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Refusal of claimed balance is not criminal offence

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25th-Nov-2017       
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High Court Division
(Criminal Miscellaneous Jurisdiction)
Md Habibul Gani J
Md Akram Hossain Chowdhury J
Shawkat Alam (Md) .....
Accused-Petitioner
vs
State and another ........ Opposite-Parties
Judgment
June 5th, 2017
Code of Criminal Procedure (V of 1898)
Section 561A
Penal Code (XLV of 1860)
Sections 420 and 406
Refusal to the claimed balance does not constitute any criminal offence under Sections 420/406 of the Penal Code; rather, it may be a civil liability, if so claimed. On the self same dispute there is a civil suit pending between the parties before a competent civil Court to settle the title of ownership of the car in question and it further admitted that a part payment was made in this particular case to deliver the car in question by putting the signatures to the transfer documents by his own initiative of the complainant, (13 & 14)
Islam Ali Mia alias Md Islam vs Amal Chandra
MandaI, 45 DLR (AD) 27; Abdur Rouf (Md) alias Nayan vs State. 53 DLR 283; Khandker Fazlul Haque vs Md Aftabuddin Ahmed @ Abtabuddin, 11 MLR 357 = 57 DLR 166 ; Golam Sarwar Hiru vs State, 13 MLR 103 = 14 BLC (AD) 26 Rafique (Md) vs Syed Morshed Hossain. 50 DLR (AD) 163;
None appears -For the accused-Petitioner.
Md Ozi Ullah with M Shaiful Alam, Advocates-For the Accused-Petitioner.
Abul Hossain, Advocate-For the Opposite Party No.2.
Judgment
Md Akram Hossain Chowdhury J : At the instance of the accused petitioner namely Md Shawkat Alam, on an application under Section 561A of the Code of Criminal Procedure, this rule was issued calling upon the opposite parties to show cause as to why the proceeding of CR Case No.1004 of 2013 (Kotwali) under Sections 406/420 of the Penal Code, now pending in the Court of Additional Chief Judicial Magistrate, Comilla should not be quashed and/or pass such other or further order or orders as to this Court may seems fit and proper.
2. Pending hearing of the rule, the impugned proceeding of CR Case No. 1004 of 2013 (Kotwall) was stayed by an ad-interim order of this Court.
3. Short facts leading to this Rule are that the opposite party No.2, Md Abdul Kaium Bhuiyan being complainant on 28-10-2013 filed a petition of complaint before the learned Additional Chief Judicial Magistrate, Cognizance Court No.1, Comilla implicating therein the present petitioner and another one as accused alleging inter-alia that the complainant is the owner of a private car bearing registration No. Dhaka Metro-Ga-14-8455 which was purchased by him on 18-10-2009 from one Abu Reja Eahia at the price of Taka 6,50,000. After the purchase of above private car the complainant submitted necessary documents in the office of BRTA on 19-8-2013 for its registration infavour of him and got a slip thereof for delivery of the registration document as to be delivered on 28-10-2014. It further asserted in the petition of complainant that the above car was purchased by the said Abu Reja Eahia with a bank loan financed by the Islami Bank Bangladesh Limited and the said previous owner by paying the installments of the loan took a clearance from the bank and in support of which the bank authority issued a letter addressing to BRTA for issuing registration certificate infavour of him. In the meantime the complainant being very much acquainted with the accused petitioner No.1 made a proposal to him to sale the said car and in response the accused petitioner expressed his desire to purchase the same at the price of Taka 7,10,000. Accordingly, the complainant upon received a part payment of Taka 3,00,000 handed over all the documents of the car by putting his signatures thereon on 2-9-2013; on condition that the accused petitioner after scrutinizing the documents of the car from BRTA will pay the rest amount as settled between them. Then the accused petitioner along with the witness No.1 on 2-9-2013 taking the alleged car with them went to the office of BRTA, Dhaka Metro Circle (South) and at one stage the accused petitioner leaving the witness No.1 at the office of BRTA went to the house of accused No.2 on the plea to bring the rest amount of money as settled to be paid. After some time since the accused petitioner did not rerum back, the complainant in the situation lodged a GD Entry with the Keranigonj Police Station on 2-9-2013. Ultimately the whereabouts of the accused petitioner being could not be traced out, the complainant then lodged a written allegation with the office of BRTA on 5-9-2013 and filed a Miscellaneous Case being No. 175 of 2013 before the Additional District Magistrate, Comilla for issuing a search warrant about to recovery of the car as alleged. Eventually pursuant to the court's search warrant the private car in question was recovered by the police from Narayangonj and then it Was brought to the Kotwali Police Station, Comilla. Narrating the said facts the complainant filed the present petition of complainant.
4. The learned Additional Chief Judicial Magistrate, Comilla upon received the said complaint directed the Officer-in-Charge, Kotwali Model Police Station, Comilla for submitting inquiry report thereto and after the report the learned Magistrate took cognizance against the accused persons including the present petitioner under Sections 406/420 of the Penal Code and issued the process against them.
5. The accused petitioner being informed about the said case voluntarily surrendered before the learned Chief Judicial Magistrate, Comilla on 24-2-2014 and obtained his bail. Then he moved to this Court by filing an application under Section 561A of the Code of Criminal Procedure for quashing the proceeding; upon which a Division Bench of this Court issued the present rule and also passed an ad-interim order staying the impugned proceeding.
6. Mr Md Ozi Ullah appearing with Mr M.    Shaiful Alam, learned Advocate for the accused petitioner, at the very outset, submits that in the whole petition of complainant there has been no discloser of any offence attracted under Sections 406/420 of the Penal Code and it has been admitted therein that a part payment was made to purchase the alleged car; however, ultimately upon an initiative of the complainant himself the alleged car was taken into the custody of Kotwali Police Station, Comilla. Learned Advocate further submits that the alleged car was though proposed to be purchased by the present petitioner but after searching in BRTA Office it was found that the complainant has got no registration of the car infavour of him and therefore, the final settlement was not at all held. Learned Advocate also submits that by now it is the settled proposition of our apex Court that where an admitted fact arrived for making part payment and the claiming amount is not admitted by both the parties, that liability mere a civil in nature but not in criminal. He again submits that on the self same dispute a civil suit has already been filed by the present petitioner against the complainant for having the title of the car in question which is now pending before the competent civil Court. Learned Advocate thus argues that in the whole petition of complaint the complainant himself made some complications about the title of the car in question which is admittedly not yet registered in his name and by his own assertion he disclosed that by his own initiative the car in question has been taken into the custody of the police for recovery of rest amount of money which shows that the allegation as made in the petition of complaint is a pre-posterous one and the liability mere may has to be a civil in nature. In such prevailing circumstances if the impugned criminal proceeding is allowed to be continued further it will be clear abuse of process of the Court. As such, he urges that the proceeding as impugned is liable to be quashed. In support of such submissions learned Advocate for the petitioner referred before us one of the apex Court decision, the case of Islam Ali Mia alias Md Islam vs Amal Chadra Mandal, reported in 45 DLR (AD) 27 and the case of Abdur Roul (Md) alias Nayan vs State, reported in 53 DLR 283.
7. On the other hand, Mr Md Abul Hossain, learned Advocate appearing for the complainant opposite party No.2 submits that the accused petitioner in a fraudulent manner agreed to purchase the complainant's car in question and induced the complainant by making part payment but ultimately he taking over the possession of the car as well as the documents signed by the complainant for transferring the title of the car's ownership did not pay the rest amount as has been settled.
 (To be continued)

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