Re: LEGAL OPINION REGARDING NEXT COURSE OF ACTION OF THE KOTOWALI (………) POLICE STATION CASE NO. ………………
We refer to your letter dated 29.12.2005 on the above subject.
We have perused the photocopies of papers/documents and the copies of FIR and complaint petition drafted by Bank’s local lawyer in ………. referred to us. We understand that Mr. X opened a SB Account being No. 2410 with BANK 1 (BANK 1) on 10.04.2005 and deposited some cheques for different amount drawn on (i) M & T Bank, USA and (ii)Bridge Bank, USA. The cheques were sent to American Express Bank Limited, New York (AMEX) for collection who credited the account of BANK 1 maintained with them. Accordingly, the Bank credited a total Tk. 40,07,844.95 to the account of MR. X who had withdrawn the money from the Bank on different dates in between 25.05.2005 to 08.08.2005.
Subsequently, AMEX informed the Bank that the cheques were dishonoured by drawee banks as the name of the payee was altered and AMEX debited the total amount from the account of the Bank maintained with them. MR. X however vide his letter dated 28.11.2005 expressed his desire to return all the money and deposited Tk.50,000.00. Similar kind of forgery was also committed by one Mr. Y who withdrawn Tk. 2,19,881.25 from the Bank. In such situation certain queries have been referred to us and which have been dealt below.
Queries (a) & (b), being inter-linked are dealt together.
(a) What could be the best possible course of action for the Bank and what legal action (s) the Bank should take against the client(s) for forgery.
Unless it can be ascertained as to who has altered or fabricated the name of the beneficiary, the Bank may not bring any specific allegation against any body. If so, any criminal action if filed may fail for want of specific allegation.
However, as Mr. X has already withdrawn the money, it would be deemed that he obtained an illegal financial gain by way of temporary embezzlement and that can constitute an offence under section 403 of the Penal Code, 1860. The Bank may file a FIR (Ezahar) in the concerned Police Station to that effect and the police upon necessary investigation shall frame charge.
We have perused the draft petition alleging the offence under section 420/467/471/109. We are of the view that unless it can be established that Mr. X had knowledge of the fraud or any reason to believe so, the elements of the offences under above sections cannot be established.
In addition, the Bank may file a recovery suit against MR. X and Mr. Y. Now the question remains whether Bank may file suit in the Artha Rin Adalat or shall file the Suit in the ordinary Civil Court. The Bank should try to file the suit in Artha Rin Adalat showing the transaction as advance (AwMÖg) against the cheques deposited with AMEX in USA. But if the Artha Rin Adalat declines to entertain the suit, then the suit has to be returned in the ordinary Civil Court.
(b) Whether it would be better for the Branch to lodge a FIR or file a Complaint Petition in the Magistrate Court
FIR itself initiates an action and shall be treated as General Register (GR) Case. Thus it is an option for anyone to file either lodge FIR with the concerned Police Station or file a Complaint Petition in the concerned Court.
In this instance, we are of the view that the Bank should lodge FIR with the concerned Police Station accusing only Mr. X for embezzlement/misappropriation of Bank’s money without mentioning any section of Penal Code of Bangladesh. The Investigating Officer (I.O) after necessary investigation implead the accused(s) involved and bring the charges under relevant sections.
It is mentionable that the Bank should assist the I.O in carrying out the investigation and should cautiously handle him, otherwise any of the Bank’s officer may be impleaded.
(c) Whether any remedy is available to the Bank against the collecting bank AMEX or drawee bank for recovery of Bank’s dues.
We are of the view that American Express Bank Limited, New York (AMEX) did not commit any illegality in debiting the money from the Bank’s account. The amount was initially credited to the Bank’s account with an impression that the cheques in question were in proper form. As a collecting bank AMEX has no responsibility to verify the authenticity of the cheques. Further, in our opinion unless the Bank has any specific allegation supported by substantive evidence, no way the Bank can take any recourse against the drawee bank(s).
Should you have any further query, please do not hesitate to contact the undersigned.
For: “The Lawyers & Jurists”