S. M. Mahbubullah Vs. The State and another, (Kazi Md. Ejarul Haque Akondo, J.)

Case No: Criminal Miscellanous Case No. 14659 of 2009

Judge: Zinat Ara, J And Kazi Md. Ejarul Haque Akondo, J

Court: High Court Division,

Advocate: Mr. Md. Shibbir Ahmed, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: S.M. Mahbubullah

Respondent: The State and another

Subject: Anti Corruption Commission Act

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Zinat Ara, J

And

Kazi Md. Ejarul Haque Akondo, J

 

Judgment on

05.06.2017

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S.M. Mahbubullah

. . . Accused-petitioner

(on bail)

-Versus-

The State and another

…Opposite parties

Anti Corruption Commission Act (V of 2004)

Section 32

Anti Corruption Commission Rules, 2007

Rule 15

There is no such provision in giving the authority to the ACC to give sanction to submit chare-sheet being cwiZzó in a case where the investigating Officer after thorough investigation submitted final report to it; rather there are 02 types of sanctions mentioned in section 32 of the ACC Act, 2004, that to say, (i) No Court shall take cognizance of the offence unless there is sanction from the ACC and (ii) Sanction for filing charge-sheet before the Court as reconfirmed in rule 15(4) of the ACC Rules, 2007 which runs as follows: Ó15(4) AvBb I GB wewagvjvi weavbejx mv‡c‡¶ `ybx©wZ msµvšÍ Aciva Z`‡šÍi ci Z`šÍ Kvix Kg©KZ©v KZ©„K Awfhy‡³i wei“‡× wePvi mycvwik Kwiqv Dchy³ Av`vj‡Z Awf‡hvMbvgv `v‡q‡ii †¶‡ÎB †KejKwgk‡bi cye©vby‡gv`b MÖnY Avek¨K nB‡e|Ó           . . . (26)

Code of Criminal Procedure (V of 1898)

Section 561A

Penal code (XLV of 1860)

Section 409

In the charge-sheet the Investigating Officer also mentioned that the accused did not commit any offence punishable under section 409 of the Penal Code as he did not commit any crime relating to criminal breach of trust. The Investigating Officer further mentioned that the accused committed irregularities in sanctioning loan through said 37 Bank accounts for which a departmental proceeding has already been initiated against him and he has been dismissed from his service. There is no prima-facie case against the accused-petitioner but the learned Special Judge, Court No.3, Dhaka without considering all the above aspects of the case erroneously framed charge against him under section 409 of the Penal Code by rejecting the application filed under section 241A of the Code of Criminal Procedure, which is an abuse of the process of the Court and as such, the proceeding is quashed to secure the ends of justice.       . . . (27 and 28)

Mr. Md. Shibbir Ahmed, Advocate

. . . For the petitioner.

Mr. A.K.M. Fazlul Haque, Advocate

. . . For the opposite party No. 2-ACC

JUDGMENT

Kazi Md. Ejarul Haque Akondo, J: In this Rule, issued under section 561A of the Code of Criminal Procedure, 1898 the opposite parties were called upon to show cause as to why the impugned proceedings against the accused-petitioner in Special Case No.05 of 2009 arising out of Motijheel Police Station Case No. 33 dated 11.04.2004 corresponding to G.R. No.332 of 2004  under section 409 of the Penal Code now pending in the Court of Special Judge, Court No.3, Dhaka should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             At the time of issuance of the Rule the proceedings of Special Case No.5 of 2009 pending before the Court of Special Judge, Court No.3, Dhaka was stayed for a period of 06(six) months from date, which was subsequently extended from time to time.

3.                   The prosecution case, in short, is that one Shamsul Haque, Principal Officer, Pubali Bank Limited, Motijheel Branch, Dhaka on behalf of concerned Bank as informant lodged a First Information Report on 11.04.2004 against the accused-petitioner alleging, inter-alia, that the accused was the Deputy General Manager (D.G.M) of Pubali Bank Limited, Motijheel Branch, Dhaka Stadium Branch and Naya Paltan Branch. He joined in his service as a Senior Officer on 15.08.1977 and on 24.07.2000 he was posted at Motijheel Branch as an Officer-in-Charge. Thereafter, he being the D.G.M by misusing his official power in an unauthorized way allowed huge excess over limit in different accounts, i.e. over draft accounts, cash credit accounts and other accounts for illegal gain. Due to the said acts of the accused the Bank sustained a loss of Tk.101,73,25,556.20. The accused by misusing his official power has committed criminal breach of trust by allowing excess over limit in different 37 accounts, as described in the table below:

SL Nos.

Account Numbers

Excess Over Limit

1

M/S. Bonak Garments C.A. No.8700

Tk.2,24,85,336.00

2

M/S. Oshik Enterprise C.A. No.9079

Tk.60,20,272.00

3

M/S. MAQ Enterprise C.A. No.7894

Tk.42,18,334.00

4

M/S Ashik Fashion Wear Ltd. C.A. No.8930

Tk.1,02,19372.00

5

M/S. Plasticman Ltd. C.A. No.8957

Tk.2,90,99,378.00

6

Md. Yusuf Hossain, C.A. No.9090

Tk.22,07,436.00

7

M/S. Siddique Textile Mill Ltd. C.A. No.7663

Tk.87,39478.95

8.

M/S. Chaitti Apparels C.A. No.8278

Tk.1,83,20,848.03

9

M/S. Shahin Iqbal, C.A. No.8598

Tk.2,85,000.00

10

M/S. Classic I. Trade C.A. No. 8623

Tk.25,93,012.64

11

M/S. Eradutullah Chowdhury, C.A. No.6349

Tk.6,57,111.62

12

M/S. Shaikh Shahidullah, C.A. No.9171

Tk.13,89,822.00

13

M/S. Shamsur Rahman Chowdhury, C.A. No.8956

Tk.71,94,529.00

14

M/S. Shahnewaz and brothers, C.A. No.8156

Tk.29,50,824.00

15

M/S. Swiss Swaitor, C.A. No.8314

Tk.16,11,829.00

16

M/S. Siddique Textile Ltd. C.C. No.289

Tk.11,34,52515.88

17

M/S. Shohage Packaging, C.C. No.312

Tk.100,77,402.99

18

M/S. MAQ Fine Paper, C.C. No.313

Tk.64,03,666.46

19

M/S. Emdadia Poly Packaging C.C. No.323

Tk.23,87,676.00

20

M/S. Shova Enterprise C.C. No.294

Tk.2,80,522.95

21

M/S. MAQ Paper Industries Ltd. C.C. No.301

Tk.62,27,073.21

22

M/S. Shohag Packaging Ltd.

Tk.4,37,28289.00

23

M/S. MAQ Enterprise Ltd.

Tk.9,17,37,671.00

24

M/S. MAQ Fine Paper Ltd.

Tk.3,42,62,975.00

25

M/S. MAQ Paper Industries Ltd.

Tk.2,93,52,651.00

26

M/S. Tazzarat Group

Tk.6,00,707.00

27

M/S. Tiles Palace

Tk.31,29,130.00

28

M/S. Bright Trading Ltd.

Tk.4,84,562.00

29

M/S. Nalcham International

Tk.60,990.00

30

M/S. Siddique Textile Mills Ltd.

Tk.28,08,22,086.00

31

M/S. Chaitti Apparels Ltd.

Tk.51,73,762.00

32

M/S. Borak Garments

Tk.1,00,33,363.00

33

M/S. Ashik Fashion Ware Ltd.

Tk.2,19,77,766.00

34

M/S. Shohage Packaging Ltd.

Tk.15,74,293.00

35

M/S. Sarker and Co. C.A. No. 3468,

Tk.3,59,000/-

36

M/S. Minfa Travels Ltd. C.A. No. 751,

Tk.38,92,064.00

37

M/S. Kumnam Fashion (BD) Ltd.

Tk.7,57,728.00

4.             The petitioner was dismissed from his service on 03.04.2004 and thus, Motijheel Police Station Case No.33 dated 11.04.2004 under section 409 of the Penal Code has been started against the accused-petitioner.  

5.             Police investigated into the case and after completion of investigation submitted final report being No.355 dated 29.11.2004 against the petitioner finding no prima-facie case against him.

6.             On receipt of the said final report the learned Chief Metropolitan Magistrate, Dhaka by his order dated 20.12.2004 accepted the final report and released the petitioner from the proceedings.

7.             Thereafter, after about 4 months of submission of final report and near about 3 months after acceptance of the final report, the informant filed a narazi petition before the learned Chief Metropolitan Magistrate, Dhaka on 20.03.2005 praying for further investigation of the case by not accepting the final report. After hearing the same, the learned Magistrate by his order dated 20.03.2005 rejected the narazi petition stating that e¢b fkÑ¡­m¡Qe¡u ®cM¡ k¡u c¡¢MmLªa Q¥s¡¿¹ ¢l­f¡VÑ 20/12/2004 Cw a¡¢l­M ¢h‘ Bc¡ma La«ÑL Nªq£a qCu¡­Rz Hja¡hØq¡u e¡l¡S£ B­hce ¢h­hQe¡l ®L¡e p¤­k¡N e¡Cz   

8.             Being aggrieved by and dissatisfied with the said order dated 20.03.2005 the informant filed a criminal revision before the learned Metropolitan Sessions Judge, Dhaka and the same was numbered as Criminal Revision No.233 of 2005. Thereafter, the said criminal revision was transferred to the Court of learned Metropolitan Additional Sessions Judge, Court No.5, Dhaka for hearing. After hearing the same, the learned Judge by his judgment and order dated 20.02.2007 allowed the criminal revision by setting aside the order passed by the learned Magistrate on 20.03.2005 and directed the concerned Magistrate for taking necessary steps in connection with the case in light of the observations made in the body of the judgment.

9.             On receipt of the said judgment and order dated 20.02.2007 the learned 1st Additional Chief Metropolitan  Magistrate, Court No. 2, Dhaka after hearing the parties by his order dated 17.03.2008 directed the concerned Officer-in-Charge of Motijheel Police Station for further investigation of the case by any other officer other than the present Investigation- Officer.

10.         Pursuant to the said order of the learned Magistrate, one Md. Shahin Mamun, Sub-Inspector of Motijheel Police Station was appointed as a new Investigation-Officer of the case who himself then filed an application to the Court concerned praying for passing necessary order in respect of investigation of the case by the Anti-Corruption Commission (ACC). After hearing the same, the 1st Additional Chief Metropolitan Magistrate, Dhaka by his order dated 24.04.2008 rejected the application for transferring the investigation of the case to the ACC opining that “Investigating agency a¡l¡ ®L¡e n¡M¡l j¡dÉ­j ac¿¹ Ll¡­h a¡ pÇf§eÑÑ a¡­cl HM¢au¡lz H ®r­œ A¡c¡mal qÙ¹­®rf Ll¡l BCeNa ®L¡e p¤­k¡N e¡Cz Investigating authority ac­¿¹l ®r­œ pÇf§eÑ ü¡d£ez

11.         Thereafter, on transfer, the ACC, Head Office, Dhaka vide Memo No.C/166/08 (Anu O Tadanta-1)/Dhaka/21328 dated 14.07.2008 handed over the case to one A.B.M. Mahbub, Assistant Director of the ACC for investigation. He investigated into the case and after completion of investigation submitted a final report to the ACC finding no prima-facie case against the petitioner. But the ACC disagreeing with the said final report gave sanction to submit charge-sheet against the petitioner under section 409 of the Penal Code and thus, charge-sheet No.1031 dated 24.12.2008 was submitted to the Court concerned.

12.         After submission of charge-sheet the case was transferred to the learned Special Judge, Court No. 3, Dhaka for trial and the same was renumbered as Special Case No.05 of 2009. The learned Judge by his order dated 21.06.2009 framed charge against the accused-petitioner under section 409 of the Penal Code by rejecting the application filed by the petitioner under section 241A of the Code of Criminal Procedure, 1898 and fixed the next date on 23.07.2009 for trial.

13.         In the circumstances, the accused-petitioner has filed this application and obtained the instant Rule, which is before us for consideration.    

14.         At the outset, Mr. Shibbir Ahmed, the learned Advocate appearing for the accused-petitioner submits that initially the case was investigated by the police of Motijheel Police Station and after investigation the Investigating Officer submitted final report on 29.11.2004, which was accepted by the learned Chief Metropolitan Magistrate, Dhaka on 20.12.2004. But after 3 months of the same the informant filed a narazi petition before the learned Magistrate on 20.03.2005 and the same was rejected on the same day on 20.03.2005. Being aggrieved by the same the informant filed criminal revision and after hearing the same, the learned Additional Metropolitan Sessions Judge, 5th Court, Dhaka by his judgment and order dated 20.02.2007 allowed the criminal revision and directed the learned Magistrate to take necessary step in respect of the case relating to narazi petition and further investigation of the case. Pursuant thereto, the learned Magistrate sent the case for further investigation. Ultimately, the Anti-Corruption Commission submitted charge-sheet in the case against the accused-petitioner though the concerned Investigating Officer of the ACC submitted final report to the ACC. But the learned Judge of the trial Court without considering these aspects of the case framed charge against the petitioner under section 409 of the Penal Code which is an abuse of the process of the Court.

15.         He next submits that the informant filed the instant case against the petitioner for committing the crime under section 409 of the Penal Code but it appears from the charge-sheet that the Investigating Officer in his report clearly stated that out of 37 Bank accounts 17 accounts were fully adjusted, 16 accounts were re-scheduled by the Bank and against 4 accounts money suits were filed against the borrowers for realization of money, as such, no offence has been disclosed against the petitioner but the ACC without any basis and material satisfaction with a malafide intention gave sanction to submit charge-sheet against him and the learned Judge without considering the same erroneously framed charge against the accused, which is an abuse of the  process of the Court and as such, the proceedings started against him is liable to be quashed for the ends of justice.

16.         He further submits that the informant in violation of the statutory provision of Bank law filed the instant case against the petitioner though he has not committed any criminal breach of trust as defined in section 409 of the Penal Code. The ACC illegally submitted charge-sheet in the case ignoring the previous investigation reports and the learned Judge of the trial Court without considering and examining the charge-sheet and other materials on record erroneously framed charge against the petitioner under section 409 of the Penal Code by rejecting the application filed under section 241A of the Code of Criminal Procedure which is an abuse of the process of the Court.

17.         He also submits that the ACC in violation of the provision of section 32 of the ACC Act, 2004 and the rule 15(1) made thereunder submitted charge-sheet against the petitioner which ought to have been considered by the learned Judge at the time of framing of charge against the petitioner.

18.         He lastly submits that there is no prima-facie case against the petitioner as such the proceedings started against him is liable to be quashed for the ends of justice.

19.         On the other hand, Mr. A.K.M. Fazlul Haque, the learned Advocate appearing on behalf of the opposite party No.2-ACC frankly concedes that the charge-sheet submitted before the Court is, in fact, a final report as the Investigating Officer after investigation of the case found no prima-facie case against the petitioner but the ACC without assigning any cogent reason and without material satisfaction gave sanction for submission of charge-sheet against the accused-petitioner. 

20.         We have considered the submissions made by the learned Advocates for both the contending parties and have perused the materials on record.

21.         It appears from the materials on record that the case started against the accused-petitioner was initially investigated by the police of Motijheel Police Station and after completion of investigation the Investigating Officer concerned submitted final report therein on 29.11.2004, which was duly accepted by the learned Chief Metropolitan Magistrate, Dhaka on 20.12.2004. Thereafter, the informant of the case filed a narazi petition against the said final report before the learned Chief Metropolitan Magistrate, Dhaka on 20.03.2005. After hearing the same, the learned Magistrate rejected the same on the same day on 20.03.2005 stating that e¢b fkÑ¡­m¡Qe¡u ®cM¡ k¡u c¡¢MmL«a Q¥s¡¿¹ ¢l­f¡VÑ 20/12/2004 Cw a¡¢l­M ¢h‘ Bc¡ma LaѪL Nªq£a qCu¡­Rz Hja¡hÙÛ¡u e¡l¡S£ B­hce ¢h­hQe¡l ®L¡e p¤­k¡N e¡Cz Being aggrieved by the said order, the informant preferred a revisional application before the learned Metropolitan Sessions Judge, Dhaka and the same was numbered as Criminal Revision No. 233 of 2005. After hearing the same, the learned Additional Metropolitan Sessions Judge, Dhaka by his judgment and order dated 20.02.2007 allowed the criminal revision and directed the Magistrate concerned to deal with the case in accordance with the observations so made in the body of the judgment in respect of the narazi petition and further investigation of the case. On receipt of the said order dated 20.02.2007 the learned 1st Additional Metropolitan Magistrate, 2nd Court, Dhaka by order dated 17.03.2008 directed the Officer-in-charge of Motijheel Police Station to hold further investigation of the case by any other officer other than the present Investigating Officer. Accordingly, one Md. Shahin Mamun, Sub-Inspector of police was appointed new Investigating Officer, who then filed an application to the learned Chief Metropolitan Magistrate, Dhaka praying for passing necessary order in respect of investigation of the case by the ACC. After hearing the same, the 1st Additional Chief Metropolitan Magistrate, Dhaka by his order dated 24.04.2008 rejected the application for transferring the investigation of the case to the ACC opining that “Investigating agency a¡l ®L¡e n¡M¡l j¡dÉ­j ac¿¹ Ll¡­‡e a¡ pÇf§eÑÑ a¡­cl HM¢au¡lz H ®r­œ A¡c¡m­al qÙ¹­rf Ll¡l BCeNa ®L¡e p¤­k¡N e¡Cz Investigating authority ac­¿¹l ®r­œ pÇf§eÑ ü¡d£ez  

22.         Thereafter, on receipt of the case record the ACC appointed an Investigating Officer to investigate into the case who after investigation submitted final report to the ACC against the accused-petitioner finding no prima-facie case against him stating as under:

a¡l hš²hÉ ®lLXÑfœ cª­ø k¤¢š²pwNaz ¢a¢e a¡l LjÑL¡m£e pj­u A¢euj L­l­R j­jÑ f­l¡ri¡­h ü£L¡l L­lez a­h a¡l LaѪL hÉ¡w­Ll V¡L¡ A¡aÈp¡v qu¢ez ¢a¢e c¡u£ ee Hje ¢LR¤ ¢qp¡h HS¡q¡­l pw­k¡Se Ll¡ q­R k¡l ¢hÙ¹¡¢la ¢hhlZ Ef­l E­õM Ll¡ q­Rz a¡l H­qe L¡kÑLm¡­fl SeÉ ¢hi¡N£u hÉhÙÛ¡ fÊ­k¡SÉ k¡ C­a¡j­dÉ hÉ¡wL LaѪfr NËqZ L­Re Hhw a¡­L ®c¡o£ p¡hÉÙÛ L­l …l©cä A¡­l¡f L­l Q¡L¥l£ ®b­L hlM¡Ù¹ L­Rez A¡p¡j£l Afl¡­dl ¢hhle A¡p¡j£ Se¡h Hp Hj j¡qh¤h Eõ¡q, ¢X¢SHj, f§h¡m£ hÉ¡wL ¢mx, j¢a¢Tm n¡M¡u, ®ØV¢Xu¡j n¡M¡u Hhw fÒVe n¡M¡u LjÑla b¡L¡ AhÙÛ¡u ¢euj h¢qi¨Ñai¡­h ¢h¢iæ ¢qp¡hd¡l£­cl A¢eu¢ja J A¢a¢lš² Ge p¤¢hd¡ fÐc¡e L­l A¢euj L­®l­®Re k¡l SeÉ ¢LR¤ ¢LR¤ ¢qp¡hd¡l£/GZ NËq£a¡l ¢eLV q­®a hÉ¡w­®Ll f¡Je¡ A¡c¡­ul SeÉ ¢h‘ A¡c¡m­al A¡nÊu NËqZ Ll­®a q­µR Hhw hÉ¡w¢Lw l£¢a Ae¤k¡u£ R¡­®sl A¡Ja¡u GZ NËq£a¡­®cl p¡­®b A¡­f¡olg¡ L­®l pjeÄu Ll­®a q­®µRz Se¡h Hp Hj j¡qh¤h Eõ¡q, p¡­hL Ef-jq¡hÉhÙÛ¡fL (hlM¡Ù¹L«a), f§h¡m£ hÉ¡wL ¢mx, j¢a¢Tm n¡M¡, ®ØV¢Xu¡j n¡M¡ J eu¡fÒVe n¡M¡, ¢fa¡-jªa ®j¡x q¡¢hh¤õ¡q, NË¡j-g¥mh¡¢sk¡, b¡e¡+®Sm¡-hСrZh¡¢su¡­®L Aœ j¡jm¡ qa AhÉ¡q¢a fÐc¡ef§hÑL Aœ j¡jm¡u Hg A¡l HÉ¡S Hj Hg c¡¢M­ml p¤f¡¢ln Ll¢Rz L¡lZ a¡l ¢hl©­Ü HS¡q¡­l h¢ZÑa rja¡l AfhÉhq¡l L­®l A¯hdi¡­®h hÉ¡w­®Ll V¡L¡ A¡aÈp¡®al SeÉ cä¢h¢d 409 d¡l¡l A¢i­k¡N j¡jm¡ ac¿¹L¡­®m fÐj¡e f¡Ju¡ k¡u¢ez a­®h ¢a¢e hÉ¡w­®Ll ¢euj h¢qi¨Ñai¡­®h ¢h¢iæ GZNËq£a¡­®L A¢eu¢ja J Gep£j¡l A¢a¢lš² GZ p¤¢hd¡ fÐc¡e L­®l A¢euj L­®l­®Re k¡l SeÉ a¡l ¢hl©­®Ü ¢hi¡N£u hÉhÙÛ¡ fЭ®k¡SÉz A¡p¡j£l ¢hl©­®Ü hÉ¡wL La«Ñfr C­®a¡j­dÉC ¢hi¡N£u hÉhÙÛ¡ NËqZf§hÑL a¡­®L hÉ¡w­®Ll Q¡L¤l£ ®b­®L hlM¡Ù¹ L­l­®Rez

Hja¡hÙÛ¡u, j¡jm¡ ac¿¹L¡­m HS¡q¡­l ®k pLm abÉ EfÙÛ¡fe L­l A¡p¡j£l ¢eiæ‡× HS¡q¡l Ll¡ q­R a¡ p¢WL euz i¥m abÉ fÐc¡e L­Re Hhw k¡l ¢hhlZ p¡rÉ-fÐj¡­Z E­õM Ll¡ A¡­Rz h¡c£l A¡e¡ A¢i­k¡N i¥m abÉ fÐc¡e Ll¡u Hhw j¡jm¡ ac¿¹L¡­m A¡p¡j£l ¢hl¦­Ü A¡e£a hÉ¡w­Ll V¡L¡ A¡aÈp¡v h¡ r¢ap¡d­el A¢i­k¡N fÐj¡¢Za e¡ qJu¡u Aœ j¡jm¡u Hg A¡l HÉ¡S Hg Hg (Q¤s¡¿¹ ¢l­f¡VÑ paÉ) c¡¢M­ml p¤f¡¢ln L­l Aœ ac¿¹ fТahce (p¡rÉ-pÈ¡lL) c¡¢Mm Ll¡ quz

23.         But the ACC without considering the said final report and that of the earlier final report submitted by the police of Motijheel Police Station and without any material satisfaction and any cogent reason mechanically gave sanction under section 32 of the ACC Act, 2004 and rule 15(1) of the ACC Rules, 2007 to submit charge-sheet against the petitioner, which runs as follows:

ac¿¹L¡l£ LjÑLaÑ¡ La«ÑL c¡¢MmL«a p¡rÉ-pÈ¡lL J AeÉ¡eÉ L¡NSfœ fkÑ¡­m¡Qe¡f§hÑL c¤eÑ£¢a cje L¢jne f¢la¥ø q­u c¤eÑ£¢a cje L¢jne A¡Ce, 2004 Hl 32 d¡l¡ Hhw c¤eÑ£¢a cje L¢jne ¢h¢dj¡m¡, 2007 Hl ¢h¢d-15 Hl Ef-¢h¢d (1) H fÐcš rja¡h­m A¡p¡j£ Hp, Hj, j¡qh¤h Eõ¡q, p¡­hL ¢X, ¢S, Hj, f§h¡m£ hÉ¡wL ¢mx Hl ¢hl©­Ü cä¢h¢d-409 d¡l¡u Q¡SÑn£V c¡¢M­ml Ae¤j¡ce (Sanction) ‘¡fe L­lez j”¤l£ A¡cn ew ¢p/166/08(Ae¤x J ac¿¹-1)/Y¡L¡/21328, a¡¢lM 21/12/08 Cw (j§m L¢f pwk¤š²)z A¡¢j ¢e­cÑ¢na q­u j¢a¢Tm b¡e¡u Q¡SÑn£V ew-1031 a¡¢lM-24/12/08 ¢h‘ A¡c¡ma c¡¢Mm L¢lm¡j z

24.         Accordingly, a charge-sheet was submitted before the Court concerned against the petitioner under section 409 of the Penal Code. The aforesaid section 32 of the ACC Act, 2004 is quoted hereinafter:

32z L¢jn­el Ae¤­j¡c­el Af¢lq¡uÑa¡z-

®g±Sc¡¢l L¡kÑ¢h¢d­a h¡ A¡f¡aax hmhv AeÉ ®L¡e A¡C­e k¡q¡ ¢LR¤C b¡L¥L e¡ ­Le, L¢jnel Ae¤­j¡ce (sanction) hÉ¢a­L ®L¡e A¡c¡ma HC A¡C­el Ad£e ®L¡e Afl¡d ¢hQ¡l¡bÑ A¡j­m NËqZ (cognizance) L¢l­h e¡z

HC A¡C­el Ad£e ®L¡e Afl¡­dl ac¿¹ f¢lpj¡ç qCh¡l fl ac¿¹L¡l£ LjÑLaÑ¡ A¡c¡m­a fТa­hce c¡¢Mm L¢lh¡l f§­hÑ L¢jn­el f§hÑ¡e¤­j¡ce NËqZ L¢l­h Hhw L¢jne LaѪL fÐcš Ae¤­j¡ce fœl HL¢V L¢f fТa­hc­el p¢qa A¡c¡m­a c¡¢Mm L¢l­hz   

25.         The said rule 15(1) of the ACC Rules, 2007 is quoted hereunder:

15z j¡jm¡ c¡­ll Ae¤­j¡ce fÜ¢az-(1) ac¿¹ fТa­hce (p¡rÉ-pÈ¡lL) fl£r¡-¢el£r¡­¿¹ j¡jm¡u Q¡SÑn£V h¡ Q§s¡¿¹ fТa­hce, ®rœja k¡q¡ fЭk¡SÉ, c¡¢M­ml Ae¤­j¡c­el HM¢au¡l L¢jne h¡ L¢jn­el ¢eLV qC­a rja¡fСç L¢jne¡­ll Efl A¢fÑa b¡¢L­hz

26.         But on a plain reading of the above quoted provisions of law it is evident that there is no such provision giving the authority to the ACC to give sanction to submit charge-sheet being f¢la¥ø in a case where the Investigating Officer after thorough investigation submitted final report to it; rather there are 02 types of sanctions mentioned in section 32 of the ACC Act, 2004, that is to say, (i) No Court shall take cognizance of the offence unless there is sanction from the ACC and (ii) Sanction for filing charge-sheet before the Court as reconfirmed in rule 15(4) of the ACC Rules, 2007, which runs as follows:

15(4) A¡Ce J HC ¢h¢dj¡m¡l ¢hd¡e¡hm£ p¡f­r c¤eÑ£¢a pwœ²¡¿¹ Afl¡d ac­¿¹l fl ac¿¹ L¡l£ LjÑLaÑ¡ LaÑѪL A¢ik¤­š²l ¢hl¦­Ü ¢hQ¡l p¤f¡¢ln L¢lu¡ Efk¤š² A¡c¡m­a A¢i­k¡Ne¡j¡ c¡­ll ®r­œC ®Lhm L¢jn­el f§hÑ¡e¤­j¡ce NËqZ A¡hÉnL qC­hz

27.         On perusal of the charge-sheet itself it appears that the Investigating Officer after thorough investigation of the case found that out of 37 Bank accounts 17 accounts were fully adjusted, 16 accounts were re-scheduled by the Board of Directors of the Bank concerned and in respect of the rest 4 accounts money suits have been filed against the borrowers for realization of money. In the charge-sheet the Investigating Officer also mentioned that the accused did not commit any offence punishable under section 409 of the Penal Code as he did not commit any crime relating to criminal breach of trust. The Investigating Officer further mentioned that the accused committed irregularities in sanctioning loan through said 37 Bank accounts for which a departmental proceeding has already been initiated against him and he has been dismissed from his service.

28.         In view of the above backdrop, it appears to us that there is no prima-facie case against the accused-petitioner but the learned Special Judge, Court No.3, Dhaka without considering all the above aspects of the case erroneously framed charge against him under section 409 of the Penal Code by rejecting the application filed under section 241A of the Code of Criminal Procedure, which is an abuse of the process of the Court and as such, should be quashed to secure the ends of justice.

29.         In view of the above, we find substance in the submissions made by the learned Advocate for the petitioner and merit in the Rule.

30.         Accordingly, the Rule is made absolute.

31.         The impugned proceedings against the accused-petitioner in Special Case No.05 of 2009 arising out of Motijheel Police Station Case No.33 dated 11.04.2004 corresponding to G.R. No.332 of 2004  under section 409 of the Penal Code now pending in the Court of Special Judge, Court No.3, Dhaka is hereby quashed.

32.         Communicate this judgment to the Court below at once.

Ed.