Most. Anowara Begum Vs. The State and another 2017 (1) LNJ 186

Case No: Criminal Appeal No. 7085 of 2008

Judge: Md. Nizamul Huq. J.

Court: High Court Division,

Advocate: Md. Nazmul Huda, Mr. Kamal Uddin Ahmed,

Citation: 2017 (1) LNJ 186

Case Year: 2015

Appellant: Most. Anowara Begum

Respondent: The State and another

Subject: Criminal Law

Delivery Date: 2017-04-10

 HIGH COURT DIVISION

(CRIMINAL APPELLATE  JURISDICTION)

Md. Nizamul Huq, J

Judgment on

10.12.2015

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Most. Anowara Begum

. . Accused-appellant

-VERSUS-

The State and another

...Respondents

Evidence Act (I of 1872)

Section 114(g)

We are to consider weather by this document and evidence of PW. 1 and PW. 2 the prosecution has been able to prove the case. I do not agree with the learned advocate for the appellant that specially in this case the non examination of the other 07 witnesses has caused any prejudice to the defence case or had they been produced they would have not supported the prosecution case. As such on this point I do not find any point to agree with the learned advocate for the appellant. . . . (18)

Penal Code (XLV of 1860)

Section 21

Section 21 of the Penal Code has given the definition of public servant. After the end of the eleventh criteria in illustration it has been clearly stated that a municipal commissioner is a public servant. That means it is clear that the accused appellant is a Pourashava commissioner and is a public servant under the law.   . . . (18 and 19)

Anti-Corruption-Commission Rules, 2007

Rule 24

There is no specific bar of a person to be informant as well as investigating officer although there are decisions that for all fairness this should not be done. For conducting the investigation by the informant, no decision could be placed by any body that the trial has been vitiated or that the judgment and order of conviction and sentence have been set aside. As there is no specific decision and law to the effect that a same person cannot be the informant as well as the investigation officer. I am also of the view that for this reason the trial as a whole cannot be questioned and or conviction and sentence cannot be set-aside. . . . (21)

Penal Code (XLV of 1860)

Section 409

Prevention of Corruption Act (II of 1947)

Section 5(2)

Section 409 of the Penal Code does not stand against this accused appellant in the facts and circumstances of the case. But upon perusal of Section 5(2) of Act II of 1947 which defines criminal misconduct it is clear that if the facts and circumstance are taken to be true then this appellant is liable for committing the offence of Section 5(2) of Act II of 1947, because although she has not committed the offence of criminal breach of trust but criminal misconduct has been committed by her in receiving the allotment of the shop in question through a resolution where she is a party. As such it is clear that she cannot be held to be innocent and the conviction under Section 5(2) of Act II of 1974 cannot be set aside. . . . (25 and 26)

R. Venkatakrish nan Vs. Central Bureau of Investigation, AIR 2010 (SC) 1812 ref.

Md. Nazmul Huda, Advocate

. . . For the appellant.

Mr. Kamal Uddin Ahmed, D.A.G 

. . . For the respondent No.1.

Md. Asif Hasan, Advocate

. . . For the Anti-Corruption-Commission.

JUDGMENT

Md. Nizamul Huq, J. This appeal at the instance of the convict appellant Most. Anowara Begum has been filed against the judgment and order of conviction and sentence dated 14.10.2008 passed by the Additional Sessions Judge 1st Court, and Judge Special tribunal No. 2, Bramanbaria in Special Case No. 05 of 2008 arising out of Kasba P.S. Case No.24 dated 17.10.2007 corresponding to G. R. Case No. 296 of 2007 convicting the appellant under section 409 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act 1947 (Act II of 1947) and sentencing her to suffer rigorous imprisonment for a period of 02 (two) years and to a pay fine of Tk. 1,61,650 /- only in default to suffer rigorous imprisonment for a further period of 01 (one) year.

2.            The facts of the case in short is this that one Assistant Director of Anti-Corruption-Commission, Brahmmanbaria namely Shaheen Ara Momtaz as informant lodged an ejahar with Kasba Police Station on 17.10.2007 against the accused appellant alleging inter-alia that she was the commissioner and she has taken allotment of a shop No. 59 measuring 116.66 sft of Kasba Pourashava Super Market at the price of Tk. 1,30,000/- whereas the actual price of Tk. 2,91,650/- by abusing power adapting irregular and corrupt means causing a loss of Tk. 1,61,650/- to the Pourashava and the state and by doing so she has committed offence under section 409 of the Penal Code and Section 5(2) of prevention of Corruption Act, 1947.

3.            During investigation by the Anti-Corruption-Commission of Brahmmanbaria it was found that estimate for construction work of Pouro Supermarket was approved by the ministry of local Government vide Memo No Poura- 3/1390 dated 31.10.2005 in respect of constructing a Supermarket demolishing the existing union Parishad Bhaban and its adjacent market wherein there were 36 shops. On that issue, meeting no. 16 of Pourashava was held in presence of 12 commissioners and presided by Pourashava administrator Mr. Md. Rafiul Hoque Bhuiyan on 11.12.2005 in the Pourashava office and in that meting decision was taken to start construction work in the market immediately upon demolishing the existing structure. Thereafter as per rules a five member shop allotment committee was farmed for allotment of shops vide Pourashava memo no. 617 dated 19.12.2006 and it was decided that the constituted committee would take necessary steps, regarding allotment of shops and it is found that there was no meeting called of the allotment committee to allot the shops and the record shows that the same committee did not allot any shop of the Pourashava Market. Generally an advertisement is published in the national and local daily news papers and miking to be done for wide circulation of the news before allotment of any shop of Pourashava Market. In addition to that, a schedule is prepared mentioning size, position, value, rent, shop number etc and an agreement is signed with the purchasers after allotment either to the highest bidder or through lottery when price is fixed price. All the shops of the same market according to the measurement to be sold at same price is the rule is respect of allotment of shops. But the Pourashava administrator and 12 Pourashava commissioners by abusing power without informing the shop allotment committee without publishing advertisement in the national daily news papers without preparing schedule and selling that without conducting lottery ignoring the respective rules and procedure decided to allot 11 shops to 11 commissioners at the rate of Tk. 1,30,000/- per shop in the meeting held on 27.09.2006. In that meeting it was also decided that the affected 36 shop owners would pay Tk. 1500/- per square feet and the new owners would pay Tk. 2500/- per square feet. But it is found after that demolishing 36 old shops 72 shops were constructed and allotted in the ground floor and 33 shops were allotted to 33 affected shop owners taking Tk. 1500/- per square feet and 28 shops were allotted to 28 different persons taking Tk. 2500/- per square feet on their application but commissioner Anwara Begum got allotment of Shop No. 59 measuring 116.66 sqft. in her name on 28.12.2006 at a price of only Tk. 1,30,000/- but if the price is calculated at a rate in which the shops have been  allotted to public in general the price would have been Tk. 2.91,650/-, and if tender bids were invited by publishing news paper advertisement, the price would have been higher but Anwara Begum deposited only Tk. 1,30,000/- and for that the Pourashava has incurred a loss of Tk. 1,61,650/- and in that view the accused commissioner has obtained pecuniary advantage for herself illegally causing loss to the Pourashava and thus the case under Section 409 of the Penal Code read with Section 5(2) of Act II of 1947 has been filed.

4.            On receipt of the written ejahar from the informant, Police started Kasba Police Station Case No. 24 dated 17.10.2007 under section 409 of the Penal Code and section 5(2) of Prevention of Corruption Act, 1947, against the accused appellant. The case was investigated by the Anti-Corruption-Commission and charge sheet was submitted against the accused appellant on 07.04.2008 under section 409 of the Penal Code read with section 5(2) of Act II of 1947.

5.            The case was then transferred to the Additional Sessions Judge 1st Court, Special Court No. 2 Bhrammanbaria for trial and was numbered as Special Case No. 05 of 2008. Charge was framed against the accused under the above mentioned section to which he pleaded not guilty and claimed to be tried.

6.            Prosecution examined 02 witnesses out of 08 charge sheeted witnesses including the investigation officer who is the informant also in this case and defence adduced none. The accused was examined under section 342 of Code of Criminal Procedure. The defence case as it appears from the trend of examination and cross-examination is this that the accused appellant is innocent and she has not committed any offence as alleged.

7.            The learned Judge after conclusion of the trial vide judgment and order of conviction and sentence dated 14.10.2008 found the accused appellant guilty under the above noted sections and sentenced her to suffer rigorous imprisonment for 02 (two) years and to pay fine of Tk. 1,61,650 only in default to suffer rigorous imprisonment for further period of 01(one)year.  

8.            Against the said judgment and order of conviction and sentence, the accused appellant has preferred this appeal. At the time of admission of the appeal she was enlarged on bail by this court which she is still continuing.

9.            Mr. Md. Nazmul Huda, the learned advocate appeared for the appellant while Mr. Asif Hasan the learned advocate appeared for the Anti-Corruption-Commission.

10.        It appears that the informant Shahin Ara Montaj, Assistant Director, Anti-Corruption-Commission as PW. 1 stated that she lodged the eajhar and also investigated the case, visited the place of occurrence. It reveals that the accused appellant was the Mohila Commissioner duly elected for word no. 7,8 and 9 and she used her influence upon the administrator of the Porishad and in order to get undue privilege she took lease of shop no. 59 consisting of an area of 116.66 square feet in her name for a nominal price. The actual price of the shop was Tk. 2,91,650/-. There was resolution in the Pourashava that the value of each sqft. will be Tk. 2500/- for general people and Tk. 1500/- for affected shop owners and the accused being a general public she ought to have deposited Tk. 2,91,650/- but she only deposited Tk. 1,30,000/- to gain illegally causing loss to the Pourashava for an amount of Tk. 1,61,650/-. And as such the case was lodged by her. The FIR is marked exhibit-1 and her signature there in exhibit-1/1. FIR column is marked exhibit-2 the copy of the resolution is marked as exhibit-3 and the application for allotment of the accused appellant and the allotment letter are marked as exhibit-4 and 4(ka) respectively.

11.        In cross-examination she stated that there was a paper committee consisting of 05 members to allot the shops but no meeting of that committee was held. The chairman had responsibility to call the meeting of the committee. The chairman with the word commissioners allotted the shops by taking resolution. The chairman himself signed the application filed in the name of the accused appellant and no valuation certificate was submitted and the shop is under construction and the accused has not received the possession of the shop as yet. She denied the suggestion that this accused appellant is innocent and has not misused her power and loss to the Pourashava. She was again examined as investigating officer wherein she stated that she visited the place of occurrence, examined the documents and recorded the statement of witnesses under section 161 of the Code of Criminal Procedure and then finding primafacie case against this accused appellant, she submitted charge sheet. Before submission of charge sheet, she obtained the sanction from the head office of Anti-Corruption-Commission vide memo no. 5021 dated 03.04.2008 and the sanction latter is marked as exhibit-5 and his appointment letter as I.O is marked as exhibit-6. During cross-examination she further stated that she has recorded the statement of the accused appellant twice and she has not deposited any valuation certificate. She denied the suggestion that the price was fixed on guess. She denied the suggestion that the shops were allotted following rules. She denied the suggestion that had there any offence been committed, that was committed by chairman, secretary and engineer but not by the accused appellant and that accused has not gained economically. She also denied that the accused has herself faced loss by depositing Tk. 1,30,000/-. She denied the suggestion that the accused is innocent.

12.        PW. 2 the secretary of the Kasba Pourashava stated in his evidence that the resolution dated 27.09.2006 is written by him which is marked as exhibit-2. During cross examination, he stated that he used to assist the chairman in official duties and work on his direction. Ward commissioners also work under the direction of the chairman. There was a notice given in the notice board regarding the allotment of the shop and miking was done but no advertisement was given in the national dailies. He does not know whether any advertisement was given in the local dailies. This are the evidence available in this case. 

13.        Mr. Md. Nazmul Huda the learned advocate appearing for the accused appellant submitted that this appellant is a member of a Pourashava and she is not a public servant as such trial conducted against her has been conducted illegally and judgment and order of conviction and sentence passed in an illegal trial is liable to set-aside. Then he submitted that in this case the informant himself acted as the investigation officer and it is not proper for a person to be informant and also the investigation officer in a case because in that case a fair or impartial investigation might be hampered and the witnesses including the I.O may be an interested person and upon this type of materials an accused should not be convicted and sentenced. He further submitted that the statement of PW. 1 as informant and as I.O. has not been corroborated by any other witness and the conviction and sentence based upon the sole testimony of the informant and I.O who are one person is not safe to convict an accused in a fair trial. He further submitted that upon perusal of the charge sheet it appears that there are 08 witnesses mentioned in the column of witnesses but in this case only one among them has been examined who is the secretary of the Pourashava and none else. Absence of other witnesses makes it clear that the accused is entitled to get the benefit of presumption under Section 114(g) of the Evidence Act that had they been produced in the court they would not have supported the prosecution case and as such this conviction and sentence passed upon the appellant is liable to be set-aside. He further submitted that the resolution was taken by the body consisting of the chairman and members and the resolution was properly taken and they are the proper authority to decide how and to whom this allotment should be done and this resolution has allotted the shop in favour of the appellant considering different aspects and as such for receiving an allotment given on the basis of a legal resolution, the accused appellant can not be held liable for commission of any offence and there is no materials in the record that this accused appellant has made any corruption or any offence in receiving the allotment given by the proper authority on the basis of a resolution which is also legal one and on the basis of that resolution this appellant deposited the money but she could not receive the possession of the shop in question resulting further loss of the appellant. He further submitted that it is in evidence that the chairman has allotted the shop from his quota which the law permits to allot the quota by the chairman and if the allotment is given from the quota by the chairman under the law then receiving that allotment can not be an offence. He further submitted that the actual value of the shop in question has not been stated by any witnesses and valuation certificate was also not deposited rather it is admitted that the accused appellant deposited Tk. 1,30,000/- and as such this consideration of the fact does not bring anything to conclude or to reach to the conclusion that the accused appellant has committed an offence in any manner including offence of section 409 of the penal code and section 5(2) of Act II of 1947. Thus according to the learned advocate for the appellant the appellant is entitled to get acquittal.

14.        On the other hand the learned advocate appearing for Anti-Corruption-Commission in replying to the arguments made by the learned advocate for the appellant submitted that this accused petitioner is a public servant which is available in section 21 of the penal code read with Section 2(B) of Criminal Law Amendment Act, and as such according to him she being a public servant the trial of the case was done properly and judgment and order of conviction and sentence has also been based legally. He then submitted that there is no bar for an informant to act as investigating officer in a case of Anti-Corruption-Commission. In support of his submission he placed the latest position of rule 24 of the Anti-Corruption-Commission rules 2007 wherein it is found that.

“24. Conduct of enquiry and investigation by the same officer or separate officers.-

(1)   The enquiry and investigation into allegations relating to an offence specified in the schedule to the Act shall be conducted by the same officer.

(2)   Despite the provision of sub-rule (1), the Commission may, if necessary, get the enquiry or investigation into allegations relating to an offence specified in the schedule to the Act done also by separate officers.”

15.        As regards the non corroboration of the witnesses of the evidence by PW.1 by other witnesses he submitted that anti corruption cases are mainly based on documents and materials on record and not on the statement of the witnesses in dock. He also submitted that the evidence available on records are more powerful than the verbal statements given by witnesses in the dock and as such he submitted that although the statement of PW.1 was not corroborated by other witnesses but the materials on record which have been produced by the Anti-Corruption-Commission and marked exhibits are sufficient to convict the accused appellant in this case. Regarding the claim of section 114(g) of the evidence act, he submitted that it is the gravity of the evidence which is to be considered and not the number of persons adduced. He submitted that PW. 1 and PW. 2 have placed the case of the prosecution properly and diligently and no other witnesses were required to be produced. Further more the prosecution is not bound to produce all the witnesses in the court. But if it is found that the PW.1 and PW.2 have been successful in proving the case then non examination of other witnesses shall not debar the court to pass any judgment of conviction and sentence and in this case that has been done. Non examination of the other charge sheeted witnesses as such does not hamper the prosecution case rather the evidence of the two witnesses are so heavy in nature and so properly proved the guilt of the accused appellant that no question arises as to give benefit to the accused appellant under Section 114(g) of the evidence act. He further submitted that the resolution was taken which is absolutely illegal resolution because Section 4 of the Pourashava public market sub-rule 2003 shows that there are some rules regarding allotment of shops.

16.        Section 4 of the said sub-rule 2003 is quoted below;

            4| †`vKvb eiv‡Ïi AbycvZ| (1) cÖwZwU cvewjK gv‡K©‡Ui †`vKvbmg~n, G Dc-AvBbgvjvi Ab¨vb¨ mv‡c‡¶, wbgœewY©Z Abycv‡Z eivÏ Kiv n‡e, h_vt-

(K)     85% (kZKiv cuPvwk fvM) †`vKvb mvaviY cÖv_x©M‡Yi g‡a¨ eivÏ Ki‡Z n‡e; Ges

(L)      15% (kZKiv c‡bi fvM) †`vKvb †Pqvig¨vb KZ©„K eiv‡Ïi Rb¨ msiw¶Z _vK‡e, hv RvZxq ch©v‡q Ae`vb †i‡L‡Qb Giƒc e¨w³‡K ev Zvi ¯^vgx‡K ev ¯¿x‡K A_ev D³ e¨w³ ev Zvi ¯^vgx ev ¯¿x ev mš—vb-mš‘wZ‡`i e¨qfvi enb K‡ib Giƒc e¨w³‡K eivÏ cÖ`vb Kiv hv‡e|

            e¨vL¨v|-`dv (L) Gi D‡Ïk¨ c~iYK‡í RvZxq ch©v‡q Ae`vb ej‡Z gyw³hy‡× AskMÖnY QvovI wkí, mvwnZ¨, m½xZ, mgvR‡mev, wk¶v BZ¨w` †¶‡Î D‡j­L‡hvM¨ Ae`vb‡K eySv‡e|

            (2) Aby‡”Q` (1) G hv wKQyB _vKzK bv †Kb, cÖwZwU cvewjK gv‡K©‡Ui †`vKvb eiv‡Ïi †¶‡Î ¶wZMÖ¯— e¨w³ AMÖvwaKvi cv‡eb|

            e¨vL¨v|-G Aby‡”Q‡` ¶wZMÖ¯— e¨w³ ej‡Z †cŠimfv KZ©„K †Kvb ¯’v‡b cvewjK gv‡K©U wbg©v‡Yi c~‡e© D³ ¯’v‡b we`¨gvb †`vKv‡bi ˆea gvwjK‡K eySv‡e|

            (3) †Kvb †cŠimfvq †Kvb e¨w³‡K ev Zvi cwiev‡ii †Kvb m`m¨‡K GKvwaK †`vKvb eivÏ †`qv hv‡e bv|ÕÕ

17.        Which means that 85% of the shop are to be allotted in favour of the general public and 15% is reserved for the chairman to make allotment but there is a condition of allotment of the shops by the chairman which stated that a person who made contribution in the national level or his/her wife/husband or the person who is maintaining him/her/his wife/her husband/their children may be given the allotment and explanation of that has also been given stating that the persons giving contribution in the national level means freedom fighters, renowned persons of art, education, culture, social welfare etc. The appellant does not come to any category of the reserved quota. Thus the resolution which allows allotment of one shop to the accused appellant has violated the rule 4 of the said rules and as such this resolution is absolutely an illegal resolution and when the resolution is itself illegal, all action done by the authority concerned in giving allotment or in receiving allotment on the basis of that resolution are also illegal and punishable under the law. As regards the last submission of the learned advocate for the appellant Mr. Asif Hasan submitted that the valuation of the land in question was decided, the learned judge has considered this aspect and found that the valuation of the land is 2500/- per sqft. for general people and Tk. 1500/- per sqft. for affected shop owners and that decision was taken by a resolution held on 27.09.2006 when the present resolution was taken, but he candidly admitted that the valuation certificate was not deposited but that does not debar the authority to start Criminal Proceeding against the accused appellant because of the fact that the money she has deposited is so low that it can be assumed and presumed that she has deposited a less amount and when evidence has been adduced stating the valuation of the land in question, the submission of the learned advocate for the appellant also does not stand. Lastly he submitted that the prosecution has been able to prove the case beyond all reasonable doubt and he prayed for dismissal of the appeal.

18.        I have heard the learned advocate for the appellant and also the learned advocate for the Anti-Corruption-Commission and perused the records of this case. It appears that this is a case where out of 08 charge sheeted witnesses, only 02 were examined and those were informant as well as investigating officer and the secretary of the Pourashava and no other witnesses have been examined in this case. The learned advocate for the appellant submitted for benefit under Section 114(g) of the evidence act for non examination of the other charge sheeted witnesses. In this respect I have given my anxious thought over this matter. It appears that PW.1 and PW. 2 have exhibited the documents submitted in this case and those are the materials of this case. The learned advocate for the appellant could not submit what are the possible statements these absent witnesses would have stated in the court in favour of the accused, if at all they stated in the court that the resolution was illegally taken or that the allotment was not given in favour of the accused appellant or that accused appellant could deposit the whole money etc then also a question arises as to the benefit given to them but I do not understand how those witnesses could help the accused in this case if they came to the court to give evidence. Records of the case are here to show that PW.1 and PW. 2 have produced the documents. We are to consider weather by this document and evidence of PW. 1 and PW. 2 the prosecution has been able to prove the case. I do not agree with the learned advocate for the appellant that specially in this case the non examination of the other 07 witnesses has caused any prejudice to the defence case or had they been produced they would have not supported the prosecution case. As such on this point I do not find any point to agree with the learned advocate for the appellant. Then he submitted that this Pourashava Mohila Commissioner is not a public servant. Section 21 of the Penal Code has given the definition of public servant. After the end of the eleventh criteria in illustration it has been clearly stated that a municipal commissioner is a public servant. Further more in the Criminal law Amendment Act Section 2(B) shows that;

   “public servant means a public servant as defined in the Section 21 of the Penal Code and includes a chairman, director, trusty, member, commissioner, officer or other employee of any local authority, statutory corporation or body corporate or of any other body or organization constituted or established under any law.”

19.        That means it is clear that the accused appellant is a Pourashava commissioner and is a public servant under the law.

20.        Mr. Nazmul Huda vehemently argued to the effect that a same person if a complainant or informant as well as investigating officer then the trial may be hampered or question of fair trial may be jeopardized because then investigation of the case may not be done properly and independently. In this respect we have got some decision of this court which need not be placed because of the fact that although this is a good point for consideration that in a fair trial the same person should not be allowed to be informant or investigating officer then the fair trial may be hampered but in the instant case the law has allowed this. Rule 24 of the Anti-Corruption-Commission rules 2007 reeds as follows;

         24. Conduct of enquiry and investigation by the same officer or separate officers;- 

(1)   The inquiry or investigation into allegations relating to an offence specified in the schedule to the Act shall be conducted by the same officer.

(2)   Despite the provision sub-rule-1 the commission may if necessary get the inquiry or investigation into allegations relating to an offence specified in the schedule to the Act done also by separate officers.

21.        Upon perusal of this rule it appears that the Anti-Corruption-Commission has taken the authority in itself in the matter of allowing a person to be informant as well as the investigating officer and also has stated in sub-rule-2 that it may get the mater done by two different persons. This is a rule and not an Act. This authority of investigation and lodging of FIR by a same person has been taken by the Anti-Corruption-Commission in its own decision and made a rule but how much this rule will be effected and accepted by the courts is a matter to be decided. But there is no specific bar of a person to be informant as well as investigating officer although there are decisions that for all fairness this should not be done. For conducting the investigation by the informant, no decision could be placed by any body that the trial has been vitiated or that the judgment and order of conviction and sentence have been set aside. As there is no specific decision and law to the effect that a same person cannot be the informant as well as the investigation office I am also of the view that for this reason the trial as a whole can not be questioned and or conviction and sentence can not be set-aside.

22.        I have gone through the resolution exhibit-3. It is a hand writing resolution and PW. 2 stated that he had written this. Resolution dated 27.09.2006 is quoted below:-

(K)     cÖkvmK g‡nv`q Rbvb †h, †cŠi mycvi gv‡K©U Gi wbg©vb KvR `ª“Z ev¯—evq‡bi j‡¶¨ gv‡K©U Gi mKj †`vKvb eiv‡Ïi KvR m¤úbœ nIqv cÖ‡qvRb wZwb AviI Rvbvb †h, BwZg‡a¨ 07 wU †`vKvb eivÏ cÖ`vb Kiv n‡q‡Q| Av‡ivI †`vKb eiv‡Ïi KvR Pwj‡Z‡Q| wZwb e‡jb †h, wKQy wKQy  AvMÖnx Kwgkbvi †cŠi cwil‡`i †KvVv †_‡K wbqgvbyqvqx Zv‡`i bv‡g †`vKvb eiv‡Ïi Rb¨ `vex `vIqv Rvwb‡q Avm‡Q| G Qvov †cŠi mycvi gv‡K©U Gi †`vKvb eiv‡Ïi KvR `ª“Z †kl Kivi j‡¶¨ †`vKvb eiv‡Ïi bxwZgvjv ÔÔAv‡M Avm‡j Av‡M cv‡ebÕÕ wfwˇZ nIqv cÖ‡qvRb|

cÖkvmK g‡nv`‡qi e³‡e¨i †cÖw¶‡Z mfvq G wel‡q we¯—vwiZ Avjvc Av‡jvPbv Kiv nq| Av‡jvPbv‡š— †cŠi cwil‡`i †KvVv †_‡K AvMÖnx KwgkbviMb‡K †`vKv‡bi RvgvbZ eve` 1,30,000 (GKj¶ wÎknvRvi) UvKv avh¨© K‡i †`vKvb eivÏ cÖ`vb Ges gv‡K©U Gi †`vKvb `ª“Z eivÏ cÖ`v‡bi ¯^v‡_© ÔÔK¶ b¤¦i bvB Av‡M Avm‡j Av‡M cv‡eb Ges †`vKv‡bi fvov 5/- ¯’‡j 3/-, 4/- ¯’‡j 2.5/- wfwˇZ eivÏ cÖ`v‡bi wm×vš—   me© m¤§wZµ‡g M„nxZ nq|

            (L) cÖkvmK g‡nv`q Rvbvb †h, gš¿bvjq I †cŠi cwil‡`i wm×v‡š—i Av‡jv‡K Avwg ‡cŠi mycvi gv‡K©‡Ui cyivZb 36(QwÎk) Rb †`vKvb`v‡ii mwnZ Zv‡`i ‡`vKvb eivÏ †bIqvi wel‡q Av‡jvPbv Kwi| mycvi gv‡K©‡Ui bxPZjvi †`vKvb eiv‡Ïi RvgvbZ eve` cÖwZeM©dzU 2500/- UvKv eiv‡Ï¨i wel‡q cyivZb †`vKb`viMb Rvbvb †h, Avgiv BwZc~‡e© cÖwZwU †`vKv‡bi RvgvbZ Kg †ekx cÖ`vb K‡iwQ| ZvB D³ welqwU we‡ePbvq G‡b Avgv‡`i 36(QwÎk) wU †`vKv‡bi RvgvbZ cybtwba©vib nIqv cÖ‡qvRb e‡j mK‡jB Avgvi wbKU `vex Rvbvb| cÖkvmK g‡nv`‡qi e³‡e¨i †cÖw¶‡Z mfvq we¯—vwiZ Avjvc Av‡jvPbv Kiv nq| Av‡jvPbv‡š— †cŠi mycvi gv‡K©U Gi bxPZjvi 36 (QwÎk) Rb cyivZb †`vKvb`v‡ii 36(QwÎk) wU †`vKvb Gi RvgvbZ cÖwZ eM©dzU 1500/-(GKnvRvi cuvPkZ) UvKv wba©vib K‡i Zv‡`i‡K †Øq mg‡qi g‡a¨ †`vKvb eivÏ †bIqvi Rb¨ wm×vš—  me© m¤§wZµ‡g M„nxZ nBj|

            AZtci mfvq Avi †Kvb Av‡jvPbv bv _vKvq mfvcwZ g‡nv`q Dcw¯’Z mKj‡K ab¨ev` Rvwb‡q mfvi mgvwß †Nvlbv K‡ib|

23.        Upon perusal of this resolution it is found that resolution “K” shows that chairman has the authority to allot from his quota and it was done and allotment was given in favour of the commissioners on the valuation of Tk. 1,30,000/- per shop. In resolution “L” the valuation of Tk. 2500/- per sqft will be the valuation for allotment to general public and Tk. 1500/- per sqft will be the valuation for allotment among the affected shop owners. It may be mentioned here that there was earlier a building there and resolution was that the buildings will be demolished and a free building will be constructed. As such there were affected persons there. The submission of Mr. Nazmul Huda to the effect that in one resolution two things were taken, one is giving allotment to commissioners from Chairman’s quota and the other is the valuation of the shop in question and he submitted that the resolution may be illegal but if the resolution is illegal then both the counts do not stand.

24.        On the otherhand Mr. Asif Hasan submitted that resolution “K” was illegal because chairman had no authority to make allotment in favour of the commissions on a lesser value and also violating the rule 4 of the Porashava public Dc-AvBb gvjv- 2003 but the resolution so far “L” is concerned, is a legal one fixing the valuation of the shops in question. This Dc-AvBb gvjv- 2003 is an Act of parliament and as such Section 4 has got legal value and binding on all, where the conditions have been prescribed upon the chairman to allot his quota as such it is clear that resolution “K” is not legal one in the facts and circumstance of the case as it violates the Pourashava Public Dc AvBb gvjv-2003 consequently resolution “L” also fixing the valuation in the same resolution should also be considered with a grain of salt. Further more no valuation statement has been given and valuation certificate also has not been given by the prosecution as such the part of fixing the valuation of the shops in question, in my view has not been proved beyond all reasonable doubt.

25.        Now the question arises that this accused appellant has deposited Tk. 1,30,000/- and till today she has not been given possession of the shop in question. If the resolution “K” becomes illegal which actually is so, then it appears that this commissioner has faced some loss by depositing the money in the name of receiving the shop for an amount of Tk. 1,30,000/- and she has not been given the possession of the shop in question. Section 409 of the penal code if perused shall make it clear that the offence if at all committed by the accused appellant was not completed and as such she can not be held liable for the offence under section 409 of the penal code. The word ‘misappropriate’ is there but here maximum allegation may be termed as attempt to misappropriate if the whole case is taken to be true. As such it is clear that Section 409 of the Penal Code does not stand against this accused appellant in the facts and circumstances of the case. But upon perusal of Section 5(2) of Act II of 1947 which defines criminal misconduct it is clear that if the facts and circumstance are taken to be true then this appellant is liable for committing the offence of Section 5(2) of Act II of 1947, because although she has not committed the offence of criminal breach of trust but criminal misconduct has been committed by her in receiving the allotment of the shop in question through a resolution where she is a party. In this respect, the case of R. Venkatakrish nan -Vs- Central Bureau of Investigation reported in AIR 2010 (SC) 1812 may be considered, wherein it has been found that;

   “The ingredients of the offence of Criminal misconduct under Section 5(1)(d) are (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise abuse his position  as a public servant, (3) that he should have obtained valuable thing or pecuniary advantage, and (4) that it should be for himself or any other person.”

26.        As such it is clear that she cannot be held to be innocent and the conviction under Section 5(2) of Act II of 1974 cannot be set aside.

27.        I have given my anxious thought over the matter because of the fact that admittedly she has not received the shop in question rather she has deposited the money of Tk. 1,30,000/- and still she is facing the hazard to have committed the offence of section 5(2) of Act II of 1947, and she is an elected commissioner of Pourashava that means a public representative. She is passing her days in this society as a convict for misappropriation of public money for last seven years. Considering all these I am of the opinion that ends of justice will be met if the sentence of her is lowered down for the period she has already served in jail and she has already deposited Tk. 1,30,000/- for the shop in question and that money may be treated as her fine.

28.        Thus the appellant Most. Anowara Begum is convicted under Section 5(2) of Act II of 1947 and sentenced to suffer imprisonment which she has already served in connection with this case i,e Special Case No. 05 of 2008 arising out of Kasba P.S. Case No. 24 dated 17.10.2007, corresponding to G.R. No. 296 of 2007 and to pay a fine of Tk. 1,30,000/- i,e the money which she has already deposited for the shop in question. She does not require to go to Jail any more and does not require to pay any fine further more. She is released from her bail bond.

29.        The appeal is thus allowed-in-part with modification of the sentence as mentioned herein above.

Communicate the judgment and order immediately

Ed.