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2019 Supreme(Mad) 1032
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D. JAGADISH CHANDIRA, J.
Sulo C. Daniel - Petitioner
Versus
State Represented by Inspector of Police, Central Bureau of Investigation - Respondent
Crl. O.P. No. 8411 of 2019 & Crl. M.P. No. 4459 of 2019
Decided On : 01-04-2019
Advocate Appeared:
For the Petitioner:R. Shanmugasundaram, SC for M/s. V. Revathy, Advocate
For the Respondent: K. Srinivasan, Special Public Prosecutor
The main legal point established is the right of the petitioner to recall and cross-examine witnesses, subject to certain conditions.
Headnote:
Criminal Proceedings - Foreign Contribution Regulation Act - Sections 120B, 406, 23(1), 25 r/w Sections 4, 6, 13 of FCRA - Summary of Acts and Sections
Fact of the Case:
The petitioner is charged with offences under Sections 120B, 406 and under Sections 23(1) & 25 r/w Sections 4, 6 and 13 of the Foreign Contribution Regulation Act, 1976. The allegations include criminal conspiracy, breach of trust, false declaration, diversion of funds, and violation of FCRA provisions.
Finding of the Court:
The court directed the petitioner to file a petition under Section 311 Crl.P.C for recalling the witnesses and pay Batta/charges for their appearance. The petitioner's personal appearance before the Trial Court was dispensed with, subject to certain conditions.
Issues: The issues revolve around the petitioner's alleged involvement in criminal activities, the admissibility of subsequent beneficial amendments in the law, and the right to recall and cross-examine witnesses.
Ratio Decidendi: The court's decision was based on the need for the petitioner to recall and cross-examine witnesses, the undertaking given on behalf of the petitioner, and the age and health condition of the petitioner.
Final Decision: The Criminal Original Petition was disposed of with directions for the petitioner to file a petition for recalling witnesses, pay Batta/charges, and provide an affidavit of undertaking before the Trial Court. The petitioner's personal appearance before the Trial Court was dispensed with, subject to certain conditions.
(Prayer: Criminal Original Petition filed under sections 482 of the Criminal Procedure Code, to call for the records in C.C.No.2 of 2008 and quash the charges framed on 02.11.2010 under Sections 120B r/w 406 of the IPC and under Section 23(1) & 25 r/w Sections 4, 6 and 13 of the FCRA on the file of the learned Chief Judicial Magistrate, Coimbatore.)
1. This Original Petition has been filed seeking to quash the criminal proceedings, dated 02.11.2010 in C.C.No.2 of 2008, pending on the file of the learned Chief Judicial Magistrate, Coimbatore, against the petitioner for the offences under Sections 120B, 406 & under Sections 23(1) & 25 r/w Sections 4, 6 and 13 of the Foreign Contribution Regulation Act, 1976.
2. The allegations as set out in the Final Report against the petitioner/A-2 are that M/s.Reach In the Nilgiris is a Society, registered under the Tamil Nadu Societies Registration Act, 1975 and it had been registered under the Foreign Contribution Regulation Act, 1976, during the year 1992 to receive and utilize foreign contribution for specific purposes, for which it was formed. The petitioner/A-2 had been functioning as a Treasurer of the said Society from the Nilgiris from 08.12.2002 to 25.08.2003 and as Secretary/Treasurer from 25.08.2003. During the period from December 2002 to 2005, the petitioner entered into a criminal conspiracy with the Chief Functionary of the Society one Dr.Paulson Yesudian/A-1 to commit breach of trust in respect of the said Society in violation of the provisions of the Foreign Contribution Regulation Act, 1976, by suppressing the facts and misleading the Government and also diverting the funds of the Society that was not put forth for the purpose of the Society. The further allegation is that the petitioner/A-2 and Dr.Paulson Yesudian/A-1, without getting prior permission from the Ministry of Home Affairs, have given false declaration and false undertaking to the Government of India, regarding the receipt and utilization of foreign funds. Further, they have withdrawn contributions from the Bank Account, violating the provisions of the Section 6 of the Foreign Contribution Regulation Act, 1976. Further, the petitioner/A-2 and Dr.Paulson Yesudian/A-1 transferred funds from the designated Bank Accounts to the personal Savings Bank Account of the petitioner/A-2 and being entrusted with the property of the Society, dishonestly converted the said property for their own use and dishonestly diverted the property not for the purpose of the Society and suppressed 26 withdrawals and violated Sections 4 and 13 of the Foreign Contribution Regulation Act, 1976. The further averment is that the petitioner and the other accused did not maintain the accounts and records in the prescribed manner and during the year 2002 to 2003, in the FC-III returns submitted to the MHA, Dr.Paulson Yesudian had shown an FC receipt of Rs.1,03,10,850/-, whereas, the actual foreign contribution received by the Society through the designated Bank Account No.3712 was only Rs.59,52,000/- and thereby, they fudged the accounts. The above acts or the petitioner/A-2 and Dr.Paulson Yesudian/A-1 would disclose commission of offences punishable under Sections 120B r/w 406 IPC and Section 23(1) and 25 r/w Sections 4, 6 and 13 of the Foreign Contribution Regulation Act, 1976.
3. This petition to quash had been filed on the ground that this petitioner was functioning as a Treasurer of the said Society and that the receipt of the money by the Bank from the foreign contributors was beyond the control of the petitioner and that she had no intentions to do any criminal act and there is no mens rea on the part of the petitioner. Further ground raised is that the acts of the petitioner were not done with any criminal intention as envisaged under the Sections 4 and 6 of the Foreign Contribution Regulation Act, 1976 and had been subsequently ratified by appropriate orders. The amounts have been transferred only to the members of the Society fo
