Md. Ruhul Amin Howlader Vs. Mahmuda Akter Mita and another 2017 (1) LNJ 274

Case No: Criminal Revision No. 1495 of 2010

Judge: Md. Nizamul Huq. J.

Court: High Court Division,

Advocate: Golam Mohammad Chowdhury, ,

Citation: 2017 (1) LNJ 274

Case Year: 2015

Appellant: Md. Ruhul Amin Howlader

Respondent: Mahmuda Akter Mita and another

Subject: Criminal Law

Delivery Date: 2017-05-16

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Md. Nizamul Huq, J

Judgment on

14.12.2015

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Md. Ruhul Amin Howlader

. . Petitioner

-Versus-

Mahmuda Akter Mita and another

...Opposite-parties

Penal Code (XLV of 1860)

Section 420

From the allegations made in the complain it appears that the complainant, was not willing to lend the sum of Tk. 2 lac to the accused petitioner when it was requested for. But ultimately he was persuaded to lend the said amount, and, to create confidence in mind of the complainant, a document of undertaking was executed by the accused in favour of the complainant making some promises therein and to repay the amount whenever demanded, but contrary to such promise as inspite of repeated demands, he finally refused to pay the amount. The complainant had no business transaction with the accused nor he is in money lending business. Being induced by the petitioner promised to repay whenever demanded, he gave the money as friendly loan. Court below has found a prima facie case against the accused petitioner on consideration of the said allegation as well as other materials on record. At this stage, we can not hold that the accused petitioner had no initial intension to repay the amount and upon consideration of those materials on record I am satisfied that the prosecution has been able to prove the case against the accused petitioner beyond all reasonable doubt.            . . .(14)

Prithiraj Bacha alias Prithiraj Bucha Vs. The State, 10 DLR 325; Meser Ali and another Vs. The State, 26 DLR 146 and Shahjahan Vs. Atiqur Rahman 1987 BLD 164 ref.

Golam Mohammad Chowdhury with

Md. Aktaruzzaman Talukder, Advocates

..... For the petitioner.

Mr. Kamal Uddin Ahmed, D.A.G

Mrs. Ambia Bulbul Reja, A.A.G 

.... For the opposite parties.

JUDGMENT

Md. Nizamul Huq, J.  This rule arises out of a judgment and order of conviction and sentence dated 11.07.2010 passed by the Additional Secessions Judge Court No. 2 Kustia in Criminal Appeal No. 61 of 2008 dismissing the appeal with modification of sentence directing and affirming the judgment and order dated 26.06.2008 passed by the Chief Judicial Magistrate Kustia in C.R. Case No. 275 of 2006 to suffer imprisonment for a period of 01(one) year and to pay a fine of Tk. 5,000/- in default to suffer simple imprisonment for further 01(one) month under section 420 of the Penal Code.

2.            The facts of the case in short may be stated as follows that one Mahmuda Akter Mita filed a petition of complain on 27.08.2006 before the Chief Judicial Magistrate, Kustia against the accused petitioner who is the maternal uncle (husband relation of the complainant). Due to intimacy the accused wanted Tk. 2 lac as loan to the complainant’s husband for purchasing some land from his brother and on request of the accused on 21.06.2005 the complainant gave him Tk. 2 lac as loan in presence of the witnesses and the accused received the said and after receiving the money the accused promised on a written document that he will refund the said money within 20.04.2006 but he did not return and there after on 04.06.2000 the complainant issued a legal notice but there was no response and then on 25.08.2006 at about 12.00 P.M while the complainant wanted the refund of Tk. 2 lac the accused refused the same and as such the case.

3.            On receipt of the petition of complaint it was numbered as C.R. Case No. 275 of 2006. The learned Chief Judicial Magistrate took cognizance of the offence and some ones under section 406/420 of the Penal Code on 27.08.2006 against the accused petitioner. Thereafter the charge was framed under section 406/420 of the penal code against the accused on 14.01.2008 and the accused pleaded not guilty and claimed to be tried. In this case 04 (four) prosecution witnesses were examined. Then the accused was examined under section 342 of the Code of Criminal Procedure wherein also he pleaded not guilty and denied to give any defence witness. Then the learned Magistrate vide judgment and order of conviction and sentence dated 26.06.2008 found the accused petitioner guilty under section 420 of the Penal Code and sentenced him to suffer rigorous imprisonment for a period of 03(three) years and to pay a fine of Tk. 5,000/- in default to suffer rigorous imprisonment for 06(six) months more.

4.            Thereafter the convict petitioner preferred Criminal Appeal No. 61 of 2008 before the court of Sessions Judge, Kustia and the learned Sessions Judge after hearing the parties and perusal of the records dismissed the appeal and affirmed the judgment and order passed by the learned Magistrate with modification of sentence to suffer imprisonment for a period of 01(one) year and to pay a fine of Tk. 5,000/- in default suffer imprisonment for a further period of 01(one) month.

5.            Thereafter the convict petitioner filed this revisional application and obtained this rule. At the time of issuance of the rule the accused petitioner was enlarged on bail and he is still continuing in that bail.  

6.            Mr. Golam Mohammad Chowdhury the learned advocate appeared for the convict petitioner submitted that the courts below has committed error of law in passing the conviction and sentence against the accused petitioner under section 420 of the Penal Code. He further submitted that this is a case where section 420 of the penal code does not lie. He further submitted that the allegation against the accused petitioner is this that he received a loan money of Tk. 2 lac for purchasing some lands and he actually purchased the land but could not return the loan money as such question of cheating does not arise at all because the purpose of taking the money has been full filled and no cheating was done. He only failed to repay the loan and as such this criminal proceeding does not lie, the complainant ought to have gone for a civil suit in this case and this conviction and sentence passed upon the accused petitioner is not sustainable in law.

7.            On the other hand the learned Deputy Attorney General appearing for the state submitted that this is a case where ingredients of section 420 of the Penal Code are very much available. The witnesses have proved the case of taking money giving an under taking and then denying to refund/repay the money. He submitted that whatever may be the reason for taking the loan, in this case for purchasing the lands that is a matter of the accused petitioner but the matter of taking loan from the informant and non refunding of the loan to her is the issue here and in the instant case it has been proved by evidence that the accused appellant took loan of Tk. 2 lac and then gave an undertaking but did not repay the loan and as such section 420 of the penal code is very much attracted in the facts and circumstance of this case. In support of his submission he placed before me the case of Md. Shafiuddin Khan-vs-The State and another reported in 13 BLD-page-362 where in it has been held that;-

   “(i) Wherever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend the money, having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under Section 420 B.P.C.”

“(ii) Intention of a person can only be gathered from his conduct at the time of the occurrence and surrounding circumstances.”

8.            He then submitted that this accused petitioner took loan and failed to repay the same dishonestly inducing the complainant to lend the money and although the facts and circumstance of the case proves that he had no intension to repay the loan and also he executed an undertaking to repay the loan but he has not repaid them and considering this matters it can be conclusively established that this accused petitioner has committed an offence under section 420 of the penal code.

9.            He then submitted section 415 with Illustration (f) which speaks in the following

“415 cheating whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to “cheat”.

         Explanation- A dishonest concealment of facts is a deception within the meaning of the section.

illustration (f) “A, intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.”

10.        By placing this section of the Penal Code the learned Deputy Attorney General submitted that illustration (f) if considered makes it clear that if a person intentionally deceives another person into the belief that he wants to repay the money if Z gives loan to him and thereby dishonestly induces him to lend him money and he not intending to repay then ingredients of cheating comes and in the facts of circumstance of the case ingredients of section 420, is available. Further more he submitted that the witnesses in this case have also proved the case beyond reasonable doubt against the accused petitioner and thus he submitted that this rule has got no merit in the eye of law and is liable to be discharged.

11.        I have heard the learned advocate for the petitioner and also the learned Deputy Attorney General and perused the revisional application and the impugned judgments. It appears that in the complaint petition it has been stated that the petitioner claimed Tk. 2 lac as loan and in presence of the witnesses the loan was given to the accused and this was received by the accused the accused executed an undertaking wherein it is written that if within the fixed time mentioned in the complaint petition the money is not returned then the accused can take legal action and after words it is also stated in the complaint petition that when after words the money was claimed by the complainant the accused denied to repay the loan and furaduntely committed breach of trust and defalcated the money and as such according to the complaint petition offence of section 406/420 of the Penal Code has been committed by the accused opposite party, then the charge was also framed under section 406/420 of the penal code then the witnesses were examined. PW.1 the complainant stated in his evidence that the accused in order to purchase some lands from his brother wanted Tk. 2 lac from her husband and the husband requested her to give the money and in presence of witnesses on 21.06.2005 she paid the money of Tk. 2 lac and the accused gave an undertaking stating that within 20.04.2006 he will refund the money but he did not refund the money and on 04.06.2006 a legal notice was served even then no replay was given then on 25.08.2006 when she met with accused, the accused denied to make repayment of the money and thus the accused has committed an offence of breach of trust as well as cheating. PW. 2 stated that he is the husband of the complainant and accused is his maternal uncle by relation the accused claimed Tk. 2 lac loan from him and as he had not that amount of money he requested his wife to give him the money and the money was given on 21.06.2005 within the knowledge of witnesses. The accused executed an undertaking witting that within 20.04.2006 he will repay the loan. The undertaking was typed by the accused himself but the money was not paid. Then on 25.08.2006 on claim he denied to repay the loan. PW. 3 Sopon alias Safiat Hossain is a witness of the execution of the undertaking who stated that in his presence the complainant gave Tk. 2 lac to the accused opposite party to purchase lands with understanding that within 02.04.2006 he will refund the money but on 25.08.2006 on claim the accused denied to repay the loan. PW. 4 Mohammad Sohel stated that he is a witness of the undertaking which was signed on 21.06.2005 when the complainant gave Tk. 2 lac to the accused and 20.04.2006 was fixed for repay the loan but the loan was not paid and on 25.08.2006 the accused denied to repay the loan. These are the evidence in this case.

12.        The learned trial court upon consideration of the evidence and materials on record found the accused petitioner guilty under section 420 of the penal code and sentenced him to suffer rigorous imprisonment for 03(three) years and to pay fine of Tk. 5000/- in default to suffer imprisonment for 06(six) months more, further directing that the time he was in jail hajot shall be deducted from the sentence.

13.        I have gone through both the judgments. It appears that the trial court has rightly considered the law points also that in this case section 406 of the Penal Code does not lie and he found the accused petitioner guilty under section 420 of the Penal Code. The decision placed by the learned advocate for the petitioner shows it clearly it considered that in a case of this nature, Section 406 of the Penal Code does not lie. But the accused petitioner cannot be exonerated of the charge of section 420 of the Penal Code. I have given my anxious thought over the matter of the definition of cheating. Upon consideration of the definition available in section 415 illustration (f) and upon consideration of the petition of complaint and the finding of the courts below it is clear that the case under section 420 of the Penal Code has been successfully established against this accused petitioner. It appears that the witness has categorically stated that the accused petitioner wanted loan of Tk. 2 lac for purchasing lands. It is submitted that he has actually purchased the land by purchasing the land it is clear that the purpose of taking loan has been fulfilled by the accused side and as such criminal breach of trust will not come here. But the relationship between the complainant and the accused is taking loan of Tk. 2 lac and to return it within the stipulated time. All the witnesses have categorically stated that the money was given as loan and it was not returned to the complainant within the stipulated period even after that on demand, the accused has denied to repay the loan that means question of cheating has been established in this case. Then the judgment placed before me by the learned Deputy Attorney General, the judgment of 13 BLD-page-362 clearly supports that this case against the accused petitioner stands proved. From the allegation made in the petition of complain it is clear that there is no entrustment that a sum of Tk. 2 lac were invested by the complainant to the accused petitioner who converted the same to his own use in violation of any contract express or implied touching the discharge of such trust the amount was simply lend by the complainant to the petitioner induced by the representation of the petitioner to repay the same within a specific time so in the absence of any entrustment no question of breach of any trust arise but delegation as contained in section 420 can not be found to be without any basis. Then he placed another case being Prithiraj Bacha alias Prithiraj Bucha–vs-The State reported in 10 DLR page-325 wherein it was found that;-

“In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established In order to justify a conviction for cheating”

14.        In this case the petitioner Prithiraj was convicted by the learned Magistrate on a charge under Section 420 of the Penal Code, on the allegation that he, along with the absconded accused as manager and partner respectively of Meghna Jute Baling, purchased 500 bales of Jute from Amin Jute Baling Co. under a written contact. But inspite of the delivery of the said goods and repeated demands, the accused did not pay the price, and the accused was ultimately convicted and sentenced. In instant case also the accused took loan of Tk. 2 lac from the complainant under a written contract but inspite of the contract date being over the accused did not repay the loan and as such I am of the view that the accused petitioner can not get rid of the conviction and sentence passed under section 420 of the Penal Code. In that 13 BLD page-362 case their lordship have also considered the case of Meser Ali and another–vs-The State reported in 26 DLR-page-146 wherein the accused petitioner was convicted under Section 420 of the Penal Code by the trial court on the allegation that he received a sum of Tk. 1,000/- from the complainant opposite party on the condition of delivering 80 maunds paddy by specified time but subsequently he denied to have received the amount. The conviction was upheld by the learned Sessions Judge. Then this High Court, on a revision, set aside the conviction and sentence of the accused petitioner on the view that the criminal intend to cheat did not exists from the very beginning and its subsequently exhibition is not a test of cheating. In both 10 DLR page-325 and 26 DLR page-146 cases, illustration (g) of section 415 of the Penal Code was considered by the Court in coming to the conclusion that there was no initial intention on the part of the accused to deceive. The said illustration (g) distinguishes cheating from breach of contract. In the case of      Shahjahan-vs-Atiqur Rahman reported in 1987 BLD 164, the petitioner Shah Jahan entered into a written contract with complainant opposite party to sell a house and received part of the consideration as earnest money. In spite of completion of all formalities by the seller, the buyer failed to complete the sale transaction by paying the balance of the consideration after repeated request. So, the house was sold to a third person and earnest money paid by the buyer was forfieted in terms of the agreement. The buyer then filed a petition of complain against the seller on the allegation of cheating him. On a revision, High Court Division quashed the proceeding holding that the allegations show that no criminal offence was made out and the same was breach of civil contract. Facts of those cases are different from the facts of the instant case before us. Those cases highlight distinction between cheating and breach of contract. In the case of cheating the lender and the borrower has been described under illustration (f) of Section 415 Penal Code from the above illustration, it is clear that whenever a loan is taken by one from another on a representation to repay the same dishonestly induces the person to lend the money having no intention to repay the same, it will be an offence of cheating as defined under Section 415 and to be punished under Section 420 of the Penal Code. From the allegations made in the complain it appears that the complainant, was not willing to lend the sum of Tk. 2 lac to the accused petitioner when it was requested for. But ultimately he was persuaded to lend the said amount, and, to create confidence in mind of the complainant, a document of undertaking was executed by the accused in favour of the complainant making some promises therein and to repay the amount whenever demanded, but contrary to such promise as inspite of repeated demands, he finally refused to pay the amount. The complainant had no business transaction with the accused nor he is in money lending business. Being induced by the petitioner promised to repay whenever demanded, he gave the money as friendly loan. Court below has found a prima facie case against the accused petitioner on consideration of the said allegation as well as other materials on record. At this stage, we can not hold that the accused petitioner had no initial intension to repay the amount and upon consideration of those materials on record I am satisfied that the prosecution has been able to prove the case against the accused petitioner beyond all reasonable doubt and as such the judgment and order of conviction and sentence passed by the court of appeal is not required to be interfered with by this court. The rule thus has no merit in the eye of law and it is discharged.

15.        It appears that the accused petitioner has served some time in jail during the trial and also the appellate stage and this is a case which started as back as in 2006 and the sentence is only one year and pay to fine of Tk. 500/-. After this long 09(nine) years I am of the view that this accused petitioner may not be sent to jail custody again rather if fine is abit increased in lieu of the of wearing down the sentence of jail then ends of justice will be met as such the conviction against the accused petitioner under section 420 is affirmed but the sentence is modified to the period in jail as already undergone and to pay fine Tk. 2,000/- in default to suffer imprisonment for 03(three) months.

16.        The Rule is thus discharged with modification of sentence.

17.        Let the records be sent down to the lower court immediately.

Ed.