Md. Kabir Sikder Vs. The State and another, (Muhammad Khurshid Alam Sarker , J.)

Case No: Criminal Miscellaneous Case No. 23406 of 2017

Judge: Md. Rezaul Haque, J And Muhammad Khurshid Alam Sarkar, J

Court: High Court Division,

Advocate: Mr. Md. Kamrul Ahasan, Advocate,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Md. Kabir Sikder

Respondent: The State and another

Subject: Code of Criminal Procedure

Delivery Date: 2019-12-01

HIGH COURT DIVISION

(criminal miscellaneous jurisdiction)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

 

Judgment on

12.04.2018

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Md. Kabir Sikder

. . . Accused Petitioner

-Versus-

The State and another

. . .Opposite-Parties

Code of Criminal Procedure (V of 1898)

Section 200

If the claimed dealings between the complainant and the accused emerge to be equivocal or cryptic or obscure from the petition of complaint and the statements of the complainant made under Section 200 CrPC together with the documents produced before the Magistrate, it would not be possible for the Magistrate to make any primary assessment as to whether the offence of cheating or breach of trust has been committed for the purpose of taking cognizance of the said offence/s. The Magistrate, however, can take cognizance of the offence, upon ignoring the averments of the petition of complaint, if the Magistrate at the time of examining the complainant under Section 200 of the CrPC in tandem with carrying out scrutiny of the documentary evidence, if any, finds the complainant’s allegation to be putatively plausible.    . . . (9)

Code of Criminal Procedure (V of 1898)

Sections 200 and 202

When the Magistrate decides to take cognizance of the alleged offence/s, s/he is duty bound to examine the complainant on oath and reduce the substance of the examination in writing. When the complaint is made in writing and its contents appear to the Magistrate to be ambiguous, the Magistrate either should ask the complainant to come up with a fresh application clearly disclosing the offence or, in the alternative, pass an order for carrying out an inquiry under Section 202 CrPC and, after looking at the fresh petition of complaint or inquiry report, as the case may be, the Magistrate then would be in a better position to decide whether to proceed for taking cognizance. Non-compliance of the above practice, however, would not vitiate the proceedings. The purpose of observance of the above path is to gain prima facie satisfaction by the Magistrate as to commission of offence, for, the Magistrate is required to be satisfied either from the petition of complaint or from the statements of the complainant made under Section 200 CrPC or from the inquiry report, as the case may be, that any one of it discloses commission of offence. Despite existence of any inconsistency between the version of the petition of complaint and the statements of the complainant made under Section 200 CrPC, when the Magistrate takes cognizance, the presumption is that the concerned Magistrate has been primarily satisfied about commission of offence. ...(17)

Code of Criminal Procedure (V of 1898)

Section 561 A

In an appropriate and fit case, order of framing charge may be quashed if it appears to the High Court Division that the trial Court failed to notice that the prosecution materials are not sufficient to prosecute the accused or it was not brought to the notice of the trial Court that provision of any particular law does not permit to prosecute the accused.                                        . . .(20)

Code of Criminal Procedure (V of 1898)

Section 227

Penal Code (XLV of 1860)

Sections 406, 417 and 506

The trial Court is empowered to alter charge at any stage before pronouncement of the Judgment, the charges of breach of trust and criminal intimidation may eventually be dropped by the trial Court following taking deposition of the witnesses, if the said allegations are not corroborated by the evidence. Depending on the weight of the evidence adduced at the trial, while the complainant would have the expectation to prove his case, it might come out to be its reverse as well.               . . . (20)

Code of Criminal Procedure (V of 1898)

Section 561A

The allegation is of civil nature debarring filing of a criminal case. From perusal of all the prosecution materials, it transpires that a payment fell due out of the sale proceeds of a property and the accused issued a blank cheque towards payment of the outstanding money and, when the cheque was dishonoured, the accused denied to pay off the dues. From our way of looking at the facts, we find that, firstly, it was not a normal business transaction and, secondly, there is no civil issue for adjudication; such as, had the dispute been with regard to the amount or about the method of calculation of money, there was a need to adjudicate upon the dispute by the civil Court. Offence of cheating may occur even in a long-term business transaction when the accused would deny the claim of outstanding balance having nothing to do with calculation/determination of amount of money/goods.        . . . (21)

Penal Code (XLV of 1860)

Sections 406, 417 and 420

We record here our concern that when this Court is struggling to cope with the huge backlog of cases, learned members of the Bar do not consider it as their part of professional duty to discourage their clients not to insist upon filing case/petition having no merit. Now-a-days, it has been the matter of normal course for the practitioners of this Court to come up with application for quashment of cases under Sections 406, 417 and 420 of the Penal Code with a rhetoric ground that the allegation having arisen out of business transaction, a criminal case does not lie. In this case, the dispute is not about the amount of money owed - on the plea that the debt fell due out of continued business transaction; rather the dispute is over denial of debt to the complainant by the accused and, thus, the issue not being required to be adjudicated upon by the civil Court, there is no bar to file this criminal case.                                                   . . . (21)

Code of Criminal Procedure (V of 1898)

Sections 195 to 199

The provisions of the CrPC as well as the special laws allow any person to file a criminal case either in police station or in the competent Court, Sections 195 to 199 of the CrPC incorporates some conditions for filing criminal cases of certain offences specified therein. Offence of cheating does not come within the purview of the said provisions which are exceptions to the general rule of law of criminal procedure that a criminal case can be filed by any person. any person is competent to file a case of cheating, for, it is not a requirement of law that only the person cheated should file the complaint of commission of offence of cheating. The cheated-person him/herself files the case, then the Magistrate’s task of taking cognizance becomes easier and, thereafter, at the trial stage the trial Court unhesitatingly may proceed towards prosecuting the accused. That does not necessarily mean that if the person cheated is dead or unable to move/speak before the Magistrate/trial Court, the case would fail inasmuch as success of a criminal case of cheating does not depend only on the oral statements made by the person cheated before the trial Court; But despite the cheated-person’s availability to make deposition before the trial Court, if the cheated-person does not stand as a witness and come forward for deposing before the trial Court, the trial Court might take an adverse presumption on the commission of offence of cheating.          . . .(22)

Code of Criminal Procedure (V of 1898)

Sections 198 and 199

The position of a power of attorney-holder is as good as the person who by executing a legal instrument, namely, power of attorney, delegates/transfers to or vests in or confers his/her lawful power upon a third person. In our criminal justice administration system, since any person is competent to file a criminal case, there is no need to engage a power of attorney-holder for filing a criminal case. However, where the law requires that a criminal case is to be filed only by the aggrieved person, as provided in Section 198 of the CrPC, or only by the specified person, as provided in Section 199 of the CrPC, the aforesaid aggrieved person/specified person may empower a third person to file criminal case on his/her behalf through executing a deed of power of attorney stating in clearer terms the reasons for not filing the case by him/herself. But, the power of attorney-holder should bear in mind that while s/he can fairly depose before the trial Court as a witness on her/his own standing like any other relevant witnesses, s/he should not endeavour to portray her/himself before the trial Court as the executants of the deed of power of attorney, as if s/he her/himself is the aggrieved person/specified person.        . . .(24)

Penal Code (XLV of 1860)

Sections 406, 417 and 506

If the cheated-person was truly unable to file the case by himself, the petitioner could have filed the case as a complainant by simply making a statement in the petition of complaint as to the reason for not filing the case by the cheated-person and enlisting both of them as the witnesses and, at the trial, while presence of the cheated-person would help to prove the case, non-availability of his testimony may result in dismissing the case given that in a cheating case, the testimony of the person-cheated is pivotal for proving the charge of cheating, for, only the cheated-person possesses first-hand knowledge about the commission of offence of cheating. . . . (25)

Constitution of Bangladesh, 1972

Article 109

This Court, as its Constitutional obligation under Article 109 of the Constitution, considers it necessary, in the backdrop of encountering with huge backlog of cases in the Judiciary, to lay down some guidelines for the learned Magistrates empowered to take cognizance upon the petition of complaint;

(i)        The learned Magistrates shall direct the complainant to come up with fresh petition of complaint, if the statements made therein are not specific and clear to understand the nature of allegation.

(ii)      The learned Magistrate shall not take cognizance if the petition of complaint does not contain the names, addresses and Mobile number of the complainant, accused person/s and the witness/es. In this digital era, it is expected that keeping Mobile number of the above persons in the case file would assist the Court in expediting disposal of cases.

(iii)    For taking cognizance of the offences punishable under certain Sections of the Penal Code which are mentioned in Sections 195 to 199 of the CrPC, the learned Magistrates shall ensure that the conditions stipulated in Sections 195 to 199 of the CrPC have been complied with.

(iv)     When the petition of complaint is filed by the power of attorney-holder, the learned Magistrates shall not take cognizance if the reason for not filing the case by the aggrieved person/specified person is not stated in the petition of complaint.

(v)     From a minute perusal of the petition of complaint and examining the documents/materials submitted therewith, if any, when a Judicial Magistrate would be satisfied that an offence under any law of the land is disclosed, only then, it would be prudent step for the learned Magistrate to examine the complainant under Section 200 of the CrPC.       . . . (29)

MA Sukkur Vs. Md Zahirul Haque, 23 BLC (AD) 76; Syed Ali Mir Vs. Syed Omar Ali, BCR 1990 (AD) 287; Veer Prakash Sharma Vs. Ani Kumar Agarwal (Online reported case) Appeal (Crl.) 980 of 2007, Judgment on 01.08.2007; Vashdeo Bhojwani Vs. Industrial Bank Ltd, AIR 2005 SC 439; Thaamammal Vs. Kuppuswami Naidu, AIR 1937 Mad 937; Surandra Nath Saha Vs. The State, 12 DLR 178; Jogadish Chandra Vs. Joynarayan, 14 DLR 198 and Shahibzada Muhammad Hayat Khan Vs. Ghulam Muhammad, 6 DLR (WPC) 177 ref.

Mr. Md. Kamrul Ahasan, Advocate

. . . For the petitioner

Mr. Thamiz Uddin, Advocate

. . . For the opposite party no. 2

Mr. Md. Khurshedul Alam, D.A.G

. . . For the State

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: At the instance of the above named accused-petitioner (hereinafter referred to as the accused or the petitioner), this application has been filed in an expectation to set aside the Judgment and Order dated 24.01.2017 passed by the Metropolitan Sessions Judge, Dhaka in Criminal Revision No. 65 of 2017, rejecting the revisional application and affirming the order dated 06.12.2016 passed in C.R. Case No. 186 of 2016 framing charge, under Sections 406/417/506 of the Penal Code, now pending in the Court of Metropolitan Magistrate, Court No. 32, Dhaka, by invoking this Court’s power of quashment under Section 561A of the Code of Criminal Procedure, 1898 (CrPC). 

2.             The background of issuance of this Rule, in short, is that the opposite party no. 2, as a complainant, filed a complaint petition under Sections 406/417/506 of the Penal Code before the Court of Dhaka Metropolitan Magistrate against the accused alleging, inter alia, that the complainant and the accused became known to each other in course of conducting business and, eventually, when the complainant sold a piece of land to the accused, the accused issued a cheque of Taka five lacs dated 25.06.2015 to pay off the outstanding balance. After expiry of the stipulated period, when the complainant placed the cheque before the concerned Bank for its encashment, the same was dishonored due to vagueness of the digits in the cheque. When the matter was disclosed to the accused, he laughed at the complainant. Thereafter, the engaged Advocate of the complainant issued a legal notice on 25.01.2016 by registered post with A/D upon the accused who upon receiving the same, instead of paying off the money, threatened the complainant not to proceed with the matter. Thereafter, the complainant filed the instant case on 01.02.2016.

3.             Mr. Md. Kamrul Ahasan, the learned Advocate appearing on behalf of the accused-petitioner, by taking us through the petition of complaint and, side by side, the provisions of Section 406, 417 & 506 of the Penal Code, submits that the allegations brought against the petitioner in the petition of complaint do not disclose any offence inasmuch as non-payment of the amount fallen due out of sale of the landed property does not amount to commission of an offence of cheating or criminal breach of trust. In support of his above submissions, he refers to the cases of MA Sukkur Vs Md Zahirul Haque 23 BLC(AD) 76, Syed Ali Mir Vs Syed Omar Ali BCR 1990 (AD) 287 and Veer Prakash Sharma Vs Ani Kumar Agarwal (Online reported case) Appeal (Crl.) 980 of 2007, Judgment on 01.08.2007.

4.             The learned Advocate for the accused, then, takes us through the application under Section 241A of the CrPC filed by the accused at the time of framing charge and submits that the accused clearly had made out a case from the prosecution materials, without relying on any defence materials, that the allegations made by the complainant before the learned Magistrate under Section 200 of the CrPC do not disclose any offence, for, if the same are tallied with and tested through the petition of complaint, power of attorney and the registered deed, any one with ordinary prudence would find it difficult to understand as to who owes money to whom and, therefore, as he continues to submit, framing charge against the accused on the basis of such vague documents and contradictory statements was not legal.

5.             Mr. Kamrul Ahasan next submits that while a complaint regarding an offence can be filed by any person who has primary or secondary knowledge about the commission of the offence, but cheating is such an offence, commission of which can be known only by the person who has been cheated and, therefore, the case cannot be filed by anyone other than the person cheated. He argues that since the instant case has been filed by the attorney who does not have first-hand knowledge about the commission of offence, hence, the petition of complaint is not maintainable in law. In support of his submission on this count, he refers to the case of Vashdeo Bhojwani Vs Industrial Bank Ltd AIR 2005 SC 439 and also he relies on the cases of Thaamammal Vs Kuppuswami Naidu AIR 1937 Mad 937. By referring to the case of Surandra Nath Saha Vs the State 12 DLR 178, he submits that in making a complaint of cheating to a Magistrate, the complainant herself/himself is required to be examined by the Magistrate, otherwise the veracity of the offence cannot be primarily assessed by the Magistrate for taking cognizance.

6.             By advancing the above contentions and making his arguments, he prays for making the Rule absolute.

7.             Per contra, Mr. Tahmiz Uddin, the learned Advocate for the complainant-opposite party no. 2, takes us through the power of attorney and, side by side, pinpoints to the ‘cause title’ of the complaint petition and contends that the complainant made it clear to the Magistrate that he is not the actual payee; he is simply the holder of the power of attorney. In a bid to clarify the position of the complainant, he further contends that the cheque was issued with the signature of the accused putting the amount of money by himself and without writing the name of any person therein and then the same was handed over to Md. Sultan Ahmed. He goes on to contend that since it was a bearer cheque and no name was written in the body of the cheque, Md. Sultan Ahmed asked Md. Al-Mamun to write Al-Mamun’s name on the cheque and withdraw the money for his own convenience. He contends that Md. Sultan Ahmed, the original payee, who has been cheated, himself shall come in the trial Court to depose as a witness and submits that, at that point of time, the accused, as the drawer of cheque, shall have the opportunity to cross-examine the payee and, therefore, there is no application of the ratio laid down in the cited Indian case of Vashdeo Bhojwani Vs Industrial Bank Ltd AIR 2005 SC 439.

8.             He, then, refers to the case of Jogadish Chandra Vs Joynarayan 14 DLR 198 and submits that in this case it has been made clear that complaint by a person who himself is not cheated is valid in law. By placing Section 190 of the CrPC, he submits that in the case in hand the Magistrate is empowered to take cognizance treating the application either under sub-Section (1)(a) or (1)(c) to Section 190 of the CrPC. Finally, he submits that since the case is fixed for trial, this Court may direct the trial Court for completing the trial within the shortest possible time so that the accused does not feel that he is being harassed.

9.             Having heard the learned Advocates for both the sides and upon going through the petition along with its annexures and the relevant laws and decisions placed before us, it appears to us that the questions to be decided by this Court are whether the petition of complaint discloses any offence; secondly, whether the allegation is of civil nature debarring filing any criminal case; thirdly, whether in order to bring any allegation of offence of cheating, the cheated-person is required to file the case by him/herself and, fourthly, whether a power of attorney-holder is competent to file complaint regarding commission of an offence of cheating.

10.          Let us look at the prosecution materials, namely, petition of complaint, cheque issued by the accused, legal notice, registered sole deed no. 3542 of 2015, power of attorney executed by Md. Sultan Ahmed in favour of Md. Al-Mamun Titu and the complainant’s statements made before the learned Magistrate under Section 200 CrPC in order to see whether a prima facie case against the accused exists or not.

11.          From a perusal of the petition of complaint it is difficult to understand as to who owes money to whom. In the ‘cause title’ of the petition of complaint, Md. Sultan Ahmed is described as the main complainant and Md. Al-Mamun Titu is shown as the power of attorney-holder. In the next paragraph to the ‘cause title’ of the petition of complaint, where the list of the witnesses is furnished, Md. Al-Mamun Titu is portrayed as the complainant and Md. Sultan Ahmed is mentioned as witness no. 2, but in making the averments in the petition of complaint, every dealings are shown to have taken place between the accused and Md. Sultan Ahmed; for instance, it is stated that Md. Sultan Ahmed has been known to the accused-Md. Kabir Sikder in course of carrying out business and eventually when Md. Sultan Ahmed sold land to the accused, Md. Sultan Mahmud was issued with the cheque by the accused. Whereas, from the minute scrutiny of the cheque, it transpires that the cheque was issued in favour of Md. Al-Mamun; not in favour of Md Sultan Mahmud. Thus, from perusal of the statements made in the complaint petition, the contents of the legal notice, power of attorney, registered sale deed no. 3542 of 2015 and, side by side, from looking at the disputed cheque, the background behind issuance of the cheque could not be understood.

12.          If the claimed dealings between the complainant and the accused emerge to be equivocal or cryptic or obscure from the petition of complaint and the statements of the complainant made under Section 200 CrPC together with the documents produced before the Magistrate, it would not be possible for the Magistrate to make any primary assessment as to whether the offence of cheating or breach of trust has been committed for the purpose of taking cognizance of the said offence/s. The Magistrate, however, can take cognizance of the offence, upon ignoring the averments of the petition of complaint, if the Magistrate at the time of examining the complainant under Section 200 of the CrPC in tandem with carrying out scrutiny of the documentary evidence, if any, finds the complainant’s allegation to be putatively plausible.

13.          In this case, the complainant’s averments made in the petition of complaint are evidently cryptic, for, the same are inconsistent with the cheque, legal notice, power of attorney and registered sale deed no. 3542 of 2015 and, therefore, the above materials are not capable of forcefully leading the Magistrate to take cognizance of the commission of offence of cheating or breach of trust or criminal intimidation. Under the circumstances, let us see whether the complainant’s statements under Section 200 of the CrPC can impel the Magistrate to take cognizance of the said offences. It would be convenient to examine this point, if we look at the said statements; which are reproduced below:  

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14.          Given the fact that Md. Al-Mamun’s name is written on the body of the cheque and, further, at the time of making statements under Section 200 CrPC he portrays himself to be the complainant before the learned Magistrate having alleged that the accused has issued a defective cheque and despite issuing a legal notice by him about the dishonour of the cheque, the accused denies to pay off the money, let us see whether upon overlooking the papers/documents related to and containing  the dealings between Md. Sultan Ahmed and the accused, namely, the averments of the petition of complaint, contents of registered sale deed no. 3542 of 2015 and the power of attorney; and by relying merely on the materials which are exclusively in the name of the complainant-Al-Mamun, namely, the cheque, contents of the legal notice and the complainant’s statements under Section 200 of the CrPC, the learned Magistrate was competent to take cognizance of the offences of criminal breach of trust under Section 406, cheating under Section 417 and criminal intimidation under Section 506 of the Penal Code. In our way of examination of the cheque, legal notice and the statements made under Section 200 CrPC, we find that the Magistrate was competent to take cognizance of offence of commission of cheating punishable under Section 417 of the Penal Code and no allegations of offences punishable under Sections 406 and 506 are found from the above three materials.

15.          When the application under Section 241A of the CrPC was moved before the trial Court on the ground that the fuzziness of the complainant’s allegations having revealed ex-facie from the prosecution materials; without looking at the defence materials, there was a reasonable scope of taking a view by the trial Court that the complainant having failed to clearly disclose any offence, the said application for discharging the accused under Section 241A CrPC deserves positive consideration. However, the trial Court decided to proceed with trial having found prima facie case from the materials that were available before it, upon ignoring the issue of lacking in clarity in placing allegations before the Court by the complainant.

16.          Now, the question comes up for consideration as to whether this Court, in exercising its inherent power, should interfere with the impugned charge-framing order in the backdrop of apparent failure by the complainant to disclose a clear-cut offence in his petition of complaint and, also, in his statements made before the Magistrate under Section 200 CrPC.

17.          To answer the above question, it would be profitable if we briefly examine the procedures as well as requirements of taking cognizance and framing charge in a CR case and consequence of failure to comply therewith. By presentation of a complaint before the competent Judicial Magistrate either orally or in writing, a CR case is kicked off and, upon considering the nature and veracity of the allegations, when the Magistrate decides to take cognizance of the alleged offence/s, s/he is duty bound to examine the complainant on oath and reduce the substance of the examination in writing. When the complaint is made in writing and its contents appear to the Magistrate to be ambiguous, the Magistrate either should ask the complainant to come up with a fresh application clearly disclosing the offence or, in the alternative, pass an order for carrying out an inquiry under Section 202 CrPC and, after looking at the fresh petition of complaint or inquiry report, as the case may be, the Magistrate then would be in a better position to decide whether to proceed for taking cognizance. Non-compliance of the above practice, however, would not vitiate the proceedings. The purpose of observance of the above path is to gain prima facie satisfaction by the Magistrate as to commission of offence, for, the Magistrate is required to be satisfied either from the petition of complaint or from the statements of the complainant made under Section 200 CrPC or from the inquiry report, as the case may be, that any one of it discloses commission of offence. Despite existence of any inconsistency between the version of the petition of complaint and the statements of the complainant made under Section 200 CrPC, when the Magistrate takes cognizance, the presumption is that the concerned Magistrate has been primarily satisfied about commission of offence.

18.          In this case, it is found hereinbefore that there were inconsistencies among the version of the petition of complaint, cheque, power of attorney, registered deed of sale of land and, therefore, it was incumbent upon the Magistrate to decline to examine the complainant under Section 200 CrPC and thereby direct the complainant to come afresh or to straightway reject the application on the ground that he was not satisfied as to commission of the alleged offence/s. But since the learned Magistrate has taken cognizance of the offences punishable under Sections 406, 417 and 506 of the Penal Code, the presumption is that the learned Magistrate, having taken the pain of going through all the papers/documents, was prima facie satisfied about the commission of above offences. So, the inaction of the learned Magistrate as to directing the complainant to come up with a fresh petition of complaint containing clear-cut statements or not going for an inquiry under Section 202 CrPC was merely an irregularity; not any fatal illegality.

19.          It is true that this Court by exercising its inherent power is well competent to set aside the order of taking cognizance and framing charge and thereby direct the complainant to file a fresh complaint, containing clearer statements about his identity and the reason for non-filing the case by the person actually cheated, before the concerned Magistrate so as to enable the concerned Magistrate to clearly understand about the allegation of commission of offence and, then, examine the accused under Section 200 CrPC. However, if the case is sent back now to the concerned Magistrate, the accused petitioner is not going to be benefited; rather he would be loser in the sense that by adducing relevant witnesses at the trial, with the present position of this case, while the complainant would endeavour to prove his case by showing that the alleged inconsistencies are nothing but mere professional immaturity of the engaged Advocate, the accused person shall have the opportunity to discredit the deposition of the witnesses by showing the inconsistencies. Therefore, on the basis of the above inconsistencies, the order of taking cognizance by the Magistrate cannot be quashed at this stage.

20.          The above conclusion leads us to see whether the order of framing charge can be set aside in spite of this Court’s findings that there was no illegality in taking cognizance. In an appropriate and fit case, order of framing charge may be quashed if it appears to the High Court Division that the trial Court failed to notice that the prosecution materials are not sufficient to prosecute the accused or it was not brought to the notice of the trial Court that provision of any particular law does not permit to prosecute the accused. In this case, charges have been framed under Sections 406, 417 & 506 of the Penal Code. While an allegation of cheating is apparent in the complainant’s statements made under Section 200 of the CrPC, the legal notice issued by the complainant to the accused contains some allegations of breach of trust and criminal intimidation under Sections 406 and 506 of the Penal Code, though feebly. Given that under Section 227 of the CrPC, the trial Court is empowered to alter charge at any stage before pronouncement of the Judgment, the charges of breach of trust and criminal intimidation may eventually be dropped by the trial Court following taking deposition of the witnesses, if the said allegations are not corroborated by the evidence. Depending on the weight of the evidence adduced at the trial, while the complainant would have the expectation to prove his case, it might come out to be its reverse as well. Therefore, this is not a fit case to set aside the charges at this stage, let alone the question of quashing the entire proceedings.

21.          Let us now take up the second issue, namely, whether the allegation is of civil nature debarring filing of a criminal case. From perusal of all the prosecution materials, it transpires that a payment fell due out of the sale proceeds of a property and the accused issued a blank cheque towards payment of the outstanding money and, when the cheque was dishonoured, the accused denied to pay off the dues. From our way of looking at the facts, we find that, firstly, it was not a normal business transaction and, secondly, there is no civil issue for adjudication; such as, had the dispute been with regard to the amount or about the method of calculation of money, there was a need to adjudicate upon the dispute by the civil Court.  Till now, at any stage of this case, the accused has not come up with a case that while he admits the dues/debt, but he merely raises objection about the amount of demand made by the complainant. In the case of Sayed Ehsan Abdullah Vs The State 9 ALR 2017(1) 80, this Court upon revisiting a score of decisions of both the Divisions of the Supreme Court of Bangladesh, including the cases referred to by the learned Advocate for the accused, and that of the Apex Courts of this sub-continent held that offence of cheating may occur even in a long-term business transaction when the accused would deny the claim of outstanding balance having nothing to do with calculation/determination of amount of money/goods. This point is no more res integra in our jurisdiction and filing a case under Section 561A CrPC resorting to the above ground is not a fair practice on the part of the learned Advocates of this Court. We record here our concern that when this Court is struggling to cope with the huge backlog of cases, learned members of the Bar do not consider it as their part of professional duty to discourage their clients not to insist upon filing case/petition having no merit. Now-a-days, it has been the matter of normal course for the practitioners of this Court to come up with application for quashment of cases under Sections 406, 417 and 420 of the Penal Code with a rhetoric ground that the allegation having arisen out of business transaction, a criminal case does not lie. In this case, the dispute is not about the amount of money owed - on the plea that the debt fell due out of continued business transaction; rather the dispute is over denial of debt to the complainant by the accused and, thus, the issue not being required to be adjudicated upon by the civil Court, there is no bar to file this criminal case.

22.          We may now embark upon the third issue of this Rule, namely, whether criminal case of cheating can be filed by a person other than who has been actually cheated.

23.          The criminal justice administration of Bangladesh is regulated by the provisions of the CrPC and in some cases by the provisions of the special laws, if the special law prescribes a different method. While the provisions of the CrPC as well as the special laws allow any person to file a criminal case either in police station or in the competent Court, Sections 195 to 199 of the CrPC incorporates some conditions for filing criminal cases of certain offences specified therein. For example, for filing case of any offence under Sections 172 to 188 of the Penal Code, the concerned public servant is required to lodge a written complaint; for filing case under Sections 193-196, 199-200, 205-211, 228, 463, 471 and 475-476 of the Penal Code, the concerned Court is required to file written complaint; for filing case of offences punishable under chapter VI or IX or under Sections 108A, 120B, 153A, 294A, 295A and 505 of the Penal Code, a sanction from the Government is required upon conducting a preliminary investigation by an Inspector of police by the order of a District Magistrate; for prosecution of Judges and public servants, previous Government sanction is necessary; for prosecuting the offender under chapters XIX and XXI or under Sections 493 to 496 of the penal Code, the aggrieved person is required to file the case and for prosecuting an offender under Sections 497 or 498, the husband is required to file the case. Thus, upon a minute reading of Sections 195 to 199 CrPC, it appears to us that offence of cheating does not come within the purview of the said provisions which are exceptions to the general rule of law of criminal procedure that a criminal case can be filed by any person. Therefore, we hold that any person is competent to file a case of cheating, for, it is not a requirement of law that only the person cheated should file the complaint of commission of offence of cheating. The same view was taken in the case of Jagadish Chandra Vs Joynarayan 14 DLR 198 upon reviewing the case of Surandra Nath Saha Vs The State 12 DLR 178 and the case of Shahibzada Muhammad Hayat Khan Vs Ghulam Muhammad 6 DLR (WPC) 177. It, however, can be comprehended from the common sense that if the cheated-person him/herself files the case, then the Magistrate’s task of taking cognizance becomes easier and, thereafter, at the trial stage the trial Court unhesitatingly may proceed towards prosecuting the accused. That does not necessarily mean that if the person cheated is dead or unable to move/speak before the Magistrate/trial Court, the case would fail inasmuch as success of a criminal case of cheating does not depend only on the oral statements made by the person cheated before the trial Court; the relevant papers and testimonies of third persons with the secondary knowledge of cheating may also enable to prove the case. But despite the cheated-person’s availability to make deposition before the trial Court, if the cheated-person does not stand as a witness and come forward for deposing before the trial Court, the trial Court might take an adverse presumption on the commission of offence of cheating. It follows that the complaint of this case though has not been filed by a person who has been cheated, but the present complainant is competent to file criminal case and, thus, we do not find any illegality in filing this criminal case.

24.          Let us now examine the fourth issue, namely, whether a power of attorney-holder is competent to file complaint regarding commission of offence of cheating.

25.          The position of a power of attorney-holder is as good as the person who by executing a legal instrument, namely, power of attorney, delegates/transfers to or vests in or confers his/her lawful power upon a third person. In our criminal justice administration system, since any person is competent to file a criminal case, there is no need to engage a power of attorney-holder for filing a criminal case. However, where the law requires that a criminal case is to be filed only by the aggrieved person, as provided in Section 198 of the CrPC, or only by the specified person, as provided in Section 199 of the CrPC, the aforesaid aggrieved person/specified person may empower a third person to file criminal case on his/her behalf through executing a deed of power of attorney stating in clearer terms the reasons for not filing the case by him/herself. But, the power of attorney-holder should bear in mind that while s/he can fairly depose before the trial Court as a witness on her/his own standing like any other relevant witnesses, s/he should not endeavour to portray her/himself before the trial Court as the executants of the deed of power of attorney, as if s/he her/himself is the aggrieved person/specified person.

26.          In this case, the offences are alleged to have been committed under Sections 406, 417 and 506 of the Penal Code and no law requires that criminal case for the above offences are to be filed by an aggrieved person, as has already been held by us hereinbefore. So, there having no legal requirement of making a power of attorney, engaging the present petitioner as a power of attorney-holder for filing this case before the concerned Magistrate was an unnecessary exercise. If the cheated-person was truly unable to file the case by himself, the petitioner could have filed the case as a complainant by simply making a statement in the petition of complaint as to the reason for not filing the case by the cheated-person and enlisting both of them as the witnesses and, at the trial, while presence of the cheated-person would help to prove the case, non-availability of his testimony may result in dismissing the case given that in a cheating case, the testimony of the person-cheated is pivotal for proving the charge of cheating, for, only the cheated-person possesses first-hand knowledge about the commission of offence of cheating.

27.          In this case, there was a prayer by the accused person before the trial Court that the cheated-person should be produced before the trial Court at the time of framing charge to ensure that the cheated-person shall remain present as a witness during the trial. Given the peculiarity of the case, the trial Court could have allowed the prayer inasmuch as from the prosecution materials the peculiarity of this case is vividly noticeable. In the midst of the hearing of this Rule, this Court asked the learned Advocate for the complainant to produce the complainant together with the cheated-person. For some unknown reason, the learned Advocate for the complainant was trying to avoid to produce the cheated-person for days together and when we were about to pass a written order upon the police to produce the cheated-person, the learned Advocate, at that juncture, took the responsibility of producing both the cheated-person and the complainant. When they appeared before this Court, this Court directly inquired about the alleged dealings between the accused and the cheated person, the reason for not filing the case by the cheated-person himself, the reason for executing power of attorney, reason behind writing the name of the present complainant on the blank cheque instead of writing the name of the cheated-person etc and we also took the signatures from both of them in order to tally the signatures used in the cheque, power of attorney, petition of complaint and Vokalatnamas. Eventually, the accused admitted that he had issued the blank cheque to pay an amount of Taka three lacs. Then, we asked the learned Advocate for both the sides as to whether they would take an initiative to amicably settle down the matter by withdrawing the case from the trial Court, for, the charges brought against the accused are compoundable and, accordingly, a date was fixed by this Court for pronouncement of the Judgment. On the date of pronouncement of the Judgment of this case, neither the learned Advocate of any side nor the parties of this case was found present in the Court. Under the circumstances, this Court started to deliver the Judgment and when taking dictation of the Judgment by the Bench Officer was complete, the learned Advocates for both the sides having scrambled before this Court informed that the parties, after negotiating for a few days with each other, have come to an amicable settlement to withdraw the case on condition of payment of three lacs Taka in favour of the complainant by the accused and, at the same time, returning the original cheque to the accused person. They further informed us that both of the sides have already complied with their respective conditions.

28.          While, with the findings made hereinbefore by this Court, this Rule is destined to be discharged, however, at the fag end of the delivery of Judgment, upon receiving the latest development from the contending parties as to sorting out their discontents amicably, to this end, we decided to dispose of the Rule with a direction upon the trial Court to permit the complainant to withdraw the case upon recording the fact of their amicable settlement in the file.

29.          Before parting with this Judgment, this Court, as its Constitutional obligation under Article 109 of the Constitution, considers it necessary, in the backdrop of encountering with huge backlog of cases in the Judiciary, to lay down some guidelines for the learned Magistrates empowered to take cognizance upon the petition of complaint;

(i)      The learned Magistrates shall direct the complainant to come up with fresh petition of complaint, if the statements made therein are not specific and clear to understand the nature of allegation.

(ii)    The learned Magistrate shall not take cognizance if the petition of complaint does not contain the names, addresses and Mobile number of the complainant, accused person/s and the witness/es. In this digital era, it is expected that keeping Mobile number of the above persons in the case file would assist the Court in expediting disposal of cases.

(iii)  For taking cognizance of the offences punishable under certain Sections of the Penal Code which are mentioned in Sections 195 to 199 of the CrPC, the learned Magistrates shall ensure that the conditions stipulated in Sections 195 to 199 of the CrPC have been complied with.

(iv)   When the petition of complaint is filed by the power of attorney-holder, the learned Magistrates shall not take cognizance if the reason for not filing the case by the aggrieved person/specified person is not stated in the petition of complaint.

(v)     From a minute perusal of the petition of complaint and examining the documents/ materials submitted therewith, if any, when a Judicial Magistrate would be satisfied that an offence under any law of the land is disclosed, only then, it would be prudent step for the learned Magistrate to examine the complainant under Section 200 of the CrPC.

30.          In the result, the dispute between the parties having been sorted out amicably and, pursuant thereto, the complainant being no more willing to prosecute the accused, the Rule is disposed of with a direction upon the Chief Metropolitan Magistrate of Dhaka to permit the complainant to withdraw his case upon recording the fact of receiving Taka three lacs by the complainant from the accused as well as the fact of returning the original cheque by the complainant to the accused.

31.          The order of stay granted earlier by this Court, at the time of issuance of Rule, hereby recalled and vacated and there shall not be any order as to costs

32.          The Registrar General of the Supreme Court of Bangladesh is directed to disseminate a copy of this Judgment to all the learned CMMs and CJMs of the country, who shall ensure that the above guidelines are being followed and applied by the learned Judicial Magistrates.

33.          Office is directed to communicate this Judgment at once to the learned Chief Metropolitan Magistrate, Dhaka.

         Ed.