Back
2024 Supreme(SRI)(CA) 476
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
N. Bandula Karunarathna, P/CA, B. Sasi Mahendran, JJ
Gowri Somasundaram – Appellant
Versus
Officer In Charge Financial and commercial Crimes Investigations Unit Unit-1 Criminal Investigation Department and other – Respondent
CA-WRT-229-23
Faisz Musthapha PC with Keerthi Thilekerathna, Bishran Iqbal for the Petitioner
Jehan Gunasekara for the 1st Respondent Senany Dayaratne with Nishadi Wickremasinghe and Maheshika Bandara for the 2nd Respondent
A writ of prohibition prevents unlawful arrest when there's insufficient evidence of criminal intent or misappropriation in a commercial transaction.
Headnote:(A) Writ of Prohibition - Jurisdiction and scope of judicial review - The grounds for seeking a writ include preventing unlawful arrest absent incriminating evidence. Court emphasizes the lack of dishonest intent in the commercial transaction. (Paras 37, 38, 39)
(B) Criminal Offences - Essential elements of dishonesty and fraud - To establish misappropriation under Penal Code Sections 386, 389, and 403, proof of mental element of dishonesty is required. (Paras 23, 24)
Facts of the case:
The Petitioner faced potential arrest relating to a financial transaction involving a sum of Rs. 16,200,000 for an investment project which was canceled. The 2nd Respondent alleged fraud without evidence against the Petitioner, leading her to seek protection from the Court.
Findings of Court:
The transaction was deemed commercial, with no evidence of misappropriation or dishonesty on the Petitioner’s part. The Court holds that there is insufficient cause for arrest, given the facts and absence of incriminating evidence against the Petitioner.
Issues: The court examined whether the transaction constituted a commercial arrangement or an act of dishonest misappropriation. The necessity of proving dishonest intent was a critical factor in adjudicating the matter.
Ratio Decidendi: The court found no dishonesty or fraudulent intention on the part of the Petitioner, emphasizing the legal requirement for mens rea in criminal misappropriation cases, leading to the conclusion that charges cannot be sustained without such evidence.
Result: Writ of Prohibition issued.
Judgment On: 18.12.2024 B. Sasi Mahendran, J.
The Petitioner instituted this action by way of a petition dated 03.05.2023 seeking the following reliefs:
a) Issue notice on the Respondent;
b) Call for and inspect the record;
c) Grant a mandate in the nature of a writ of prohibition preventing the Respondent and/or any officer acting under his direction from arresting the Petitioner on the ground that she has committed any offence as set out/alleged in the B-Report filed in proceedings bearing No. B84731/01/23 in the Magistrates Court of Colombo produced marked X12 and/or any other offence in relation to the said sum of Rs 16,200,000/=.
d) Grant an interim order restraining Respondent and/or any officer acting under his direction from arresting the Petitioner on the ground that she has committed' any offence as set out/alleged in the B-Report filed in proceedings bearing No. B84731/01/23 in the Magistrates Court of Colombo produced marked X12 and/or any other offence in relation to the said sum of Rs 16,200,000/-.
e) Grant costs;
f) Grant such other and further other reliefs as to Your Lordships' Court seems fit and meet
The factual matrix of this case is as follows:
According to the petition, in or around 2014, the Petitioner’s expertise was sought by a group of people to find investors for a potential brick manufacturing project in Sri Lanka consequent to which the Petitioner introduced one Dr. Rahul Chaturvedi, the Chief Executive Officer of Moolex LLC to them. The Petitioner states that it was conveyed to her that the investment required for the said project would be approximately USD 10 to 15 Million. After discussions, Dr. Chaturvedi informed the parties that he would need a ‘transaction fee’ of USD 110,000 to be retained to find investors. Thereafter, the Petitioner was introduced to the 2nd Respondent who had agreed to pay the said transaction fee of USD 110,000 to Dr. Chaturvedi. However, since the 2nd Respondent could not remit the said amount to Dr. Chaturvedi, she had deposited a sum of Rs. 16,200,000/- which is equivalent to USD 110,000 to the Petitioner’s account at NDB Bank. The Petitioner further states that the Petitioner’s uncle from Australia, Mr. N.S. Jeganathan showed interest in the project when he was told about the project and its development who deposited various sums amounting to the sum of USD 110,000 to Dr. Chaturvedi’s account as a part of his investment with Dr. Chaturvedi.
The Petitioner states that according to the correspondence between the parties, the 2nd Respondent with full knowledge deposited the said sum to the Petitioner to utilize it in securing investments. This was disputed by the 2nd Respondent.
The Petitioner states that since the project did not take off, the Petitioner sent an email to Dr. Chaturvedi giving information about the cancellation of the said project. By an email dated 15.03.2016, the Petitioner and the 2nd Respondent requested the immediate return of the funds. The Petitioner states that the parties agreed to an arrangement whereby Dr. Chaturvedi agreed to repay the said sum of USD 110,000 with an interest of 12% per annum on the said sum until it is paid to the 2nd Respondent. However, since Dr. Chaturvedi did not pay the said money and due to the consistent requests of the Petitioner, and the 2nd Respondent, on 07.10.2018, Dr. Chaturvedi created a WhatsApp group called ‘Suranjani Update’ with the Petitioner, 2nd Respondent and Dr. Chaturvedi himself. In the said group, the 2nd Respondent continuously demanded the money from Dr. Chaturvedi and not from the Petitioner. The Petitioner further states that due to the continuous neglect by Dr. Chaturvedi, the 2nd Respondent wrote to one of Dr. Chaturvedi’s friends alleging that a fraud had been perpetrated on her by Dr. Chaturvedi.
Nevertheless, a complaint was lodged by the 2nd Respondent with the Criminal Investigation Department for which by letter dated 13.01.2023 the Petitioner was called upon to provide information on 18.01.2023.
