{"id":97932,"date":"1998-11-09T00:00:00","date_gmt":"1998-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/netherlands-organisation-for-vs-u-o-i-ors-on-9-november-1998"},"modified":"2017-05-07T11:19:08","modified_gmt":"2017-05-07T05:49:08","slug":"netherlands-organisation-for-vs-u-o-i-ors-on-9-november-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/netherlands-organisation-for-vs-u-o-i-ors-on-9-november-1998","title":{"rendered":"Netherlands Organisation For &#8230; vs U.O.I. &amp; Ors. on 9 November, 1998"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Netherlands Organisation For &#8230; vs U.O.I. &amp; Ors. on 9 November, 1998<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1999 IAD Delhi 83, 77 (1999) DLT 720<\/div>\n<div class=\"doc_author\">Author: Y Sabharwal<\/div>\n<div class=\"doc_bench\">Bench: Y Sabharwal, K Gupta<\/div>\n<\/p>\n<pre><\/pre>\n<p>ORDER<\/p>\n<p>Y.K. Sabharwal, J. <\/p>\n<p> 1.     The  Petitioner &#8211; Netherlands Organisation for International  Development Corporation (for short &#8216;NOVIB&#8217; has filed this petition seeking  investigation  by a proper investigating Agency into the affairs  of  Respondent No.  3,  namely,  Action for Welfare and  Awakening  in  Rural  Environment (AWARE)  and in particular, into its accounts and utilisation of  funds  of foreign  and local grants for the previous years. NOVIB has further  prayed that  Union of India and Central Board of Direct Taxes be directed to  take action  against AWARE and its officials including Chairman for having  committed  various  offences.  According to NOVIB, briefly the  facts  are  as noticed hereinafter.\n<\/p>\n<p> 2.   NOVIB is a non-governmental organisation based in Netherlands and  has been  funding and supporting various non-governmental organisations  (NGOs) in  developing countries including India which are engaged in the  task  of development.  The NOVIB is part of a four member Consortium which has  been supporting  and funding development organisations and activities  in  India for  last  more than a decade. From 1988 till 1993  NOVIB  alongwith  other donors  in  the Consortium have given to AWARE grants in excess of  Rs.  50 crores which includes NOVIB&#8217;s contribution of approximately Rs. 25  crores. AWARE  has  been reporting to NOVIB that it has been utilising  almost  the entire  grant and funds given to it in the previous years for the  projects for which the funds are granted. NOVIB received complaints in 1993  against AWARE  that  it has been furnishing false statement of accounts  to  NOVIB. AWARE  is  guilty  of having committed fraud,  misappropriation  of  public funds,  falsification of accounts and has committed various other  offences under  IPC, Foreign Contribution (Regulation) Act, 1976 (for short  &#8216;FCRA&#8217;) and the Income Tax Act.\n<\/p>\n<p> 3.   NOVIB  says  that AWARE by falsification of  accounts  has  apparently siphoned  out  huge sums of money running into tens of crores  and  thereby defrauded  the  people of India and Netherland of public  money  meant  for development of rural poor of this country. In January 1994 when Mr. Madhvan visited Netherlands NOVIB asked him to send a copy of the audited statement of  accounts which AWARE had furnished to Government of India. In  response the statement of account for the year 1992-93 certified by M\/s. G.  Ramakrishna &amp; Associates, Chartered Accountants, Hyderabad, was sent. NOVIB  also received  a  copy of the entirely different audited balance sheet  for  the same  year 1992-93. It was audited by M\/s. Natraja Iyer &amp; Co.  ,  Chartered Accountants, Hyderabad. The two balance sheets were entirely different. The statement of account certified by G. Ramakrishna &amp; Co. , showed an  accumulated balance of foreign contribution of only about Rs.82 lakhs and further showed  the  utilisation f foreign contribution for the  year  1992-93  at about  Rs.5.67 crores as compared to sum of about Rs.1.66 crores  shown  in the account audited by M\/s. Natraja Iyer &amp; Co. Both the balance sheets were at complete variance. On 18th April 1994 NOVIB received a faxed letter sent by several Directors of AWARE stating that the statement of account audited by M\/s. Natraja Iyer &amp; Co. was not an authentic document. On receipt of the letter  dated  18th April 1994 Mr. Hans Pelgrom, Director  of  Projects  of NOVIB  spoke  to Chairman of AWARE and intimated him of  the  intention  of NOVIB  to send an investigating team from Netherlands to enquire  into  the matter. In response to this Mr.Madhavan faxed letter dated 28th April, 1994 containing a veiled threat of violence against the investigating team which might be sent to look into the accounts of AWARE. The enquiry was conducted by Mr. Wim Jacobs, a Chartered Accountant from Netherlands and M\/s.  Thakur Vaidyanath  Aiyar  &amp;  Co., New Delhi. Enquiry took lace in  May  1994  and report was submitted on 26th May 1994. The report confirmed that AWARE  had indeed  been  maintaining two completely different sets  of  accounts,  one which  was submitted to the Government of India and another which was  submitted to NOVIB. The Salient findings of the enquiry were as follows:-\n<\/p>\n<blockquote><p>     &#8220;(i) AWARE has accumulated foreign contributions (as of  31.3.93) of  Rs.  20.7  crores while reporting only Rs. 82  lakhs  to  the donors;\n<\/p><\/blockquote>\n<blockquote><p>      (ii) AWARE has employed two accountancy firms to produce  different  accounts  regarding their income,  expenditure,  assets  and balances;\n<\/p><\/blockquote>\n<blockquote><p>      (iii)  AWARE  has requested additional funds from the  donors  as recently as April 1994, claiming that they were facing a shortage of funds;\n<\/p><\/blockquote>\n<blockquote><p>      (iv)  For  the  financial year 1990-91, AWARE  has  produced  two different sets of accounts, both purporting to bear the signature of M\/s. Nataraja Iyer &amp; Co;\n<\/p><\/blockquote>\n<blockquote><p>      (v) AWARE has failed to cooperate with the inquiry set up by  the donors under the terms of agreements with AWARE.&#8221;\n<\/p><\/blockquote>\n<p> 4.   According to accounts for 1992-93 audited by M\/s. Nataraja Iyer &amp;  Co. and  sent to Ministry, AWARE had cash, bank deposits and  other  investment accumulations  of approximately Rs. 43 crores as on 31st March,  1993.  According  to  accounts sent to the donors, which AWARE claims also  to  have been sent to Home Ministry, certified by M\/s. G. &amp; Associates, the cash and bank  deposit accumulations were approximately Rs. 7.08 crores. The  variations  in  the  figures of foreign  contribution  (  utilised,  unutilised, brought forward and received ) between the accounts sent by M\/s. G. Ramakrishna &amp; Associates and M\/s. Nataraja Iyer &amp; Co. relating to foreign contribution are as under :-\n<\/p>\n<pre>      Description and period        Nataraja Iyer       G. Ramakrishna                       &amp; Co. accounts      &amp; Associates Accounts\n     ----------------------------------------------------------------\n     Brought forward foreign       18,72,74,997        2,87,67,214\n     contributions (1.4.1992)\n     Foreign contributions\n     received (1.4.92 to\n     31.3.1993)                    3,64,28,147         3,62,38,147\n     Unutilised foreign\n     contributions as at\n     31.3.1993                     20,70,25,718        82,86,336\n     Utilisation of foreign \n     contributions\n     (1.4.1992 to \n     31.3.1993)                    1,66,77,426         5,67,19,026\n     --------------------------------------------------------------\n\n \n\n<\/pre>\n<p> 5.   The  further allegation is that soon after NOVIB began  its  enquiries into  the  matter of dual and completely different set  of  accounts  being maintained   by   AWARE,   it  seems  AWARE  began  to   take   action   of withdrawing\/transferring  huge sums running into tens of crores  of  rupees from its accounts to various other accounts in order to prevent NOVIB  from recovering the unutilised amounts of grants regarding which AWARE had  been falsely  representing that they had utilised them. With this end  in  mind, AWARE and its Chairman in particular, issued letters to their bankers dated March  1994 asking the bank to transfer huge amounts of money amounting  to more than Rs.10 crores from the account of AWARE to various other accounts. NOVIB subsequently learnt that AWARE had transferred an amount of  Rs.13.76 crores  in  May 1994. Out of this amount Rs. 9 crores were  transferred  to various accounts in the name of Chairman, AWARE. Based on the letters dated 21st March, 1994 (acknowledged ad acted upon by bankers on 21st May, 1994) accounting  entries have been made during the year ending 31st March,  1994 treating  the  demand drafts\/pay orders issued in May 1994 as  advance  for expenses which amount to Rs.13.76 crores.\n<\/p>\n<p> 6.   The  loan  of Rs.12 lakhs was taken against fixed deposit  receipt  of Rs.16  lakhs held in Andhra Bank, Saifabad, Hyderabad and the  entire  loan amount  with interest thereupon totalling over Rs.14 lakhs was paid to  the bank in cash and the Loan account was closed on 29th January 1995. Reliance has been placed on the letter dated 24th March, 1994 written by  Mr.Madhvan to the bank to show that he was aware of the pledge of the FDR against  the loans which had been availed and it was incorrect for him to state that  he had neither authorised nor was he aware of the loan transaction.\n<\/p>\n<p> 7.   On  application (I.A. 7465\/98) of NOVIB, AWARE INDIA FOUNDATION  (AIF) was  imp leaded  as  a respondent in this matter. It was  submitted  in  the application that from the reply to the writ petition filed by AWARE and, in particular  from the report of KPMG relied upon by AWARE, NOVIB had  learnt that  a large part of the funds amounting to approximately Rs.12.13  crores which  had been given by it to AWARE for rural development had been  misappropriated  and diverted to another company under Section 25 of the  Companies  Act which had been formed and controlled by AWARE and  its  Chairman. According  to the report of KPMG, it was alleged, that the manner in  which the funds given by NOVIB to AWARE had been diverted to AIF was as follows:-\n<\/p>\n<blockquote><p>      (A)  The  funds given by the Petitioner to respondent No. 3  were shown  as loans to Tribal and Harijans by Respondent No.  3 and  their repayments to Respondent No. 3 were placed  in  a fund  known as &#8220;Revolving Fund&#8221;(See Para 9.5.1 of  the  KPMG report).\n<\/p><\/blockquote>\n<blockquote><p>      (B)  AIF  was incorporated in November, 1994 as a  Company  (Para 9.5.11 of KPMG).\n<\/p><\/blockquote>\n<blockquote><p>      (C)  AIF  is  not  independent of AWARE  as  its  operations  are &#8220;ultimately  controlled by AWARE&#8221; (Para 9.5.14 &#8211; Page 95  of the  report).  In  Para 1.12.3 of page 8  of  the  executive summary,  KPMG says that three of AIF&#8217;s five  directors  are common  to AWAGE. Thus, AIF according to KPMG is  a  related party to AWARE.\n<\/p><\/blockquote>\n<blockquote><p>      (D)  The  bank balances in the Revolving Fund accounts  of  AWARE have been progressively transferred to AIF mainly in  Decem-ber, 1995.\n<\/p><\/blockquote>\n<blockquote><p>      (E)  As at 31.12.96 AIF&#8217;s investment amount to Rs.12.30 crores.\n<\/p><\/blockquote>\n<blockquote><p>      (F)  AIF has opened peoples banks in 16 towns and operations  are similar to commercial banks.\n<\/p><\/blockquote>\n<blockquote><p>      G)   As  per figure 9.18 (Para 9.5.23 of page 99 of the  report). AWARE  has transferred out of its revolving funds a  sum  of Rs.  97416000 in the year ended 31.3.96 and Rs. 18177000  in the year ended 31.3.97.&#8221;\n<\/p><\/blockquote>\n<p> 8.   It  has also been submitted that Chairman of AIF was same Mr.  G.  Ramakrishna who had certified fraudulent accounts of AWARE which were sent to NOVIB.  It was pointed out that report of KPMG relied upon by AWARE  itself opines that operations of AIF were ultimately controlled by AWARE and  that it was not independent of AWARE.\n<\/p>\n<p> 9.   In  substance  the grievance of NOVIB against AWARE are that  for  the period  ending  31st  March, 1993, AWARE submitted two  different  sets  of accounts to NOVIB and to Income Tax Department: the AWARE in accounts  sent to  NOVIB  reported only Rs. 82 lakhs as  unutilised  foreign  contribution whereas in the accounts submitted to Income Tax Department the  accumulated foreign  contribution as on 31st March, 1993 was to the tune of  Rs.  20.07 crores: an amount of Rs. 13.76 crores was shown to have been withdrawn from the account of AWARE during the period ending 31st March 1993 although  the said  amount  in fact had not been withdrawn: the repayment  of  the  loans given to Tribals and Harijans was used as source of the revolving fund  and the  repaid  loan  amount was not considered by AWARE as  part  of  foreign contribution; interest earned on foreign contribution was not considered by AWARE  as  part of foreign contribution and loan of Rs.12  lakhs  had  been taken  against fixed deposit receipts of Rs.16 lakhs held in  Andhra  Bank, Hyderabad.\n<\/p>\n<p> 10.  Further  grievance  of NOVIB is that AWARE, its  Chairman  Sh.  P.K.S. Madhvan  and its other office bearers instead of cooperating with an  inde-pendent  enquiry into its financial affairs, began to take action of  withdrawing\/transferring  huge  funds running into crores of  rupees  from  its accounts to various other accounts in order to prevent NOVIB from  recovering  unutilised  amounts of grants regarding which AWARE had  been  falsely representing that they had utilised the same.\n<\/p>\n<p> 11.  The  NOVIB has prayed that registration of AWARE under FCRA should  be cancelled, audit of AWARE accounts be ordered under Section 15A of FCRA and action  should be initiated under Section 25 of the said Act. Further  submission  is that action shall also be taken against AWARE  for  prosecution under  the provisions of Income Tax Act and under IPC for various  offences i.e.  cheating, fraud, criminal breach of trust etc. NOVIB says  tat  full investigation into the affairs of AWARE and its officers including Chairman deserves to be conducted by a proper and independent investigating  agency. Reference  has  been made to documents placed on record in support  of  the plea  that it is a fit case where independent investigation deserves to  be ordered.  It has also been submitted that pending such  investigation,  the registration  of  AWARE  under FCRA deserves to be cancelled  as  also  its exemption granted under the provisions of the Income Tax Act.\n<\/p>\n<p> 12.  The  petition  has been strenously opposed by AWARE.  AWARE  has  also placed  on record certain documents in support of the contention  that  the prayer  for  investigation or prosecution deserves to be rejected  and  the petition merits summary dismissal. It has also pleaded that the allegations made  by  AWARE were examined by M\/s. KPMG, an  internationally  known  and reputed  firm  of Chartered Accountants and after detailed  examination  of accounts and enquiries, M\/s. KPMG submitted its report categorically  stating that in the course of enquiry nothing has come to their attention  that the AWARE has misappropriated or misutilised the funds provided to it. KPMG report has been placed on record by AWARE.\n<\/p>\n<p> 13.  AWARE  has inter alia submitted in its reply affidavit that  the  writ petition  has been filed maliciously with a view to defaming it.  The  fund flow  system in AWARE has been explained. It has also been  submitted  that statement of account prepared by M\/s. G. Ramakrishna &amp; Co. deals only  with foreign contributions received in respect of only IRDP projects during  the year  1992-93 while the balance sheet prepared by M\/s. Nataraja Iyer &amp;  Co. deals  with the foreign as well as Indian contributions in respect  of  all the projects. In fact, the statement of account prepared by M\/s. G. Ramakrishna  &amp;  Co. consists of only a part of account contained in  the  balance sheet of M\/s. Nataraja Iyer &amp; Co. An attempt has been made to explain  that in  the end of 1993 and beginning of 1994, AWARE decided to take up  a  new project  entitled &#8220;Tribals March Towards 21st Century&#8221; for the  preparation of  which NOVIB and ICCO had provided technical assistance of their  representatives to AWARE. AWARE submitted the project report in January 1994 for approval  of NOVIB and ICCO so as to obtain funding from them for the  proposed project. They wanted balance sheet of AWARE for two years in order to sanction the funding for the project. AWARE felt that it might be difficult to  obtain  funding for the new project ( 1994-2001 First Phase )  since  a part  of the grant received from NOVIB and ICCO was still lying with  AWARE for current projects which were in the process of implementation. The AWARE was  anxious to go ahead with the new projects since it would benefit  millions  of  Tribals  to whom promise had been made by  AWARE  alongwith  the representatives  of NOVIB and ICCO. It was under these  circumstances  that AWARE acting through its employee, one Mr. Vimal Kumar, who was subsequently  dismissed on account of corruption, got statements of accounts for  the year 1991-92 and 1992-93 prepared by M\/s.G. Ramakrishna &amp; Co. who were also selected and appointed by Mr.Vimal Kumar. These statements of accounts were prepared  on  the basis that the amounts were earmarked  for  the  projects which  were in the process of implementation may be treated as  deemed  expenditure  and  taken into account as such in preparing  the  statement  of account  since these amounts were reserved for the projects and were to  be spent  in  implementation of those projects only. These two  statements  of accounts  prepared by M\/s. G. Ramakrishna &amp; Co., therefore,  showed  deemed expenditure  as expenditure and that is how the balance of unutilised  foreign  grant as on 31st March 1993 showed a figure of approximately  Rs.  82 lakhs  instead  of actual balance of about Rs. 20  crores  which  naturally appeared  in  the  closing balance in the balance sheet  prepared  by  M\/s. Nataraja Iyer &amp; Co. It was, therefore, submitted that the second  statement of account was not prepared with a view to siphon off the funds as alleged. Regarding the transfer of amounts lying at central office it was  submitted that  the amoun so lying to the credit of Vyasa Bank Ltd were held in  the name of Chairman, AWARE, which is the official account and the said amounts were  debited  to the said account and pay orders obtained in the  name  of Chairman, AWARE or Zonal \/ Regional Coordinator as Project Coordinator  for onward submission to various project accounts all of which are the official accounts  of  AWARE and not the personal account of the  Chairman.  It  was submitted  that  alleged amount of over Rs.13 crores was  only  transferred from  the  central account of Chairman, AWARE to the  regional  account  of Chairman, AWARE and accounts of Zonal \/ Regional Project Coordinator.  This was  done as a process of earmarking the amount for the particular  project as the account maintained in the Zonal \/ Regional headquarters and  Project headquarters  are  for specific projects. Regarding Wim Jacob it  has  been submitted  that  he had requested the AWARE to appoint him  as  Auditor  of AWARE  and  the same was refused and, therefore, Mr. Jacob  bore  a  grudge against AWARE and thus he submitted a biased report without any basis. Thus in the aforesaid manner, the AWARE has tried to explain the allegations  of its having submitted two sets of accounts, one to NOVIB and other to Income Tax Department and having accumulated foreign contributions of over Rs.  20 crores  as  on 31st March 1993 while reporting only about Rs. 82  lakhs  to NOVIB and the transfer of over Rs. 13 crores.\n<\/p>\n<p> 14.  Mr. Chidambaram submitted that AWARE may have been ill advised to  say<br \/>\nthat  it had utilised the foreign contributions but as is evident from  the aforesaid facts, it had no guilty intention and its intentions were to have grant for the new projects referred to above.\n<\/p>\n<p> 15.  Regarding  the  achievements of Mr. Madhvan and AWARE, on  which  some stress was laid by Mr. Chidambaram, may be, AWARE has undertaken the  rural development  programmes, served the poor, oppressed, Tribals, Harijans  and socio-economically depressed groups in Indian society and its Chairman  Mr. Madhvan  besides others may have devoted and have been responsible for  the upliftment  of  these classes. All the same it has to  be  understood  that these achievements and services to the society, either by the  organisation or  by an individual do not give anyone a licence to indulge in  falsification  of  accounts  or to commit offences and act contrary  to  law.  There cannot be any doubt that many NGO&#8217;s are doing commendable work and  serving the society with complete dedication, devotion and sincerity. But  unfortunately,  in  every field there are some black sheep. There are  few  NGO&#8217;s which  may fall in that category. In case appropriate action  against  such black sheeps are not taken, then those NGO&#8217;s who are doing commendable  job may  also suffer a bad name and reputation. Therefore, a close look on  the activities of such NGO&#8217;s would be in public interest. On the other hand, if the  complaint is found to be false and motivated appropriate stern  action can also be taken against complainant.\n<\/p>\n<p> 16.  Reverting  now to the facts of the present case, from the material  on record,  there  does  not seem to be any doubt that two  different  set  of accounts for the same period were sent by AWARE, one to NOVIB and the other to  the Income Tax Department. The difference in the amount  of  unutilised foreign  grant as shown in the two accounts is of crores of rupees. In  the accounts  sent  to NOVIB, it is submitted on behalf of  AWARE  that  deemed expenditure was shown as expedicure and that is how the balance of  unutilised foreign contribution as on 31st March 1993 was shown as about Rs.  82 lakhs instead of actual balance of about Rs. 20 crores. It has been further claimed that the two statements of accounts were prepared by two  different firm of Chartered Accountants. The fact that two separate firm of Chartered Accountants  prepared  two statement of accounts by itself deserves  to  be looked  into in depth. The purpose and object behind this state of  affairs deserve  to be thoroughly enquired nto. During the enquiry it may have  to be  considered as to why two different firms of Chartered Accountants  were engaged  and while so doing the explanation of AWARE in this regard can  be examined. It will also have to be examined whether the object of AWARE  was only to get further grant from NOVIB or there was any other object. It  has to  be borne in mind that Rs.13.76 crores were shown to have been spent  in the  month of March, 1993 although the amount had not even  been  withdrawn from  the Bank. The argument that Rs.13.76 crores during the period  ending 31st March, 1993 was in fact shown as Advance also deserve to be thoroughly probed  as  it  is not disputed that in reality this amount  had  not  been withdrawn  from  the Bank. This amount has been later shown  to  have  been utilised during the period ending 31st March, 1995 to 31st March, 1997. The effect  of Chairman allegedly writing letters to the banks on  21st  March, 1993  to  prepare  the drafts of about Rs.13 crores will also  have  to  e thoroughly  enquired keeping in view the fact that in fact all drafts  were prepared during the next financial year i.e. on 23rd May, 1994. The  explanation that the fixed deposit receipts were maturing in April and May  1993 and, therefore, the drafts were prepared on 23rd May, 1993 would also  have to  be  examined in depth by examination of accounts etc. From  the  charts placed before us during the course of hearing by Mr. Chiddambaram,  learned counsel  for AWARE, it appears that the fixed deposit receipts of  substantial  amounts had matured about more than a month before the date of  issue of  the  drafts.  According to the petitioner the AWARE  got  these  drafts prepared  after NOVIB had started making enquiries and AWARE  thought  that the NOVIB may lay claim to recover amounts of unutilised grant.\n<\/p>\n<p> 17.  The  question  as to whether the facts pointed out by NOVIB  have  the element of criminality or not or the same only shows irregularities in  the working  of AWARE as sought to be contended on its behalf, can be  properly examined  and  considered only after thorough examination of  accounts  and records.  Similarly, the status of the amount of loan repaid by  those  who are  given interest free loan out of foreign contribution amount  also  deserves to be examined, keeping in view the provisions of FCRA, after  thorough study of accounts and the end use of the amounts.\n<\/p>\n<p> 18.  The matter relating to pledge of FDR by the AWARE for loan by Bank  to an  individual  will also have to be thoroughly probed bearing in  mind  as well  the  manner of return and deposit of the loan  amount  with  interest total  amounting to Rs.14 lakhs in cash. It may be over  simplification  at this  stage  to  term all these aspects as irregularities.  Many  of  these aspects  are attributed by AWARE to their ex-employees Vimal Kumar or  even to  one  of the Chartered Accountant and Babu Reddy. At this  stage  it  is difficult to accept such an explanation without further in depth enquiry if the  AWARE  is innoent and victim of complaints made by  Vimal  Kumar  and others  and had no ulterior motive, it may be in their own interest to  get their  name cleared which is possible only after thorough  independent  enquiry.\n<\/p>\n<p> 19.  The Income Tax Department has reopened the assessments and is conducting enquiries. It is also stated to have initiated action and issued a show cause  notice for withdrawal of approval given under Section 12A and  80(G)<br \/>\nof the Income Tax Act, on the basis of the complaints received. As per  the affidavit  filed on behalf of the Respondent No. 2, AWARE has prepared  two sets of statements. However, it is submitting only one set of statement  to the Department consistently maintaining continuity. According to the  affidavit  of the Department, AWARE had submitted different sets of  statements and  during the enquiries it was submitted by its Chairman that it  was  so done for obtaining more funds. Further the accounts filed by AWARE with the Income  Tax Department, as per the affidavit filed on behalf of  Respondent No.  2 show that as compared to the figures for the year 1991-92 and  1992-93,  the utilisation for the years 1993-94 and 1994-95 was  quite  substantial.  In 1991-92 and 1992-93 the utilisation of foreign contributions  was to the tune of approximately Rs.1.60 crores whereas in 1993-94 and  1994-95 the utilisation amounts increased to about Rs.13.5 crores and Rs.16  crores respectively.  At  this stage all these aspects cannot be glossed  over  as irregularities  without  further  detailed examination of  accounts  by  an independent person.\n<\/p>\n<p> 20.  The  Union of India while denying that the complaint dated  6th  June, 1994 made by NOVIB to it was not examined by FCRA Division in the  Ministry of  Home  affairs has filed a vague affidavit stating that the  matter  was thoroughly examined and submitted to the competent authority but  considering  the explanation regarding the reported discrepancies in  the  accounts furnished on behalf of AWARE the competent authority decided that the  case may be closed.\n<\/p>\n<p> 21.  At  this  stage  we may notice provisions of  FCRA  defining  &#8216;Foreign contribution&#8217;  [Section  2(c)]. Its explanation provides that  a  donation, delivered  or transferred by any legal currency or foreign security by  any person  who  has received it from any foreign source,  either  directly  or through  one or more persons, shall also be deemed to be foreign  contribution.  The authorities may have to examine the real import of the  explanation in relation to return of a loan granted out of a foreign contribution. The  question to be examined would be that when the loan is returned  would it  be foreign contribution or not or would it depend on the facts of  each case.  For example, in some cases the return of the loan may be just  after couple  of days. Would such an amount received back cease to be  a  foreign contribution  ? Likewise the status of the interest earned on foreign  contributions and that of the Revolving Fund wuld have to be examined. It may be useful to notice that AIF has no independent existence. That is also the report of KPMG. The answer to some of these legal questions can be properly given after atleast prima facie knowing factual matters by getting accounts examined by an independent person.\n<\/p>\n<p> 22.  We have perused the file of Foreign Contributions Division of Ministry of  Home which speaks volumes as to the main reasons for closing the  case. For  the  present, we say no more till such time we receive the  report  on examination of accounts in terms of this order. However, it deserves to  be emphasised that the public interest demands that the working of such  NGO&#8217;s inspires  the  public confidence. The examination of the accounts  of  such organisations  has to be critical. A duty is cast on the authorities  under FCRA to ensure that the violators are punished according to law though  not permitting witch hunting by donor or anyone elso. During the enquiry it may also become necessary to examine how the amounts were spent by AIF. The AIF is not registered under FCRA. The President of AIF was Mr. G.  Ramakrishna, Chartered Accountant. It is claimed that he is no more the President.  That may be so but the question would be whether Mr. G. Ramakrishna was used  by AWARE  or he was responsible for what is being attributed to  AWARE.  These matters can be properly examined by this court only on receipt of report on accounts.\n<\/p>\n<p> 23.  While  we  refrain  from commenting on the  proceedings  initiated  by Income Tax Department for reopening of assessments lest it may cause prejudice  either  to AWARE or to the Department but it deserves to  be  noticed that  despite approval for conducting special audit having been granted  by Commissioner of Income Tax on 5th March, 1998, no action seems to have been taken for a period of nearly 6 months. Mr. Jolly attributes it to inadvertence. Assuming it is so, we hope such inadvertence will not take place now.\n<\/p>\n<p> 24.  Mr.  Chiddambaram  submitted that in the organisation  of  such  large magnitude  having various activities, the mistakes and  irregularities  are likely  to occur and that is what has happened in the present case. It  may be  so  but the facts are too serious to deserve closing the case  at  this stage  by terming the aspects in respect of accounts as  noticed  hereinbefore,  as mistakes or irregularities without further probe. The  facts  noticed  in  this order are only illustrative. All detailed  facts  requiring examination have not been noticed in this order. We have only noticed  some of  the material facts. In any case if it is found to be a case of  mistake or  irregularity,  after close examination by an expert  on  accounts,  the matter can then be directed to be closed or further necessary directions on the facts of the case can be issued.\n<\/p>\n<p>25.  We  also refrain from commenting upon report submitted by  M\/s.  KPMG. Both NOVIB and AWARE had their own versions about that report. AWARE relied upon  the report to press home the point that it has not found  that  AWARE had  misappropriated  or misutilised any funds. NOVIB challenges  even  the appointment  of  M\/s. KPMG and Mr. Bhushan contended that no value  can  be attached  to  such a report. NOVIB did not join in the examination  of  accounts  by KPMG. Mr. Bhushan also referred to some parts of the  report  in support of the case of NOVIB. The question whether AWARE was ill advised to inform NOVIB that it had utilised the foreign contribution which it had not and  whether  it had no guilty intention as sought to be made  out  on  its behalf,  is  an  aspect which will have to be considered by  the  court  on examination of the report regarding accounts. The question as to whether it is a case of siphoning off the funds, cheating and fraudulent  transactions and whether prima facie offences of cheating etc were committed or not  can also be appropriately gone into on detailed examination of the accounts. We feel  that it is only thereafter it would be appropriate for this court  to consider  whether  direction for registration of a case for  commission  of various  offences deserves to be issued and investigation conducted  by  an investigating agency &#8211; Crime Branch or CBI or any other similar agency.\n<\/p>\n<p> 26.  We have no doubt that an independent indepth enquiry into the accounts of  AWARE  and  AIF in the facts and circumstances of the  case,  would  be necessary.  Thus,  having considered the matter and rival  submissions,  we refrain  from referring the matter, at this stage, for registration of  the case  and investigation by CBI or any other investigating agency.  Further, we are of the view that pending receipt of the report on accounts it is not presently necessary to issue directions for cancellation of registration of AWARE  under  FCRA  or cancellation of exemption under  the  provisions  of Income  Tax Act. We, however, direct the Income Tax Authorities to  expeditiously conclude the special audit in accordance with law.\n<\/p>\n<p> 27.  In  view of the above, we appoint M\/s. S.R. Batliboi &amp; Co.,  Chartered Accountants  to conduct an independent indepth enquiry into  the  financial affairs of AWARE and AIF in terms of the observations made hereinbefore  in this judgment. The Chartered Accountants will also keep in view the allegations and counter allegations made by the parties in the writ petition  and replies etc. On examination of accounts they would report whether there has been any misappropriation and misutilisation of funds by AWARE and AIF. The Registry  alongwith copy of the judgment should also send forthwith a  copy of  all papers on the file of this writ petition to the Chartered  Accountants.  All  concerned  are directed to render  necessary  cooperation.  The payments  of fee and expenses of M\/s. S.R. Batliboi &amp; Co. will be  made  by NOVIB  who  at first instance shall place at their disposal a sum  of  Rs.1 lakh  in  account. Any observations made in this judgement  shall  have  no effect on any other proceedings.\n<\/p>\n<p> 28.  For report put up the matter on 25th February, 1999.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Netherlands Organisation For &#8230; vs U.O.I. &amp; Ors. on 9 November, 1998 Equivalent citations: 1999 IAD Delhi 83, 77 (1999) DLT 720 Author: Y Sabharwal Bench: Y Sabharwal, K Gupta ORDER Y.K. Sabharwal, J. 1. The Petitioner &#8211; Netherlands Organisation for International Development Corporation (for short &#8216;NOVIB&#8217; has filed this petition seeking [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-97932","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Netherlands Organisation For ... vs U.O.I. &amp; Ors. on 9 November, 1998 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/netherlands-organisation-for-vs-u-o-i-ors-on-9-november-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Netherlands Organisation For ... vs U.O.I. &amp; 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