National Housing Finance and Investments Limited -Versus- “X Developments and Holdings Limited”

BEFORE THE COURT OF CHIEF METORPOLITAN MAGISTRATE, DHAKA

C.R CASE NO._________ OF ____________

An application under Sections 34/ 406/ 417/ 420/ 465/ 468/ 470/ 471 of the Penal Code, 1860.

AND

IN THE MATTER OF

National Housing Finance and Investments Limited

Corporate Head Office

National Plaza (7th Floor)

Sonargaon Road (Now 109, C.R. Datta, Bir Uttam Road)

Police Station-Tejgaon

Dhaka-1205.

Represented by

Mr A

Son of Mr. B

Age- _________

Officer

National Housing Finance and Investments Limited

National Plaza (7th Floor)

Sonargaon Road (Now 109, C.R. Datta, Bir Uttam Road)

Police Station-Tejgaon

Dhaka-1205.

COMPLAINANT

-Versus-

1. “X Developments and Holdings Limited”

6/ Kha- 1/40

“Anwar Mansion” (3rd Floor)

Mirpur, Section-10

Police Station-Mirpur

Dhaka-1216.

2. Mr. Y

Son of Z

Age – _______

Managing Director

“X Developments and Holdings Limited”

6/ Kha- 1/40

“Anwar Mansion” (3rd Floor)

Mirpur, Section-10

Police Station-Mirpur

Dhaka-1216.

3. Mr. C

Son of D

Age- _________ years

House No.33, Road No.-1

Block- B, Section-13

Mirpur

Police Station-Mirpur

Dhaka-1216.

Or

Mr. C

Son of D

Age – ____ years

Village and P.O. – Digolia

P. S. Lawhajong

District-Munshigonj

4. Mr. E

Son of – Mr. F

Age- 35 years

House No.16, Road No. – 4

Block- C, Section- 6

Mirpur

Police Station-Mirpur

Dhaka

5. Mrs. G

Wife of Mr. H

Age- 32 years

House No.16, Road No.-4

Block- C, Section- 6

Mirpur

Police Station-Mirpur

Dhaka

ACCUSED

Place of occurrence

Complainant Corporate Head Office premises situated at-

National Housing Finance and Investments Limited

National Plaza (7th Floor)

Sonargaon Road (Now 109, C.R. Datta, Bir Uttam Road)

Police Station-Tejgaon

Dhaka-1205.

Date of occurrence

19.04.2005

Witness:

Mr W

Son of Dr. V

Age-50

Manager (Legal Department)

National Housing Finance And Investments Limited

National Plaza (7th Floor)

Sonargaon Road (Now 109, C.R. Datta, Bir Uttam Road)

Police Station-Tejgaon

Dhaka-1205.

The humble petition on behalf of the complainant most respectfully –

SHEWETH:

1. That the complainant is a reputed non-banking financial institution duly incorporated under the relevant Companies Act of Bangladesh and carries on business as a non-banking financial institution having license from Bangladesh Bank under the Financial Institution Act, 1993. The complainant corporate Head Office is situated at the address given in the cause title. The complainant’s business includes inter alia, providing financial advances/services to prospective borrowers to enable them to purchase, develop or construct residential and/or commercial apartments, buildings, etc.

2. That the Accused have their addresses as given in the cause title which are correct to best of the knowledge of the Complainant.

3. Accused No.1 is the X Development and Holdings Company and Accused No.2 is the Managing Director of the Accused No.1 where Accused No.3, 4, 5 made offence in connivance with the Accused No. 1 and 2. That the Accused No.3 is a borrower as per his application, Accused No.4 is the actual borrower in the name of Accused No.3. Accused No.5 is the co-applicant of the loan and wife of above-mentioned Accused No. 3 or 4 and also lives at the address given in the cause title. The address mentioned in the cause title is correct for servicing the summons, warrants and for taking other necessary legal steps.

4. That pursuant to a joint request made by both the Accused No.3 and 5 vide application dated 28.02.2005, the complainant vide offer letter no. 040102663 dated 17.04.2005 sanctioned Home Mortgage Loan of Tk. 7,50,000.00 (Taka seven lac fifty thousand) only, [hereinafter referred to as “the loan”] in favour of the Accused No. 3 and 5. The loan was sanctioned for the purpose of purchasing an apartment measuring more or less 860 sft, Type-A on the 1st Floor of the Project namely “X Paradise” having 3 beds, 2 baths, drawing-cum-dining, kithchen and 2 verandahs along with 1 car park space, situated at “Lowden Paradise”, Plot No. 38, Road No. 7, Senpara, section-10, Mirpur, Dhaka. The term of the offer letter was duly accepted by the Accused. Accused No.3 submitted his Employment certificate, Salary certificate, Character Certificate issued from S.S. Hashem, Lieutenant Commander, Bangladesh Navy, Administrative officer, B.N.S. Haji Mohsin and Nationality Certificate from Haji Md. Rofiqul Islam, Ward Commissioner, Ward No. 4, Dhaka City Corporation and Trade License in the name of accused No. 5, Mrs. Sabana Akter as evidence during application for loan to the complainant.

5. That a loan agreement was entered into by and between the complainant and the accused on 19.04.2005 [herein after referred to as the “Loan Agreement”]. According to the term of loan agreement then accused undertook and agreed to make payment of the entire loan amount by 144 monthly installments of taka 10,562.00 (Taka ten thousand five hundred and sixty two only).

6. That under the article 3.1 of the agreement the accused agreed to create registered mortgaged of the apartment in question to the complainant upon registration of the Deed of sale in their name.

7. That as security of the loan the accused on the same date executed/ furnished various charge documents such as, Loan Agreement, Demand Promissory Note, Letter of Continuity, Letter of Undertaking, Deed of Agreement (between developer, Land owner, purchaser borrower and National Housing), Deed of Agreement for apartment purchase, Money receipts from X securing the Loan availed by the accused.

8. That after executing the charge documents in favour of the complainant as security of the loan, the accused Nos. 1 to 5 requested the complainant vide letter dated 07.04.2005 to disburse the loan amount of Tk. 7,50,000.00 (Taka seven lac fifty thousand) only to the Developer “X Developments and Holdings Limited”. As per the accused’s request the entire loan amount was disbursed by the complainant to the accused on 21.04.2005.

9. That Accused no.2 acknowledged receipt of Cheque No. 460955 dated 21.04.2005 for Tk. 7,50,000.00 (Taka seven lac fifty thousand) only drawn on Mercantile Bank Limited, Motijheel Branch, issued by Complainant being disbursement of Home Mortgage Loan on account of Accused No. 3 (Actual accused No.4) and Accused No.5 made against his disbursement request and loan agreement against loan reference No. 040102663 dated 17.04.2005.

10. That the complainant by its effort came to know that the Accused No. 3 who is the purchaser borrower of the loan and accused no. 4 is the same person together with accused No. 5 who was the co-applicant for loan in the sanctioned letter have committed crime. Accused No.1 and 2 have also committed the crime in connivance with the Accused No.3-5. Accused No.1 to 5 with common intention have made up the forged and fabricated documents and cheated the complainant.

11. That the complainant Company again enquired the accused no. 1 to 5 regarding adjustment his loan, accused no. 1 and 2 stated that they are not aware of any fake documents/papers and accused no. 3 and 5 are no longer their customer. Accused No.1 and 2 also stated that we have already returned to the accused No. 3 and 5 the said loan amount which we obtained from the complainant on behalf accused no. 3 and 5 despite the subsistence of loan and obligation to create register mortgage of the apartment in favour of the National Housing. Moreover, the owner of the disputed flat/ mortgaged premises now belongs to another customer other than the accused Nos. 3 & 5. In fact, these are the tricks of accused No. 1 and 2 to defraud the complainant. In a word, the accused No. 1 and 2 are the main culprit and perpetrator of the said crime.

12. That it is apparent from the entire transaction and the papers/documents that the Accused no. 3(or 4), 5 in collusion with the Accused no. 1 and 2 (or accused Nos. 1 and 2 themselves) have committed cheating; dishonestly inducing; forgery with the intention that the forged document shall be used for the purpose of cheating; fraudulently or dishonestly using as genuine any document with the knowledge that the said documents are forged; criminal breach of trust with common intention ; have got the subject matter (the financed apartment and Tk. 7,50,000.00) illegally on the basis of forged documents and thereby caused huge financial loss to the complainant. The accused have committed offences under section 34, 406, 417, 420, 465, 468, 470 and 471 of the Penal Code, 1860 of Bangladesh and are liable to be punished.

13. That in view of the facts and circumstances stated above, the accused should be brought to justice as provided under section 34, 406, 417, 420, 465, 468, 470 and 471 of the Penal Code, 1860 of Bangladesh.

Wherefore it is humbly prayed that the Honourable Court may graciously be pleased to take cognizance of the offence, issue warrant of arrest against the Accused, and bring them to justice for the offence committed by them, and/or pass such other or further order or orders as the Court may deem fit and proper.

And for this act of kindness the complainant as in duty bound shall ever pray.

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