The New Nation - Internet Edition

High Court Division

(Criminal)

Sharif Uddin Chaklader-J.

And

Md. Emdadul Huq-J.

CRIMINAL MISCELLANEOUS CASE NO. 8763 OF 2001

With

CRIMINAL MISCELLANEOUS CASE NO. 11165 OF 2005

With

CRIMINAL MISCELLANEOUS CASE NO. 7514 OF 2001

(Arising out of Double Mooring P.S Case No. 17 dated 17.10.2001 corresponding to petition/Memo No. 1028/C M.M/C complaint dated 16.10.2001 now pending before the Court of Chief Metropolitan Magistrate, Chittagong).

Neo Mendes and others tttt.. Accused Petitioners.

Vs.

The State ttttt..Opposite Party.

For the Petitioners : Mr. M. Hafizullah, Advocate.

For the State : Mr. M. Mansur

Rahman, AAG.

Judgment: June 7, 2007

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceedings-

When the allegations made in the petition of complaint disclose civil liability and for that the complainant has already instituted Money suit in the competent civil Court the criminal proceedings amount to double jeopardy. Furthermore, when the part of the proceeding at the instance of some accused against whom the main allegations are made, has already been quashed in another miscellaneous proceedings, the learned judges of the High Court Division also quashed the proceedings relating to the present petitioners.

From a reading of the complaint it appears that entire allegations made in the complaint aiming to accused Mark Parco, Mustaque Amin and A.Z Hannan and the case against them having been quashed by this Court in the said decision, the proceeding so far as it relates to the accused petitioners has no leg to stand.

We find substance in this Rule ttt..(Para 4)

JUDGMENT

SHARIF UDDIN CHAKLADER-J:

Rule of Criminal Miscellaneous Case No . 8763 of 2001 at the instance of accused No. 3 Neo Mendes, accused No.4, S.M.S. Saleheen, accused No.5, Shah Newaz and Rule of Criminal Miscellaneous Case No. 11165 of 2005 at the instance of accused No.6, Shahabuddin Chowdhury and accused No.7, Ranjit Kumar Chowdhury of the chargesheet were issued for quashment of the proceeding of Double Mooring P.S. Case No. 17 dated 17.10.2001 under sections 406/420/467/468/471/476/121-A/109 of the Penal Code pending before the Court of Chief Metropolitan Magistrate, Chittagong.

2. The relevant facts for disposal of these Rules, are that, a lengthy complaint was made by the complainant, Maxim Ltd., against the accused petitioners and others alleging that as per order placed by accused No.9, Bugle Boy Industries Inc. through L/C No. DC HKH 673495 dated 29.10.2000 and L/C. No DC HKH 660006 dated 30.11.2000, the complainant manufactured all the ordered garments and in order to receive the original documents and make shipment of the consignment, the nominated forwarder of the American buyer appeared, received documents and garments and issued forwarder's Cargo Receipt No. 51845 dated 14.12.2000 for 878 cartons, value amounting to US$12,485.16 and F.C.R No. 52187 dated 23.12.2000 for 284 cartons valued at US$ 22, 262.76. It has been alleged that cargo may be delivered after surrendering documents and before surrendering these are to be endorsed by Arab Bangladesh Bank Ltd., and the Bank will endorse it only after receiving payment on behalf of the complainant. It has been alleged that accused persons took away all the garments without any information to the complainant or without taking original papers from Arab Bangladesh Bank. It has been alleged that the complainant sustained loss of US$ 37,747.92 equivalent to Tk. 19,80,631.40. From the complaint we find that the complainant disclosed how and why accuseds should be punished under the aforesaid sections of the Penal Code giving ingredients of each of the sections and thereafter, made prayer that the accused should be punished for misappropriating cargo worth of Invoice Value US$ 34,747.92 equivalent of Tk. 19,80,631.40.

3. Mr. M. Hafizullah, learned Advocate appearing for the petitioners submits that this Court in Criminal Miscellaneous Case No. 8550 of 2001 quashed the proceedings so far as it relates to the principal accused on the ground that the allegations made in the petition of complaint disclosed a civil liability for which Money Suit No. 26 of 2001 was initiated by the complainant before hand as such if this proceeding be continued that will act as double jeopardy, and also in no way bring any fruitful result to the complainant as the complaint excepting harassing the accused petitioners nothing has been disclosed, as such, the instant proceeding is liable to be quashed ..

4. In the aforesaid decision of this Court passed in Criminal Miscellaneous Case No. 8550 of 2001 this Court relying on the decisions reported in 51 DLR (AD) 14, 45 DLR (AD) 31 and 23 DLR (SC) 14 held that Civil Court when in seisin of the matter prior to institution/making of complaint, and the complainant's only endeavour to get back money from the accused persons and for that Money Suit No. 26 of 2001 having been filed before hand, institution of the criminal proceeding over the self same fact is nothing but compelling the accused persons to yield to the pressure of the complainant so that accused persons fulfil the desire of the complainant and satisfy the complainant by paying money, quashed the proceeding so far as it relates to the petitioners of that Rule. From a reading of the complaint it appears that entire allegations made in the complaint aiming to accused Mark Parco, Mustaque Amin and AZ Hannan and the case against them having been quashed by this Court in the said decision, the proceeding so far as it relates to the accused petitioners has no leg to stand. We find substance in this Rule.

5. In the result, these Rules in Criminal Miscellaneous Case No. 8763 of 2001 with Criminal Miscellaneous Case No. 8763 of 2001 with Criminal Miscellaneous Case No. 11165 of 2005 are made absolute.

6. The proceeding of Double Mooring PS Case No. 17 dated 17.10.2001 pending in the Court of Chief Metropolitan Magistrate; Chittagong is quashed so far as it relates to the accused petitioners.

7. Rule of Criminal Miscellaneous Case No. 7514 of 2001 was issued on the prayer of the accused petitioners Neo Mendes, S.M.5 Saleheen and Shah Newaz for anticipatory bail, since we have already quashed the proceeding in which the anticipatory bail was granted, this Rule has practically become infructuous.

8. In the result this i.e. Criminal Miscellaneous Case No. 7514 of 2001, is discharged as being infructuous.

Communicate this order at once.