PREVENTION OF CORRUPTION ACT [II OF 1947]

 Section 5(2)—

The High Court Division acted wrongly in setting aside the conviction and sentence of the appellant under section 5(2) of Act II of 1947 when in fact the offence was committed by a public servant and criminal misconduct is indeed attracted in spite of a separate conviction and sentence under sections 409/109 of the Penal Code that by itself cannot be ground to set aside the conviction under section 5(2) of Act II of 1947 when the offence is committed by a public servant.

Jalaluddin Ahmed alias Jalaluddin Ahmed vs State 3 BLC (AD) 216.

Section 5(2)—

Section 110 of Banking Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent. More so, section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and 477A of the Penal Code with which the accused has been charged for committing misconduct as a public servant.

International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.

Section 5(2)—

A public servant by definition in the Penal Code will prospectively be deemed to be a public servant under Act II of 1947 when he commits an offence as public servant after the amendment of the Penal Code.

International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.

Section 5(2)—

Sentence—It is a case of temporary defalcation which is a serious offence. The ends of justice will be met in the facts and circumstances of the case if the sentence of fine of each of the appellants is maintained and the substantive sentence is reduced to the period already undergone as prayed for.

Sekander Ali Howlader and others vs State 4 BLC (AD) 116

Section 5(2)—

It was the duty of the Manager, Agrani Bank, Khatunganj, Chittagong to keep the safe cash limit amounting to Taka 20 lac but he used to keep excess cash upto 1 crore or 2 crore in violation of the circular of the Bank but in the absence of mens rea or criminal intent the Manager cannot be held guilty of the offence under section 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act but it is open to the Bank to prove the acts of commission or omission, if any, committed by the Manager.

Fazlul Karim (Md) vs State 1 BLC 300.

Section 5(2)—

As per Service Rules of Agrani Bank the duty of a cashier, on receipt of a cheque, is to see whether it is duly posted with marking by the ledger keeper and cancelled with the initial of the cancellation officer and in case of a big amount whether it was cancelled with the initials of two officers including the Manager. In the instant case without following such Rules the absconding officer-in-charge of cash and the second officer who had responsibility of supervision of ledger posting and payment of cash and the cashier by corrupt practice and by abusing their position as public servants obtained illegal payment of Taka 4 crore for the drawer of the cheque through an unauthorised and concealed overdraft and they were rightly convicted under sections 409/109 of the Penal Code read with section 5(2) of Prevention of Corruption Act.

Faziul Karim (Md) vs State 1 BLC 300.

Section 5(2)—

Both the trial Court as well as the High Court Division believed the evidence of PWs 4-5 that despite repeated reminders and despite the resolution taken by the Upazila Parishad, the petitioner did not submit the completion report of the project even during the trial and, as such, the case of the petitioner has been ended on appreciation on evidence for which it merits no consideration.

GM Nawsher Ali vs State 2 BLC (AD) 183

Sections 5(2) and 5A—

Section 3(2) of the Anti-Corruption Act, 1957 provides that subject to any order of the Government, officers of the Bureau of Anti-Corruption shall have power to enquire or hold investigation throughout Bangladesh and shall have such powers which the police officers are empowered in connection with investigation and further the paragraph 59 of the Anti-Corruption Manual expresses that the investigation held by an Assistant Inspector was not without jurisdiction and as such the proceeding cannot be quashed.

Abu Sufian Mia vs State 4 BLC 193.

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