Present :
Mr. Justice Moyeenul Islam Chowdhury
And
Mr. Justice Md. Nazrul Islam Talukder
CRIMINAL MISCELLANEOUS CASE NO. 20821 OF 2009.
Sadiul Alam
…….. Petitioner.
-Versus-
The State
……. Opposite party.
Mr. Md. Khurshid Alam Khan, Advocate with
Ms. Mubina Asaf, Advocate and
Ms. Shathika Hossain, Advocate
……. For the Petitioner.
Mr. Md. Khurshedul Alam, Deputy Attorney-General with
Mr. Md. Monjur Kader, Assistant Attorney-General and
Mr. Delwar Hossain Samaddar, Assistant Attorney-General
……. For the Opposite party.
Heard On: 27.07.2012, 18.8.2011 & 05.01.2012.
Judgment On: 11.01.2012
Md. Nazrul Islam Talukder, J:
This Rule, at the instance of the accused-petitioner, was issued on an application under section 561A of the Code of Criminal Procedure calling upon the opposite-party to show cause as to why proceeding of G.R. No. 129 of 2004 arising out of Lalbagh Police Station Case No.21 dated 24.5.2004 under sections 406/420 of the Penal Code, now pending in the Court of Chief 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.
Facts relevant to disposal of this Rule may be, briefly, stated as follows: On 24.5.2004, one Md. Shamsul Alam, 1st Vice President and Manager of City Bank Limited’s Pesta Branch, 35 Shaesta Khan Road, Lalbagh, Dhaka-1211 as informant lodged a First Information Report alleging, inter-alia, that the accused-petitioner along with his other partners obtained loan amounting to Tk. 3,46,67,692.15 from the informant’s bank by producing necessary papers and documents in support of imported 65 Taxi Cabs. After taking the loan amount, the petitioner alongwith other partners, in collaboration with the bank authority, sold out 35 Taxi Cabs and made part payment amounting to Tk. 1,85,16,826.83 to the bank against the loan and interest. For non-payment of remaining loan and interest, the bank filed Artha Rin Case No. 57 of 2002 before the Artha Rin Adalat No.3, Dhaka for realization of the same. During pendency of the Artha Rin Case, though the accused-petitioner and other partners handed over 24 Taxi Cabs to the bank, they did not hand over 6 Taxi Cabs to the bank authority. It is further alleged in the First Information Repot that the accused-petitioner, in collaboration with other accused, sold out the 6 Taxi Cabs by forging the relevant papers and documents, though the imported papers and documents remained with the bank. In this way, the accused-petitioner and others misappropriated Tk. 4,42,500/- by selling 6 Taxi Cabs resorting to forgery.
During investigation, the Investigating Officer went to the place of occurrence and recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. Having found a prima facie case, the Investigating Officer submitted charge sheet being No.174 dated 22.5.2005 against the accused-petitioners and others under sections 406/420 of the Penal Code.
Following submission of the charge sheet, the learned Chief Metropolitan Magistrate, Dhaka, by an order dated 02.6.2005, accepted the charge sheet and took cognizance of the offences against the accused-petitioner and others under sections 406/420 of the Penal Code on 21.9.2008.
Being aggrieved by and dissatisfied with the impugned proceeding, the accused-petitioner approached this Court with an application under section 561A of the Code of Criminal Procedure for quashing the proceeding and obtained this Rule.
At the very outset, Ms. Shathika Hossain, , learned Advocate appearing on behalf of the accused-petitioner, submits that the allegations that have been brought against the accused-petitioner do not constitute any offence against the petitioner under sections 406/420 of the Penal Code and as such, the impugned proceeding should be quashed. She next submits that the accused-petitioner and others took loan from the bank and that after selling 35 Taxi Cabs, they made part payment to the bank against the loan amount and interest and there is no initial intention of deception on the part of the petitioner in committing the offence under sections 406/420 of the Penal Code and as such, the initiation or continuation of the impugned proceeding is an abuse of process of the Court. The learned Advocate in support of her submission relied on decisions in the Cases of Abdul Rouf (Md) alias Nayan Vs. State and another, 53 DLR (HCD)(2001) 283 and Dewan Obaidur Rahman Vs. The State, 19 BLD(AD)(1999) 128. She then submits that the bank instituted an Artha Rin Case and that it obtained a decree for realization of loan amount along with interest and as such, the present proceeding on the self-same matter is not maintainable and as such, the impugned proceeding should be quashed. She emphatically submits that admittedly, the petitioner and others after taking loan made part payment of the loan amount along with interest to the bank and as such, it cannot be said that the accused-petitioner had mens rea to deceive the bank in not making payment of the remaining loan amount and interest and as such, in the absence of mens rea, mere breach of contract can not constitute the offence of cheating. In this regard, she referred to a decision in the case of Mahbubul Alam Gazi alias Mahbub Alam Vs. The State and another, 8 BLT(HCD)(2000) 358. She candidly submits that though the bank has filed the instant case under sections 406/420 of the Penal Code on the allegation that the accused-petitioner and others sold out 6 Taxi Cabs by forging papers and documents, but the fact remains that bank has not filed any case against the accused-petitioner and others for the offence of forgery punishable under section 467 of the Penal Code. She lastly submits that the accused-petitioner and others never denied payment of loan amount and interest to the bank and as such, there are no ingredients of criminal offences punishable under sections 406/420 of the Penal Code; rather the allegations being of civil nature, no criminal proceeding lies and as such, the impugned proceeding should be quashed. In this connection, Ms. Hossain referred to decisions in the cases of Rafiqul (Md) Vs. Syed Morshed Hossain and another, 50 DLR (AD) (1998) 163 and S.B. Zaman Vs. Dilip Kumar Shaha @ Dilip Badu, 4 BLT (AD)(1996) 231.
On the other hand, Mr. Md. Khurshedul Alam, learned Deputy Attorney-General appearing on behalf of the State-opposite party, submits that the First Information Report and other materials on record prima facie disclose criminal offences against the accused-petitioner under sections 406/420 of the Penal Code and that the materials put forward by the prosecution contain ingredients of offences contemplated by sections 420/406 of the Penal Code against the petitioner. He next submits that since the First Information Report and other materials on record disclose a prima facie case against the accused-petitioner, the learned Chief Metropolitan Magistrate, Dhaka rightly framed charge against him under sections 406/420 of the Penal Code and as such, the impugned proceeding should not be quashed. He then submits that the allegations brought against the accused-petitioner are factual matters which require to be proved on taking evidence. He lastly submits that this Court sitting in its extra-ordinary jurisdiction under Section 561A of the Code of Criminal Procedure cannot decide the factual aspect of the case and as such, the impugned proceeding cannot be quashed and the Rule should be discharged.
We have gone through the application under section 561A of the Code of Criminal Procedure and the materials annexed thereto.
Before coming to a decision, a question arises whether the impugned proceeding should be quashed or not. To decide this issue, it will be necessary to see the extent of principles and categories of cases in which High Court Division may invoke its power and authority under section 561A of the Code of Criminal Procedure.
In the case of Abdul Quader Chowdhury Vs. The State, 28 DLR (AD) (1976) 38, it has been spelt out that to bring a case within the purview of section 561 A of the Code of Criminal Procedure for the purpose of quashing a proceeding, one of the following conditions must be fulfilled:
(1) Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused.
(2) Where the institution and continuation of the proceeding amount to an abuse of the process of the court.
(3) Where there is a legal bar against the initiation or continuation of the proceeding.
(4) In a case where the allegations in the F.I.R or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence as alleged.
(5) The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
Similar view on the principles of quashing the proceedings was, subsequently, followed in the decision in the case of Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44.
It is pertinent to note that the inherent power under section 561A of the Code of Criminal Procedure can be invoked at any stage of the proceeding even after conclusion of the trial, if it is necessary to prevent the abuse of the process of the court or otherwise to secure the ends of justice. In the case of Sher Ali (Md) and others Vs. The State, 46 DLR (AD) (1994) 67 it has been decided :
“The inherent power under section 561A of the Code of Criminal Procedure can be exercised to quash a proceeding or even a conviction on conclusion of a trial if the court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence, or the conviction has been based on ‘no evidence’ or otherwise to secure ends of justice.”
In order to dispose of this Rule, let us first consider the relevant provision of law as contained in section 415 of the Code of Criminal Procedure relating to ‘cheating.’
Section 415 of the Code of Criminal Procedure provides as under:
“whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
On a critical analysis of the definition of ‘cheating’ as given in Section 415 of the Penal Code, it appears that the ingredients required to constitute the offence of ‘cheating’ are as follows:
“(i) There should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. (Ram Das –Vs- State of U.P, AIR 1974 SC 1811).
Keeping in view the relevant provisions of law, we want to discuss whether the First Information Report discloses a prima facie offence of cheating against the accused-petitioner in the instant case or not. On a bare reading of First Information Report, it appears that the accused-petitioner and others took loan from the bank for the purpose of business submitting relevant papers and documents in support of the imported Taxi Cabs. After taking loan, the accused-petitioner and others, in co-operation with the bank, sold out 35 vehicles and made part payment of the loan amount and its interest. In view of the above, since the accused-petitioner and others made some payment of the loan amount and its interest to the bank, it cannot be said that the accused-petitioner and others had initial intention to deceive the bank in not making payment of the remaining loan amount and its interest.
By referring to the undisputed fact of part payment, Ms. Sathika Hossain, learned Advocate for the petitioner referred to a decision in the case of Abdul Rouf (Md) alias Nayan Vs. State and another, 53 DLR (HCD) (2001) 283, wherein it has been spelt out :
“As some payments were made by the accused persons, it cannot be said that there was any initial intention of deception on the part of the accused persons. Under such circumstances, we are of the view that there are no elements of the offence under sections 406 and 420 of the Penal Code and as such continuation of the proceedings will be an abuse of the process of the Court.”
In the decision in the case of Dewan Obaidur Rahman Vs. The State and another, 19 BLD (AD) (1999) 128 relied on by the learned Advocate for the petitioner, it has been laid down :
“The alleged transaction in between the complainant and the appellant is clearly and admittedly a business transaction. The appellant had already paid a part of the money under the contract to the complainant. The failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature. The High Court Division was not justified in refusing to quash the proceeding in question although the transaction in question between the parties is clearly of a civil nature.”
Apart from the aforesaid facts and legal aspects of the case, it is not alleged in the First Information Report that the accused-petitioner and others refused to pay off the loan amount and interest to the bank. It may be recalled that the accused-petitioner and others after taking loan from the bank sold out 35 Taxi Cabs and made part payment to the bank and as such, it is evidently clear from the First Information Report that accused-petitioner never refused to pay up the remaining loan amount along with interest to the bank. Furthermore, the accused-petitioner and others, during pendency of the Artha Rin case No.57 of 2002, handed over 24 Taxi Cabs to the bank. It may be mentioned herein that the initial intention to deceive the bank may be inferred from the facts of the case and its surrounding circumstances.
In the decision in the case of Mahbubul Alam Gazi alias Mahbub Alam Vs. The State and another, reported in 8 BLT(HCD)(2000) 358, referred to by the learned Advocate for the petitioner, it has been held:
“In order to constitute the offence of cheating, it must be established that some one is made to part with some property on the promise or representation of the accused to return something in lieu thereof, which the latter had no intention to give. The initial intention to deceive must be established to justify a conviction for cheating. Intention of cheating shall have to be gathered from the facts of the case and its surrounding circumstances. Where there is no fraudulent intention of the accused from the beginning, there can be no question of cheating. In the absence of mens rea, mere breach of contract cannot constitute cheating. Inability to fulfil a promise or contract does not amount to cheating.”
The allegation that has been disclosed in the First Information Report is that the accused-petitioner and others sold out 6 Taxi Cabs to some other persons by forging the relevant papers and documents, but the fact remains that the bank has not filed any case against the accused-petitioner and others for commission of the offence of forgery; rather the bank has filed the case against them under sections 406/420 of the Penal Code only.
Furthermore, it transpires from the First Information Report that the accused-petitioner never denied payment of loan amount along with interest to the bank and as such, it appears that there is no offence of cheating under Section 420 of the Penal Code against the accused-petitioner. In the decision in the case of Rafique (Md) Vs. Syed Morshed Hossain reported in 50 DLR(AD)(1998) 163, adverted to by the learned Advocate for the petitioner, it has been decided:
“Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial intention of deception has also been alleged. The High Court Division rightly quashed the proceeding”
In the decision in the case of S.B. Zaman Vs. Dilip Kumar Shaha @ Dilip Badu, 4 BLT(AD)(1996) 231, banked upon by the learned Advocate for the petitioner, it has been observed :
“The learned Judges of the High Court Division upon reading the petition of complaint rightly held that the petitioner could not impute any mens rea in the conduct of the respondents for refusing to pay money on the basis of alleged agreement and as such the alleged dispute being of civil nature no criminal proceedings lies thereupon.”
In view of the facts and circumstances of the case and the propositions of law cited above, we do not find any element of initial intention of deception, which constitutes an offence of cheating against the accused-petitioner.
Now we want to discuss whether the First Information Report contains the ingredients of criminal breach of trust against the accused-petitioner under section 406 of the Penal Code.
The definition of ‘criminal breach of trust’ has been described in section 405 of the Penal Code which postulates as under :
“whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust.”
To constitute an offence of criminal breach of trust, the First Information Report should have contained the following ingredients :
a) That the accused was entrusted with property or with any dominion over property;
b) That the accused dishonestly misappropriated it or converted it to her or his own use;
c) That the accused held the property in fiduciary capacity.
On a plain reading of the First Information Report, we notice that the accused-petitioner and others took loan from the bank. It is a settled principle of law that the transaction of loan money under a loan agreement do not operate as an entrustment under section 405 of the Penal Code. Accordingly, when there is no entrustment, there can not be any trust. If there is no trust, there can not be a question of criminal breach of trust. In the transaction of loan, the loan giver does not hold any control of the loan amount and as such, it constitutes no breach of trust. If there is any breach of contract, the remedy is in the civil suit and that no criminal case would lie against the accused-petitioner for violation of terms and conditions of loan agreement. Entrustment is the main ingredient of the offence of criminal breach of trust. The accused must have dominion over the property or it must be entrusted to him. Within the four corners of the First Information Report, we do not find that the accused-petitioner was entrusted with the property or that the accused-petitioner held the property in fiduciary capacity. It further transpires that the First Information Report does not contain any averment to the effect that the accused-petitioner and others promised to pay the loan amount to the informant-bank within a specific period of time and that the accused-petitioner and others made inducement for getting the loan money from the informant bank. Mere delay in payment of the loan money or refusal to pay the same does not amount to misappropriation and the same constitutes no offence under section 406 of the Penal Code. The breach of terms of contract does not mean the breach of any trust and as such, failure to fulfill the terms of a contract does not amount to any criminal offence.
From the foregoing discussions and having regard to the facts and circumstances of the case, we are led to hold that the allegations that have been brought against the accused-petitioner under sections 406/420 of the Penal Code do not disclose any offence of cheating and criminal breach of trust against him.
Having considered all aspects of the case, we find merit in this Rule.
Accordingly, the Rule is made absolute.
The impugned proceeding of G.R. No. 129 of 2004 arising out of Lalbagh Police Station Case No.21 dated 24.5.2004 under sections 406/420 of the Penal Code, now pending in the Court of Chief Metropolitan Magistrate, Dhaka is hereby quashed.
Let the lower Court’s record along with a copy of this judgment be sent down to the concerned Court immediately.
Moyeenul Islam Chowdhury, J:
I agree.
Rafiq/B.O.
Rofiq/P.O.