The State & Allhaj Abdul Wadud Khan Vs. Omar Faruque Bhuiyan and others

Appellate Division Cases

(Criminal)

PARTIES

The State ………………………………..Appellant (In Crl. A. 18 of 1998)

Allhaj Abdul Wadud Khan: Petitioner ……………………(In Crl. P. 102 of 1999)

-vs-

Omar Faruque Bhuiyan and others ……………………Respondents. (In both the cases)

The Code of Criminal Procedure (V of 1898) Section 561A.

The High Court Division committed an error in quashing the proceeding although it discloses criminal offence and the High Court Division was wrong in holding that a civil dispute has been turned into a criminal one (5)

G.R. Ca No. 40 of 1994 and Motijheel P.S. Case” No. 26 dated 9.4.1994 in the Court of C.M.M. Dhaka.)

Faisal H. Khan, Assistant Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record

For the Appellant:(In Crl. A. 18 of 1998)

Criminal Appeal No. 18 of 1998. With

Criminal Petition For Leave To Appeal No. 102 of 1999.

(From the Judgment and Order 21.4.1998 passed by the High Court Division in Criminal Revision No. 41 of 1996 arising out of DAB.

Mainul Hosein, Senior Advocate, instructed by Md. Aftab Hossain, Advocateon-Record For the Respondents: (In Crl.A.18 of 1998)

Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by S.R. Khoshnabish, Advocate-on-Record For the Petitioner-.-(In Crl.P.102 of 1999)

Not Represented. For the Represented, (in Crl. P. 102 of 1999)

JUDGMENT

M. A. Aziz J: – This appeal by leave at the instance of the state Calls in question the judgment and order dated 21.4.1998 passed in Criminal Revision No. 41 of 1969 arising out of D.A.B.G Case No. 40 of 1994 and Motijheel P.S. Case No. 26 dated 9.4.1998 pending in the Court of CMM Dhaka.

2. Samir Kumar Mukherjee, Anti-Corruption Officer, Bearureu Anti-Corruption, Dhaka lodged an F.I.R. at the Motijheel P.S. Being P.S. Case No. 24 dated 9.4.1994 against the accused petitioners is (1) Omar Faruque Bhuiyan Managing Director of Messrs Atlant Enterprise and (2) A.B.M. Fazlul Karim Milan, Director of ess Atlanta Enterprise under sections 420/120(B) of the Penal Code alleging, inter-alia, that Tipu Acrylic Industries Omar Faruque Bhuiyan (M.A. Aziz J) III ADC (2006) Limited float international tender for supply of plant, machinery and equipment for setting up of an industry for for manufacturing acrylic sheets Turn-Key basis. Sambo Corporation of South Korea acting through their local agent in Bangladesh Messrs Atlanta Enterptis participated in the tender and their bid was accepted, contract was entered into on 28.3.1998 between Sambo Corporation and Atlant Enterprise on the one side and Tipu Acrylic Industries on the other side. The project was financed by Bangladesh Shilpa Bank. Sambo Corporation furnished performance guarantee in favour of BSB a required under the contract.

3. Although the paint machinery and equipments were required be supplied as per indent, but the supplier supplied the said plant and machinery as per the changed indent which was signed on behalf of Tipu Acrylic Industries being misled by the accuse petitioner. It was detected that the machinery was not in accordant with the contract specifications and most of them were defective/out of order. As a result the project in question was not implemented by the supplier on Turn-key basis and consequently Tipu Acrylic Industries suffered loss on account of cheating and conspiracy of the accused petitioners.

4. As a result, the Motijheel P.S Case No. 26 dated 9.4.1994 aforesaid was started which is pending before the Court of Chef Metropolitan Magistrate, Dhaka. Police investigation is yet to be completed. In the meantime the petitioners filed an application under section 561A of the Code of Criminal Procedure for quashing the proceeding of Motijheel P.S. Case No. 26 dated 9.4.1994 and the Division Bench of the High Court Division quashed the proceeding holding, inter-alia, that the F.I.R. was lodged five years after the installation of the machineries and starting of production of the factory by turn-key basis, that since the company has filed a suit against the petitioners firm for compensation in 1993 the subsequent criminal proceeding is nothing but a harassing police The High Court Division over looked the simple fact that the F.I.R on the fact of it discloses a criminal offence and the case is still under investigation. So it cannot be legally interfered with at the earlier stage and the proceedings cannot be quashed.

5. Mr. Faisal H. Khan, learned Assistant Attorney-General argued that the High Court Division committed an error in quashing the proceeding although it discloses criminal offence and the High Court Division was wrong in holding that a civil dispute has been turned into a criminal one and the proceeding was instigated by Messrs Tipu Acrylic Industries Limited to harass the accused persons, that before the investigation is completed the proceeding ought not to has been quashed and that the finding to the effect that had the allegation been made at the time of supply of the machineries 1988-89 the court would have taken a different view into the matter. He further argued that the ingredients of section 415 of the penal Code are attracted in the instant case and as such the proceeding cannot be quashed.

6. Having gone through the F.I.R. which disclosed a prima face case and in that view of the matter the judgment of the High Court Division is liable to be set aside. In the result the appeal is allowed Accordingly, Criminal petition No. 102 of 1999 will follow suit.

Ed.

Source : III ADC(2006), 251.

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