IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)
CRIMINAL MISCELLANEOUS CASE NO. OF _____
IN THE MATTER OF:
An application for anticipatory bail under section 498 of the Code of Criminal Procedure.
IN THE MATTER OF:
Son of Late Y
Senior Executive Vice President
Dhaka Bank Limited
100 Motijheel Commercial Area
The Deputy Commissioner
A N D
IN THE MATTER OF:
News item dated 02.06.2003 published in various national dailies including the daily “Bangladesh Observer” reporting the lodgment of F. I. R. dated 01.06.2003 alleging misappropriation of Tk. 24.94 crore only by opening of letters of credit on account of Z Apparels (Pvt) Limited.
Mr. Justice Mainur Reza Chowdhury, the Chief Justice of Bangladesh and his companion justices of the Hon’ble Supreme Court of Bangladesh.
The humble petition of the petitioner above-named most respectfully –
01. That the petitioner is the Senior Executive Vice President of Dhaka Bank Limited, which is a banking company incorporated under the relevant Companies Act, having its Head Office at Biman Bhaban, 100 Motijheel Commercial Area, Dhaka-1000. It carries on banking business within the territory of Bangladesh through its various branches (hereinafter referred to as “Dhaka Bank”).
02. That the petitioner comes from established and respected family and has impeccable reputation as experienced banker in the Society. The petitioner is a prominent and experienced banker who has good standing academic qualification with Masters Degree in commerce and acquired professional qualifications by successful completion of Banking Diploma Part I & II and six months training program on Foreign Exchange & International Banking with Dresdner Bank Ag, Germany.
03. That the petitioner started his carrier as banker in 1971 as a Junior Officer in Pubali Bank Limited through Bank Official Training Scheme of the erstwhile State Bank of Pakistan. Because of his professional skills and expertise he was promoted to the post of Senior Officer in 1976. In 1979 the petitioner was promoted to the post of Principal Officer and in 1984 promoted to Senior Principal Officer. In 1986 the petitioner joined United Commercial Bank Limited as officer Grade-I. In 1988 he was promoted to Assistant Vice President and in 1993 he was promoted to Vice President. The petitioner was very sincere in his profession and during his long banking service he has performed various responsible duties in various responsible banking area.
04. That in October, 1996 the petitioner joined as the Senior Vice President of Dhaka Bank Limited. Because of his skill as a banker the petitioner was promoted to the position of Executive Vice President in July, 2001 and within a short period promoted to Senior Executive Vice President (next to Deputy Managing Director) in January, 2003 and till date he is discharging his duties as the Senior Executive Vice President (next to Deputy Managing Director). During his long professional carrier as banker in different banks the petitioner was never charged with any irregularities in discharging his official duties.
05. That the petitioner has come to know from the news published on 01.06.2003 in various national dailies including the daily “Bangladesh Observer” that four criminal cases have been lodged against Mr. S and thirteen others including eleven officials of the Dhaka Bank Limited for misappropriation of Tk. 24.94 crore. The petitioner to his utter shock and surprise found out that his name has also been included as an accused. The news published in the daily “Bangladesh Observer” states as follows:
“The Bureau of Anti-Corruption (BAC) filed four separate cases against marwari businessman Om Prakash Agarwal and 13 others including 11 officials of the Dhaka Bank Limited for embezzling Taka 24.94 crore.
Eleven Banks officials are: former executive Vice Presidents, K and J, Senior Vice Presidents R and X, Vice Presidents O, Assistant Vice President D, Principal officer U, Senior officers Y and W.
Of the accused of Dhaka Bank officials, N is now working as Managing Director of Standard Bank Limited while E is serving as executive Vice President with Shahjalal Bank Limited.
The Bank officials have been implicated in the cases for facilitating the fraud. BAC inspector T who filed the cases with Motijheel police station told BSS this afternoon.
The Bank officials were accused of assisting the approval of bank’s money by using forged documents in a planned way.
Two other accused in the case are: B, Managing Director, HB Apparels and C, Director Z Apparels.
In the cases concerned BAC officials alleged that K and his accomplices with collaboration of Dhaka Bank Officials approved Tk. 24,94,34,773.98 crore by using the forged documents and use the business office of Messrs HB Apparels at Tanbazar, Narayangang to cover up the fraud.
In all these cases they showed import of fabrics under back to back L
/C `s and later shipment of Ready Made Garments were made for export but they did not bring back the export earnings.
K is the central figure in all these cases, the BAC said in its case dossiers.
Earlier, BAC also filed four separate cases against K and six others including four officials of the One Bank Limited for embezzling Tk. 11.5 crore on February 23 this year.
Deputy Managing Director (DMD) J, Executive Vice President K, Vice President L and Senior Assistant Vice President P of the bank’s have been named in the cases for abetting the fraud.”
06. That after certain enquiry, the petitioner has come to know that F.I.R. Nos. 03, 04, 05 and 06 all dated 01.06.2003 have been lodged with Motijheel Police Station by the Bureau of Anti-Corruption under section 5(2) of the Prevention of Corruption Act, 1947 and section 406, 420, 467, 468, 471, 201 and 109 of the Penal Code for misappropriation of money by opening of letters of credit on account of Z Apparels (Pvt) Limited.
07. That it is stated that the allegations as contained in the news items are totally false and misconceived and is in gross misrepresentation of the actual facts. The factual position is as follows:
a) That at the request of Z Apparels (Pvt) Limited (the borrower Company) a Current Account was opened with the Dhaka Bank. The borrower Company is a 100% export oriented Knit Garments Factory. It is registered with the Board of Investment. The borrower Company has obtained certificates from Export Promotion Bureau, national Board of Revenue, Bangladesh garments Manufacturers and Exporters Association, Textiles Department. The following persons were the Directors of the borrower Company as per particulars submitted by the branch to Head Office:
a) Mr. A : Chairman
b) Mr. B : Managing Director
c) Mr. C : Director
d) Mr. D : Director
b) That on 29.10.2000 Mr. B transferred his shares and resigned as Director of the borrower Company.
c) That subsequently at the request of the borrower Company Back to Back letters of credit facilities of US$ 4,00,000.00 was granted upon approval of the Board of Directors of Dahak Bank. The said facility was secured by 60% margin in the form of FDR at the time of opening the B/B L/C and also 40% in the form of FDR at the time of release of import documents.
d) That in addition to the earlier B/B L/C facility, the borrower Company once again approached Dhaka Bank and vide its letter dated 03.08.1999, asked for B/B L/C limit for an amount of US$ 3,50,000.00 only against contract or Export L/C. Dhaka Bank initially perused it in the form of a Proposal dated 03.08.1999 and subsequently granted a B/B L/C limit for an amount not exceeding US$ 3,50,000.00 only vide its Letter of Offer dated 16.08.1999. The purpose of this particular B/B L/C was to import yarn/raw materials in order to produce 100% export oriented cotton fabrics. This time around, there was a margin of 25% in the form of FDR at the time of opening of the B/B L/C.
e) That the borrower Company availed the L/C facilities in full and made use of the same in the running of its business. As time passed by, the borrower Company approached Dhaka Bank again with the request to enhance the B/B L/C limit vide its letter dated 11.12.2001. After much deliberation, Dhaka Bank finally approved the Proposal dated 11.12.1999 and enhanced the B/B L/C limit from US$ 3,50,000.00 only to US$ 7,00,000.00 only against the existing securities tendered for the earlier B/B L/Cs.
f) That notwithstanding the B/B L/C limits already being enjoyed, the borrower Company approached Dhaka Bank time and again in writing with the requests for further enhancement of the B/B L/C limit. The Bank considered the said requests and gradually enhanced the limit for the B/B L/C to US$ 11,00,000.00 only vide its proposal dated 23.02.2002 and from US$ 11,00,000.00 only to US$ 25,00,000.00 only vide its Proposal dated 30.05.2000 with prior clearance of Bangladesh Bank vide letter No. DBOD (Bri Rin)200/18-1949 dated 27.06.2000.
g) That vide its letter dated 01.03.2002, the borrower Company came forward once again with the request not only to enhance the existing B/B L/C limit, but also to sanction additional facilities in its favour. After evaluating the request in the form of a Proposal dated 11.03.2001, Dhaka Bank finally vide its Letter of Offer dated 12.04.2001 granted the following multiple credit facilities to the borrower Company with prior clearance of Bangladesh Bank vide letter No. DBOD (Bri Rin)200/18-2001-1171 dated 01.04.2001:
a) Enhancement of B/B L/C against contract/Export L/C to a limit of US$ 40,00,000.00 (USD forty lac) only.
b) Packing Credit for an amount of Tk. 50,00,000.00 (BDT fifty lac) only.
c) Secured Overdraft for a limit of Tk. 1,00,00,000.00 (BDT one crore) only.
h) That in order to secure the fresh facilities obtained, the borrower Company continued and created the following charges in favour of Dhaka Bank:
(a) Personal Guarantees of all the Directors already obtained.
(b) Third Party Personal Guarantee from Mr. S.
(c) Lien of cash incentives against export receivables from Bangladesh Bank.
(d) Lien on FDR for Tk. 4,75,00,000.00 (BDT four crore and seventy five lac) only and more amount of FDR to be built up in the future.
i) That the borrower Company utilised the facilities to the maximum and made use of the same in its business efficacy. However, the borrower Company defaulted in adjusting its following liabilities as on 21.08.2002:
|Nature of Credit||Amount Outstanding|
|B/B L/C||Tk. 17,30,37,155.44 (contingent)|
|Packing Credit||Tk. 52,27,219.46|
|Secured Overdraft||Tk. 10,51,688.80|
j) That in view of the past record of the borrower Company it is clear that Dhaka Bank had made exports of about Tk. 133.83 crores during the period from 1999 to 2002 and thus earned foreign currency for the country through the borrower Company and its sister concerns/associate companies. Dhaka Bank has earned an amount of Tk. 2.56 crores during the period from 1999 to 2002 through the borrower Company and its sister concerns/associate companies. Considering the past transaction it cannot be said that false transaction was made.
08. That it is submitted that the letters of credit in question were opened upon the application of the borrower Company considering its past business transaction and the local L/C liability was adjusted out of the export proceeds. In carrying on the business the borrower Company has got stuck up liability of Tk. 62,78,908.26 only as on 21.08.2002 with Dhaka Bank for which Money Suit No. 36 of 2002 was filed on 24.08.2002 in the Court of Joint District Judge and Artha Rin Adalat, 3rd Court at Dhaka for recovery of the said amount. It may be mentioned here the borrower Company had an contingent liability of Tk. 17,30,37,155.44 only. Out of the said contingent liability an amount of Tk. 16,45,18,190.46 became absolute liability because of payment under the B/B L/C. Consequently, the suit value was increased to Tk. 17,07,97,098.66 only.
09. That subsequent to the filing of the suit Dhaka Bank realised export proceeds and cash incentive from Bangladesh Bank and thus the liability of the borrower Company was reduced to Tk. 8,93,39,207.66 only as follows as on 02.03.2003:
|Nature of Credit||Suit amount||Realisation as on 02.03.2003||Outstanding as on 02.03.2003|
|B/B L/C||Tk. 16,45,18,190.45||Tk. 7,51,78,982.00||Tk. 8,93,39,207.66|
|Packing Credit||Tk. 52,27,219.46||Tk. 52,27,219.46||Nil|
|Secured Overdraft||Tk. 10,51,688.80||Tk. 10,51,688.80||Nil|
|Total||Tk. 17,07,97,098.66||Tk. 8,14,57,891.00||Tk. 8,93,39,207.66|
10. That in such circumstances it cannot be said the petitioner has personally misappropriated Tk. 24.94 crore through opening of false letters of credit. As such it is submitted that the police case as reported in the newspapers is false, fabricated and has been lodged with sole purpose of harassing the petitioner and maligning his good reputation.
11. That it is further submitted that the Board of Directors of Dhaka Bank has fullest confidence on the petitioner. There is no shred of doubt in the minds of the members of the Board that the petitioner is in no way connected in causing any financial loss to the Bank. Considering the performance of the petitioner the Board of Directors of Dhaka Bank awarded further promotion to the post of Senior Executive Vice President in January, 2003. He is performing the duty of the Senior Executive Vice President at the moment.
12. That the petitioner apprehends that because of the wide publicity in the national dailies, if he surrenders before the Metropolitan Magistrate or the Sessions Court, Dhaka he shall not be enlarged on bail and be taken to custody.
13. That it is submitted that unless the petitioner is enlarged on bail and is taken to custody he will not be able to perform his official duties and as such the day to day business affairs of the Bank will be disrupted.
14. That it is further submitted that the petitioner is in the position of the Senior Executive Vice President (next to Deputy Managing Director) of a Bank. If the petitioner is enlarged on bail he will not abuse the bail or abscond.
15. That it is submitted that for the reasons stated herein above this Court in exercise of its power under section 498 of the Code of Criminal Procedure may grant anticipatory bail. This is a proper case where such discretion may be exercised by this Hon’ble Court.
Wherefore, it is humbly prayed that your Lordships would graciously be pleased to:
(a) Issue Rule calling upon the opposite- party to show cause as to why the petitioner shall not be granted anticipatory bail in connection with the F. I. R. Nos. 03, 04, 05 and 06 all dated 01.06.2003 lodged with Motijheel Police Station, Dhaka by the Bureau of Anti Corruption against the petitioner and others under section 5(2) of the Prevention of Corruption Act, 1947 and section 406, 420, 467, 468, 471, 201 and 109 of the Penal Code alleging misappropriation of Tk. 29.94 crore by opening of letters of credit on account of ZApparels (Pvt) Limited and after hearing the parties and cause shown, if any, make the Rule absolute;
(b) Pending hearing of the Rule enlarge the petitioner on anticipatory bail in connection with the the F. I. R. Nos. 03, 04, 05 and 06 all dated 01.06.2003 lodged with Motijheel Police Station, Dhaka; and/or
(c) Pass such other order or as may deem fit and proper in this case.
And for this act of kindness, the petitioner, as in duty bound, shall ever pray.
I, ________________________, son of _______________________, of _________________________________, aged about _________ years, occupation business, by faith ___________, nationality Bangladeshi, do hereby solemnly affirm and say as follows:
01. That I am the Tadbirkar of the petitioner in this case and as such I am fully acquainted with the facts and circumstances of the case and competent to swear this affidavit.
02. That the statements of facts made above are true to my knowledge and belief, which I verily believe to be true, and the rests are submissions before this Hon’ble Court.
|Prepared in my office:|
|Solemnly affirmed before me by the aforesaid deponent on this the ____th day of __________ at ____ a.m.||The deponent is known to me and identified by me.|
|Commissioner of Affidavits
Supreme Court of Bangladesh
High Court Division