Abul Khaer Sarder Vs. M. A. Gaffar Sana [4 LNJ (2015) 86]

Case No: Criminal Revision No. 121 of 2007

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Citation: 4 LNJ (2015) 86

Case Year: 2015

Appellant: Abul Khaer Sarder

Respondent: M. A. Gaffar Sana

Subject: Burden of Proof,

Delivery Date: 2013-09-09

HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)
 
A. K. M. Zahirul Hoque, J.
And
Kazi Md. Ejarul Haque Akondo, J

Judgment on
09.09.2013
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Abul Khaer Sarder
. . .Complainant-Petitioner
-Versus-
M. A. Gaffar Sana
. . .Accused-opposite parties
 

Evidence Act (I of 1872)
Section 106
The settled view of law is that the prosecution must prove the charge beyond reasonable doubt but when the plea of alibi is taken, the accused is required to prove such alibi.
The cardinal principle of law that the prosecution must prove the charge beyond the reasonable doubt against the accused of his guilt. But when alibi is taken by the accused that he repaid the amount of Tk. 1,95,000/- to the complainant in such circumstances  the accused opposite party is required to prove the said fact of alibi.    . . .(23)

Code of Criminal Procedure (V of 1898)
Section 342
Evidence Act (I of 1872)
Section 63
Some photostat copies of the cheques were submitted by way of firisty and on that basis the lower appellate court came to a finding that the accused made repayment to the complainant but such photostat copies having not been filed in support of statement made under section 342 of Cr. PC, the finding of the Courts below is not sustainable in the eye of law as it is based on no evidence.
Where the trial Court as well as the appellate Court found that some photo copies of the cheques were submitted by the accused opposite party by way of firisty.  In pursuance of that photo copies of cheques the lower appellate Court found that the accused-opposite party made repayment to the complainant but that Photostat copy was not filed in support of the statement of the accused opposite party in his examination under Section 342 of the Code of Criminal Procedure and the said photocopies of the documents are not evidence within the meaning of Evidence Act. Therefore, consideration of the said photocopies and reliance of that photo copy is totally baseless. So, the findings of the trial Court including the lower appellate Court to that effect can not be sustained in the eye of law.         . . . (26)
 
Evidence Act (I of 1872)
Sections 63 and 106
Mere filing of some photostat copies of documents without explanation by the accused or without adducing any DW in support of such document of the accused, the same cannot be taken into consideration by the Court.
While taking of money from the complainant P. W. 1 with a promise to returning the same and that act of the opposite party was followed by cheques are admitted by the opposite party No. 1 in that case the burden of proof lies upon him to prove that he returned the said money in time to the complainant P.W.1 but in the case the opposite party No. 1 failed to prove also failed to give explanation the same. Mere filing same photocopies of documents without explanation by him or without adducing any D. W. in support of the documents of the accused and thereby the same cannot be considered by the Court.   . . .(27)

Mr. Helal Uddin, Advocate
. . . For the complainant-petitioner
Mr. Muhammad Shahidul Islam, Advocate
. . . For the accused-opposite party No. 1.
Mr. Sheikh A. K. M. Moniruzzaman (Kabir), D. A. G.
. . . For the opposite party

Criminal Revision No. 121 of 2007
 
JUDGMENT
A. K. M. Zahirul Hoque, J.
 
This Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and order dated 06.09.2006 passed by the Additional Sessions Judge, Court No. 1, Satkhira in Criminal Appeal No. 33 of 2004 affirming the judgment and order dated 12.05.2006 passed by the Magistrate, 1st Class, Satkhira in C. R. Case No. 136 of 1999 corresponding to T. R. No. 809 of 2003 acquitting the opposite party No. 1 from the charge under section 406 and 420 of the Penal Code should not be set aside and/or such other or further order orders as to this Court may seem fit and proper.
 
The prosecution case in short is that the petitioner filed a petition of complaint on 21.03.1999 being C. R. Case No. 136 of 1999 under section 406 and 420 of the Penal Code (corresponding to T. R. No. 809 of 2003) in the Court of Cognizance Magistrate, 1st Class having jurisdiction at Satkhira, (District-Satkhira) alleging inter-alia that the accused opposite party No. 1 being prior known person with friendly understanding to the complainant petitioner, asked him (petitioner) for loan of cash Tk. 2,50,000/- for his fish businesses and the complainant petitioner in good faith agreed to give Tk. 2,10,000/- and subsequently gave him the said amount on 15.12.997. On which date in return, the accused falsely with ill motive issued two cheques being Nos. NL/10 49994517 and NL/10 49994518 from his cheque book No. 259/1 for Tk. 1,30,000/- and Tk. 80,000/- (total 1,30,000+80,000=Tk. 2,10,000/-) respectively competent to the encash on 30.10.1998. Subsequently, the accused opposite party No. 1 asked the complainant petitioner for extention of time which he allowed and accordingly letter on sought for encashment of the cheque of Tk. 1,30,000/- and on 01.02.1999, 17.02.1999 and 28.02.1999 and the cheque of Tk. 80,000/- on 07.03.1999 respectively were deposited for encashment and the said cheques were dishonored for want of sufficient fund from the Bank. Hence the case under section 406 and 420 of the Penal Code against the accused opposite party No. 1.
 
In course of trial the trial Court framed charge against the accused under section 406 and 420 of the Penal Code. The complainant petitioner examined five eye-witnesses as P. Ws and while the accused examined none.
 
After trial the Magistrate, 1st Class, passed the judgment and order by acquitting the accused under section 245(1) of the Code of Criminal Procedure. On appeal by complainant being Criminal Appeal No. 33 of 2006 the appellate Court affirmed the judgment and order of the trial Court thereby dismissed the appeal in his judgment and order dated 06.09.2006.

“অাসামী উক্ত টাকা পরিশোধ না করিয়া থাকিলে বাদীপক্ষ উপযুক্ত আদালতে দেওয়ানী মামলা দায়ের করিয়া প্রতিকার প্রার্থনা করিতে পারিবেনz”
 
Being aggrieved by and dissatisfied with the impugned judgment and order dated 06.09.2006 the petitioner filed this a revisional application under Section 439 read with Section 435 of the Code of Criminal Procedure and obtained the present Rule.
 
Mr. Md. Helal, the learned Advocate appearing on behalf of the petitioner after drawing our attention upon the petition of complaint as well as evidences as led by the complainant including the relevant law submits that the opposite party entrusted the money amounting to Tk. 2,10,000/-(two lacs and ten thousand) and thereby intentionally misappro-priate the same and that charges have well proved by the prosecution by adducing impartial, reliable and corroborative witnesses but the Court of trial as well as Court of appeal below without considering those materials as well as legal aspect came to a wrong and illegal finding by acquitting the accused opposite party from the charges which cannot be sustained in the eye of law. He further drawing our attention of the judgment of the Courts of appeal below that who relied upon some photostat copy of cheques as filed by the opposite party No. 1 and found that the accused opposite party repaid Tk. 1,95,000/- in different dates and since the said photstate copy cannot be treated as a legal evidence within the meaning of Evidence Act and thereby the findings of the Court below is apparently wrong and misconception of law and thereby the impugned judgment is also illegal and liable to be set aside. He further submits that the Court below also found that the transaction was made as a business transaction between the parties but fact remains there is no any materials on record to show that the said transaction was made for businesses purpose therefore the findings in respect of business transaction of the Court below is also erroneous and result of misreading of the evidence on record and thus committed an illegal and wrong decision which is liable to be set aside. He lastly submits that the court below also committed erred in law in passing the impugned judgment and order by misconce-ption of relevant law.
 
Mr. Muhammad Shahidul Islam, the learned Advocate appearing on behalf of the opposite party No. 1 submits that the complainant failed to prove the charge against the accused opposite party and thereby the Court below rightly and properly acquitted the accused-opposite party from the charges. He further submits that the transaction was business one therefore no criminal offence has been committed by the accused opposite party and if anything has been disclosed about transaction which is termed as business transaction and for that reason opposite party No. 1 might be committed civil liability not any criminal liability. Thus the impugned judgment is legal and proper one and as such the instant Rule is liable to be discharged.
 
Mr. Sheikh A. K. M. Moniruzzaman, (Kabir) the learned Deputy Attorney General appearing on behalf of the opposite party adopted the submission of the learned Advocate for the petitioner.
 
Heard the learned Advocate of both the sides, perused the materials on record including the petition of complaint, deposition of witnesses alongwith other materials on records. For proper and effective adjudication of the matter we should discuss about the petition of complaint first than the evidences as led by parties and thus the relevant portion of petition of complaint of the petitioner is as under,

“আমি সাতক্ষীরা শহরের হক ষ্টোরের কর্মচারী হিসাবে নিয়োজিত থাকাকালে আসামী উক্ত দোকানের মালিকের নিকট প্রায়ই আসা যাওয়া করিত সেই সুবাদে বহু পূর্ব হইতে আসামীর সহিত পরিচয় সুসম্পর্ক গড়িয়া উঠেz পরবর্তীতে আমি স্বাধীন ভাবে ষ্টেশনারি মালামালের ব্যবসা করাকালীন আসামীর সহিত আমার সুসম্পর্ক বজায় ছিল
এমতাবসÛায় গত ১ম ঘটনার তারিখ অর্থ্যাৎ ১৫/১২/৯৭ তারিখে আমার নিকট আসিয়া মাছের ব্যবসা করিবে বলিয়া এবং ঘের ভেড়ীর প্রয়োজনের কথা জানইয়া ঋণ হিসাবে আমার নিকট হইতে নগদ ২,৫০,০০০/= (আড়াই লক্ষ) টাকা দাবী করেz গৃহীত টাকা মাস দশকের মধ্যে ২ কিসি¹তে পরিশোধ করিবে বলিয়া অংগীকার করে কি অাসামীর দাবী অনুযায়ী সমুদয় টাকা না থাকায় আমি তাহাকে সাতক্ষীরা শহরে পাকা পুলের মাথায় অবসিত নিউ গুলশান নামক দোকানে বসিয়া প্রথম ঘটনার তারিখে ও সময় অনুমান ১০/১০|৩০ ঘটিকার সময় আসামীকে নগদ ২,১০,০০০/= (দুই লক্ষ দশ হাজার) টাকা প্রদান করিলে আসামী নিজ হাতে উক্ত টাকা গননা করিয়া নেয়z টাকা বুঝিয়া লইয়া আসামী তাহার চামড়ার হাত ব্যাগ হইতে আসামীর নিজ নামীয় ও পরিচালিত পারুলিয়া সোনালী ব্যাংকের চলতি হিসাব নং ২৫৯/১ এর একটি চেক বই বাহির করিয়া দুই কিসি¹তে পরিশোধের অংগীকারে গক/১০ ৪৯৯৯৪৫১৭ চেকে ১,৩০,০০০/= (এক লক্ষ ত্রিশ হাজার) টাকা ৩০/৮/৯৮ তারিখে এবং গক/১০ ৪৯৯৯৪৫১৮ নম্বরে চেকে ৮০,০০০/= (আশি হাজার) টাকা ৩০/১০/৯৮ তারিখে পরিশোধ যোগ্য হিসাবে চেক দুইটিতে আসামী তাহার নিজ নাম স্বাক্ষর পূর্বক আমার বরাবরে পরিশোধ যোগ্য হিসাবে আমার নাম উল্লেখ করিয়া বর্ণিত তারিখ লিখিয়া চেক ২টি আমার নিকট প্রদান করিয়া আসামী টাকা লইয়া চলিয়া যায়
পরবর্তীতে নির্দিষ্ট সময়ে অতিবাহিত হওয়ার পর আসামীর ব্যবসায়িক অসুবিধার কথা জানাইয়া চেক দুইটি কিছুদিন পরে ব্যাংকে জমা করিয়া ক্যাশ করার জন্য অনুরোধ করিলে সেই মোতাবেক ১,৩০,০০০/= (এক লক্ষ ত্রিশ হাজার) টাকার চেকটি সংশ্লিষ্ট ব্যাংকে ইং ০১/০২/৯৯, ১৭/২/৯৯ এবং ২৮/০২/৯৯ তারিখে এবং ৮০,০০০/= (আশি হাজার) টাকার চেকটি সংশ্লিষ্ট ব্যাংকে ০৭/০৩/৯৯ তারিখে ক্যাশে পরিনত করার জন্য জমা প্রদান করিলে আসামীর নামীয় একাউন্টে চেক দুইটিতে উল্লেখিত পরিমান টাকা না থাকায় প্রতিবারই চেক গুলো ডিজঅনার হয়z
পরবর্তীতে আসামীর অংগীকার অনুযায়ী টাকা না পাইয়া এবং ব্যাংক কর্তৃপক্ষ হইতে চেক ডিজঅনার হওয়ায় গত সেব ঘটনার অর্থ্যাৎ ইংরাজী ১৭/০৩/৯৯ তারিখে অনুমান ৪/৪|৩০ ঘটিকায় কতক স্বাক্ষী সহ আসামীর বাড়ী (হাল ঠিকানা) যাইয়া তাহাকে দেখা পাইয়া আমার নিকট হইতে ঋণ হিসাবে গৃহিত নগদ ২,১০,০০০/= (দুই লক্ষ দশ হাজার) টাকা পরিশোধ করিয়া দেওয়ার জন্য বলিলে আসামী বিভিন্ন প্রকার টাল বাহানা মূলক কথাবার্তার এক পর্যায়ে উত্তেজিত হইয়া আমার কোন টাকাই সে পরিশোধ করিবে না বলিয়া আমাকে হাকাইয়া দেয়”
 
It appears from the petition of complaint in where mentioning specific date as 15.12.1997 the accused made a request to the complaint for cash Tk. 250000/- for the necessity of business of the accused opposite party No. 1 along with a oral promise to back the same amount by next 10 months in two installments. Thereafter on good faith the complainant gave Tk. 210000/- on 15.12.1997 at 10/10½ an hours on setting at a shop he gave Tk. 210000/- in cash to the accused opposite party who took the same as cash and issued 2 cheques in favour of him for the said amount as per his oral assurance but the complainant did not get back his money neither his assurance nor by the said cheques and hence the case. Thus we find that the petition of complaint itself disclosed the criminal offence of cheating and misappropriation of money by way of breach of trust.   
 
Subsequently the trial Court framed the charge against the accused-opposite party No. 1 under section 406 and 420 of the Penal Code accordingly.
 
During the course of Trial the complainant Md. Abdul Kader was examined as P. W. 1 who stated in his deposition to the effect that;
 
“আমি বাদী আসামী গফফার সানা গত ১৫/১২/৯৭ তাং বেলা ১০|০০টার সময় সাতক্ষীরা পাকা পুলের মোড়ে নিউ গুলশান দোকানে আসামী নগদ ২,১০,০০০/- টাকা দেই আসামীকে ব্যবসার জন্য দেই আসামী ঐ তারিখেই আসামী পারুলিয়া সোনালী বাংক শাখায় ১,৩০,০০০/-টাকার চেক এবং অপরটি ৮০,০০০/-চেক দেয়z চেক নিয়ে আমি ব্যাংকে গেলে চেকটি ব্যাংক হতে ডিজঅনার হয়z ১/২/৯৯, ১৫/২/৯৯ ও ২৮/২/৯৯ তাং ১,৩০,০০০/- টি ব্যাংক হতে ডিজঅনার হ|যz ৭/৩/৯৯ তাং ৮০,০০০/-চেকটি ব্যাংক হতে ডিজঅনার হয়z ১৭/৩/৯৯ তাং বিকাল ৪/৪|৩০টার সময় এ্যাডঃ মোস্তাফিজুর রহমানকে নিয়ে আসামীর বাড়ী যাইz সেদিন আসামী গালাগালি করে টাকা দিবেনা বলে হাকিয়ে দেয়”
 
That is the P. W. 1 stated in his chief that on 15.12.1997 at 10.30 am he gave Tk. 2,10,000/- to the accused near crossing of pucca School in the shop of New Gulshan.
 
In his cross-examination on behalf of the accused-opposite party he denied the suggestion that the accused-opposite party repaid the amount of Tk. 1,95,000/- in different dates to the complainant, so the complainant deposed before the Court on oath by mentioning time, place and manner of occurrence by corroborating the petition of complaint and the payment was made in presence of P.W.2 and P.W.3. But subsequently the opposite party No. 1 denied to repay the said amount on 17.03.1999 in pursuance of P.W.2.
 
P. W. 2, Advocate Mustafizur Rahman, who stated in his deposition that on the request of the accused the complainant gave Tk. 2,10,000/- to the accused seating at the shop of P.W.3 in where the P.W.3 were present and also stated that the accused received the money by issuing two cheques and the accused promised to give back the said money within 8/9 months but he did not do so. Thereafter on 17.03.1999 at 4/4.30 pm he along with the P.W.1 went to the house of accused by his own motorcycle, in where the accused denied to repay the said money to the complainant.
 
He was cross-examined by the defence and denied the suggestion of the defence.
 
P. W. 3, Sheikh A. Aziz, who is the owner of New Gulshan shop and he stated that he knows the complainant and accused. He also stated that in 1997 on sitting at his shop the complainant gave Tk. 2,10,000 to the accused but he did not remember that date thereafter he heard that the accused did not repay the said money.
 
He was cross-examined by the defence and further stated that the complainant informed him that the accused did not repay his money.
 
P. W. 4, Aktarul Karim Lablu, who stated in his deposition that in 1997 sitting on the New Gulshan shop at 10/10.30 the complainant gave Tk. 2,10,000/- and he also stated that the accused gave two cheques to the complainant.
 
He was cross-examined and denied the suggestion of the defence rather he stated that the informant informed him that the accused did not repay the money.
 
P. W. 5 Akbar Ali Gazi, was tendered and cross-examination was declined by the defence.
 
The defence examined none. However it appears form the trained of cross examination of the prosecution witnesses the defence case was that the accused opposite party admitted to take the said amount from the complainant but he took an alibi that he repaid TK. 195000/- through deferent cheques.
 
On careful examination of the evidences as well as petition of complainant it appears that the complainant filed the petition of complaint with the allegation that Tk. 2,10,000/-(two lac ten thousand) has taken by the accused-opposite party on 15.12.1997 at 10.30 A.M. by sitting in the shop of Abdul Aziz at New Gulshan within the district of Satkhira and this material fact was  by the complainant P.W.1 and which also corrobo-rated by P.Ws 2 and 3 by their evidences. P. W. 2 is an Advocate and P. W. 3 is the shop owner namely Abdul Aziz and in their cross-examination nothing was recovered or discovered by the accused-opposite party. So their Evidence cannot be said as unbelievable. It further appears that the accused-opposite party was not denied in any point of time that he did not take the said amount and it was also  not denied that he did not issue the cheques as alleged by the complainant. It further appears that on the second date of occurrence i. e. on 17.03.1999 at 4/4.30 P.M. the informant along with P. W. 2 went to the house of the accused-opposite party in where he refused to repay the said amount to the complainant and these material fact also corroborated by P. W. 2 with the evidence of P. W. 1, D. W. 2 is an advocate and he has not relation with P.W. 1. Thus he is a dignified impartial person. It also appears from the evidence of P.Ws 2-4 that they also supported and corroborated the evidence of P. W. 1 the complainant that the accused opposite party was also refused to pay the said money on 17.03.1999. It further appears from the trained of the cross-examination of the accused-opposite party that he did not deny to take the money from the P. W. 1 and also admitted about the issuance of cheques in favour of the P. W. 1. But the accused took an alibi that he repaid Tk. 1,95,000/- prior to the period of 2nd occurrence. But the said alibi of the defence was denied by the complainant. The cardinal principle of law that the prosecution must prove the charge beyond the reasonable doubt against the accused of his guilt. But when alibi is taken by the accused that he repaid the amount of Tk. 1,95,000/- to the complainant in such circumstances  the accused opposite party is required to prove the said fact of alibi. It appears from the records that only a suggestion was offered to the complainant P.W.1 without giving any specific suggestion by mentioning time, place and manner of repayment the said amount to the P.W.1 though the same was denied by P.W.1 and nothing is a available to us for consideration of the said plea of alibi of the accused opposite party and no attempt was made by the accused to prove the  said alibi of the accused-opposite party. It also appears from the judgment of the Courts below that both the Courts below found that the transaction was made for the purpose of business but it appears from the petition of complaint as well as deposition of P. W. 1 that transaction was not made for the purpose of business but it was the assertion of the petition of complaint that he was requested for the money by the accused due to necessity of the business of the accused alone and also for cultivation of fish (Beri Gher) of the accused opposite party.
 
The contention of the petition of complainant to the effect that;
 
“এমতাবসয় গত ১ম ঘটনার তারিখ অর্থ্যাৎ ১৫/১২/৯৭ তারিখে আমার নিকট আসিয়া মাছের ব্যবসা করিবে বলিয়া এবং ঘের ভেড়ীর প্রয়োজনের কথা জানইয়া ঋণ হিসাবে আমার নিকট হইতে নগদ ২,৫০,০০০/= (আড়াই লক্ষ) টাকা দাবী করেz”
 
It is the assertion of the accused-opposite party for his necessity money was taken as disclosed in the petition of complaint but the same assertion can not be said the same was taken for the business transaction of the parties and in where the complainant is not a party in the business with the accused opposite party. Moreover, the deposition of P. W. 1 did not disclose any such assertion thus the transaction was not made for business purpose of the parties.
 
It appears from the judgment of the Courts below in where the trial Court as well as the appellate Court found that some photo copies of the cheques were submitted by the accused opposite party by way of firisty.  In pursuance of that photo copies of cheques the lower appellate Court found that the accused-opposite party made repayment to the complainant but that Photostat copy was not filed in support of the statement of the accused opposite party in his examination under Section 342 of the Code of Criminal Procedure and the said photocopies of the documents are not evidence within the meaning of Evidence Act. Therefore, consideration of the said photocopies and reliance of that photo copy is totally baseless. So, the findings of the trial Court including the lower appellate Court to that effect can not be sustained in the eye of law.
 
It further appears from the record as well as conduct of the opposite party No. 1 itself shows that he took the money from the complainant on the date of occurrence in presence of P.Ws 2 and 3 and subsequently refused to pay the same in presence of P. W. 2 and most intentionally issued two cheques by mentioning two dates and which were not honoured by the bank. Subsequently on trial he took a plea of alibi that he paid more than that which amounting of Tk. 1,95,000/- in different dates to P.W.1 complainant. The said alibi of the defence was not admitted by the compliant P.W.1. Even no explanation was made by the accused opposite party in support of his documents at the time of his examination under Section 342 of the Code of Criminal Procedure. Thus the same can not be considered by any courts of law. Since the opposite party took plea that he repaid the enter amount to the complainant therefore he admitted that he took money amounting Tk. 2,10,000/- from the complaint as alleged by him and that materials fact also proved by the complainant (P.W.1) by adducing reliable and believable evideneces as P. Ws. 2, 4 who corroborated with the evidence of P. W. 1. We have considered the evidences of complainant P. W. 1 along with other P. Ws and found that the accused opposite party with a criminal intention by way of cheating could able to take Tk. 2,10,000/- from the complainant as well as in his deposition  by mentioning date and place as also mentioned by the complainant in the petition of complaint and by the fact of misappropriation of said money by deceitful meaning with a criminal intention has well proved by the complainant. But the Court below failed to consider this legal aspect and erred in law thus occasioning a miscarriage of justice. (We also find that as the allegations made in the petition of complaint and which is supported and corroborated by the P. Ws 1 to 4.) As the money was taken by the accused opposite party No. 1 in presence of the witnesses examined as P. Ws. 2-4 from the complainant P. W. 1 after giving a specific promise of returning it within a specified time within 10 (ten) months by issuance of cheques constituted faith upon the complainant to give the money to the opposite party No. 1 and accordingly payment was made. But no repayment was made as per the promise or act of the opposite party No. 1 and refused to repay in the specific date well proved by the prosecution that the opposite party No. 1 with an intention by way of cheat misappropriate the money from the complainant P. W. 1. While taking of money from the complainant P. W. 1 with a promise to returning the same and that act of the opposite party was followed by cheques are admitted by the opposite party No. 1 in that case the burden of proof lies upon him to prove that he returned the said money in time to the complainant P.W.1 but in the case the opposite party No. 1 failed to prove also failed to give explanation the same. Mere filing same photocopies of documents without explanation by him or without adducing any D. W. in support of the documents of the accused and thereby the same cannot be considered by the Court.
 
In view of the above discussion and considering the materials on record, we find that the opposite party No. 1 by way of false assurance fraudulently obtained the money in question and thereby dishonestly misapprop-riate the said amount by committing breach of trust well proved by the prosecution. That is the charges of Sections 420/406 of the Penal Code are proved by the prosecution against the accused opposite party No. 1 beyond reasonable doubt.
 
Therefore, we find substances in the Rule.
 
In the result, the Rule is made absolute. The judgment and order dated 06.09.2006 passed by the Additional Sessions Judge, Court No. 1, Satkhira in Criminal Appeal No. 33 of 2004 disallowing the same (appeal) affirming that of dated 12.05.2006 passed by the Magistrate, 1st Class, Satkhira in C. R. Case No. 136 of 1999 under section 406 and 420 of the Penal Code is hereby set aside. The accused-opposite party No.1  is hereby convicted under section 406 of the Penal Code and sentencing him to suffer rigorous imprisonment for 02 (two) years and also to pay a fine of Tk. 2000/- in default to suffer rigorous imprisonment for 03 (three) months more and he also convicted under section 420 of the Penal Code and sentencing him to suffer rigorous imprisonment for 02 (two) years and also to pay a fine of Tk. 2000/- in default to suffer imprisonment for 03 (three) months more and both sentences shall be run concurrently. The accused-opposite party No. 1 namely M. A. Gaffar Sana, son of Hazi Sobed Ali is directed to surrender before the Court below to serve out his said sentence within 30 (thirty) days from the date of receipt of the judgment and order of this Hon’ble Court by the trial Court and failing which the trial Court is hereby directed to secure his arrest in accordance with law.
 
Send down the lower Court record together with a copy of the judgment and order to the Court below at once.
 
Ed.

Reference: 4 LNJ (2015) 86