The State Vs. Lailun Nahar Ekram

Appellate Division Cases

(Criminal)

PARTIES

The State, Represented by the Deputy Commissioner, Gazipur ………………. Appellant.

-Vs-

Lailun Nahar Ekram, Managing Director, Engineer and Consultants (Bd) Ltd. (BCBL) 17, Bakshi Bazar Road, Dhaka………………………………………Respondent.

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATE: 21st January 2007

Sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947

In collusion with each other for illegal gain misappropriated Tk. 11,80,615/- by false billing against consultancy service and thereby committed an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947 ……….(2)

Section 561A of the Code of Criminal Procedure praying for quashing the proceeding and the High Court Division by the impugned judgment and order made the Rule absolute ………..(2)

That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills …………..(9)

We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice ……………..(12)

Criminal Appeal No. 46 of 2000 (From the judgment and order dated 03.06.1999 passed by the High Court Division in Criminal Miscellaneous Case No. 821 of 1995.)

Abdur Razzaque Khan, Additional Attorney General instructed by ASM Khalequzzaman, Advocate-on-Record …………………… For the Appellant

Khandkar Mahbub Hossain, Senior Advocate, instructed by Md. Aftab Hossain Advocate-on-Record.

JUDGMENT

1. M.M. Ruhul Amin J : This appeal by leave is directed against the judgment and order

dated 03.06.1999 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 821 of 1995 quashing the proceeding of Joydebpur P.S. Case No. 34/610 dated 31.12.1994 under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947.

2. Short facts are that one Md. Golam Mostafa, District Anti-Corruption Officer,

Gazipur lodged first information report with Joydebpur Police Station alleging, inter alia, that accused Latif Nawaz Waliur Rahman, Executive Engineer, Institute of Post Graduate Studies in Agriculture, (shortly IPSA), Gazipur and Mrs. Lailun Nahar Ekram, the respondent in collusion with each other for illegal gain misappropriated Tk. 11,80,615/- by false billing against consultancy service and thereby committed an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947. During investigation of the case by the Bureau of Anti-Corruption respondent moved the High Court Division under section 561A of the Code of Criminal Procedure praying for quashing the proceeding and the High Court Division by the impugned judgment and order made the Rule absolute.

3. Leave was granted to consider the submission that when a very strong prima facie case was made out in the first information report as to an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947 and the case was under investigation and the investigating officer was collecting materials, the High Court Division was not justified in quashing the entire proceeding and as such the same is illegal and the submission that the consistent decisions of the Appellate Division of the Supreme Court is against the quashment of any proceeding during investigation by the police but by ignoring the consistent view of the Appellate Division, the High Court Division most illegally quashed the proceeding at the stage of investigation.

4. We have heard Mr. Abdur Razzaque Khan, the learned Additional Attorney General for the appellant and Mr. Khandakar Mahbub Hossain, the learned Counsel for the respondent and perused the judgment of the High Court Division and other connected papers.

5. The admitted facts are that the respondent as Managing Director of Engineers and

Consultants (Bangladesh) Ltd. (ECBL) got the work of consultancy services for the project of construction of serveral buildings of the Institute of Post Graduate studies in Agriculture, (IPSA) at Gazipur. ECBL was doing the said consultancy works under an agreement dated 14.12.1993 with IPSA. Accordingly the ECBLS’ estimated entitlements were Tk.26,97,570.00/- for designing and tendering works, topographic survey and soil test. Subsequently IPSA by its letter dated 22.02.1994 requested ECBL to include on survey a link road connecting IPSA with Shipultali-Salna road in the master plan.

6. The allegations against the respondent is that the respondent took the money for fifty one bore holes relating to topographic survey by bill Nos. 1 and 2 respectively dated

11.03.1994 and 19.05.1994 and she took the same amount of money for the same work by bill No.3 dated 30.06.1994.

7. It appears from bill No.4 dated October 29, 1994 submitted by the respondent that in running bill No.3 inadvertently they billed against sub-soil investigation which were already included in Design and Tendering phase bill and they regretted very much for the mistake and in bill No.4 necessary corrections were accordingly made. It was further mentioned in bill No.4 that if any amount against sub-soil investigation was paid separately, the same may be adjusted in bill No. 4.

8. The first information report was lodged on 31.12.1994 that is long after the submission of bill No. 4 dated 29.10.1994 stating the inadvertent mistake in bill No.2 and further requesting the authority to adjust from bill No. 4 any excess amount drawn in bill No.3.

9. The learned Counsel for the respondent submits that bill Nos. 1-3 are all running bills and in bill No.4 the respondent clearly stated that inadvertently sub-soil testing was included in bill No. 3 and regretted for the inadvertence and further requested the authority to adjust the amount from bill No.4. The learned Counsel further submits that after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills.

10. In the above facts and circumstances of the case, the learned Additional Attorney

General found it difficult to support the lodging of first information report against the respondent.

11. Therefore, in the facts and circumstances of the case and in light of the discussions made above, we are of the view that no prima facie case was made out against the respondent in the First Information Report and the District Anti-Corruption Officer, Gazipur without examining the necessary papers of the authority (IPSA) specially bill No.4 dated 29.10.1994 lodged the first information report on 31.12.1994.

12. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice.

13. Therefore, in our view, the High Court Division upon correct assessment of the materials on record has arrived at a correct decision and as such there is no cogent reason to interfere with the judgment of the said Division.

14. The appeal is dismissed.

Ed.

Source: IV ADC (2007), 264

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