Mr. Justice Afzal Hossain Ahmed
Mr. Justice Md. Abdus Samad
CRIMINAL MISCELLANEOUS CASE NO. 2645 OF 2009.
Rathindra Lal Dhar and others.
The State and another.
……. Opposite parties.
……. For the petitioners.
Mr. Khandaker Diliruzzaman, A.A.G
… for the opposite party No.1.
Mr. Sk. Mohammad Jahangir Alam
… for the opposite party No.2.
Heard on the 30th July, 5th and 6th August, 2009.
Judgment on the 11th August, 2009.
AFZAL HOSSAIN AHMED ,J:
This Rule, at the instance of the accused-petitioners, was issued calling upon the opposite parties to show cause as to why the order dated 29.6.2008 passed by the learned Additional Metropolitan Sessions Judge , 4th Court, Chittagong in Criminal Revision No. 21 of 2008 should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.
Facts necessary for disposal of this Rule, briefly, be put thus:-
One Abdur Rouf Chowdhury , on behalf of the respondent No.2 as her Attorney , lodged a complaint on 26.10.1998 in the Court of the Chief Metropolitan Magistrate, Chittagong alleging that the accused Prodip Kumar Dhar and Partho Sharothi Dhar went to the Office of the Respondent No. 2’s husband, an Engineer and business-man by profession, in December, 1994 and offered to sell their land described in the schedule to the petition of complaint and her husband agreed to purchase the property at a sum of Tk.35,00,000/- and on 17.1.1995 accused-petitioners came to the Office of her husband and received Tk.25,40,000/- as earnest money by executing a bainapatra in her favour and stipulated to execute the deed of sale on receipt of the balance amount of consideration and on 23.09.1995 the accused persons received further sum of Tk.1,00,000/- against a receipt acknowledging the payment of the amount and that the accused persons delayed execution of the deed of sale contrary to the stipulations and, therefore, the complainant felt constraint to file Other Suit NO. 13 of 1997 in the First Court of the Subordinate Judge, Chittagong for Specific Performance of Contract and that the suit is pending for trial.
It was further stated that on 11.3.1998 the accused persons with dishonest intention of misappropriating the sum of Tk.26,40,000/- received from the complainant as earnest money fraudulently suppressing the facts transferred the same land to B.K. Development Limited and that on 26.10.1998 the complainant filed the petition of complaint before the Chief Metropolitan Magistrate, Chittagong who took cognizance and C.R.Case No. 1455 of 1998 was, thus, started under Sections 406/420 of the Penal Code against the accused persons. Thereafter, charge under Sections 406/420 of the Penal Code has been framed against the accused persons. Meanwhile, prosecution witnesses have been examined in the case, prosecution evidence has been closed and the accused persons have been examined under Section 342 of the Code of Criminal Procedure and the case is now pending for argument.
Thereafter, the accused persons moved the High Court Division under Section 561 A of the Code of Criminal Procedure in Criminal Miscellaneous Case No. 11973 of 2003 praying for quashing the proceeding and obtained the Rule. A Division Bench of the High Court Division by the judgment and order dated 1.12.2004 discharged the Rule against which the accused persons preferred Criminal Petition for Leave to Appeal being No. 42 of 2005 which was also dismissed on 3.4.2007.
Thereafter, the accused persons filed a petition under Section 344 of the Code of Criminal Procedure to the learned Metropolitan Magistrate, Chittagongwhich was rejected on 2.1.2008 against which they preferred revision before the learned Metropolitan Sessions Judge, Chittagongbeing Revision No. 21 of 2008. The learned Additional Metropolitan Sessions Judge, 4th Court, Chittagong heard and rejected the Revision vide his judgment and order dated 29.6.2008 against which the accused persons filed the instant Criminal Miscellaneous Case being No. 2645 of 2009 under Section 561 A of the Code of Criminal Procedure for quashment of the aforesaid order dated 29.6.2008 and obtained the present Rule.
Mr. M.A.Mannan, the learned Advocate appearing for the accused-petitioners submits that the complainant has already instituted a suit for Specific Performance of Contract against the petitioners in respect of the self-same land and as such the launching of the present prosecution against them in Criminal Court is nothing but an abuse of the process of the Court and that in the circumstances the further proceeding of the instant criminal case should be stayed till disposal of the aforesaid civil suit being Other Suit No.. Mr. Mannan further submits that the Court below failed to appreciate the above aspects of the matter and thereby arrived at a erroneous decision rejecting the revisional application filed by the accused-petitioners and as such the same is not sustainable in law and liable to be quashed.
Mr. Khandaker Diliruzzaman, the learned Assistant Attorney General appearing for the State-opposite party No.1 submits that from the facts stated in the petition of complaint and surrounding circumstances a prima facie case of deception is present in the case and that the accused-petitioners once entering into a contract for sale of the land in question with the complainant and receiving a payment to the tune of Tk. 26,40,000/- from the complainant and during pendency of the aforesaid Civil Suit fraudulently sold the self-same land to B.K. Development Limited and thereby the accused-petitioners dishonestly misappropriated the amount paid by the complainant to them and, thus, cheated the complainant and so committed offence punishable under Sections 406/420 of the Penal Code. The learned Assistant Attorney-General further submits that there is no bar in law preventing criminal case on account of a civil suit pending against the petitioners on the same facts when the criminal case aimed at penalizing for the offence and the civil suit is for getting relief of the civil nature i.e. for land, money etc. The learned Assistant Attorney-General further submits that the prosecution evidence in the instant case has been closed and the case is now pending for argument and at this stage the application under Section 561 A of the Code of Criminal Procedure is not maintainable and that in the circumstances the Rule is liable to be discharged.
Mr. Sk. Mohammad Jahangir Alam, the learned Advocate appearing for the complainant-opposite party No.2 endorsing the submission made by the learned Assistant Attorney-General as above submits that in the petition of complaint the offence alleged has been disclosed and when the acts of the accused-petitioners constitute both civil and criminal offence there is no legal bar to prosecute both civil and criminal proceedings against them and that in the circumstances any endeavour of the accused-petitioners to stay the instant criminal proceedings till disposal of the aforesaid civil suit will frustrate the purpose of the proceedings and defeat the intention of law and that previously the accused-petitioners filed a petition under Section 561 A of the Code of Criminal Procedure for quashment of the instant criminal proceedings but lost the case upto the appellate Division. Thereafter, the accused-petitioners took resort to a device invoking a second revision under the garb of an application under Section 561 A of the Code of Criminal Procedure which is not maintainable and as such the Rule is liable to be discharged.
The real question calls for determination is, whether the impugned order is liable to be quashed.
We have considered the submissions made by the learned Advocates on both the sides and perused the materials on record.
It appears from the petition of complaint that the accused-petitioners suppressed the facts from the complainant and cheated her in order to misappropriate the money paid by her to them with dishonest intention and with that end in view they transferred the self-same land again in favour of B.K. Development Limited and, thus, dishonestly misappropriated the amount paid by the complainant to the accused-petitioners and thereby cheated her and so committed offence punishable under Sections 406/420 of the Penal Code.
In the facts and circumstances of the case we are of the view that there is no bar in law preventing a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case is aimed at penalizing for the offence while a civil suit is for getting relief of the civil nature i.e. for land, money etc. We are also of the view that mere pendency of a earlier suit like that of the instant case is no ground to stay proceedings in a subsequent criminal case .
It appears that in Criminal Petition for Leave to Appeal No. 42 of 2005 arising out of the instant criminal proceedings being No. 1455 of 1998 it was decided by the Appellate Division that there is no bar in law preventing a criminal case on account of a civil suit pending against the petitioners on the same facts. Inspite of the fact the accused-petitioners again invoked the revisional jurisdiction of the Metropolitan Sessions Judge against rejection of a petition under Section 344 of the Code of Criminal Procedure by the Magistrate and then against rejection of the petition by the Sessions Judge under his revisional jurisdiction the petitioners took resort to a device of invoking a second revision under the garb of an application under Section 561A of the Code of Criminal Procedure which is not maintainable. This view of ours finds support in the decision in the case of Shamsuddin alias Shamsuddoha Vs. Mvi. Amjad Ali and others reported in 56 D.L.R., (A.D) (2004) 59. Besides, in the instant case the prosecution evidence has already been closed and the case is now pending for hearing argument and in the circumstances we find no reason to stay further proceedings of the case such a stage and, thus, to quash the impugned order dated 29.6.2008 passed by the learned Additional Metropolitan Sessions Judge, 4th Court, Chittagong. We find no merit in this Rule.
Accordingly , The Rule is discharged.
The learned Metropolitan Magistrate,Chittagongis directed to proceed with the proceedings of the impugned C.R. case No. 1455 of 1998 in accordance with law.
Let a copy of this judgment and order be sent to the Courts concerned for information and necessary action.
MD. ABDUS SAMAD,J: