Appellate Division Cases
Abdur Rahman Nazim …………………………………Petitioner
Abdul Awal and another …………………………………Respondent
Moinur Reza Chowdhury J
Md. Ruhul Amin J
Syed J. R.Mudassir Husain J
JUDGEMENT DATE : 12″1 June 2002
The Penal Code (XLV of 1860), Sections 468, 471.
Accused petitioner by fraudulent means showed said Marium Bibi being alive and created the ‘Heba’ Deed on 5-1-1977 in his favour and claimed his ownership of the case land (2)
We have perused the application F. I. R as well as the charge sheet. Except making a verbal assertion that the disputed deed was produced before a competent civil court before the initiation of present original proceeding there is nothing on record to prove the same. We therefore do not find any merit in the Rule ..(6)
Criminal Petition For Leave to Appeal No. 180 of 2001
(From the Judgment and Order dated 16t’1 September, 2001 passed by the High Court Division in Criminal Miscellaneous Case No. 2411 of 1997
Md. Nowab AH, Advocate-on-Record. For the Petitioner
Not represented. Respondent.
Syed J. R. Mudassir Husain J: – The accused petitioner seeks leave to appeal against the judgment and order dated 16-92001 passed by the High Court Division in Criminal Miscellaneous Case No. 2411 of 1997 discharging the Rule and vacating the order of stay granted earlier by the High Court Division with a direction to the learned Additional Chief Metropolitan Magistrate, Dhaka to dispose of the case as expeditiously as possible preferably within 3 (three) months.
2. The complainant, Abdul Awal, the respondent No.l, filed Petition Case No. 2430 of 1996 in the Court of Chief Metropolitan Magistrate, Dhaka who sent the case to Sutrapur Police Station for treating the said petition of complaint as F. I. R and to investigate the case. It was alleged in the petition that one Fakir Mohammed instituted Title Suit No. 205 of 1992 against the petitioner and from his written statement in the said suit the complainant-respondent No.l could know that the accused petitioner by fraudulent means created a deed of gift dated 5-1-1978 from Marium Bibi, who was cousin of the respondent No. 1 and she died childless on 26-1-1977 and the respondent No. 1 became the exclusive owner of the property left by her and he was in possession thereof, the respondents appointed the accused petitioner as caretaker of the said property but the accused petitioner by fraudulent means showed said Marium Bibi being alive and created the ‘Heba’ Deed on 5-11977 in his favour and claimed his ownership of the case land.
3. Upon the aforesaid allegations made in the petition of complaint, the police investigated the case and submitted charge sheet against the petitioner and it was accepted by the Chief Metropolitan Magistrate Dhaka and the case was taken up for trial by the Additional Chief Metropolitan Magistrate, who after hearing both sides framed charge under Sections 468/471 of the Penal Code against the petitioner.
4. Against aforesaid order of framing charge, the accused petitioner moved the High Court Division and obtained a rule and stay and the High Court Division discharged the Rule vacating the order of stay.
5. Mr. Md. Nowab AH, the learned Advocate on Record, on behalf of the petitioner submitted that the High Court Division failed to apply judicial mind in not considering that the deed of gift was filed before the Civil Court and as such taking of cognizance under sections 468/471 was hit by 195 (1) c of the Code of Criminal Procedure and as such the findings and decisions arrived at by the High Court Division are erroneous and cannot be sustained in law in as much as the document in question is very much before the Civil Court where the matter in controversy will be adjudicated upon. It is further contended that the accused petitioner ought to have been given an opportunity of being heard and that the hurried disposal of the rule during vacation has seriously prejudiced the petitioner.
6. We have heard the learned Advocateon-Record and perused the impugned judgment of the High Court Division. It appears that the accused petitioner did not appear before the High Court Division to press the rule but the matter was heard in presence of Mr. Md. Abdur Rouf the learned Assistant Attorney General appearing for the State. The High Court Division while passing the impugned judgment observed as follows:
“We have perused the application F. I. R as well as the charge sheet. Except making a verbal assertion that the disputed deed was produced before a competent civil court before the initiation of present original proceeding there is nothing on record to prove the same. We therefore do not find any merit in the Rule”.
7. From the impugned judgment of the High Court Division and in view of the facts and circumstances of the Case, we are of the view that the learned Judges of the High Court Division rightly decided the matter.
8. Apart form the merit of this petition, it is also out of time by 11 days and the application for condonation of delay is far from satisfactory.
For all these reasons, we find no merit in this petition for our interference. Accordingly, it is dismissed.
Source : III ADC (2006), 249.