Criminal Miscellaneous case

DISTRICT: DHAKA

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.

AND

IN THE MATTER OF:

Mr. X

Son of Late Y

Ex-Managing Director

National Credit and Commerce Bank Limited

Residing at:

House No. 29, Road No. 6

Sector-3, P.S. Uttara, Dhaka

PETITIONER

-Versus-

The State

Represented by:

The Deputy Commissioner

Dhaka

OPPOSITE-PARTY

A N D

IN THE MATTER OF:

News item dated 05.02.2003 published in the daily “Prothom Alo”, “Inquilab”, Jugantar” and “Financial Express” reporting the lodging of F. I. R. Nos. 17/102, 18/103, 19/104, 20/105, 21/106, 22/107 and 23/108 all dated 04.02.2003 alleging misappropriation of Tk. 18,34,49,796.00 only by opening of letters of credit on account of Z Apparels (Pvt) Limited.

To

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 –

SHEWETH:

01. That the petitioner is the former Managing Director of National Credit and Commerce Bank Limited, which is a banking company incorporated under the relevant Companies Act, having its Head Office at 7-8 Motijheel Commercial Area, Dhaka-1000. It carries on banking business within the territory of Bangladesh through its various branches (hereinafter referred to as “NCC Bank”). 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 acquired professional qualifications by (a) completing training for officers in 1963 by Habib Bank Training Institute, Karachi, (b) qualifying in the International Trade Loan Syndication, Credit Roll-over at Bank Brussels Lambert, Brussels, Belgium in 1981, (c) completing the Executive Internship at American Express, New York, USA in International Banking in 1990, (d) completing Bank Reform and Agricultural Credit Program at Thunderbird International Banking Institute, USA in 1992 and (e) attending many conferences and seminars at home and abroad including Forex Trading at Dubai Bank, Dubai.

02. That the petitioner started his carrier as banker in 1962 as a Probationary Officer in Habib Bank. Because of his professional skills and expertise the then United Bank Limited (now Janata Bank) picked the petitioner from Habib Bank in 1964 and assign him the responsibility as Branch Manager. In 1977 the petitioner was promoted to Assistant General Manager and was posted as Area Manager, Janata Bank, Chittagong. In 1980 the petitioner was transferred to the Credit Division, Head Office where he continued up to 1982.

03. That in 1983 the petitioner joined Arab Bangladesh Bank Limited as Vice President and was posted in the Operation and Credit Department. Because of the satisfactory performance of the official responsibilities, the petitioner was promoted to Senior Vice President and was posted as Regional Head, Dhaka in 1986. In 1987 he was posted as Senior Regional Vice President in Chittagong. Because of his skill and expertise, within a short period the petitioner was promoted to Executive Vice President and was posted in International Division in 1990. In March, 1994 the petitioner jointed as the Chief Executive Officer of Five Continental Credit Limited, Hong Kong and continued till July, 1995. The petitioner then joined as the Executive President (Managing Director) of Al Baraka Bank Bangladesh Limited in 1996.

04. That on 25.01.2001 the petitioner joined as the Managing Director of National Credit and Commerce Bank Limited and continued till 02.01.2003. 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 05.02.2003 in the daily “Prothom Alo”, “Inquilab”, Jugantar” and “Financial Express” that a criminal case has been lodged against Mr. Z, Mr. A, Mr. B, Mr. Z I, Mr. Z II, Mr. Z III, Ms. Z IV and the petitioner in connection with Letter of Credit Facilities availed by H. P. Apparels (Pvt) Limited. 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 “Prothom Alo” states as follows:

cÖvq mv‡o 18 †KvwU UvKv AvZ¡¯§v‡Zi Awf‡hv‡M `ybx©wZ `gb ey¨‡iv MZKvj g½jevi ÕKÕ, GbwmwmweGj-Gi mv‡eK `yB e¨e¯’vcbv cwiPvjK Mr. X mn AvUR‡bi weiy‡× ivRavbxi gwZwSj _vbvq c„_K mvZwU cÖZvibvi gvgjv `v‡qi K‡i‡Q|

`ybx©wZ `gb ey¨‡iv my‡Î Rvbv †M‡Q, bvivqYM‡Äi bvg me©¯^ cÖwZôvb †gmvm© GBP we Gcv‡ijm cÖvt wjwg‡U‡Wi bv‡g Gi gvwjK Ig cÖKvk AvMiIqvj, †Pqvig¨vb c¼R mvnv, e¨e¯’vcbv cwiPvjK bvivqY P›`ª †fŠwgK gwZwS‡ji b¨vkbvj †µwWU GÛ Kgvm© e¨vs‡K cÖZviYv I RvwjqvwZi gva¨‡g GKwU wnmve Ly‡j| Gici e¨vs‡Ki mv‡eK e¨e¯’vcbv cwiPvjK (BdwmweGj †_‡K m¤cÖwZ Aemi †bIqv) mv‡R`yj nK, cieZx© e¨e¯’vcbv cwiPvjK Av‡bvqvi Avn‡g`, Gw·wKDwUf fvBm †cÖwm‡W›U kwdKzi ingvb, wRGg dLiywÏb I Gwfwc ˆmq`v Lv‡j`v †eM‡gi †hvM mvR‡m cÖZviYvi gva¨‡g 2001 mvj I 2002 mv‡ji wewfbœ mg‡q 18 †KvwU 34 jvL 49 nvRvi 796 UvKv AvZ¡mvr K‡i|

gvgjvi Awf‡hv‡M ejv nq, Avmvgxiv ci¯ci †hvMmvR‡m Rvj-RvwjqvwZi gva¨‡g mycwiKwíZfv‡e e¨vK Uz e¨vK Gjwm Ly‡j 2001 mv‡j 10 ‡KvwU 92 jvL, 2002 mv‡j 3 †KvwU 9 jvL UvKv IfviBbf‡qwms K‡i ißvbx †`wL‡q †KŠk‡j bM` mnvqZv †_‡K 2001 mv‡j 1 †KvwU 6 jvL Ges 2002 mv‡j 68 jvL Ges e¨vK Uz e¨vK Gjwm Ly‡j GdwWwewm/GdwWwewc Lv‡Z 2001 mv‡j 1 †KvwU 99 jvL I 2002 mv‡j 22 jvL UvKv Ges ißvbxK…Z gvjvgv‡ji cÖZ¨vevmb bv K‡i hšÎcvwZ Avg`vbx K‡i wewµ K‡i †dvm©W †jvb Lv‡Z Av‡iv 36 jvL UvKv A_©vr me wgwj‡q 18 †KvwU 34 jvL 49 nvRvi 796 UvKv AvZ¡mvr K‡i| Gi d‡j Avmvgxiv 1947 mv‡ji `ybx©wZ cÖwZ‡iva AvB‡bi 5(2) I `Ûwewai 406, 409, 420, 467, 468, 471, 109 avivq Aciva K‡i‡Qb e‡j Awf‡hvM Kiv nq|

myÎg‡Z, cÖv_wgK AbymÜv‡b `ybx©wZ cÖgvb nIqvq MZKvj `ybx©wZ `gb Kg©KZ©v Ave`yj nK ev`x n‡q gwZwSj _vbvq Dwj­wLZ AvUR‡bi weiy‡× c„_K mvZwU gvgjv `v‡qi K‡ib|

06. That after certain enquiry, the petitioner has come to know that F.I.R. Nos. 17/102, 18/103, 19/104, 20/105, 21/106, 22/107 and 23/108 all dated 04.02.2003 has 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, 409, 402, 467, 468, 471 and 109 of the Penal Code for misappropriation of Tk. 18,34,49,796.00 only by opening of letters of credit on account of Z Apparels (Pvt) Limited. The FIRs state as follows:

F.I.R. No. 17/102: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k ¶gZvi Ace¨env‡ii gva¨‡g cÖZviYv I RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K Gwewc Lv‡Zi 1401.78 j¶ UvKvi g‡a¨ 2001 mv‡j 1092.21 j¶ UvKv `vq m„wói gva¨‡g AvZ¡¯§vr K‡i `Ûwewai 406/409/420/467/468/471/ 109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivi Aciva Kivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiy‡× ewY©Z avivq 1(GK) wU gvgjv iyRyi mycvwik Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

F.I.R. No. 18/103: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k ¶gZvi Ace¨env‡ii gva¨‡g cÖZviYv I RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K Gwewc Lv‡Zi 1401.78 j¶ UvKvi g‡a¨ 2002 mv‡j 309.57 j¶ UvKv `vq m„wói gva¨‡g AvZ¡¯§vr K‡i `Ûwewai 406/409/420/467/468/471/ 109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivi Aciva Kivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiy‡× ewY©Z avivq 1(GK)wU gvgjv iyRyi mycvwik Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

F.I.R. No. 19/104: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k ¶gZvi Ace¨env‡ii gva¨‡g A‰eafv‡e cÖZviYv I RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K †jvb (K¨vk Bb‡mbwUf) Lv‡Z 106.30 j¶ UvKv f‚qv cwiwPwZ‡Z cwiPvwjZ cÖwZôv‡bi bv‡g D‡Ëvjbcye©K AvZ¡¯§vr K‡i `Ûwewai 406/409/420/467/468/471/109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivi Aciva Kivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiy‡× ewY©Z avivq 1(GK)wU gvgjv iyRyi mycvwik Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

F.I.R. No. 20/105: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k ¶gZvi Ace¨env‡ii gva¨‡g A‰eafv‡e cÖZviYv I RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K †jvb (K¨vk Bb‡mbwUf) Lv‡Z 2002 m‡b 68.11 j¶ UvKv f‚qv cwiwPwZ‡Z cwiPvwjZ cÖwZôv‡bi bv‡g D‡Ëvjbcye©K AvZ¡¯§vr K‡i `Ûwewai 406/409/420/467/468/471/ 109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivi Aciva Kivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiz‡× ewY©Z avivq 1(GK)wU gvgjv iyRyi mycvwik Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

F.I.R. No. 21/106: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k A‰eafv‡e ¶gZvi Ace¨env‡i K‡i Rvj RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K 2001 m‡b GdwWwewc/GdwWwewm Lv‡Z 3,48,000.00 gvwK©b Wjvi hv evsjv‡`kx gy`ªvq 1,99,99,560.00 UvKv cÖZ¨vevmb bv KiZt AvZ¡¯§vr K‡i `Ûwewai 406/409/420/468/ 471/109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivi Aciva Kivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiz‡× ewY©Z avivq 1(GK)wU gvgjv iyRy Kivi Rb¨ Aby‡iva Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

F.I.R. No. 22/107: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k A‰eafv‡e ¶gZvi Ace¨envi K‡i cÖZviYv I RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K 2002 m‡b GdwWwewc Lv‡Z 38,685.33 gvwK©b Wjvi hv evsjv‡`kx gy`ªvq 22,23,246.00 UvKv cÖZ¨vevmb bv KiZt AvZ¡¯§vr K‡i `Ûwewai 406/409/420/468/471/109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivi Aciva Kivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiz‡× ewY©Z avivq 1(GK)wU gvgjv iyRyi mycvwik Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

F.I.R. No. 23/108: Amr D‡Ï‡k¨ ci¯ci †hvMmvR‡k ¶gZvi Ace¨env‡ii gva¨‡g cÖZviYv I RvwjqvwZi Avkªq wb‡q AcivaRbK wek¦vmfsMcye©K Avg`vbxK…Z †gwkbvix KviLvbvq ¯’vcb bv K‡i weµq cye©K †dvm©W †jvb Lv‡Z 36,07,990.00 UvKv AvZ¡¯§vr K‡i `Ûwewai 406/409/420/467/468/471/109 aviv Ges 1947 mv‡ji 2 bs `ywb©wZ cÖwZ‡iva AvB‡bi 5(2) avivq D‡j­wLZ Awfhy³ e¨w³e‡M©i weiz‡× ewY©Z avivq 1(GK)wU gvgjv iyRyi mycvwik Kiv n‡jv| Z`šZKv‡j D³ Aciv‡ai mv‡_ Ab¨ Kv‡iv m¤c„³Zv cvIqv †M‡j Zv‡K Awfhy³ Kiv n‡e|

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 actual facts are as follows:

a) That at the request of Z Apparels (Pvt) Limited (the borrower Company) a Current Account being A/C No. 01009942 was opened with the Motijheel Branch of NCC Bank on 08.03.97. 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:

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 from 18.11.99 to 09.04.2000 the borrower Company was granted back to back Letter of Credit facility on case to case basis for eight occasions. By availing the said facility the borrower Company opened letters of credit for an aggregate amount of US$ 18,19,939.31 only. In granting the facilities NOCs were obtained from the Bangladesh Bank.

d) That subsequently, in consideration of the fact that the enterprise was an export-oriented body and it had shown reliable performance until that time, a memo was presented to the Board of Directors of the Bank and the following credit facilities were granted:

(i) Revolving B/B L/C to a limit of US$ 20,00,000.00

(ii) Revolving PC for an amount of Tk. 1.25 crore

(iii) FDBP limit for US$ 10,00,000.00

e) That the past record of the borrower Company shows that since borrower 1999 the borrower Company has opened back to Back letters of credit against Contract/Export L/Cs, imported raw materials, completed the order and made export of readymade garments. The liabilities of the borrower Company were being adjusted against export proceeds. Since 1999 the borrower Company has made exports of US$ 1,17,29,775.17 equivalent to Tk. 64,47,05,037.02 only out of which an amount of US$ 1,13,43,089.84 equivalent to Tk. 62,24,82,231.10 and an amount of US$ 3,86,685.33 equivalent to Tk. 2,22,22,805.92 only was not repatriated. The year-wise calculation is as follows:

Year Export Amount repatriated Amount un-repatriated
1999 Tk. 2,85,79,298.20 Tk. 2,85,79,298.20 Nil
2000 Tk. 28,35,78,097.82 Tk. 28,35,78,097.82 Nil
2001 Tk. 28,83,94,302.05 Tk. 26,83,94,742.05 Tk. 1,99,99,,560.00
2002 Tk. 4,41,53,338.95 Tk. 4,19,30,093.03 Tk. 22,23,245.92.92
Total Tk. 64,47,05,037.02 Tk. 62,24,82,231.10 Tk. 2,22,22,805.92

f) That in view of the past record of the borrower Company it is clear that NCC Bank had made transaction of Tk. 62,24,82,231.10 in equivalent foreign currency. Considering the past transaction it cannot be said that false transaction was made through a “bvg me©¯^ cÖwZôvb” as alleged in the case.

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 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. 4,30,82,376.12 only as on 20.06.2002 with NCC Bank for which Money Suit No. 29 of 2002 was filed on 26.06.2002 in the Court of Joint District Judge and Artha Rin Adalat, 3rd Court at Dhaka for recovery of the said amount.

09. That in such circumstances it cannot be said the petitioner has personally misappropriated Tk. 18,34,49,796.00 only 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.

10. That it is submitted that at the time of granting of any of the credit facilities as mentioned above the petitioner was not the Managing Director of NCC Bank. However, the loan was renewed and enhanced on 26.05.2001 after the inclusion of the petitioner in the Bank as the Managing Director. That was the first time when this account was brought to the attention of the petitioner. As Managing Director of NCC Bank the petitioner was not involved in the processing of the loan proposal of the borrower Company. The petitioner along with other loan proposals submitted the loan proposal of the borrower Company before the Board. It is mentioned here that in no uncertain terms that the name of Mr. Om Prakash Chowdhury or any of his concerned entities were not mentioned anywhere in the Board Memo that contained the proposal for renewal and enhancement.

11. That it is further submitted that the Board of Directors of NCC Bank had fullest confidence on the petitioner during his tenure of service of NCC Bank. There was no shred of doubt in the minds of the members of the Board that the petitioner was in no way connected in causing any financial loss to the Bank.

12. That the petitioner apprehends that because of the wide publicity in the national dailies, if he surrenders before the Metropolitan Magistrate, Dhaka he shall not be enlarged on bail and be taken to custody.

13. 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. 17/102, 18/103, 19/104, 20/105, 21/106, 22/107 and 23/108 all dated 04.02.2003 lodged with Motijheel Police Station, Dhaka by Mr. Abdul Haque, Anti Corruption Officer against the petitioner and others under section 5(2) of the Prevention of Corruption Act, 1947 and section 406, 409, 402, 467, 468, 471 and 109 of the Penal Code alleging misappropriation of Tk. 18,34,49,796.00 only by opening of letters of credit on account of Z Apparels (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 F. I. R. Nos. 17/102, 18/103, 19/104, 20/105, 21/106, 22/107 and 23/108 all dated 04.02.2003 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.

AFFIDAVIT

I, _________________, son of Late _______________, Vice President, National Credit and Commerce Bank Limited, Head Office, 7-8 Motijheel Commercial Area, P.S. Motijheel, Dhaka-1000, aged about__________ years, by occupation Service, 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:
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.
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division

ADVOCATE