Arab Bangladesh Bank Limited -Versus- The State Represented by The Deputy Commissioner

DISTRICT: DHAKA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

CRIMINAL REVISION NO. OF _________

IN THE MATTER OF:

An application under section 435 and 439 read with section 561A of the Code of Criminal Procedure, 1898

AND

IN THE MATTER OF:

Arab Bangladesh Bank Limited

Represented by the Manager

Karwan Bazar Branch

BSEC Bhaban (Ground & 3rd Floor)

102 Kazi Nazrul Islam Avenue

Dhaka-1215

Petitioner Bank

-Versus-

1. Mr. A

Son of B

Moheshpur, P.S. Bakergonj

Barisal

Present Address:

Pran Building (2nd Floor)

12/1 R. K. Mission Road

P.S. Sutrapur, Dhaka

2. The State

Represented by

The Deputy Commissioner, Dhaka

Opposite Parties

AND

IN THE MATTER OF:

Order No. 28 dated 02.05.2005 and Order No. 25 dated 21.03.2005 passed by Mr. Md. Rezaul Karim Khan, Divisional Special Judge, Dhaka in Special Case No. 44 of 2003 arising out of Kotwali P.S. Case No. 11 dated 08.02.1994.

To

Mr. Justice Syed J. R. Mudassir Husain, the Chief Justice of Bangladesh and his companion Justices of the Hon’ble Supreme Court.

The humble petition of the petitioner Bank above named most respectfully

SHEWETH:

01. That this revisional petition is filed against Order No. 28 dated 02.05.2005 and Order No. 25 dated 21.03.2005 passed by Mr. Md. Rezaul Karim Khan, Divisional Special Judge, Dhaka in Special Case No. 44 of 2003 arising out of Kotwali P.S. Case No. 11 dated 08.02.1994. By the impugned order No. 25 dated 21.03.2005 the learned Divisional Special Judge, without any factual or legal basis, directed the petitioner Bank to allow the accused/opposite-party to operate the bank account and by the impugned order No. 28 dated 02.05.2005 commenced contempt proceedings against the Manager of the petitioner Bank for non-compliance of the previous order dated 21.03.2005 and once again directed the petitioner Bank to allow the accused to operate bank account No. 039128-000 despite the fact that the petitioner Bank does not hold any papers/documents in connection with the said account and the said fact was communicated to the accused vide letter dated 28.04.2005.

02. That the background of the case is as follows:

(i) That account No. 039128-000 was opened in the name of Barisal Seafoods Limited (the “Accountholder”) with the Karwan Bazar Branch of Arab Bangladesh Bank Limited (hereinafter referred to as the “Account”).

(ii) That subsequently, Kotwali P.S. Case No. 11 dated 08.02.1994 was initiated against the accused and others under section 465, 467, 468, 409 and 420 of the Penal Code and under the Special Powers Act, 1974. In connection with the said criminal proceedings the Investigating Officer vide his Memo No. 1231 dated 19.03.1994 seized all papers/documents including the Minutes of the meeting of the Board of Directors of the Accountholder – Barisal Seafoods Limited, Account Opening Form, Specimen Signature Card and Ledger from 09.11.1993 to 04.02.1994 of the said Account (hereinafter referred to as the “Documents”) on 20.03.1994 pursuant to the order of the learned District and Sessions Judge, Dhaka vide Memo No. DJ/DA 22(1)-C dated 23.02.19994 and kept the said Documents in the custody of Mr. Mahfuzur Rahman Khan, Assistant Vice President, Arab Bangladesh Bank Limited, Karwan Bazar Branch, Dhaka vide Acknowledgement of Custody dated 20.03.1994.

Copies of the Memo No. DJ/DA 22(1)-C dated 23.02.1994, Memo No. 1231 dated 19.03.1994, Seizure List dated 20.03.1994 and Acknowledgement of Custody dated 20.03.1994 are annexed herewith and marked as ANNEXURES “A”, “A(1)”, “A(2)” and “A(3)”.

(iii) That from the said seizure of the Documents on 20.03.1994 the operation in the said Account remained inoperative and neither the Accountholder – Barisal Seafoods Limited contacted the petitioner Bank, nor the Documents were returned to the petitioner Bank enabling the petitioner Bank to resume the operation in the Account.

(iv) That subsequently, at the request of the Criminal Investigation Department (C.I.D.) of Police vide their letter dated 07.06.1998 the said Documents were handed over by the custodian to the C.I.D. vide letter dated 18.08.1998.

Copies of letter dated 07.06.1998 of C.I.D. and letter dated 18.08.1998 of the custodian are annexed herewith and marked as ANNEXURES “B” and “B(1)”.

(v) That after long 11 (eleven) years from the seizure of the Documents, the petitioner Bank received letter dated 24.03.2005 from the accused describing himself as the Managing Director of the Accountholder – Barisal Seafoods Limited enclosing therewith the impugned order No. 25 dated 21.03.2005 passed by the learned Court of Division Special Judge, Dhaka in Special Case No. 44 of 2003 directing the petitioner Bank to allow the accused to operate the said Account. The said order dated 21.03.2005 was passed by the learned Court upon application dated 15.03.2005 filed by the accused.

Copies of the letter dated 24.03.2005 and application dated 15.03.2005 of the accused are annexed herewith and marked as ANNEXURES “C” and “C(1)”.

(vi) That at the time of receiving the aforesaid letter dated 24.03.2005 the concerned officer of the petitioner Bank informed the accused that the Documents, i.e. the Minutes of the Board meeting of the Accountholder – Barisal Seafoods Limited dated 10.09.1986, Account Opening Form and Specimen Signature Card are not in possession of the petitioner Bank. In respondent to the same the accused vide his letter dated 27.04.2005 admitted the fact that the Documents were seized by the Investigating Officer, but alleged that the Documents were handed over to the custody of Mr. W of the petitioner Bank on 20.03.1994.

Copy of the letter dated 27.04.2005 of the accused is annexed herewith and marked as ANNEXURE “D”.

(vii) That the petitioner Bank was all along willing to allow the accused to operate the Account, but because of the seizure of the Documents, the petitioner Bank needed fresh Board Resolution and Specimen Signature Card. As such upon receipt of the aforesaid letter dated 27.04.2005 of the accused on 28.04.2005 the petitioner Bank vide its letter dated 28.04.2005 informed the accused that the Documents were subsequently handed over to the C.I.D. and requested the accused to submit necessary documents along with fresh Board Resolution in order to enable the petitioner Bank to allow operation in the Account.

Copy of the letter dated 28.04.2005 of the petitioner Bank is annexed herewith and marked as ANNEXURE “E”.

(viii) That upon receipt of the Bank’s letter dated 28.04.2005 the accused filed an application whereupon the learned Court passed the impugned order No. 28 dated 02.05.2005 commencing contempt proceedings against the Manager of the petitioner Bank for non-compliance of the previous order dated 21.03.2005 and once again directed the petitioner Bank to allow the accused to operate the Account being No. 039128-000. The said order was communicated to the petitioner Bank on 17.05.2005.

03. That it is submitted that none of the provisions of the Code of Criminal Procedure empowers or authorises the learned Divisional Special Judge to pass an order directing any banking company to allow any particular person to operate any bank account. As such the impugned orders dated 21.03.2005 and 02.05.2005 being without jurisdiction are liable to be quashed/annulled.

04. That it is submitted that the operation of the Account was not stopped by any order of the learned Divisional Special Judge and as such the said Court has no jurisdiction to pass any order directing the petitioner Bank to allow the accused to operate the Account.

05. That it is submitted that even if the learned Court has the jurisdiction to pass the impugned orders, since the operation of the Account had to be stopped by the petitioner Bank due to seizure of the Documents by an order of the Court, the impugned orders are illegal and abuse of the process of the Court inasmuch as the same have been passed without vacating the previous order for seizure of the Documents and as such are liable to be quashed/annulled.

06. That it is submitted that the impugned order No. 25 dated 21.03.2005 having been passed by the learned Court without jurisdiction and without any factual or legal basis, the commencement of the contempt proceedings by the learned Special Division Judge for non-compliance of the said order vide order No. 28 dated 02.05.2005 is an abuse of the process of the Court and as such liable to be quashed/annulled.

07. That being aggrieved by and dissatisfied with the Order No. 28 dated 02.05.2005 and Order No. 25 dated 21.03.2005 passed by Mr. Md. Rezaul Karim Khan, Divisional Special Judge, Dhaka in Special Case No. 44 of 2003 arising out of Kotwali P.S. Case No. 11 dated 08.02.1994, the petitioner Bank above-named begs to file this revisional petition on the following amongst other –

GROUNDS

I. For that none of the provisions of the Code of Criminal Procedure empowers or authorises the learned Divisional Special Judge to pass an order directing any banking company to allow any particular person to operate any bank account. As such the impugned orders dated 21.03.2005 and 02.05.2005 are without jurisdiction and are liable to be quashed/annulled.

II. For that the operation of the Account was not stopped by any order of the learned Divisional Special Judge and as such the said Court has no jurisdiction to pass any order directing the petitioner Bank to allow the accused to operate the Account.

III. For that in passing the impugned orders the learned Divisional Special Judge, Dhaka has assumed the jurisdiction of a Civil Court and as such the impugned orders are liable to be quashed/annulled.

IV. For that even if the learned Court has the jurisdiction to pass the impugned orders, since the operation of the Account had to be stopped by the petitioner Bank due to seizure of the Documents by an order of the Court, the impugned orders are illegal and abuse of the process of the Court inasmuch as the same have been passed without vacating the previous order for seizure of the Documents and as such are liable to be quashed/annulled.

V. For that the findings of the learned Divisional Special Judge, Dhaka is contrary to the facts and circumstances of the case.

VI. For that the learned Divisional Special Judge, Dhaka did not apply his judicial mind while passing the impugned orders;

VII. For that the impugned orders are otherwise illegal and liable to be quashed/annulled.

Wherefore, it is humbly prayed that the Hon’ble Court may be pleased to:

a) Call for the records and issue Rule calling upon the opposite parties to show cause as to why Order No. 28 dated 02.05.2005 and Order No. 25 dated 21.03.2005 passed by Mr. Md. Rezaul Karim Khan, Divisional Special Judge, Dhaka in Special Case No. 44 of 2003 arising out of Kotwali P.S. Case No. 11 dated 08.02.1994 shall not be quashed/annulled;

b) After perusal of the records, hearing of the parties and cause shown, if any, make the Rule absolute;

c) Pending hearing of the Rule stay operation of the Order No. 28 dated 02.05.2005 and Order No. 25 dated 21.03.2005 passed by Mr. Md. Rezaul Karim Khan, Divisional Special Judge, Dhaka in Special Case No. 44 of 2003 till disposal of the Rule;

d) Cost of the proceeding be awarded in favour of the petitioner Bank; and

e) Pass such other or further order or orders as may be deemed fit and proper.

And for this act of kindness the petitioner Bank as in duty bound will ever pray.

AFFIDAVIT

I, ______________________ son of Late _______________________, Senior Officer of Arab Bangladesh Bank Limited, Kawran Bazar Branch, 102, Kazi Nazrul Islam Avenue, Dhaka, aged about 40 years, by faith _______________, nationality Bangladeshi, profession service, do hereby solemnly affirm and declare as follows:

01. That I am the Senior Officer and Tadbirker of the petitioner in this case and as such fully acquainted with facts and circumstances of cases 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 respectful submissions before this Hon’ble Court.

Prepared in my office:
Advocate DEPONENT
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.
ADVOCATE
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division

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