X -Versus- The State

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 561-A of the Code of Criminal Procedure.

AND

IN THE MATTER OF:

X

son of Late Y

Advocate

Supreme Court of Bangladesh

29/A Purana Paltan Lane (1st floor)

VIP Road, Dhaka-1000

ACCUSED-PETITIONER

(ON BAIL)

-Versus-

1. The State

Represented by:

The Deputy Commissioner

Dhaka

OPPOSITE-PARTIES

2. The Trust Bank Limited

Principal Branch

Represented by:

Mr. A

Vice President and Manager

Building No. 98

Main Road, Dhaka Cantonment

Dhaka-1206

3. Mr. B

Managing Director

Expo-Tex Fabrics Limited

Apartment No. 18D (18th floor)

Karnafully Garden City

109 Kakrail, Dhaka-1000

4. Mr. E

Director

Expo-Tex Fabrics Limited

Apartment No. 18D (18th floor)

Karnafully Garden City

109 Kakrail, Dhaka-1000

5. Mr. F

New DOHS

Dhaka

PROFORMA

OPPOSITE-PARTIES

A N D

IN THE MATTER OF:

The proceeding in Cantonment P.S. Case No. 7(8)2002 under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code now pending before the Chief Metropolitan Magistrate, Dhaka as G. R. Case No. 1623 of 2002.

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 an Advocate of this Hon’ble Court and the present criminal case has been initiated against him of the basis of an opinion given by him relating to mortgage of a property in favour of a Bank. Since there was no allegation against him and the charge sheet ex-facie does not disclose any criminal case against him, this application for quashing of the proceeding has been filed.

02. That this revisional petition is filed for quashing of the criminal proceedings instituted by the opposite-party No. 1 on the basis of the First Information Report (“FIR”) lodged by the Bank (hereinafter referred to as the Bank) against the opposite-parties Nos. 3-5 by instituting Cantonment P.S. Case No. 7(8)2002 under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code now pending before the Chief Metropolitan Magistrate, Dhaka as G. R. Case No. 1623 of 2002. No allegation whatsoever was made in the FIR against the accused-petitioner. The allegation made in the FIR is that the Bank granted Back to Back L/C facility of Tk. 95,00,000.00 only in favour of Expo-Tex Fabrics Limited (hereinafter referred to as the Borrower Company) on 04.05.2002 for procurement of yarn, dyes and chemical. The credit facility was secured by registered mortgage of land measuring 0.25 acres at Dakkhinkhan, Dhaka owned by Mr. Khondokar Shamsul Huda – cousin of the opposite-party No. 4 vide Deed of Mortgage dated 07.05.2001. By availing the said credit facility the Borrower opened two Back to Back L/Cs for US$ 66,841.80 and US$ 98,480.00 against export L/C No. 01/1282 dated 07.08.2001 issued by Indian Bank, Singapore. The Bank had to make payment of Tk. 94,36,000.00 against the Back to Back L/Cs but the export proceeds were not repatriated under the Export L/C. Consequently a liability of Tk. 94,36,000.00 was created in the name of the Borrower Company with the Bank. Although the opposite-party No. 3 assured the Bank to adjust the liability from his own sources, the said opposite-party could not adjust the liability. In such circumstances the Bank tried to contact the mortgagor and found out that the mortgagor died on 26.03.2000 during performing hajj in Macca, i.e. long before execution and registration of the Deed of Mortgage on 07.05.2001. Although no accusation whatsoever was made in the FIR or in the statements of witnesses under section 161 of the Code of Criminal Procedure against the accused-petitioner, the Investigating Officer (IO) included the name of the accused-petitioner in the Charge Sheet without making any specific allegation against the accused-petitioner. In such situation the instant proceeding against the accused-petitioner is nothing but an abuse of the process of the Court and as such liable to be quashed.

Certified copy of the entire order sheet is annexed herewith and marked as ANNEXURE “A”.

03. That the accused-petitioner is a practicing Advocate of the Supreme Court of Bangladesh. The petitioner joined the Bar in 1966 and since then he has been regular in practice, specialising in tax matters. He actes as legal adviser to different Banks.

04. That the opposite-party No. 2 – Bank granted Back to Back L/C facility of Tk. 95,00,000.00 only in favour of the Borrower Company – Expo-Tex Fabrics Limited vide Sanction Letter dated 04.05.2002 for procurement of yarn, dyes and chemicals.

05. That the credit facility was secured by registered mortgage of land measuring 0.25 acres at Mouza Dakkhin Khan, J. L. No. Sabek 193, Hal 34, Sabek 362, Hal 711, Mutation Khatian No. 799/1, Plot No. 2620/4208 and 2620 (hereinafter referred to as the “Land”) stands in the name of Mr. Khondokar Shamsul Huda who was the cousin of the opposite-party No. 4.

06. That the Bank vide its letter dated 24.04.2001 sent the property documents of the land in question to the accused-petitioner for vetting. After vetting of the property documents the accused-petitioner gave the following opinion vide his letter dated 03.05.2001:

“This has reference to your letter # TBL/PB/MISC/2001/1474 dated 24.04.2001 seeking legal opinion for extending loan of Tk. 95,00,000/- to M/S Expo-Tex Fabrics Ltd. to finance Back to Back (Inland) L/C. Collateral security is proposed to be provided by by the third party Mr. G.

We have examined the papers and documents forwarded to us Mr. Gacquired the property measuring 25 decimals under Deed No. 2784 dated 07.02.1986. As it appears, third party is involved.

Examined the original DCR. Mr. Ggot the property mutated separately in his name from the office of Deputy Commissioner of land, Tejgon Circle, Dhaka under Mise. Case No. 2820/86-87 dated 24.11.1986. Examined up-to date Khajna receipt (1406-1408, evsjv mb). The title appears to be in order.

For extending loan facility the following procedure be followed;

(i) For extending loan to M/S. Expo-Tex Fabrics Ltd. the third party, Mr. Gshall stand Guarantor against the said loan and shall execute a registered “ Mortgage” in favour of the Bank, giving authority to sell the land for realisation of the money, in case the said M/S Expo-Tex Fabrics stands defaulter.

(ii) Original Deed No. 2787 dated 07.02.1986 to be taken from the party.

(iii) Original up-to date Khajna receipt, original bvgRvix I Rgv fvM gbRyix and original certified copy of C.S., S.A. and R.S. parcha to be taken from the party.

Recommendation is made on the basis of documents and photocopy forwarded to us. The terms and conditions noted above shall however, have to be complied with.

A copy of the draft Mortgage Deed is enclosed herewith for perusal. Documents and papers forwarded to us are returned herewith.”

07. That thereafter the Bank caused execution and registration of the Deed of Mortgage by Mr. G on 07.05.2001 in the office of the concerned Sub-Register.

08. That the Borrower Company by availing the said credit facility opened two Back to Back L/Cs for US$ 66,841.80 and US$ 98,480.00 against export L/C No. 01/1282 dated 07.08.2001 issued by Indian Bank, Singapore.

09. That the date of payment under the Back to Back L/Cs was 14.02.2001. The Borrower Company submitted export documents worth US$ 2,24,443.80 which were sent to Indian Bank, Singapore for collection but the proceeds were not repatriated. However, the Bank had to make payment of Tk. 94,36,000.00 against the Back to Back L/Cs. Consequently a liability of Tk. 94,36,000.00 was created in the name of the Borrower Company with the Bank.

10. That the opposite-party No. 3 assured the Bank to adjust the liability from his own sources, but he could not adjust the liability. In such circumstances the Bank tried to contact the mortgagor – Mr. Gand found out that he died on 26.03.2000 during performing Hajj in Macca, i.e. long before execution and registration of the Deed of Mortgage on 07.05.2001. The accused-petitioner was not supposed to know whether the mortgagor was alive or not.

11. That on 13.08.2002 the Bank lodged FIR No. 07/73 dated 13.08.2002 with Cantonment Police Station. In the F.I. R. accusation was made against (a) Mr. B, Managing Director, Expo-Tex Fabrics Limited, (b) Mr. E, Director, Expo-Tex Fabrics Limited and (c) Mr. F, New DOHS, Dhaka. It was alleged in the F.I.R. as follows:

Avwg j, fvBm †cÖwm‡W›U I g¨v‡bRvi w` Uªvó e¨vsK wjt wcÖwÝcvj kvLv XvKv †mbvwbevm XvKv GB g‡g© GRvnvi Kwi‡ZwQ †h, F †dweª· wjt GcvU©‡g›U bs-18 wW (19 Zjv), KY©dzjx Mv‡W©b wmwU, 109 KvKivBj, XvKv-1000 hvi e¨e¯’vcbv cwiPvjK Rbve GgwW K , AvevwmK wVKvbvt 10, †nqvi ÷ªxU, Iqvix, XvKv-1103, ¯’vqx wVKvbv- 98 bvwPi DwÏb mi`vi †jb, XvKv-1100 Gi Ab~K‚‡j weMZ 04.05.2002Bs Zvwi‡L w` Uªvó e¨vsK wjt n‡Z myZv, is I ivmvqwbK `ªe¨vw` Avf¨vš—wiZev‡e Avg`vbxi Rb¨ 95.00 j¶ UvKvi Back to Back L/C FY myweav cÖ`vb Kiv nq| D³ FY myweavi wecix‡Z wbæwjwLZ A¯’vei m¤úwË RvgvbZiƒ‡c M„nxZ nq|

ÔÔXvKv¯’ †gŠRvt `w¶b Lvb, JL NO. Sabak – 193, hal- 34, Sabak – 362, Hal – 711, Mutation Khatian No. 799/1, c­U bs- 2620/4208, 2620 G Aew¯’Z 25 †Wwm‡gj Rwgi ”Registered Mortgagee”.

D‡j­wLZ m¤úwËi eÜK AvcvZ `„wó‡Z h_vh_fv‡e m¤úbœ nq| B‡Zvg‡a¨ cÖ`Ë Fb myweavi wecix‡Z BwÛqvb e¨vsK, wmsMvcyi KZ©„K Bmy¨K…Z ißvbx FYcÎ – LC 01/1282 Zvs 07/08/2001 wecix‡Z US$ 66,841.8, US$ 98,480 A_©g~‡j¨i `ywU Af¨š—ixb FYcÎ AÎ e¨vsK KZ…©K †Lvjv nq| 1g FbcÎwU is I ivmvqwbK `ªe¨ Ges 2q wU Cotton Yarn msMÖn Kivi Rb¨ †Lvjv nq| `ywU Fb c‡Îi wecix‡Z e¨vsK n‡Z hveZxq cvIbv cwi‡kv‡ai mgq 14.02.2001Bs Zvwi‡L wba©vwiZ nq| cieZx©‡Z g~j i&ßvbx FbcÎ LC/01/1282 Gi wecix‡Z †gmvm© G·‡cv‡U· †dweª· wjt US$ 2,24,443.80 g~‡j¨i ißvbx WKz‡g›Um AÎ e¨vs‡K Rgv †`q hvnv Collection wfwˇZ we‡`kx †µZvi e¨vsK BwÛqvb e¨vsK wm½vcy‡i †cÖib Kiv nq Ges hvi wecix‡Z ißvbx g~j¨ GLb ch©š— †`‡k cÖZ¨vevwmZ nqwb| welqwU h_vmg‡q evsjv‡`k e¨vsK‡K AewnZ Kiv n‡q‡Q| ißvbx g~j¨ cÖZ¨vevm‡bi e¨vcv‡i Fb MÖnxZvi mwnZ e¨vcK Avjvc-Av‡jvPbv K‡iI welqwUi wb¯úwË AvR ch©š— nqwb| cªwZev‡iB FbMÖnxZv GB g‡g© e¨vsK‡K AewnZ K‡i‡Q †h G e¨vcv‡i Zviv we‡`kx Avg`vbx Kvi‡Ki mwnZ mve©¶wbK †hvMv‡hvM i¶v K‡i Pj‡Q Ges AwP‡iB ißvbx g~j¨ cÖZ¨vevwmZ n‡e| Ae†k‡l ißvbxg~j¨ cÖZ¨vevm‡bi welqwU A¯^vfvweK fv‡e wejw¤^Z nIqvq AÎ e¨vsK BwÛqvb e¨vsK, wm½vcy‡ii mwnZ †hvMv‡hvM K‡i| cÖZz¨Ë‡i D³ e¨vsK Rvbvq †h, ißvbx g~j¨ cÖZ¨vevm‡bi e¨vcv‡i Avg`vbx Kvi‡Ki `„k¨Z †Kvb D‡`¨vM †bB Ges Lye kxNÖB Zviv ißvbx WKz‡g›Um AÎ e¨vs‡K ‡diZ cvVv‡”Q| ¯úóZB ißvbx g~j¨ cÖZ¨vevm‡bi wel‡q †gmvm© G·‡cv‡U· †dweª· wjt I Avg`vbx Kvi‡Ki e¨vs‡Ki Ae¯’vb I e³e¨ m¤ú~Y© wecixZag©x| ißvbx g~j¨ cÖZ¨vevwmZ bv nIqvq AÎ e¨vsK KZ…©K ¯’vwcZ Avf¨š—ixb FYc‡Îi wecix‡Z cvIbv cwi‡kv‡ai e¨vcviwUI AwbwðZ n‡q c‡o| Ae‡k‡l AÎ e¨vsK Gi mybvg I e¨vswKs gn‡j Gi MÖnb‡hvM¨Zv eRvq ivLvi D‡Ï‡k¨ D‡j­wLZ Avf¨šZixb Fbc‡Îi weix‡Z 94.36 j¶ UvKvi cvIbv cwi‡kva K‡i| GLv‡b we‡klfv‡e D‡j­L¨ †h, FYcÎ cvIbv cwi‡kva K‡i FbMÖnxZv GB g‡g© e¨vsK‡K Avk¦¯— K‡i †h, ißvbx g~j¨ †`‡k cÖZ¨vevwmZ bv n‡jI †m ev Zviv wbR¯^ Drm n‡Z AÎ e¨vs‡Ki `vq-‡`bv cwi‡kva Ki‡e| Avð‡h©i welq GB †h, AvR ch©š— D³ FY MÖnxZv e¨vsK FY mgš^‡qi e¨vcv‡i †Kvb Kvh©Ki c`‡¶c †bqwb| G e¨vcv‡i Zvi mv‡_ mve©¶wbK †hvMv‡hvM I cÎvjvc K‡iI wKQyB nqwb| G‡nb Ae¯’vi cwi‡cÖw¶‡Z I AÎ e¨vs‡Ki †`bv cwi‡kv‡ai D‡Ï‡k¨ AÎ e¨vsK e›`KxK…Z m¤úwËi eÜK`vi (Mortgagee) Rbve L›`Kvi mvgmyj û`v Gi mv‡_ †hvMv‡hvM Ki‡Z m‡Pó nq| Rbve L›`Kvi mvgmyj û`v †gmvm© G·‡cv‡U· †dweª· wjt Gi Ab¨Zg cwiPvjK Rbve KvRx Kvgi“¾vgv‡bi PvPv‡Zv fvB| †hvMv‡hv‡Mi cÖ_g ch©v‡q e¨vsK Rbve û`vi ¯’vqx wVKvbvq (MÖvg-fv½v, wc-Gm, fv½v, wRjv-dwi`cyi) †iwRóvW© WvK‡hv‡M cÎ †cÖib K‡i hv AwewjK…Z Ae¯’vq e¨vs‡Ki wbKU ‡diZ Av‡m| Dcvqvš—i bv †`‡L AÎ e¨vsK D‡j­wLZ wVKvbvq GKRb `~Z‡K (Messenger) ‡cÖib K‡i D³ †diZK…Z wPwV n¯—vš—‡ii Rb¨| D³ `~Z Rbve L›`Kvi mvgmyj û`vi K‡qK Rb AvZ¥xq ¯^R‡bi †`Lv mv¶vZ cvb Ges Zviv Rvbvq †h, Rbve û`v weMZ 26†k gvP©-2000Bs Zvwi‡L n¾¡ cvjb Kivi mg‡q †mŠw` Avi‡e B‡š—Kvj K‡ib| GB cªm‡½ †mŠw` Avi‡ei ¯^v¯’¨ gš¿Yvjq KZ©„K Bmy¨K…Z D³ e¨w³i g„Zz¨ mb‡`i Abywjwc GZ`m‡½ ms‡hvwRZ nj| GB PvÂj¨Ki Z‡_¨i c‡¶ Rbve û`vi R‰bK AvZ¥xq wbæ ¯^v¶iKvix‡K †Uwj‡dv‡b GKB Z_¨ Rvbvb Ges wZwb mwe¯§‡q Rvb‡Z Pvb †h e¨w³ 26†k gvP©, 2000Bs Zvwi‡L B‡š—Kvj K‡i‡Qb Zvi c‡¶ wKfv‡e †g 07, 2001Bs Zvwi‡L m¤úwË eÜKxK…Z Kiv m¤¢e| wZwb Rvbvb †h, eÜKxK…Z m¤úwËi KvMR cÎ meB f~qv I wfwËnxb hv FYMÖnxZv RvwjqvZxi gva¨‡g ˆZix K‡i‡Qb| wZwb AviI Rvbvb †h, g„Z e¨w³i ¯¿x kxNÖB m¤úwËi cÖK…Z KvMRÎ wb‡q e¨vs‡K Avm‡eb Ges ZLbB cÖK…Z e¨cviwUi ¯úóKxKiY n‡e|

Dc‡iv³ NUbvq GUv cÖZxqgvb nq †h, D³ cÖwZôv‡bi e¨e¯’vcbv cwiPvjK Rbve Kvgi“j †nv‡mb, cwiPvjK KvRx Kvgi“¾vgvb, wVKvbvt nvDR bs-16/7, wLjMuvI, XvKv Ges Zv‡`i mn‡hvMx Rbve Rmxg Avn‡g` wVKvbv- wbD wWIGBP Gm XvKv AZ¨š— my‡KŠk‡j I c~e© Kíbv Abyhvqx e¨vs‡Ki mv‡_ cÖZvibv K‡i‡Qb hv cÖPwjZ AvB‡b Rvj RvwjqvwZi mvwgj| Kv‡RB mwVK w`K we‡ePbvq ‡gmvm© G·‡cv-‡U· †dweª· wjt Gi e¨e¯’vcbv cwiPvjK Rbve GgwW Kvgi“j ‡nv‡mb, cwiPvjK KvRx Kvgi“¾vgvb I Zv‡`i mn‡hvMx Rbve Rwmg Avn‡g‡`i wei“‡× Dc‡iv³ Awf‡hvM Avbvqb Kwiqv GB wjwLZ Awf‡hvM Avmvgx †gmvm© G·‡cv-‡U· †dweª· wjt Gi e¨e¯’vcbv cwiPvjK Rbve GgwW Kvgi“¾vgvb †nv‡mb‡K cywj‡ki mnvqZvq _vbvq Avwbqv GB GRvnvi `vwLj Kwijvg|

Z`š— c~e©K AvBbMZ e¨e¯’v MÖnb Kwi‡Z gwR© nq|

Certified copy of the First Information Report (FIR) is annexed herewith and marked as ANNEXURE “B”.

12. That after lodgment of the FIR the Bank vide its letter dated 22.08.2002 sought clarification from the accused-petitioner. In reply to the said letter the accused-petitioner vide his letter dated 25.08.2002 provided the following clarification:

“We have recommended the case of M/s Expo-Tex Fabrics Ltd. on the basis of “Documents and Photocopies” forwarded to us. We have suggested a “Procedure” for extending the loan facility.”

“The questions that emerge from your correspondence may be summarized below:-

(i) you have not furnished any particulars about the alleged death of Mr.G to us at the time of furnishing the documents.So, the death news was not known to us.Spot enquiry was not conducted to us.

(ii) Gwas the guarantor. He was the third party. We have asked you to ‘obtain and retain the original Title Deed No. 2787’. We have also asked for obtaining and retaining “original up-to-date Khajna receipt, original bvgRvix I RgvfvM gbRyix and original certified copy of C.S., S.A. and R.S. parcha”.

“in the circumstances, we are sorry to state that the bank has acted hastily in reaching conclusion regarding our “opinion”. We hold that legal views were expressed in the light of legal provisions and in the back-drop of relevant papers and documents produced. We would ask the Bank to go by the “trade practices” and act according to the conditions laid in the Registered Mortgage Deed. We would suggest that enquiry findings of today should be matched with the findings before loan was sanctioned.”

13. That upon receipt of the aforesaid reply the opposite-party vide its letter dated 09.09.2002 sought further clarifications. In reply to the said letter dated 09.09.2002 the accused-petitioner vide his letter dated 18.09.2002 provided the following further clarification:

“Vetting done was proper and correct. Legal opinion was expressed as desired by the Bank after examining the property documents forwarded to us. Owner of the property Mr. Khandaker Shamsul Huda, the Third Party – Guarantor if expired much earlier, should have been within the knowledge of the Bank before the loan was sanctioned/paid and this piece of information should have been communicated to us along with the papers and documents.”

14. That on the basis of the aforesaid FIR dated 13.08.2002 P.S. Case No. 7(8)2002 was instituted against the accused named in the FIR under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code. The said P.S. Case No. 7(8)2002 was sent to the Court of Chief Metropolitan Magistrate, Dhaka on 14.08.2002.

15. That the Investigating Officer (IO) of the said P.S. Case No. 7(8)2002 prepared and submitted the Charge Sheet No. 121 dated 28.11.2002. Although no accusation or even reference was made against the accused-petitioner in the FIR the IO with a malafide intention has included the name of the accused-petitioner in the Charge Sheet. In the Charge Sheet the IO has stated as follows:

GW‡fv‡KU †gv¯Zdv Avw`j (GRvnvi bvgxq I Z`‡šZ cÖvß) †`i weiy‡× `t wet 419/420/465/467/471/436/34/109 avivi Aciva cÖv_wgKfv‡e cÖgvwbZ nBqv‡Q| ………………..…….. weavq Aci c„ôvq 3bs Kjv‡g ewb©Z Avmvgx (1) Kvgiyj †nv‡mb †MviKx I 2bs Kjv‡g ewb©Z Z`‡šZ cÖvß cjvZK Avmvgx (1) L›`Kvi kvnv`vr †nv‡mb (2) GW‡fv‡KU †gv¯Zdv Avw`jM‡bi weiy‡× cÖKvk¨ Av`vj‡Z wePv‡ii cÖv_©bv RvbvBqv Zvnv‡`i weiy‡× AÎ _vbvi Awf‡hvMcÎ bs 121 Zvs 28/11/02 Bs aviv 419/420/465/467 /471/436/34/109 `t wet `vwLj Kwijvg|

Certified copy of the Charge Sheet is annexed herewith and marked as ANNEXURE “C”.

16. That after lodgment of the FIR the police obtained statements under section 161 of the Code of Criminal Procure from six witnesses at different time. None of the witnesses made any statement involving or referring to the accused-petitioner. Even then the IO included the name of the accused-petitioner in the Charge Sheet.

Certified copies of the Statements under section 161 of the Code of Criminal Procure given by six witnesses are annexed herewith and marked as ANNEXURES “D”, “D(1)”, “D(2)”, “D(3)”, “D(4)” and “D(5)”.

17. That on the basis of the said Charge Sheet, warrant of arrest of the accused-petitioner and warrant of attachment of his properties have been issued and the Police all on a sudden raided the house of the petitioner on 06.01.2003 to arrest him and if not available to attach his properties. In such circumstances the accused-petitioner obtained bail from the Hon’ble High Court Division on 08.01.2003 in Criminal Miscellaneous Case No. 2253 of 2003. Subsequently, the accused-petitioner obtained bail from the Chief Metropolitan Magistrate, Dhaka on 16.02.2003 in P.S. Case No. 7(8)2002 now G. R. Case No. 1623 of 2002.

18. That it is submitted that no accusation or even any reference has been made against the accused-petitioner in the FIR lodged by the Bank or in the statements made by the witnesses under section 161 of the Code of Criminal Procedure. Even then the IO with a malafide intention to harass the accused-petitioner has included the name of the accused-petitioner in the Charge Sheet although no specific charge has been made out against the accused-petitioner. In fact during investigation the I.O. contacted the accused-petitioner for illegal gain. Since the accused-petitioner refused to entertain such immoral and unethical proposition, the I.O. with a malafide intention to harass the accused-petitioner has included the name of the accused-petitioner in the Charge Sheet.

19. That it is submitted that the IO in order to mislead the Court has stated in his Charge Sheet – GW‡fv‡KU †gv¯Zdv Avw`j (GRvnvi bvgxq I Z`‡šZ cÖvß), whereas the name of the accused-petitioner is not in the FIR.

20. That it is submitted that a lawyer while vetting the property documents of any specific property cannot be aware that the owner of the said property is already dead, unless such information is provided to the lawyer. In the present case from the FIR it is clear that the fact of demise of Khandaker Shamsul Huda was not also within the knowledge of the Bank at the time of sanctioning the loan. The accused-Bank has come across the said information while it was trying to find out Khandaker Shamsul Huda in his permanent address at Faridpur. Accordingly, Bank did not bring any accusation against the accused-petitioner. But the IO with the malafide intention to harass the accused-petitioner has included the name of the accused-petitioner in the Charge Sheet without making any specific charge against him.

21. That the case is now pending before the Chief Metropolitan Magistrate, Dhaka as G. R. Case No. 1623 of 2002.

22. That it is submitted that the inclusion of the name of the accused-petitioner in the Charge Sheet by the IO is an abuse of his power and proceeding of the criminal case against the accused-petitioner on the basis of the said Chart Sheet is nothing but an abuse of the process of the Court. No allegation whatsoever was made in the FIR against the accused-petitioner. No specific charge has been made against the accused-petitioner in the Charge Sheet. In such circumstances the proceeding against the accused-petitioner is nothing but an abuse of process of the Court and the same may be quashed.

23. That it is submitted that the function of a lawyer in verification of title of the owner of a land does not include the function of identifying the owner at the time of execution and registration of the Mortgage Deed. As such the lawyer cannot be held responsible if the Mortgage Deed is executed and registered by any person other than the actual owner of the land. Therefore, the impugned proceeding against the accused-petitioner is liable to be quashed.

24. That it is submitted that the learned Chief Metropolitan Magistrate has committed serious error of law in entertaining the proceeding against this accused-petitioner.

25. That it is submitted that providing legal opinion by a lawyer on the basis of papers/documents referred to a lawyer cannot be an offence under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code. As such the instant proceeding is nothing but an abuse of the process of the Court, hence this application has been filed for quashing of the proceedings.

26. That it is submitted that unless the instant proceeding is quashed, no lawyer will feel save in providing legal opinion on the basis of papers/documents referred to him. As such the instant proceedings should be quashed.

27. That in the premises set forth, the accused-petitioner begs to prefer this revisional petition for quashing the proceeding in P.S. Case No. 7(8)2002 under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code now pending before the Chief Metropolitan Magistrate, Dhaka on the following amongst others-

GROUNDS

I. For that the FIR or the Charge Sheet or the Statements made by the witnesses under section 161 of the Cope of Criminal Procedure do not disclose any criminal case against the accused-petitioner and the impugned proceeding against him is nothing but an abuse of the process of the Court and as such liable to be quashed.

II. For that the impugned proceeding against this accused-petitioner is nothing but an abuse of process of the Court in that no accusation or even reference against this accused-petitioner has been made in the FIR lodged by the Bank and as such the proceeding is liable to be quashed.

III. For that the impugned proceeding against this accused-petitioner is nothing but an abuse of process of the Court in that no accusation or even reference against this accused-petitioner has been made by the six witnesses in their Statements under section 161 of the Code of Criminal Procedure and as such the proceeding is liable to be quashed.

IV. For that the impugned proceeding against this accused-petitioner is clearly an abuse of process of the Court inasmuch as the Investigating Officer without making any specific charge against him has included the name of the accused-petitioner in the Charge Sheet and as such the proceeding is liable to be quashed.

V. For that the impugned proceeding against this accused-petitioner is an abuse of process of the Court because it is proceeding on the basis of the Charge Sheet filed by the IO including the name of this accused-petitioner without making any specific charge against him and as such the proceeding is liable to be quashed.

VI. For that providing of legal opinion by a lawyer on the basis of papers/documents referred to him cannot be an offence under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code and as such the proceeding is liable to be quashed.

VII. For that while the name of the accused-petitioner is not present in the FIR, the IO in order to mislead the Court has stated in his Charge Sheet – GW‡fv‡KU †gv¯Zdv Avw`j (GRvnvi bvgxq I Z`‡šZ cÖvß) whereupon the learned Chief Metropolitan Magistrate has issued warrant of arrest against the accused-petitioner and as such the proceeding is liable to be quashed.

VIII. For that the function of a lawyer in verification of title of the owner of a land does not include the function of identifying the owner at the time of execution and registration of the Mortgage Deed and as such the lawyer cannot be held responsible if the Mortgage Deed is executed and registered by any person other than the actual owner of the land. Therefore, the impugned proceeding against the accused-petitioner is liable to be quashed.

IX. For that unless the instant proceeding is quashed, no lawyer will feel save in providing legal opinion on the basis of papers/documents referred to him and as such the instant proceedings should be quashed.

Wherefore, it is humbly prayed that your Lordships would graciously be pleased to:

(a) Issue Rule calling upon the opposite- party No. 1 to show cause as to why the proceeding in Cantonment P.S. Case No. 7(8)2002 under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code now pending in the Chief Metropolitan Magistrate, Dhaka as G. R. Case No. 1623 of 2002 shall not be quashed so far it relates to the accused-petitioner and after hearing the parties and cause shown, if any, make the Rule absolute;

(b) Pending hearing of the Rule stay all further proceedings of Cantonment P.S. Case No. 7(8)2002 under sections 419, 420, 465, 467, 471, 406, 34 and 109 of the Penal Code now pending in the Court of Chief Metropolitan Magistrate, Dhaka as G. R. Case No. 1623 of 2002 against the accused-petitioner;

(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 __________________, of _______________________, 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 _____st day of __________ at _____ a.m. The deponent is known to me and identified by me.
Commissioner of AffidavitsSupreme Court of Bangladesh

High Court Division

 ADVOCATE

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