It is understood that the charges involved the transfer of funds originating from SRC International to Najib's bank accounts.
Section 403 concerns “dishonest misappropriation of property”.
The recommendation, sources claimed, was made to the Attorney-General’s Chambers but Malaysiakini could not obtain an official confirmation.
Speaking on condition of anonymity, the sources indicated there was "circumstantial evidence" to charge the prime minister with possible abuse of power following allegations of funds being deposited into his private bank accounts.
A possible hindrance to this, said the sources, would be the prime minister denying personal knowledge of the matter.
According to the law, to prove abuse of power, the authorities need to show the person having knowledge of the said funds.
Yesterday, attorney-general Mohamed Apandi Ali said Najib had no knowledge nor was he informed about the SRC transfer.
Therefore, sources familiar with the case, said the commission proposed charges under Section 403 instead, which stated “whoever dishonestly misappropriates, or converts to his own use or causes any other person to dispose of, any property can be punished under this section”.
“We have various strong case laws and Malaysian cases in securing conviction under Section 403.
“This is what was recommended but Apandi did not answer this in his press conference yesterday,” said one of the sources.
The Penal Code provides various illustrations in regard to Section 403 – one of which states that supposedly A takes property belonging to Z out of Z's possession, in good faith, believing at the time when he takes it, that the property belongs to himself, A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
Those found guilty are liable for a jail sentence of not less than six months and not more than five years, with whipping and shall also be liable to a fine.
Investigators also claimed that the funds from SRC International, a former 1MDB subsidiary now under the Finance Ministry, came from the Retirement Fund Inc (KWAP), a pension fund for government servants.
“We monitored the money trail and it came from KWAP,” said one investigator.
Last November, SRC International said the entire RM4 billion loaned to KWAP on normal commercial terms is fully accounted for in its balance sheet, in accordance with standard accounting and governance practices.
The firm expressed disappointment that "fabricated material with malicious intent" was published by certain media to suggest that these funds had been misappropriated.
Najib has always denied abusing public funds for personal gain or committing any wrongdoing, and has blamed such allegations on those attempting to architect his downfall.
Yesterday, Apandi (photo) announced that after having studied the MACC’s investigation papers, he was satisfied Najib did not commit any criminal offence.
He added that he would return the papers to MACC with the instruction for the commission to close the investigation.
This apparently did not go down well with senior MACC officials.
MACC's director of special operations Bahri Mohd Zin today told the Star Online that the commission is likely to appeal, as he described the cases as “straightforward”.
MACC not allowed to probe RM2.6b ‘donation’ overseas
Meanwhile, sources claimed that investigators were prevented from probing the money trail outside of Malaysia.
This is despite reports earlier claiming that MACC recorded statements from SRC International's managing director Nik Faisal Ariff Kamil and director Mohd Suboh Yasin – both of whom are overseas.
It is understood that the MACC officers sought assistance to investigate the RM2.6 billion donation by utilising the Mutual Legal Assistance (MLA) Treaty that Malaysia has inked with several countries.
During the Perwaja Bhd case involving its managing director, Eric Chia, then attorney-general Abdul Gani Patail allowed the probe to be conducted in both Switzerland and Hong Kong under the MLA, where statements were recorded from witnesses in the two countries.
The donation was said to be from the Saudi royal family, which was transferred to Najib in two tranches in 2013 as political donation ahead of the 13th general election.
Yesterday, Apandi said investigations showed the sum was given without strings attached and the prime minister returned RM2.03 billion in August the same year.
However, sources said information about the prime minister returning a substantial sum back to the donor was not from the MACC investigation papers.
Contacted for comment, Bahri remained tightlipped on whether the investigation papers recommended charges against the prime minister.
“I do not wish to comment on that. As I mentioned before, the next step is to work towards appealing the AG’s decision,” he told Malaysiakini.
Despite attempts to call and message, Malaysiakini is still awaiting Apandi’s response.
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