..... PETITIONER
AND
.....RESPONDENT
The Court made the following:
The writ petitioner is a voluntary non-governmental organization, by name ‘Sakthi’ represented by its Director Dr.P.Sivaramakrishna, who is Accused No.1 in Cr.No.15/2001 on the file of Jeelugumilli Police Station. The Director of petitioner organization and his wife, who are accused in Cr.No.15/2001 of Jeelugumilli P.S. filed Crl.P.No.1033/2001 seeking to quash the further proceedings in Crime No.15/2001 on the file of Jeelugumill P.S. registered for the offences under Sec.420 and 406 r/w.34 of IPC on 17.02.2001.
2. It is the case of the writ petitioner that the petitioner organization is receiving donations from the funding agencies and foreign countries, as such it is governed by the provisions of the Foreign Contribution (Regulation) Act, 1976 (hereinafter referred to as ‘the Act’) and the Rules made thereunder. There is a registered society under the Societies Act XXI, 1860. It is stated that the petitioner society was also registered with the Central Government permitting it to accept the foreign contribution.
3. While so, on a complaint said to have been made by Thellam Muthamma, D/o.Lakshmudu, aged 27 years, Caste Koya, resident of Pathacheemalavarigudem village, Jeelugumilli Mandal, West Godavari District a case in Crime No.15/2001 was registered on 17.02.2001 by the Jeelugumilli P.S. for the offences under Sec.420, 406 r/w.34 IPC against A1 and A2 who are the petitioners in Crl.P.No.1033/2001. It is alleged in the complaint that she worked previously with the petitioner organization and the petitioners in the criminal petition and others were running the writ petitioner organization, instigating the tribals that the land situated in the scheduled area belong to the Scheduled Tribes alone and if they unite, they can cultivate all the lands situated in the scheduled area by themselves and they have encouraged to take away the crops raised by the non-tribals and give half of the share to the writ petitioner organization and if anybody obstructs them, the tribals can threaten the obstructers to kill them and if any cases are filed against the tribals, the writ petitioner organization will take care of the said criminal cases. It is further stated that the petitioners in criminal petition are getting funds from the foreign countries for helping the tribals, but they are misusing the said funds by using the same for themselves and manipulating the accounts without actually spending the money for the benefit of tribals. Accordingly, the complainant stated that the accused persons have cheated the tribals. On the said allegations, the said crime was registered.
4. The learned counsel appearing for the petitioner in the writ petition submits that under the guise of registration of the above said crime, the Sub-Inspector of Police, Jeelugumilli P.S. searched the petitioner organization on the orders of the 1st respondent-Ex-Officio Joint Collector, Agency, Additional District Magistrate-Project Officer, Rampachodavaram on 17.02.2001 itself and seized various records relating to the writ petitioner organization based on the frivolous complaint said to have been made by a tribal woman. It is further stated that the contents of the complaint do not disclose the commission of any offence under Sec.420, 406 r/w.34 IPC, and therefore, the search and seizure of the records relating to the writ petition organization is not required and do not relate to the offences for which the First Information Report is registered, and to circumvent the provisions of the Foreign Contribution (Regulation) Act, 1976, and without taking any recourse under the said Act and the Rules made thereunder, for the alleged misappropriation of funds or irregularities said to have been committed, the records of the writ petitioner organization cannot be seized.
5. It is stated that under Sec.14 of the Act, the Central Government or its authorized officer for any reasons to be recorded in writing or any ground to suspect that any provisions of the Act has been contravened by any person or organization or association, may by general or special order, authorizes as such gazetted officer, holding a Group-A post to inspect any account or record maintained by such person, organization or association and thereupon every such authorized officer shall have the right either enter in or upon any premises at any reasonable hour, before the sunset and after the sunrise, for the purpose of said inspection of said accounts or records. The authorized officer, has any reason to believe that if any provisions of the Act or the Rules made thereunder relating to foreign exchange has been contravened, the accounts, records can also be seized and produced before the Court in which any proceedings is brought for said contravention. Admittedly, no crime has been registered to prosecute the accused under the aforesaid Act.
6. As per Sec.23 of the Act, if any organization or person accepts any foreign contribution or any currency from a foreign source, in contravention of the Act and the Rules made thereunder, shall be punished with imprisonment for a term, which may extend to 5 years, or with fine or with both. Admittedly, no crime has been registered for the offences relating to the contraventions of the provisions of the Act.
7. A counter has been filed by the 1st respondent stating that on a complaint made by Thellam Muthamma, the Sub-Inspector of Police, Jeelugumilli P.S. registered a case in Cr.No.15/2001 for the offence under Sec.420, 406 r/w.34 of IPC, and as a part of investigation, the
Sub-Divisional Police Officer, Jangareddigudem, West Godavari District filed a requisition before the Project Officer, ITDA, seeking issuance of search proceedings to make search in respect of the petitioner office premises located at Rampachodavaram, stating that the Mobile and Sub-Divisional Magistrates were out of headquarters, and accordingly, the request of the Sub-Divisional Police Officer was considered and the search proceedings have been issued on 17.02.2001. It is stated that the search and seizure was in connection with the said crime alone, but not under the provisions of the Foreign Contribution (Regulation) Act, 1976.
8. The 2nd respondent also filed a counter stating that on a complaint made by the complainant, making serious allegations against the accused and petitioner organization, the crime was registered and the search and seizure was made under the provisions of Criminal Procedure Code but not under the provisions of the Foreign Contribution (Regulation) Act, 1976.
9. Admittedly the alleged complaint was made against the petitioners in Crl.P.No.1033 of 2001 for the offence under Sec.406 and 420 r/w.34 of IPC.
10. Secs.405 and 406 of the Indian Penal Code are defined as under;
Sec.405: Criminal breach of trust:- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or dispossess of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to to, commits “Criminal Breach of Trust”
Sec.406: Punishment for Criminal Breach of Trust:- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both;
11. Admittedly, in the instant case, no property was entrusted by the complainant or any tribal to the petitioner or the accused, and therefore, the question of misappropriation or misusing the said property of that person does not arise. In the instant case, none of the contributors of the fund made any complaint.
12. Secs.415 and 420 of the Indian Penal Code are defined as under:
Sec.415: Cheating:-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived, to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to “Cheated”.
Sec.420: Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
13. I am of the opinion that Sec.420 of IPC has also no application to the facts of the case. The complaint has not delivered any property to the accused or the writ petitioner. Therefore, this Court while admitting the writ petition, made the following order on 05.03.2001 in WPMP.4833/2001;
“Prima facie, the complaint filed in the matter and taken on file by the respondents does not reveal the commission of any offence punishable under Sections 420 and 406 IPC. The allegations made against the petitioner herein may attract Section 14 of the Foreign Contribution (Regulation) Act, 1976 (for short ‘the Act’). Section 14 of the Act confers jurisdiction upon the Central Government to authorize such Gazetted Officer holding a Group-A post as it may think fit to inspect any account or record maintained by such political party, person, organization or association as the case may be, if the Central Government has reasons to be recorded in writing to suspect that any provisions of the Act have been contravened by such political party or organization. Admittedly, there is no order as such passed by the Central Government authorizing such Gazetted Officer to inspect any account or record maintained dby the petitioner’s organization. Prima facie, the action initiated against the petitioner herein suffers from legal infirmities. In the circumstances, there shall be interim stay of further investigation under the provisions of the Act, for a period of three weeks.”
14. Thereafter the seized records were directed to be handed over to the writ petitioner or his authorized agent by retaining the Photostat copies of the accounts books. Therefore, records have already been returned.
15. The learned counsel appearing for the petitioner submits that the petitioner is a voluntary organization registered as non-profit organization and it has been working for upliftment of the tribals, conservation of the forests, developing tribal culture and education among the tribals and to motivate them about their constitutional and legal rights so that they can get the benefits through process of law. For the past 5 years, the petitioner organization has been working in the scheduled area of the West Godavari District representing the caste of the tribals before the concerned officers, governmental organizations and other judicial forums. The tenor of the complaint is only with regard to the alleged misuse of funds, but the allegations do not constitute any offence under Sec.406 and 420 of IPC, and therefore, the investigation of the crime for the offence under Sec.406 and 420 of IPC is illegal and unsustainable.
16. I have considered the rival contentions. I am of the opinion that this Court at the inception itself came to prima facie conclusion that the contents of the complaint do not disclose the commission of offence under Sec.406 and 420 of IPC and therefore, the registration of the crime for the offence under Sec.406 and 420 of IPC is unsustainable, and accordingly, the F.I.R.No.15/2001 on the file of Jeelugumilli P.S. is quashed and in view of the release of the accounts pursuant to the interim directions, no further orders are required to be passed in the writ petition.
17. Accordingly, the Writ Petition is closed and the Criminal Petition is allowed. But, however, it is open for the Station House Officer, Jeelugumilli P.S. to proceed against the accused, if there are any other offences made out pursuant to the complaint made by the complainant. No order as to costs.
..... REGISTRAR
To