The New Nation - Internet Edition

Appellate Division

( Crimina1)

Mohammad Fazlul Karim-J.

M.M. Ruhul Amin-J.

CRIMINAL APPEAL No. 60 of 2003.

(From the judgment and order dated the 10th November, 2002 passed by the High Court Division in Criminal Revision No.699 of 2001).

Mokbul Hossain Howlader t.. Appellant.

Vs.

The State Respondent.

For the Appellant : Syed Mahbubar Rahman, Advocate-on-Record.

For the Respondent : Mr. Zahurul Isbm Mukul, Deputy Attorney General, instructed by Md. Sajjadul Huq, Advocate-on-Record.

Judgment: September 13, 2007

Penal Code, 1860-

Section 420-Offence of cheating and the punishment therefor Enhancement of sentence without issue of Rule is appeal not permissible in law.

Money obtained by the accused on the inducement of sending the complainant to America and arrange for him a job there and ultimately misappropriating the same and refusing to refund the money constitutes offence of cheating punishable under section 420 of the Penal Code. Enhancement of sentence by the appellate Court without issue of any Rule is not permissible in law.

It also appears from the record that before the revisional Court it has been contended from the side of the accused petitioner that the alleged transaction does not call for any criminal action, rather it was a civil liability only and as such, the impugned order of the conviction and sentence cannot be sustained in law. But the contention of the accused petitioner is not tenable at all. The accused gave false assurance to the complainant that he would send him to America and arrange a job for him there if he paid Tk.2 lacs to him and giving such false assurance he dishonestly induced the complainant to give Tk. 1,65,000.00 to him and subsequently he misappropriated the entire money and did not send the complainant to America. It appears that the act of the accused clearly constitutes the offence of cheating as defined in Section 415 of the Penal Code and, as such, is punishable under Section 420 of the Penal Code …………(Para 9)

Admittedly no Rule in the nature of enhancement of sentence was ever issued, instead enhanced the sentence contrary to Law and procedure …….(Para 11)

JUDGEMENT

MOHAMMAD FAZLUL KARIM-J:

This Criminal Appeal, by leave, is directed against the judgment and order dated 10.11.2002 passed by the High Court Division in Criminal Revision No.688 of 2001 discharging the Rule obtained by (he appellant against the judgment and order dated 28.08.2001 passed by the learned Additional Metropolitan Sessions Judge, Court No.5,

Dhaka in Metropolitan Criminal Appeal No.87 of 2000 setting aside the order of conviction under Section 406 of the Penal Code and maintaining the conviction under Section 420 of the Penal Code and enhancing the period of sentence from 3 months to 6 (six) months and fine of Tk. 1000.00 to 2000.00 in default to suffer simple imprisonment for 1 (one) month more passed by the learned Metropolitan Magistrate, Dhaka convicting the appellant under Section 406/420 of the Penal Code and sentencing him to suffer imprisonment for 3 months for each Section and to pay a fine of Tk. 1000.00 under each Section in default to suffer simple imprisonment for 1 (one) month more by the judgment and order dated 25.04.2000.

2. The prosecution case, in short, is that on 01.09.1998 the complainant Mahbubul Alam Akan lodged a petition of complaint before the Chief Metropolitan Magistrate, Dhaka alleging that he was an employee of Barisal Textile Mills and since that Mills was closed he became helpless. At that time his close friend accused Md. Mokbul Hossain Howlader allured him to send him to America. The accused told that if the complainant paid him taka two lac he would send the complainant to America within four months and would arrange a job there for him. The complainant agreed and gave the accused total Tk. 1,65,000.00 on different dates. It was agreed upon that the remaining taka would be paid after getting visa and confirmation of ticket. But the accused did not send the complainant to America as per that agreement. The complainant demanded his money back but the accused was killing time on flimsy grounds. On 08.10.1995 the accused executed a deed of agreement acknowledging receipt of Tk. 1,65,000.00 from the complainant on condition of sending the complainant to America and also agreeing that if he failed to send the complainant to America he would refried the entire amount of Tk. 1,65,000.00 at a time to the complainant. But the accused neither did send the complaint to America nor refunded the money to him. The complainant then lodged a complaint in the office of the accused and the official authority of the accused, after making inquiry, found the complaint true and dismissed the accused from the service. On 15.08.1998 the accused refused to give back the money to the complainant for the last time and thus the complainant was compelled to lodge the petition of complaint.

The C.M.M. Dhaka, on receiving that petition of complain examined the complainant under Section 200 of the Code of Criminal Procedure and took cognisance against the accused under Sections 406/420 of the Penal Code. The case was ultimately ripe for trial. The trying Magistrate framed ·charge against the accused under Section 406/420 of the Penal Code and held trial in accordance with law.

3. The prosecution examined 5 (witnesses before the trial Court. The trial Court on consideration of these oral evidence as well as the documentary evidence adduced by the prosecution, found the accused guilty under Sections 406/420 of the Penal Code and convicted him thereunder and sentenced him to 3 months simple imprisonment and also to a fine of taka one thousand in default to simple imprisonment for one month more under each of the Sections.

4. The convict-petitioner preferred appeal before the Metropolitan Sessions Judge, Dhaka, against the said judgment and order. The appeal was heard by the learned Additional Sessions Judge, who was pleased to dismiss the appeal, with modification of the order of conviction and sentence and convicted the accused under Section 420 of the Penal Code only and sentenced him thereunder to 6 (six) months imprisonment and also to fine of Tk. 2000.00 in default to suffer simple imprisonment for one month more and set aside the order of conviction and sentence under Section 406 of the Penal Code.

5. Against the said judgment and order of the appellate Court the convict petitioner preferred criminal revision before the High Court Division and the High Court after hearing discharged the Rule by the judgment and order dated 10.11.2002.

6. Leave was granted to consider that submission of the learned Counsel [or the petitioner that "the lower appellate Court committed an error of law by enhancing the sentence of the convict-petitioner from 3 (three) months to 6(six) months under Section 420 of the Penal Code without issuing a Rule of enhancement and this aspect having been overlooked by the learned single Judge of the High Court Division committed an error of law in discharging the Rule which caused a serious miscarriage of justice."

7. Syed Mahbubar Rahman, learned Advocate-on-Record, appearing for the appellant submitted that the appellate. Court committed gross illegality by enhancing the sentence of the convict petitioner from 3 (three) months to 6(six) months under Section 420 of the Penal Code without issuing a Rule of enhancement but the learned Judge of the High Court Division failed to consider this aspect of law while discharging the Rule and thus caused illegalities resulting in serious miscarriage of justice.

8. It appears from the record that the allegation brought against the accused petitioner was that he took Tk. 1,65,000.00 from the complainant giving him assurance that he would send him to America and arrange a job for him there within 4 months. But ultimately he did not send the complainant to America and also did not refund the money to the complainant in spite of complainant's repeated demands which aspect of the case has been proved beyond all reasonable doubt by sufficient oral as well as documentary evidence. The complainant himself as P.W.I and all the other four P.W.'s have deposed before the Court supporting this allegation against the accused. The trial Court has discussed the evidence of these witnesses elaborately in his judgment. Besides, these oral evidence there are documentary evidences which also have supported the allegation against the accused. These two documentary evidence are an agreement vide Exhibit-1 and one hand note.

The genuineness of both these documents has been admitted by the accused-petitioner himself in this very provisional application. In the revisional application the accused petitioner has clearly admitted the genuineness of these 2 documents.

It also appears that in both these documents the accused Mokbul Hossain Howlader admitted that he took total Tk 1,65,000.00 from the complainant on giving him assurance that he would send the complainant to America. Before the trial Court the accused Mokbul Hossain Howlader though admitted his signature in this Exhibit-l but tried to plead a case that this signature was taken forcibly. But both the Courts below, on consideration of the evidence adduced by the P.W.'s and also on consideration of the fact that accused could not adduce a single iota of evidence to substantiate his above plea, arrived at the finding that the deed of agreement the Exhibit-1 was genuine.

9. It also appears from the record that before the revisional Court it has been contended from the side of the accused-petitioner that the alleged transaction does not call for ant criminal action, rather it was civil liability only and as such, the impugned order of the conviction and sentence cannot be sustained in law.

But the contention of the accused petitioner is not tenable at all. The accused gave false assurance to the complainant that he would send him to America and arrange a job for him there if he paid Tk 2 lac to him and giving such false assurance he dishonestly induced the complainant to give Tk 1,65,000.00 to him and subsequently he misappropriated the entire money and did not send the complainant to America. It appears that the act of the accused clearly constitutes the offence of cheating as defined in Section 415 of the Penal Code and, as such, is punishable under Section 420 of the Penal Code.

10. Leaving aside the merit of the case as discussed above, the leave was granted to consider the question of enhancement of the sentence from three months to six months under Section 420 of the Penal Code without issuing a Rule of enhancement.

11. Admittedly no Rule in the nature of enhancement of sentence was ever issued, instead enhanced the sentence contrary to the law and procedure.

12. In view of the above, we find substance in the appeal.

Accordingly, the appeal is allowed.