LEGAL OPINION REGARDING DEFALCATION OF BANK’S MONEY THROUGH TBL RRDH LOAN OF SOLDIERS BY SERGEANT CLERK Mr. X.

Mr. Z

Address….

Dear Sir

RE:     LEGAL OPINION REGARDING DEFALCATION OF BANK’S MONEY THROUGH TBL RRDH LOAN OF SOLDIERS BY SERGEANT CLERK Mr. X.

We refer to the above subject.

From perusal of your letter and other submitted documents, it is appears that Bank 1 (“the Bank”) began extending loans for Company 1 from the year 200 to different units of Army group on the basis of recommendation by the Commanding Officers/Officers Commanding.

Armed Forces Division, Dhaka Cantonment (“AFD”) authorised Mr. x, Sergeant Clerk to collect about 2200 group loans for its soldiers form August 2000 to March 2005.

In the course of recovery of stuck up loans, a list of 69 defaulting soldiers was sent to AFD on May 5, 2000. On scrutiny, AFD sent back a list of 39 cases of fake loans to the Bank which involved Tk. 14,01,128/- only.

Meanwhile, the concerned authorities of the Army constituted a Court of Inquiry to probe the allegations of embezzlement against Sergeant Clerk Mr. x. The findings of the Court of Inquiry revealed that the Sergeant Clerk has misappropriated the money by availing false loans in the name of soldiers. The Court of Inquiry also attributed some administrative lapses on the concerned personnel of the AFD.

On receipt of a letter dated April 2007 form Army Welfare Trust regarding the above misappropriation, an inquiry was carried out by the Bank into allegations raised against the Sergeant Clerk. A report was given on May 20, 2007 by Mr. Y, SVP & Head of Operation.

The Sergeant Clerk in question has already retired from the Army on March 13, 2005. He is at present in Singapore, as learnt from his family source.

During the inquiry, some officers of the Bank visited the Sergeant Clerk’s four storied building in Dumni, Khilkhet and met with his wife. His wife said that she would contact her husband in Singapore over the phone and try her best to settle the issue. But till now, no steps has been taken by the Sergeant Clerk to adjust the fake loans of Tk. 14,01,128/- only.

Meanwhile Army authorities have advised the Bank to initiate legal action to attach the four storied building in Dumni, Khilkhet of the Sergeant Clerk and thereby adjust the fake loans.

In these circumstances, you seek our legal opinion on the practical legal options so as to enable the Bank to attach the said property for adjustment of the fake loan.

OUR OPINION:

It appears that Mr. X, Sergeant Clerk has misappropriated Bank’s money amounting to Tk. 14,01,128/-  by availing false loans in the name of soldiers. The allegations have been established by the Court of Inquiry, constituted by the Army. In such situation the Bank may file recovery suit against Mr. X. After filing the recovery suit, an application under Order 38 Rule 5 of CPC can be made for necessary order of the court for attachment of the 4 storied house of Mr. X. Under Order 38 Rule 5 the Court may pass necessary order of attachment the property of the defendant at any stage of the suit if the court is satisfied by affidavit that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him – is about to dispose of the whole or any part of the said property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.

Before filing any recovery suit, the Bank may serve a legal notice upon Mr. X giving him a certain period of time i.e. 7 days to pay the misappropriated amount to the Bank and stating that in case of his failure to make payment the Bank shall file civil suit as well as criminal case against him.

Please note that since allegations against Mr. X are for misappropriation of the Bank’s money and criminal breach of trust, the Bank may also file criminal case against Mr. X.

In the criminal case, if the Court has reason to believe that the Accused against whom a warrant has been issued by it has absconded so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time. The Court issuing a proclamation may at any time order the attachment of any property belonging to the proclaimed person. However, the said attachment can not help the Bank to recover the misappropriated amount because if the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property and on the other hand if the proclaimed person does not appear within the time specified the property under attachment shall be at the disposal of the Government.

If you have any further query, please do not hesitate to contact us.

Thanking you.

Yours faithfully,

………………….

For: “The Lawyers & Jurists”