High Court Division
(Criminal Revisional Jurisdiction)
ANM Bashir Ul1ah J
Mustafa Zaman Islam J
Khandaker Nazrul
Islam Khokan ····
…… Accused-Petitioner
vs
Mustaba Kuli Khan and
another …………….
………….Opposite Parties
Judgment
June 23th, 2013
Code of Criminal Procedure (V of 1898)
Section 561A
Penal Code (XLV of 1860)
Section 415
Judgment June 23rd, 2013.
In order to constitute an offence under section 415 of the Code the deception by the accused is must and such deception must be also from the initial stage of the transaction but in the instant case since the accused made a payment of Taka 38,820 to complainant in two installments, so, it is difficult for us to hold that the accused had an initial intention to deceive the complainant rather there appears part payment in the transaction. The allegations of the complainant are accepted in its entirety the same do not constitute any offence under sections 420 and 406 of the Code. . ….. (12)
Abdul Quader Chowdhury vs State, 28 DLR (AD) 38; Md Shafiuddin Khan vs State, 13 BLD 362 = 45 DLR 102 and Abdur Rouf alias Nayan vs State, 53
DLR283 ref.
No one Appears-For the Petitioner
ASM Nazmul Haque, DAG with Md Mamunor Rashid, AAG-For the State-Opposite Party.
Judgment
ANM Bashir Ullah J: This Rule on an application under section 561A of the Code of Criminal Procedure (in short, the Code) filed by the accused-petitioner was issued calling upon the opposite party No.1 to show cause as to why the criminal proceedings of CR Case No. 1994 of 1995 now pending in the Court of learned Metropolitan Magistrate, Dhaka should not be quashed and/or pass such other or further order or orders as to this court may seem fit and proper.
2. The facts leading to the issuance of the Rule, in short, is that Mr Mustaba Kuli Khan, the opposite party No.1 as complainant filed a complaint case in the Court of learned Chief Metropolitan Magistrate, Dhaka under sections 406 and 420 of the Penal Code against the present petitioner as accused alleging inter alia that the accused-petitioner took a loan of Taka 10,88,820 from one Shah Mohammad Shafi Ahmed Khadmi, here in after referred as Khadmi, who happens to be the relation of the complainant. The accused paid Taka 38,820 in cash to said Khadmi. Thereafter Khadmi asked the accused to make the payment of the rest money to the complainant and in the mean time Khadmi died. Thereafter the accused in compliance of the request so made to him paid Taka 5,00,000 to the complainant through cheque and was taking time for the rest amount-of Taka 5,50,000 on this or that plea. On 23-7-1993 the accused executed an angikernama on a stamp valued at Taka 50 that he would make the payment of the money within 20-8-1993 but ultimately he did not make payment of the money. Thus the complainant issued a legal notice on 8-8-1994 upon the accused requesting him for making the payment of the money but he did not pay heed to it and under this compelling circumstance he filed the petition of complaint under sections 406 and 420 of the Penal Code and accordingly the case was registered as CR case No. 1994 of 1995.
3. The learned Magistrate on receiving the petition of complaint examined the complainant and took cognizance against the accused under sections 406 and 420 of the Penal Code whereupon the accused appearing in the Court below enlarged on bail. The accused sought discharge from the case but the learned Magistrate by his order dated 11-12-1996 framed charge under sections 420 and 406 of the Penal Code to which the accused pleaded not guilty and claimed to be tried. Since the learned Metropolitan Magistrate did not discharge the accused from the case, the accused moved this Court filing an application under section 561A of the Code of Criminal Procedure for quashing the proceedings and obtained the present Rule.
4. None appears for the petitioner to support the Rule though the Rule is appearing in the daily cause list of this Court.
5. Mr ASM Nazmul Haque, the learned. Deputy Attorney-General along with Mr Md Mamunur Rashid, the learned Assistant Attorney-General appearing for the State opposes the Rule. He submits that the accused made angikernama for making payment of Taka 5,50,0090 in his own hand on 23-7-1993 but even then he ‘did not make payment of the said amount within the stipulated time fixed by him and thereby he deceived the complainant, so, the accused committed an offence punishable under sections 406 and 420 of the Penal Code and the trial Court rightly framed charge under those sections of law against the accused. So the proceeding is not liable to be quashed.
6. We have considered the above submissions of the learned Deputy Attorney-General appearing for the state with profound attention and have gone through the materials on record.
7. On going to the materials on record it appears that the accused Khandaker Nazrul Islam Khokan took a loan of Taka 10,88,820 from one Shah Mohammad Shafi Ahmed Khadmi who before his death asked the accused to make the payment of the said money to the complainant and accordingly accused paid Taka 5,00,000 to the complainant through cheque and for the rest amount of Taka 5,50,000 he made an angikernama on 23-7-1993 with a stipulation that he would pay the rest amount on or before 20-8-1993 but thereafter he did not make any payment of the amount and this admitted facts brought the parties into the present litigation.
8. In the case of Abdul Quader Chowdhury vs State, 28 DLR (AD) 38 it was held by our Apex Court that a criminal proceeding can be quashed under section l561A of the Code where the facts are so preposterous that even on the admitted facts no case can stand against the accused. Secondly, if the criminal proceedings in question manifestly appears that there is a legal bar against the institution or continuance of the proceedings. Thirdly, where the allegations in the First Information Report or the complaint are accepted in their entirety do not constitute the offence alleged, and fourthly, where there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
9. Now let us examine whether the facts of the instant case invoke any of the ingredients stated hereinbefore. It is almost admitted in the instant case that the accused admitting the transaction between him and Khadmi make a payment of Taka 5,38,820 in cash to Khadmi himself and after the death of Khadmi on the instruction of Khadmi he made a payment of Taka 5,00,000 to the complainant Mustafa Kali Khan though the accused ultimately failed to make any further payment of the rest amount of Taka 5,50,000 and though he executed an angikernama to that effect in his own hand on 23-7-1993 stipulating to make the payment within 28-8-1993 but ultimately he did not make any payment of the said amount.
10. In the case of Md Shafiuddin Khan vs State, 13 BLD 362 = 45 DLR 102 it was held that loan on a representation to repay the same dishonestly inducing the person to lend the money, having no intention to repay the same, it will be an offence of cheating as defined under section 415 of the Penal Code. In this particular case we find that no such intention of the accused has been revealed as he made part payment at least in two occasions.
11. In the case of Abdur Rouf alias Nayan vs State, 53 DLR 283 it was held by this Court that if part payment is made by the accused, it can not be said that there was any intention of initial deception, so offence under sections 406 and 420 of the Penal Code will not lie. As we have found that it is the admitted facts that the accused had already made a payment of Taka 5,00,000 to the complainant, so we find a part payment in the transaction between the parties.
12. In order to constitute an offence under section 415 of the Penal Code the deception by the accused is must and such deception must be also from the initial stage of the transaction but in the instant case since the accused made a payment of Taka 38,820 to complainant in two installments, so, it is difficult for us to hold that the accused had an initial intention to deceive the complainant rather there appears part payment in the transaction. So if the allegations of the complainant are accepted in its entirety the same do not constitute any offence under sections 420 and 406 of the Penal Code. Thus, we find it difficult to hold that the occurrence of this case can be covered under the provisions of sections 420 and 406 of the Penal Code.
13. Under the above facts and circumstances, the proceeding is liable to be quashed. Thus, we find merit in the Rule.
14. In the result, the Rule is made absolute.
The CR case No. 1994 of 1995 now pending in the Court of Chief Metropolitan Magistrate, Dhaka under sections 420 and 406 of the Penal
Code is hereby quashed.
Let a copy of the judgment be sent to the concerned Court along with the lower Courts record.