Rahul Ramchandra
Taru, Criminal Appeal No. 239 of 2011 decided on 6th May 2011
wherein it wasinter-alia held thatone or more chargesheets, containing
allegations that the alleged offence was committed either singly or
jointly as a member of the organized crime syndicate or on behalf of
such syndicate, is sine qua non for invoking stringent provisions of
MCOCA. It was further held that mere filing of more than one
chargesheets within the preceding period of ten years, alleging
commission of cognizable offence punishable with imprisonment of
three years or more, is not enough.
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24. Learned senior counsel also submitted that the reliance of the
prosecution on Kavitha Lankesh v State of Karnataka 2022 12 SCC
753; 2021 OnLine SC 956 is not applicable as the issue under
consideration before the Hon‟ble Supreme Court was regarding the
quashing of prior approval under Section 21 (4) of MCOCA. It was
submitted that in this case it was inter alia held that on the facts of the
aforementioned case the FIR was registered against unknown persons
and observations were made in the context of initial stage of
investigation and it did not pertain to the question of grant of bail,
therefore it did not involve any consideration as regards the essential
requirement of establishment of continuing unlawful activity i.e.
presence of two chargesheets for invocation of MCOCA against the
accused as was the case in the aforesaid judgment.
25. Learned senior counsel further submitted that reliance of prosecution
on Zakir Abdul Mirajkar vs. State of Maharashtra 2022 SCC OnLIne
1092 is also not applicable as the aforesaid judgment does not consider
that Section 23 (1) (a) of the Act is applicable when case is at initial
stage and not when detailed and roving enquiry has already been made.
Learned senior counsel further submitted that the statement under
Section 18 of MCOCA and statement made under Section 164 and 161
cannot be relied upon to deny bail to the petitioner.
SUBMISSIONS ON BEHALF OF THE PETITIONER LEENA
PAULOSE
26. Mr. Wills Mathews, learned counsel for the petitioner Leena Paulose
submitted that the petitioner was falsely arrested in this case on
20.09.2021. It has been submitted that the petitioner is a Dentist
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Doctor / Model, Actor, successful Business Women, with strong roots
in society, and belongs to a respectable and educated family. It has
been submitted that the petitioner in good faith and as a dutiful wife,
complied with many of the suggestions/ demands of her accused
husband in good faith, without understanding various alleged issues
and consequences involved. It has been submitted that the petitioner
was made to understand that, the amount credited in her Bank account
are all loans taken/arranged by her husband for business and there was
nothing to disbelieve her husband and the applicant was paying the
EMI for the Loan as is generally done.
27. It has further been submitted that the petitioner was earning well as
reflected from the Income Tax Return filed for the assessment year
2020 -2021 showing an income of Rs.43,69,050.00. Learned counsel
submitted that the allegations are baseless and petitioner has been
implicated only because she is the wife of the main accused. Learned
counsel submitted that there is no case of unjust, dishonest or malafide
intentions attributed to the petitioner and the petitioner is innocent. It
has further been submitted that the continuous detention of the
petitioner is in violation of the Article 21 of the Constitution of India as
she was denied the life with dignity. It has further been submitted that
the petitioner who is 41 years of age and still does not have a child as
she had suffered miscarriage in the past. It has been submitted that it is
her right to conceive and have child and any order denying that right
would be in violation of the fundamental rights as enshrined in the
Constitution of India. Learned counsel for the petitioner submitted that
the petitioner is not threat to the society and her release is necessary for
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the proper conduct of the case. Learned counsel for the petitioner
submitted that the petitioner is not a beneficiary of the crime receipts.
28. It has been submitted that the petitioner has already been granted bail
in (i) case No 33/201 5 u/s 420, 120B IPC &3,4 Price Chits &Money
Circulation Act, EOW, Mumbai (ii) FIR No 186 / 2017 U/s 7/12/13
POC Act &120B IPC, (iii) Cr No 24/20 13 U/s 406 , 409,420 r/w 34
IPC &under section 66 0 of Information Technology Act, (iv) in Crime
No 64/20 1, RC 63/E/20 14 /BSFC u/s 406 ,409 ,420, 120B IPC &13
(2) r/w 13 (1) (d) of PC Act, 1988 , Chennai. It has been submitted that
in this case even the applicant was not charge sheeted and was dropped
from the case. It has further been submitted that the petitioner is a sick
woman suffering from depression, with no previous conviction, is
entitled to be admitted to bail. It has been submitted that the petitioner
has always joined the investigation and now since charge sheet has
been filed there would be no purpose of keeping the petitioner in
custody. It has been submitted that the petitioner had employed 40
persons and their future is also uncertain because of the petitioner‟s
continuous detention.
29. Learned counsel for the petitioner submitted that all the transactions of
the applicant were through Banking channels in the most transparent
manner, bonafidely and there is no recovery of any cash/proceeds of
crime from the petitioner. Learned counsel submitted that therefore the
petitioner is entitled to be admitted to bail.
SUBMISSIONS ON BEHALF OF RESPONDENTS
30. Mr.Sanjay Jain, learned ASG for the State has submitted that the
allegations against the petitioners are very serious in nature and they
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are not entitled to be admitted to bail. Learned ASG submitted that the
learned special judge has rightly rejected the bail application of the
petitioners vide a detailed and reasoned order and there is no ground to
interfere in the same. Learned ASG submitted that the all the
petitioners have been active member of the organized crime syndicate
being run by Sukash Chander Shekhar for carrying out an organized
crime. Learned ASG submitted that the requirement of filing of more
than one chargesheets as specified under Section 2 (1) (d) of MCOCA
is not individual centric but is syndicate centric and this aspect is
already settled by the Hon‟ble Supreme Court in Kavitha Lankesh v.
State of Karnataka and Others; (2022) 12 SCC 753. Reliance has also
been placed upon Zakir Abdul Mirajkar (supra). Learned ASG
submitted that in MCOCA a person can be prosecuted even if his role
is of a facilitator or of an abettor as referred to in Sections 3 (2), 3 (3), 3
(4) or 3 (5) of MCOCA. Learned ASG submitted that in the present
case the provisions of MCOCA were added in a pre-existing FIR
bearing No.: 208 of 2021, registered by Special Cell, Delhi Police, u/s.:
170, 186, 384, 386, 388, 419, 420, 353, 506 and 120-B of IPC r/w.
Section 66-D of Information and Technology Act, 2000. Learned ASG
submitted that to attribute MCOCA, it is not mandatory that each
member of the syndicate should have a direct role to play in the
foundational crime. Learned ASG submitted that if any individual abets
(as defined u/s. 2(1)(a)(i) and (iii) of the MCOCA as distinct from the
definition of the said expression under IPC in the commission of crime
while the same is being committed the organised crime syndicate or in
other words facilitates the continuing commission of the crime by or on
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behalf of the syndicate, such an individual will attract all the trappings
of being a member of the organised crime syndicate and can be charged
under the provisions of the MCOCA as part of the syndicate. Learned
ASG submitted that one member of the syndicate need not necessarily
have the same or similar role as another member of the syndicate
concerned. Reliance has been placed upon Ranjitsing Brahmajeetsing
(supra). Learned ASG submitted that it is a settled proposition that
mere membership/nexus with the organised crime syndicate is
sufficient to prosecute under MCOCA. Reliance has been placed upon
Sachin Bansilal Ghaiwal v. State of Maharashtra; (2014) SCC
OnLine Bom 725.
31. Learned ASG submitted that confession recorded under Section 18 of
MCOCA is admissible against the person making it as well as against
the co-accused. It is submitted that legal position as regards the
confession u/s. 18 of the MCOCA is that the factors such as voluntary
nature of the confession, the procedural requirements of recording of
the statements and the other aspects including retraction can be gone
into only at the stage of the trial and not before. It has further been
submitted that MCOCA Rules 1999 have not been made applicable in
Delhi.
32. Learned ASG submitted that the challenge to the procedural
irregularities, if any, can be gone into only at the stage of trial and not
for the purposes of bail. Learned ASG submitted that it is a settled
proposition that the confessional statements recorded under Section 18
of MCOCA is applicable to the other co-accused as well. Reliance has
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been placed upon Mohd. Farooq Abdul Gafur v. State of
Maharashtra, (2010) 14 SCC 641.
33. In regard to the approval under Section 23 (1) (a) and 23 (2) of
MCOCA, it has been submitted that in the Approval Order u/s. 23
(1)(a) of MCOCA it is not necessary to include thenames of all the
members at the threshold stage. It has been submitted that as the
investigation proceeds, revealing the involvement and identity of more
and more members, their names can always be added later on. Reliance
has been placed upon Vinod G. Asrani v. State of Maharashtra;
(2007) 3 SCC 633. It has also been submitted that the approval order
under Section 23 (1) (a) of MCOCA is with respect to the offence and
not with respect to the offender. Learned ASG submitted that validity
for sanction for the prosecution under Section 23 (2) of MCOCA is a
matter of trial. Learned ASG submitted that under Section 21 (4) of
MCOCA, it is necessary that accused must pass the twin conditions as
prescribed under Section 21 (4) of MCOCA for grant of bail.
34. Learned ASG has also placed reliance on the Confessional statement
u/s 18 MCOC Act of Dharam Singh Meena, statements under Section
164 Cr.P.C. of Jitendra Kothari and statement of Gaffar Khan under
Section 161 Cr.P.C. Reliance has also been placed upon disclosure
statement of accused Arun Mutthu indicating the role of petitioner
B.Mohan Raj. Learned ASG highlighted the role of the petitioners as
revealed during the course of investigation which has been discussed in
earlier part of this order, and has not been discussed here to avoid
repetition.
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FINDINGS AND CONCLUSION
35. The Maharashtra Control of Organised Crime Act, 1999 was enacted to
make special provisions for prevention and control of, and for coping
with, criminal activity by organized crime syndicate or gang, and for
matters connected therewith or incidental thereto.
36. Continuing unlawful activity is defined under Section 2 (d) of MCOCA
as under:
(d) “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 organised crime
syndicate or on behalf of such syndicate in respect of which more
than one charge-sheets have been filed before a comptent Court
within the preceding period of ten years and that Court has taken
cognizance of such offence ;
37. Section 2 (e) of MCOCA defines „organised crime‟, which reads as

under:
(e) “organised crime” means any continuing unlawful activity by
an individual, singly or jointly, either as a member of an
organised 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
38. The MCOCA was made applicable to the National Capital Territory of
Delhi by Ministry of Home Affairs by virtue of a order dated
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02.01.2002. It is a matter of record that MCOCA Rules, 1999 were
not brought in force.
39. The plea on behalf of B.Mohanraj and Kamlesh Kothari is that there is
requirement of more than one chargesheets as defined under Section 2
(1) (d) of MCOCA. The reading of Section 2 (1) (d) indicates that 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 organised
crime syndicate or on behalf of such syndicate is a continuing unlawful
activity, if in respect of such offence more than one charge-sheets have
been filed before a competent Court within the preceding period of ten
years and that Court has taken cognizance of such offence. However,
this question has come up for consideration before the Supreme court
in Kavitha Lankesh (supra) wherein it was held that requirement of
more than one charge-sheets is in reference to the continuing unlawful
activities of the organised crime syndicate and not qua individual
member thereof.
40. Similarly, in Zakir Abdul Mirajkar (supra) the Supreme court has
inter alia held that it is settled law that that more than one charge sheet
is required to be filed in respect of the organized crime syndicate and
not in respect of each person who is alleged to be a member of such a
syndicate.
41. Similarly in Govind Sakharam Ubhe v. State of Maharashtra; (2009)
SCC Online Bom 770, it was inter alia held that if within a period of
preceding ten years, one charge-sheet has been filed in respect of
organized crime committed by the members of a particular crime
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syndicate, the said charge-sheet can be taken against a member of the
said crime syndicate for the purpose of application of the MCOCA
against him even if he is involved in one case.
42. In fact dealing with all these judgments makes it clear that the salient
point in the nexus or link with the “organized crime syndicate” is
basically the foundation and a person can be prosecuted if the link is
established. It is not necessary that the persons who are alleged to be
members of organized crime syndicate have more than one
chargesheets filed against them in an individual capacity. The
prerequisite condition is that chargesheet should have been filed against
the syndicate. Thus, second proposition seems to be that the
chargesheet in respect to the organized crime syndicate is sufficient to
fulfill the conditions under Section 2 (1) (d) of MCOCA. A provisions
of MCOCA can be attributed if a person is found to be a facilitator or
of an abettor as referred to in Sections 3 (2), 3 (3), 3 (4) or 3 (5) of
MCOCA.
43. In Digvijay Saroha v. State; 2019 SCC Online Del 10324, it has inter-
alia been held as under:
“ I have heard the learned counsel for the petitioner and the
learned APP for the State and am of the opinion that there is no
merit in the bail application as there is sufficient material
available on record to, prima facie, indicate the involvement of
the petitioner in abetting, conspiring and knowingly facilitating
the commission of organized crime alleged to have been carried
out by Jitender @ Gogi and his associates. The judgments cited
by Ld. Counsel for the petitioner on sanction are not relevant
for the reason that prosecution has categorically submitted that
all relevant material was placed before Sanctioning Authority
before grant of sanction and moreover at the stage of bail, the
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Court is not required to go into the facts in detail and give a
finding that sanction is in accordance with law or not. This
issue will be decided by the Ld. Trial Court at appropriate stage
during the trial. So far as contention of Ld. Counsel that since
two chargesheets were not in existence against the petitioner at
the time of invocation of provisions of MCOCA and, therefore,
requirement of Sec. 2(d) of the MCOC Act is not fulfilled, is
concerned, there are two judgments to refute the said
submission. One is that of Bombay High Court and another one
is of Hon'ble Supreme Court. The Hon'ble Division Bench of
Bombay High Court in a case titled „Govind Sakharam
Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770‟, has
interpreted the words “in respect of which more than one
charge-sheet have been filed” used in section 2(d) of the Act
and has held as follows:
“35. It is now necessary to go to the definition of
„continuing unlawful activity‟. Section 2(1)(d) defines
„continuing unlawful activity‟ to mean 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 chargesheet have been filed
before a competent court within the preceding ten years and
that court have taken cognizance of such offence. Thus, for
an activity to be a „continuing unlawful activity‟ -
a) the activity must be prohibited by law;
b) it must be a cognizable offence punishable with
imprisonment of three years or more;
c) it must be undertaken singly or jointly;
d) it must be undertaken as a member of an organized
crime syndicate or on behalf of such syndicate
e) in respect of which more than one charge-sheet have
been filed before a competent court.
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36. The words „in respect of which more than one
charge-sheet have been filed‟ cannot go with the words „a
member of a crime syndicate‟ because in that case, these
words would have read as „in respect of whom more than
one charge-sheet have been filed‟.
37. A person may be a part of the module which jointly
undertakes an organized crime or he may singly as a
member of the organized crime syndicate or on behalf of
such syndicate undertake an organized crime. In both the
situations, the MCOCA can be applied. It is the membership
of organized crime syndicate which makes a person liable
under the MCOCA. This is evident from section 3(4) of the
MCOCA which states that any person who is a member of an
organized crime syndicate shall be punished 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 fine, subject to a minimum of fine of
Rs. 5 lakhs. The charge under the MCOCA ropes in a person
who as a member of the organized crime syndicate commits
organized crime i.e. acts of extortion by giving threats, etc.
to gain economic advantage or supremacy, as a member of
the crime syndicate singly or jointly. Charge is in respect of
unlawful activities of the organized crime syndicate.
38. In order to substantiate our construction of Section
2(1)(d) of the MCOCA, we will take hypothetical example of
accused 1(A), accused 2(B), accused 3(C) and accused 4(D),
who are members of the organized crime syndicate and who
have committed crimes within preceding ten years. Insofar
as accused A is concerned, it is alleged that he has
committed an offence resulting in the death of any person
which is punishable with death or imprisonment for life as
described in Section 3(1) of the MCOCA. Accordingly, one
charge-sheet is filed against him. Insofar as accused B is
concerned, it is alleged that he has committed an offence
resulting in the death of any person which is punishable with
death or imprisonment for life as described in Section 3(2) of
the MCOCA. Accordingly, one charge-sheet is filed against
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him. Likewise, insofar as accused C is concerned, it is
alleged that he has committed an offence resulting in the
death of any person which is punishable with death or
imprisonment for life as described in Section 3(3) of the
MCOCA. Accordingly, one charge-sheet is filed against him.
Finally, it is alleged that accused D is a member of
organized crime syndicate as described in Section 3(4) of the
MCOCA and as such has indulged in organized crime and
against whom also one charge-sheet is filed.
39. The submission on behalf of the appellant is that even
though all the four accused namely, A, B, C and D may be
members of the organized crime syndicate since against
each of the accused not more than one chargesheet is filed, it
cannot be held that they are engaged in continuing unlawful
activity as contemplated under Section 2(1)(d) of the
MCOCA. Apart from the reasons which we have given
hereinabove as to why such a construction is not possible,
having regard to the object with which the MCOCA was
enacted, namely to make special provisions for prevention
and control of organized crime syndicate and for coping
with criminal activity by organized crime syndicate, in our
opinion, Section 2(1)(d) cannot be so construed. Such a
construction will defeat the object of the MCOCA. What is
contemplated under Section 2(1)(d) of the MCOCA is that
activities prohibited by law for the time being in force which
are punishable as described therein have been undertaken
either singly or jointly as a member of organized crime
syndicate and in respect of which more than one charge-
sheets have been filed. Stress is on the unlawful activities
committed by the organized crime syndicate. Requirement of
one or more charge-sheet is qua the unlawful activities of
the organized crime syndicate.”
(Emphasis supplied)
44. In Mujahid S/o Ibrahim v. The State of Maharashtra; (2014) SCC

Online Bom 4048, it has inter-alia been held as under:
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“10. From the above referred fact what is established before
this Court is, against the said gang leader more than one
charge-sheets are pending and in most of the charge-sheets
offences alleged, are punishable with more than three years of
imprisonment. It is also required to be taken note of the fact
that the offences alleged to have been committed by the gang
leader of which present applicants are alleged to be members
are for financial gain. It is also required to be taken note of the
fact that the investigation in the matter is incomplete and same
is under progress. In view of above, the invocation of the
provisions of MCOCA, in our opinion, at this stage, prima facie
appears to be justified as the requirement of clause (d) of
section 2 of MCOCA is very much justified. What is
contemplated under said section is a situation where a group of
persons as members of organised crimes syndicate indulge in
organized crime who use the violent means to gain pecuniary
benefit or un-due economic or other advantage for themselves
or any other persons. The clause which defines the ‘continuing
unlawful act ’which is prohibited by law and must be
cognizable offence punishable with imprisonment for three
years or more. Such unlawful activity can be undertaken by
singly or jointly as a member of an organised crime syndicate
or on behalf of such syndicate in respect of which more than
one charge-sheets have been filed before a competent Court.
The words “in respect of which more than one charge-sheets
have been filed”, in our opinion, cannot be stretched to the
extent that minimum one charge-sheet is required to be pending
against each member of the crime syndicate. A reading of the
entire scheme of the Act reflects that pendency of more than
one charge-sheets within a period of ten years is enough
qualification for invoking the provisions of the MCOCA,
provided same is pending against the members of the crime
syndicate, who operates as individually or jointly in
commission of organised crime. What is required to be taken
note of is the very involvement, attachment, nexus or the link of
such member/person with the organised crime syndicate while
commission of the offence, the very link of such member of the
crime syndicate is considered to be the crux of the term
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“continuing unlawful activity”. It is also required to be taken
note of the fact that if the contention of the learned Counsel for
the applicants i.e. the requirement of the statute, in their
submission, is the pendency of the minimum two charge-sheets
for an offence punishable with more than three years
imprisonment in the last period of ten years is to be accepted,
the same shall take the very object and intention of the statute
to illogical end. What is contemplated under section 2(1)(d) of
MCOCA is the activities prohibited by the law have been
undertaken either singly or jointly, as a member of an
organised crime syndicate and as such the requirement of one
or more charge-sheets is in relation to the unlawful activity of
the unlawful crime syndicate and not of each and every member
of such syndicate.
45. Thus, from the discussion made herein above, it is no longer res integra
that it is not necessary that such charge-sheet should be against an
individual. If the charge sheet is filed against the syndicate that would
be sufficient compliance of Section 2 (1) (d) of MCOCA.
46. It is also a settled proposition that it is not necessary that each member
of the syndicate should have a similar role. The individual members
can have different roles in the commission of the crime. The
petitioners herein have argued that there are no allegations which
would link them to the foundational allegation of extortion and
therefore there is no prima facie case to invoke the provisions of the
MCOCA as against them. This court considers that there is no merit in
the said contention. The allegations as being made by the investigating
agency is that these accused persons were in fact channelizing the ill-
gotten money received through foundational crime of extortion. Their
role is in fact facilitating the continuing commission of the crime by or
on behalf of the syndicate. The provisions of MCOCA can be
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attributed to an individual if his role amounts to any assistance to
organized crime or organized crime syndicate or to a person involved
in either of them.
47. It is settled proposition that mere membership/nexus with the organized
crime syndicate is sufficient to prosecute under MCOCA. In Sachin
Bansilal Ghaiwal v. State of Maharashtra; (2014) SCC OnLine Bom
725,
“38. Thus, according to us and in our humble opinion and our
earnest consideration, the expression ‘member ’as has been
termed in Section 2(1)(d) of the MCOC Act can be interpreted
and defined as, a person who participates in the crime either
actively or passively or a person who facilitates the commission
of the crime committed by the organised crime syndicate or on
behalf of the organised crime syndicate, automatically becomes
the member of the said crime syndicate which commits the
offence or on whose behalf the offence in question is committed,
as contemplated under Sec. (2)(1)(d), 2(1)(e), Section 3 and
other provisions of the MCOCA.”
48. Therefore, I consider that the arguments of the learned defence counsel
that in absence of more than one chargesheet having been filed against
Petitioners B. Mohanraj and Kamlesh Kothari the MCOCA could not
have been attributed againstthem is liable to be rejected.
49. The next contention raised by the learned counsels for the petitioners
are that the confessional statement recorded under Section 18 of
MCOCA cannot be read against them in absence of any independent
corroboration. The defence has also raised a plea that since the
procedural requirement under Section 18 have not been fulfilled
therefore the same cannot be read. It has also been submitted that the
confessional statement which have been retracted cannot be taken into
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consideration. I consider that these submissions also cannot be
considered at this ground as it is a matter of trial.
50. It is also a settled proposition that the confessional statement can also
be attributed to the co-accused in Mohd. Farooq Abdul Gafur v. State
of Maharashtra, (2010) 14 SCC 641, wherein inter alia has been held
as under:
“84. So far as the conviction (of Accused 1) under MCOCA is
concerned, it is quite clear that conviction could be based solely
on the basis of the confessional statement itself and such
conviction is also permissible on the basis of the confessional
statement of the coaccused which could be used and relied upon
for the purpose of conviction.”
51. The defence has also raised a plea that the sanction granted under
Section 23 (1) (a) and 23 (2) of MCOCA are also faulty and cannot be
seen into. I consider that argument is also not tenable. The mere
reading of Section 23 (1) (a) of MCOCA indicates that it does not
require inclusion of all the names of all the members at the threshold
stage. It is per natural that as the investigation proceeds the names of
the persons would be revealed and their names can always be added
later on. In Vijay G. Asrani (supra) it has inter alia been held as under:
“8. We have carefully considered the submissions made on
behalf of the respective parties and the relevant provisions of
MCOCA and we are of the view that the High Court did not
commit any error in dismissing the petitioner's writ application.
We are inclined to accept Mr Altaf Ahmed's submissions that
non-inclusion of the petitioner's name in the approval under
Section 23(1)(a) of MCOCA was not fatal to the investigation as
far as the petitioner is concerned. On the other hand, his name
was included in the sanction granted under Section 23(2) after
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the stage of investigation into the complaint where his
complicity was established.
9. ………
There is no hard-and-fast rule that the first information report
must always contain the names of all persons who were
involved in the commission of an offence. Very often the names
of the culprits are not even mentioned in the FIR and they
surface only at the stage of the investigation. The scheme under
Section 23 of MCOCA is similar and Section 23(1)(a) provides
a safeguard that no investigation into an offenceunder MCOCA
should be commenced without the approval of the authorities
concerned. Once such approval is obtained, an investigation is
commenced. Those who are subsequently found to be involved
in the commission of the organised crime can very well be
proceeded against once sanction is obtained against them under
Section 23(2) of MCOCA.
10. As to whether any offence has at all been made out against
the petitioner for prosecution under MCOCA, the High Court
has rightly pointed out that the accused will have sufficient
opportunity to contest the same before the Special Court.”
52. Similarly, the objection regarding Section 23 (2) of MCOCA also

cannot be considered at this stage as it is a matter of trial and can only
be seen at the stage of trial. Reliance can be placed upon Abhishek v.
State of Maharashtra; (2022) 8 SCC 282
“63. The learned counsel for the State has fairly and rightly
indicated, with reference to the decision of this Court in Vinod G.
Asrani [Vinod G. Asrani v. State of Maharashtra, (2007) 3 SCC 633 :
(2007) 2 SCC (Cri) 129] , that the validity of sanction could always
be determined by the trial court during the course of trial where the
sanctioning authority could be examined and the appellant will have
sufficient opportunity to contest the same, including that of cross-
examining the sanctioning authority. In fact, the High Court has also
taken care in its impugned order to make it clear that the observations
were only prima facie and nothing in the order would influence or
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prejudice the trial or pre-empt any legitimate defence of the
appellant.”
53. In Farman Imran Shah v. State of Maharashtra; (2014) SCC

Online Bom 408, it was inter-alia held as under;
“18. The Division Bench of this Court in the case of Anil
Nanduskar v. State of Maharashtra, (2008) 12 LJSOFT 156,
after taking into consideration the law laid down by the
Hon'ble Supreme Court in case of State of Bihar v. P.P.
Sharma reported in 1992 Supp (1) SCC 222 and after
considering the judgment of the Division Bench of this Court in
case of Sherbahadur Akram Khan v. State of Maharashtra
reported in (2007) 1 Bom CR (Cri) 26, has in paragraphs 13
and 24 observed thus:
“13. The settled law by a catena of decisions of the Apex Court

is to the effect that it is desirable that every order whether the
approval or sanction it should speak for itself, i.e. ex-facie it
should disclose consideration of the materials placed before it
and application of mind thereto. However, failure to reproduce
or refer those recitals in the resolution or order itself would not
render the order of approval or sanction to be invalid unless
the prosecution fails to establish by leading evidence that all
the materials necessary for the grant of approval or sanction
were placed before the concerned authority for due application
of mind by such authority before the grant of approval and or
sanction. It apparently discloses that question of validity of
approval or sanction cannot be decided unless the prosecution
is afforded opportunity to lead evidence in that regard.
Undoubtedly, an accused desiring to raise objection regarding
the defects in such approval or sanction, or grant, he can raise
such objection; however, for conclusive decision on the said
point the accused has to wait till the trial is complete and on
that ground he cannot insist for discharge unless the objection
relates to inherent lack of jurisdiction to the concerned
authority to grant sanction or approval and such issue can be
decided on undisputed facts. The law being well settled to the
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effect that the prosecution in a case where sanction or the
approval order does not ex-facie show consideration of all the
materials and/or application of mind, is entitled to establish the
same by leading necessary evidence regarding production of
materials before the concerned authority, the question of
discharge of accused merely on the basis of such objection
being raised cannot arise. The decision on the point of defect, if
any, in the order of approval or sanction will have to be at the
conclusion of the trial.”
…….
“24. The contention that the order of approval or order of
sanction should disclose consideration of material qua each of
the accused sought to be prosecuted is devoid of substance.
That is not the import of section 23 of MCOC Act. Section
23(1)(a) as well as section 23(2) with reference to approval
and sanction speaks of commission of offence and cognizance
of the offence. In fact the law on this aspect is also well settled
and reiterated by the Apex Court in Dilawar Singh's case
(supra) itself. It was held therein that, court takes cognizance of
offence and not of an offender when a Magistrate takes
cognizance of an offence, under Section 190 Cr.P.C.
Undoubtedly, it was also held that it was necessary for the
Sanctioning Authority to take note of the persons against whom
the sanction is sought to be granted. However, those were the
requirement under Section 19 of the Prevention of Corruption
Act. The said section specifically requires sanction with
reference to a particular person. That is not the case under
section 23 either in relation to the approval or in relation to the
sanction. As already seen above section 23(1)(a) of MCOC Act
speaks of approval for recording of information about
commission of offence of organized crime under MCOC Act,
whereas sanction is for initiating proceeding for the offence
under MCOC Act. The sanction order or the approval order on
the face of it need not speak of the individual role of each of the
accused. Being so, contention that the order of approval or
sanction should reveal consideration of the overt acts or
otherwise of each of the accused while granting approval or
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sanction is totally devoid of substance. Of course, the
involvement in organized crime of each of the persons sought to
be prosecuted should necessarily be considered by the
concerned authority before the grant of approval or sanction,
but need not be specifically stated in the order and the
consideration thereof can be established in the course of trial.
54. Thus the above discussed judgment settles the legal proposition that
the validity of sanction can only be examined during the trial, except
in the cases where the objection is raised as to the inherent lack of
jurisdiction. However, this is not the case in the present case.
55.Section 21 (4) of the MCOCA mandates that the court has to be
satisfied there are reasonable grounds for believing that the accused is
not guilty of such offence and he is not likely to commit any offence
while on bail. It is a settled proposition that at this stage, the court has
not to evaluate the material on the scale which is required to be
evaluated at the stage of final judgment. At this stage, the finding
regarding the accused being not guilty has to be based on reasonable
grounds. The „reasonable grounds‟ though has not been defined but it
is something more than prima facie grounds.
56.The investigation has revealed that was Leena Paulose was involved
in running an organized crime syndicate since 2013 with the motive
of pecuniary gain by cheating and extortion. It is a matter of record
that Leena Paulose was accused along with Sukash in the following
four cases:
1. FIR No 186/2017 u/s 7,12,13 POC Act & 201,120B IPC PS
Crime Branch, Delhi Police.
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2. Cr.No.24 of 2013 Central Crime Branch Police, Chennai u/s
406, 409, 420 r/w 34 IPC and u/S 66 D of Informationn
Technology Act.
3. Crime No.33/2015 u/S 420, 120B IPC and 3/4 Prize Chits
and Money Circulation Act, EOW, Mumbai.
4. CCB Crime No.64/13, now RC 6E/2014/BSFC u/s 406, 409,
420, 120B IPC & 13 (2) r/w 13 (1) (d) of PC Act, 1988,
Chennai.
57.The investigation revealed that the petitioner Leena Paulose was in

continuous contact with Sukash through her mobile phone, as Sukash
was using mobile phone with the connivance of jail staff during
custody period. Further, she also remained in contact with Sukash‟s
associates jail officials namely Dharm Singh Meena and Subhash
Batra. Thus, she was actively and continuously coordinating with
Sukash as well as his associates in furtherance of organized crime and
disposal of crime proceeds. She procured bank entries in her account
from various entities/persons to whom she provided cash, received
from Sukash through Hawala transactions with the help of Joel Daniel
Jose, Kamlesh Kothari, B Mohanraj and Arun Muthu etc. and
invested in high end cars, properties and her business firms. The
Enforcement Directorate, seized 23 High end luxury cars from her
house at ECR Chennai in Aug 2021. During interrogation, the accused
applicant failed to justify as to how she got funds to purchase 12 cars
in Super Car Artistry. Further, it was revealed that she made the
payment of "Silent Calling App" which was being used by accused
Sukash in his mobile phone, to commit the crime, while he was in
Jail.
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58.During investigation, the statements of Mr. Noufal T S/o Late Hamza
Koya Thyayyil, Mr.Surendar Panwar s/o Sh.Satya Narayan, Sarvana
Priyan, Shiva Subramanian Chelladurai, Mr.T.Michael, Jitender
Kothari s/o Late Sh.Mahaveer Chand, Bharat Kumar Duggar s/o
Sh.Mangal Chand, Jagdish Navin Kuamr, Alok Damani, Nora Fatehi
and Mr. Shoby T. Paul have been recorded which revealed the active
role of Leena Paulose. The reference to the statements of these
witnesses have not been made in detail here, so as to not to cause any
prejudice to the defence.
59.During investigation, the statement under Section 164 Cr.P.C. of
witnesses were recorded which proves that Leena Paulose was
actively involved in converting cash amount (crime proceeds) into
banking transactions to show her legitimate business. The
prosecution has referred to the statement under Section 164 Cr.P.C. of
Bharat Kumar Duggar, Jitender Kothari, Anand Murthi and Jagdish
Navin Kumar. The prosecution has also referred to the confessional
statements under Section 164 Cr.P.C. of co-accused Sukash Chander
Shekar, B.Mohan Raj and Dharm Singh Meena.
60.During the course of investigation, it has been revealed that bank
statement of M/s Nail Artistry, M/s Super Car Artistry, M/s LS
Fisheries, M/s LS Education and M/s News Express Post were
obtained. All these are proprietorship firms operated by accused
Leena Paulose. Out of these (05) five M/s Nail Artistry, M/s Super
Car Artistry and M/s News Express Post were extensively used for
parking of crime proceed and its further conversion into legitimate
business transactions. Further, during the relevant period i.e. June
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2020 to August 2021 funds were transferred from various
firms/individuals in Leena Paulose accounts and investigation
revealed that all these transactions were sham transactions. It was also
found that the proceed of crime were transferred by Arun Muthu, B
Mohanraj and other persons related to accused Leena Paulose against
cash provided by Leena Paulose and her husband Sukash
Chandershekhar. The details of bank accounts held in the name of
Leena Paulose and her proprietorship concerns are as under:-
Name of the party Bank Account No. Name of the Bank

Ms. Leena Paulose 603301112877 ICICl Bank
Ms. Leena Paulose 0646073000000140 South Indian Bank
The Nail artistry 919020018650555 Axis bank
Super Car Artistry 603305020407 ICICI BANK
The News Express 603305020438 ICICI BANK
The Nail Artistry 603305020683 ICICI BANK
The Nail Artistry 603305020662 ICICI BANK
61. During the period of the offence, i.e. June 2020 to August 2021 while
the complainant was extorted by the crime syndicate, an amount of Rs.
21 Crores were deposited into the above mentioned five bank accounts
maintained by Lena Paulose which were either in her own name or in
the name of her Proprietorship concerns. Further, investigation
revealed that this amount consists of cash deposit, card swiping and
entries arranged through Arun Muthu, B Mohanraj and their associates.
This money was nothing but crime proceeds. Accused Leena Paulose
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and other members of syndicate took entries, deposited cash, and
indulged in card swiping to inflate the earnings of her saloon Nail
Artistry. All this was done to give legitimacy to the crime proceeds
through sham banking transactions. Accused Arun Muthu in addition to
his company M/s Stash Wears Pvt Ltd, also provided entries for
adjusting the crime proceed through firms namely M/s Servana
Enterprises, M/s Goodtime Retail and Marketing Pvt Ltd, M/s
Muthaiya Enterprises,M/s INI International through Mr. Shiva
Subaramaniyam, who is known to Arun Muthu. Statement of Shiva
Subaramaniyam U / s 161 CrPC was recorded and these facts got
corroborated through his statement.
62. Investigation has also revealed that the amount of Rs.217 crores
extorted from the complainant of the present case was used by accused
Sukash Chander Shekhar and his wife Leena Paulose for creation of
wealth and to establish business concerns such as M/s Nail Artistry and
M/s Super Car Artistry. The crime proceeds was also used for
undertaking air travels and purchase of high-end branded gifts for
Bollywood celebrities. A substantial part of crime proceeds was also
used by accused Sukash Chander Shekhar to bribe the jail officials of
Jail No. 10, Rohini, Delhi in lieu of getting facilitation such as single
use of barrack, uninterrupted use of mobile phones and electronic
gadgets to run the organized crime syndicate. Further, funds out of
crime proceeds were also distributed amongst members of the crime
syndicate for carrying out individual assignments tasked to them either
by accused Sukash Chander shekhar or Leena Paulose. Investigation
has also revealed that accused Sukash Chandra Shekhar and Leena
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Paulose were constantly in touch with each other and acted in tandem
for furtherance of the organized crime syndicate by using the proceed
of crime for promoting their business and other interests orchestrated
for the purpose of the converting/laundering their proceed of crime.
63. In respect of Kamlesh Kothari, the investigation has revealed that
accused Kamlesh Kothari helped Sukash & Leena in purchasing of
Luxury cars out of the extorted funds.Kamlesh has introduced his
friend Surender Panwar (Financial Broker) to purchase the car
"Lamborgini Urus TN 04 BE 0006" from the extorted funds of
complainant, transferred from Sukash via B. Mohan Raj to Kamlesh
and finally to Surender Panwar. This car was actually purchased in
name of Surender Panwar for total consideration of Rs 3.50 Crores but
the same was used by Sukash & Leena. One Rental Agreement was
also prepared between Surender Panwar and M/s Nail Artistry wherein
it was mentioned that the car was used by M/s Nail Artistry and
monthly rent of Rs 2.42 Lakhs/ month would be paid to Surender
Panwar. However, during investigation, it surfaced that the said amount
was immediately withdrawn by Surender Panwar and handed over to
Kamlesh after deducting tax.Kamlesh in turn would deliver the said
amount to Mohan Raj or Leena. The above car was recovered from the
possession of Leena. The buying of the above mentioned car through
the money received from Hawala clearly demonstrate that the present
applicant was active member of the organized crime syndicate led by
Sukash in disposal of the extorted amount from the complainant. In the
raid by the Enforcement Directorate, the said Car was recovered from
the possession of Leena.
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64. Similarly, likewise, as mentioned about "Lamborgini Urus" another car
"Bentley' was allegedly also purchased in name of one firm M/s
Priyanka Arcade. In similar manner, Rs 1.50 Crores out of the extorted
funds were transferred with the help of Kamlesh Kothari and the same
was used by Leena & Sukash. Kamlesh disclosed that said amount was
handed over to the owner of M/s Priyanka Arcade by present applicant.
However, during investigation, Mr. Francis Bastiyan, owner of M/s
Priyanka Arcade submitted that he had received part payments from
Kamlesh and remaining from other parties. In the raid by the
Enforcement Directorate, the said Car was recovered from the
possession of Leena. Manish Kothari, brother of Kamlesh Kothari had
executed Hire/Purchase agreement with M/s Nail Artistry, for three
cars in June/July 2020 viz. Bentley, Range Rover and Fortuner for
financing amounts of Rs 40 Lakhs, Rs 30 Lakhs and Rs 30 Lakhs
respectively. The said amount was financed by Manish & Kamlesh
Kothari and the cars were used by Leena & Sukash and were recovered
from the possession of Leena by the Enforcement Directorate.
Applicant accused Kamlesh Kothari has introduced his relative Jitender
Kothari, Director M/s Jai Jinender Construction to the accused person
namely B. Mohanraj and the extorted funds of Rs 7.75 Cr were used to
purchase the house for Leena. Kamlesh in connivance with B. Mohan
Raj purchased property of 12/13, Kannatur Village, ECR, Chennai in
name of Jitender Kothari in Aug 2020 for total consideration of Rs 7
Cr. For the payment of Rs 7 Cr, Rs 5 Cr which was received by
Kamlesh Kothari in Cash through Hawala Channel was transferred
through Sham transactions into the account of Jitender Kothari. This is
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the same Rs 5 Cr which was paid by Jitender Kothari, Director M/s Jai
Jitender Construction to the respective owner of ECR house including
registration charges. The Remaining amount of Rs 2 Cr was delivered
in Cash to the owner of ECR house through Kamlesh Kothari & B.
Mohan Raj. After that, one rental agreement was made between
Jitender Kothari and Leena Paulose for total rent of Rs.2.50 Lakhs, and
in similar manner likewise of "Lamborgini Car", the said rental amount
was withdrawn and delivered to Kamlesh Kothari and then to Mohan
Raj for finally back to Leena. In this way, the extorted money was
routed through different channels and finally arrived at the destination.
Accused Kamlesh Kothari admittedly obtained Rs 10 Lakhs as
commission for dealings of Car and Rs 15 Lakhs for dealing of House.
In the raid by the Enforcement Directorate, the said House was found
to be in the possession of Leena in which crores of rupees has been
invested in the interior of the house. During investigation, it has been
revealed that, Sukash with the help of his aid Sudheer Abu
(absconding) and Joel has delivered the money to B. Mohanraj, present
applicant Kamlesh Kothari and others.
65. The reference can also be made to the confessional statement of
accused Sukash Chander Shekar and B.Mohan Raj. Kamlesh Kothari
in his disclosure statement has stated that on the direction of Sukash,
he, Mohanraj and Joel have received approx Rs.20.0 Cr from Dubai on
the basis of token provided by him to Mohanraj from June-Oct. 2020.
Thus, the investigation revealed that the money which was sent by
Sukash through Hawala was the proceeds of crime and was in the
knowledge of the present applicant and the applicant actively facilitated
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in the disposal of the proceeds of crime. The case of the prosecution is
that he accused Sukash with active connivance of the present
petitioners extorted Rs.214 Cr. from the complainant in a very
organized manner and the extorted money was used in different ways
including investing the same in purchase of luxury cars, house and
other movable and immovable properties. The investigation revealed
that the accused Kamlesh Kothari has played pivotal role in
commission of crime. The investigation revealed that accused Kamlesh
Kothari came in touch with accused Sukashthrough co-accused
Mohanraj.He managed to get invested ill-gottenmoney of accused
Sukash in purchase of luxury cars & house. It has also been alleged that
he received the cash through co-accused Mohanraj and got the money
used by diverting it through different entities and invested the money of
the crime syndicate The disclosure statement of the accused applicant
which hasbeen further corroborated in the confessional statements of
co-accused B. Mohanraj & Sukash Chandra shekar. The accused got
the properties purchased in the name of others from the ill-gotten
money of Sukash and Leena. The prosecution has also alleged that
Firm/ company of Leena has received money through different shell
companies and accused Kamlesh has facilitated the same with others.
66. It is also a matter of record that the accused was earlier involved in two
FIRs i.e FIR No.1319/2017 U/s 294(b), 341, 342, 363, 506(1), 149 IPC
PS Soundarapandiyanar Angadi, Distt. T. Nagar Tail Nadu and FIR
No. 470/2012 u/s 75 TNCP Act PS Soundarapandiyanar Angadi, Distt.
T. Nagar Tail Nadu.
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67. Accused B.Mohan Raj also played an important role to run the
syndicate led by Sukash. Accused B. Mohanraj is an Advocate by
Profession and he was looking after his Sukesh V. Chandreshekhar's
legal matters since 2013, hence, he was well aware of the criminal
history of the accused Sukash and modus operandi used by the accused
Sukash. It is very much known to accused B. Mohanraj that accused
Sukash is lodged in Delhi Jail since 2017 and has no legal source of
income. He was also aware that he was committing criminal extortion
from jail and sending huge amounts of crime proceeds through Hawala
Channel. B.Mohan Raj, played an active role in assisting the crime
syndicate led by accused Sukash and Leena to manage their crime
proceeds of cheated and extorted funds. He is also a member and
integral part of the group led by Sukash and Leena.
68. During the course of investigation petitioner B. Mohanraj has also
confessed that he knew Sukash since 2013 and it was in his knowledge
that Sukash was serial offender and had been arrested number of times.
The investigation has also revealed that accused B.Mohanraj not only
facilitated the purchase of cars but also handled the delivery of cash.
Accused was also instrumental in purchase of a huge property worth
crores in Chennai, which was a benami property of accused Leena.
This property was purchased in the name of Jitender Kothari on the
instructions of accused Kamlesh Kothari. There is ample material on
the record that this accused has facilitated the activities of the
organized crime syndicate with the full knowledge that there was no
legal source of income for syndicate headed by Sukash.
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69. It is also pertinent to mention here that the petitioner B.Mohanraj
admitted that he became integral part of their group and though overtly
he was managing their legal affairs, but covertly he was managing their
funds obtained from their illegal activities. It is also revealed during the
investigation that in fact it was petitioner B.Mohanraj who introduced
co-accused Kamlesh Kothari to another co-accused Leena Paulose. It
was also admitted by petitioner B.Mohanraj that principal accused
Sukash called him on telegram and asked him to buy a house for co-
accused Leena in some other person‟s name during August, 2020.
Principal accused Sukash also in his confessional statement revealed
the role of petitioner B.Mohanraj. It came on the record that the cash
was delivered to B.Mohanraj and he further delivered to Kamlesh
Kothari and Arun Muthu.
70. Learned Trial Court while rejecting the bail of accused Kamlesh
Kothari has observed that in the present case the Petitioner is seen
acting as an agent of co-accused Leena Paulose. He was involved in
arranging money in lieu of cash and then he was active in buying car
and after this he organised this car on lease to accused Leena. The
investigation revealed that the accused continued to further aid and
assist accused Leena when he would collect in cash amount equivalent
to the amount of monthly lease and would give it to accused Leena.
Thus, it cannot be said that the Petitioner was merely acting in the
capacity of his routine business. He was aware of and even aided in the
activities of this organised crime syndicate as he was actively doing
acts which would facilitate accused Leena and through her accused
Sukash to procure property by using proceeds of crime. The deliberate
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act of dealing with money obtained by extortion cannot be severed
from foundational crime. The money obtained by extortion and further
channels using it prima facie seem to be a part of the same transaction.
71. The learned Special Judge inter alia held that on instructions of Leena
and B.Mohanraj, the Petitioner arranged for a property to be purchased
benami for Leena, to put the black money into bank channels and get
the property transferred into the name of his relative. He arranged a
Lease agreement between Leena and his relative and after the monthly
rent got transferred in the account of the person in whose name the
property was purchased, he collected the same amount in cash from
that person so that it could be handed to Leena Paulose. Thus, the court
observed that it cannot be said that the Petitioner was a simple business
man who was dealing with the co-accused Leena in his business
capacity and was aware of the activities of the crime syndicate.
Learned Special judge further observed that knowledge and intention
are usually known to the person who has knowledge or who holds the
intention. Others have to infer the knowledge or intention from the
circumstances surrounding the events or the actions of that person. It
was inter alia further held that the circumstances surrounding this crime
and the role which this accused had played, at least at this stage, cannot
lead to a conclusion that accused had no knowledge of the activities of
the crime syndicate or that he was acting without any guilty intent.
72. Learned Trial Court while rejecting the bail of accused Leena Paulose
has analysed the disclosure statements of accused persons which
clearly show that the Petitioner received money through Hawala
transactions and in lieu of the cash amount credit entries were taken
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into the account of the Petitioner. Furthermore, the Petitioner failed to
explain the details of such entries credited in her bank account. Learned
trial Court inter-alia observed that the disclosure statement of other
accused persons as well as from the documentary evidence and
statement of other witnesses clearly show that the extortion money was
allegedly being collected through various channels on the instructions
of applicant/accused Leena Paul as well as B. Mohanraj. During the
relevant time when accused Sukesh Chandra Shekhar was in prison,
applicant/accused Leena allegedly purchased different luxury cars, but
failed to explain as to how she got such huge amount of money for
purchasing those cars. Learned Trial Court has further observed that
even though it is not required to go into the merits of the case however
it is pertinent to mention here that there exists different evidences
which show that the Petitioner not only gained pecuniary advantage
from the extortion money received through other accused persons, on
different occasions from the complainant in this case but was also
actively coordinating with main accused Sukesh Chandra Shekhar
while he was in prison. Accused/applicant was allegedly
communicating with him directly as well as through jail officials.
Theseevidence show that the entire crime was being committed in an
organized manner in coordination with each other as well as other
accused persons. Learned Special Judge pointed out that the argument
that the Petitioner is a successful business woman with strong roots in
the society, hardly makes any difference when there are sufficient
evidence on record indicating an organized crime being committed.
More particularly, when there are more than one crime reported
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indicating commission of cognizable offence of cheating etc. on earlier
occasions during preceding ten years showing continuous unlawful
activities going on by Petitioner jointly or individually.
73. Learned Trial Court while rejecting the bail of accused B.Mohanraj
placed reliance on the confessional statements of accused persons and
stated that the these statements reveal that the Petitioner facilitated the
purchase of luxury cars for accused Sukesh and Leena, handled the
delivery of cash, found persons who could arrange transactions to route
this money through banking transactions and then was instrumental in
purchase of a huge property worth crores in Chennai, which was a
benami property of accused Leena which had been purchased by
witness Jitender Kothari on the instructions of accused Kamlesh
Kothari who in turn had received these instructions from this accused
B. Mohanraj. Morever, the confessional statement of accused B.
Mohanraj is corroborated by the statement of Jitender Kothari where he
states that it was accused B. Mohanraj who instructed Kamlesh Kothari
to find someone to purchase property for accused Leena and it is then
Kamlesh Kothari approached Jitender Kothari for purchasing the said
property. Not only this, after the said property was purchased, accused
B. Mohanraj prepared a rent agreement between Jitender Kothari and
Leena knowing fully well that he was preparing a sham agreement for a
benami property where the owner of that benami property was shown
to be a tenant of the person who had purchased that property on papers.
74. The exercise of discretion at the stage of bail is very well defined. The
MCOCA is a special legislation and there is modified provision in the
same which has been incorporated in Section 21 (4) MCOCA provides
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that the accused can only be released on bail if there are reasonable
ground for believing that he is not guilty of such offence and he is not
likely to commit any offence while on bail.
75. It is a settled proposition that such provision do not impose complete
restriction on the grant of bail. It is also a settled proposition that at
this stage the court cannot evaluate the material on the scale which is
required at the time of the conclusion of the trial. The court has not to
record the finding of guilt or acquittal at this stage. The court is only
required to see that whether there are reasonable grounds to believe that
the accused persons have not committed offence. The reasonable
grounds as stated above are more than prima facie grounds. It can also
be said that at this stage, the court has to see the preponderance of
probabilities. If there is preponderance of probabilities that the accused
can be convicted on the material available, the bail is liable to be
rejected.
76. It is a settled proportion that at the stage of bail, the meticulous
examination of evidence is not required at this stage so as to not cause
any prejudice to the parties. The probative value of the witnesses also
cannot be examined at this stage. At the stage of bail, the mini trial is
totally prohibited. This court therefore has not entered into the
detailed discussion on the statement of the witnesses and the
disclosure/confessional statement of the accused persons. However, the
record amply indicates that Leena Paulse was involved in the organized
crime syndicate. It is unbelievable that such huge amount of money
were coming in her account and she was accepting the same only as a
dutiful wife. It does not appeal to the reason that the high end cars
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were being purchased, the flights were being taken on charter without
having any knowledge about free flow of money. It is beyond
comprehension that a lady who is well educated will not know the
source of money. The other grounds taken by the petitioner relating to
her Fundamental Rights and right to be mother are liable to be rejected
as she does not fulfill the twin conditions as laid under Section 21 (4)
MCOCA. It is also pertinent to note that her husband is also in
custody.
77. Similarly, in respect of B.Mohan raj who has stated himself to be a
lawyer, it cannot be believed that he was only acting as a lawyer and
had no role. There is material on record that he was in constant touch
with Sukash Chandar Sekhar, his wife Leena and other co-accused
persons. The role of a lawyer is only limited to extent of given legal
advice. In the present case, as a matter of record, the petitioner B.
Mohan Raj was doing more than what he was required to do as a
lawyer. In his disclosure statement also it has come he was having
complete knowledge of the sources of fund. It is not necessary that the
accused persons must have involved in the foundational crime of
extortion. These accused persons were in fact aiding and abetting the
foundational crime by channelizing this money. The role of Kamlesh
Kothari is also no less. He had also been purchasing cars and property
for Sukash and Leena Paulose. His role is equally incriminating as he
was actually aiding and abetting the main accused in the parking of
extorted money. In view of the discussion made hereinabove, this court
is not able to persuade itself on the basis of the material on record that
the petitioners are not guilty of crime.
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78. Thus, this court is if the considered opinion that the case is of a very
sensitive nature and prima facie petitioners are involved in offences of
MCOCA and the finding cannot be recorded at this stage that the
petitioners are not guilty of such offence and they are not likely to
commit any offence while on bail. This court also does not find any
illegality or infirmity in the order of the learned trial court.
79. Hence, the bail applications of Ms.Leena Paulose, B.Mohan Raj and
Kamlesh Kothari are rejected.
DINESH KUMAR SHARMA, J
JULY 11, 2023

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Leena - Kamlesh - Mohanraj - Bail Orders

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 4262/2021

STATE (NCT OF DELHI) & ANR. ..... Respondents

+ BAIL APPLN. 1170/2022

THE STATE OF NCT OF DELHI ..... Respondent

+ BAIL APPLN. 3706/2022

STATAE OF DELHI ..... Respondent

S. No Particulars Para Nos.

2. Submissions on behalf of Petitioners

4. Findings and Conclusion 35-79

DINESH KUMAR SHARMA,J :

37. Section 2 (e) of MCOCA defines „organised crime‟, which reads as

44. In Mujahid S/o Ibrahim v. The State of Maharashtra; (2014) SCC

52. Similarly, the objection regarding Section 23 (2) of MCOCA also

53. In Farman Imran Shah v. State of Maharashtra; (2014) SCC

“13. The settled law by a catena of decisions of the Apex Court

57.The investigation revealed that the petitioner Leena Paulose was in

Name of the party Bank Account No. Name of the Bank

DINESH KUMAR SHARMA, J

JULY 11, 2023

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