The New Nation - Internet Edition

Appellate Division Cases (Criminal)

Present

Mohammad Fazlul

Karim J

Md. Tafazzul Islam J

Md. Hassan Ameen J

Samarendra Nath

Das (Nalu) and others

Petitioners.

-Vs-

Md. Atique and others.

Respondents.

Judgment

4th November 2007

The Penal Code, Section 406/420

The Code of Criminal Procedure, Section 241 (2)

It appears from the record that the petitioners have taken Taka 3,50,000.00 for the purpose of business with a condition that they will return the amount with profit to be paid to the complainant; a cheque was issued by the petitioners and that has been refused by the bank on the ground of insufficient fund. The petitioners deceived the complainant and subsequently, he has refused to pay the entire amount with profit. (5)

In the instant case the accused by his alleged conduct manifested the intention to deceive the complainant by issuing a cheque for the amount since dishonoured and allegedly committed the offences for which the charges were framed against the petitioners tt. (6)

Syed Mahbubur Rahman, Advocate- on- Record For the Petitioner

Md. Nawab Ali, Advocate-on-Record . ttt. For the Respondent No.1.

For the Respondent No.2-None represented.

Judgment

Mohammad Fazlul Karim J: This petition for Leave to Appeal is directed against the judgment and order dated 09.04.2005 passed by the High Court Division in Criminal Miscellaneous Case No.8122 of 2002 discharging the Rule.

2. The facts of the case are that on 24.05.2000 the respondent No.1 as complainant filed a petition of complaint in the Court of learned Magistrate, Cognizance Court No.1, Rajbari against the petitioners under Sections 406/420 of the Penal Code stating, inter alia, that his father died during his service period leaving behind the complainant, his brother, sister and mother as heirs. The heirs of Abdul Gafur Mollah withdrew the pension and other amounts and all the members of the family gave the said amount to the complainant for the purpose of business.' The accused-petitioners have been continuing their business jointly where the accused No.1 has a arat at Baharpur Bazar, while the father of: the complainant was serving as a Tashilder of Baharpur Tashil Office, a: good intimacy grew in between the complainant father and the accused. The: accused came to know that the complainant has huge amount of money and: also allured him to deposit amount for business. The complainant gave Taka 3,50,000.00 to the accused for the purpose, of business on a condition that: he will get profit out of the given amount.

On good faith the complainant firstly gave an amount of TK.25,000.00 to the accused and subsequently, by some installment gave the accused which stands an amount of total TK.3,5O,000.00. Out of the said amount: they purchased turmeric of TK.3.39.916.00 and the accused gave: receipt of taking TK.2, 99, 000.00. In the meantime the accused sold the goods in question and the accused No.1 informed: that total capital and profit of the Complainant stands to an amount of TK.4,32,000.00. The complainant also demanded his amount to the accused, but: the accused did not pay the capital amount along with profit of business and: lastly on 23.05.2000 the complainant: along with witnesses at 6:00 p.m. went to the store room of the accused No.1 and wanted his capital money along with profit in presence of witnesses but the accused denied to pay the amount and: thus the accused committed offence under Sections 406/420 of the Penal Code.

3. The learned Magistrate, Rajbari took: cognizance of the offence under Section 406/420 of the Penal Code on 24.05.2000 and fixed next date on 20.06.2000 and again the case was fixed on 16.07.2000 and 10.08.2000. In the meantime on 06.08.2000 the accused petitioner No.1 voluntarily surrendered before the learned Magistrate with a prayer for bail and the learned Magistrate was pleased to grant bail. Thereafter, the accused petitioner No.2 on 10.08.2000 voluntarily appeared before the learned Magistrate with a prayer for bail and after hearing the learned Magistrate was pleased to grant bail by the order dated 10.08.2000. Thereafter, the case was fixed on 07.01.2001 for framing charge but on that date the accused petitioners filed an application under Section 241 (2) of the Code of Criminal Procedure for discharging them from the charge and after hearing without considering the application as well as facts and circumstances of the case was pleased to reject the same and also framed charge against the accused petitioners under Sections 406/420 of the Penal Code by the order dated 07.01.2001; that the accused petitioners filed a Criminal Revision No.20 of 2001 before the learned Sessions : Judge, Rajbari, challenging the order of framing the charge dated 07.01.2001 of the learned Magistrate, Rajbari and after hearing the learned Sessions Judge, Rajbari was pleased to disallow the Criminal Revision by his judgment and order dated 29.01.2002. Thereafter, the petitioners moved the application before the High Court Division under Section 561 A of the Code of Criminal Procedure.

4. Syed Mahbubur Rahman, learned Advocate-on-Record, appearing for the petitioner, submitted that the High Court Division erred in law in failing to consider that there is nothing to show from: the petition of complaint that the: accuseds made any specific promise of ~ making any payment within a specified time, moreso, the petitioners did not: refuse to pay the money in favour of: complainant which the complainant has invested the amount by some installments as a financial partner for business purpose and the petitioners have paid Tk. 90,000.00 in cash and TK.80,000.00 through demand drafts to the complainant and so there were transaction between the parties, but the learned: judges of the High Court Division without considering these facts and materials: arrived at an erroneous decision. The learned Advocate further submitted that: the petition of complaint is not the statement of the complainant under Section: 200 of the Code of Criminal Procedure disclosing any ingredients of the offence under Sections 406/420 of the Penal Code as the money was given by the, complainant for investment in business and so the proceeding against the petitioners is an abuse of the process of law; that the High Court Division arrived at an erroneous decision on misreading and: misconstruing the materials on record: and the provisions of law.

5. It appears from the record that the: petitioners have taken Taka 3,50,000.00: for the purpose of business with a condition that they will return the amount with: profit to be paid to the complainant; a cheque was issued by the petitioners and: that has been refused by the bank on the: ground of insufficient fund. The petitioners deceived the complainant and subsequently, he has refused to pay the entire amount with profit.

6. In the instant case the accused by his alleged conduct manifested the intention to deceive the complainant by issuing a cheque for the amount since dishonoured and allegedly committed the offences for which the charges were framed against the petitioners.

7. In view of the above, we find no reason to differ with the High Court ; Division.

8. Accordingly, the petition is dismissed without costs.