Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Sunday, January 21, 2018 04:50:55 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Refusal of claimed balance is not criminal offence

By
25th-Nov-2017       
Comments
Share your thought
Post a comment »
Read all () »

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)

Tariff
Add Rate

News Archive

Inside The New Nation

Editorial »

Repatriation will be useless if Myanmar not considers Rohingya as citizens


DHAKA and Naypyidaw both are now making final preparations to repatriate and receive the first batch of Rohingya Muslims despite protest from different quarters for not ensuring their security and fearless movement. According to media reports, Rakhine State's Chief Minister Nyi Pu insisted on completion of the finishing touches on ...

Sports »

Sharapova inspired by Serena to get back to top


AFP, Melbourne :Maria Sharapova says she is inspired by the likes of thirtysomethings Serena Williams and Roger Federer to get back to the top after her doping ban.The Russian, back in the top 50 after 15 months on the sidelines, had her progress at the Australian Open ruthlessly snuffed out ...

Sports »

Romania`s Ana Bogdan makes a forehand return to United States` Madison Keys during their third round match at the Australian Open tennis championships in Melbourne, Australia on Saturday.


Entertainment »

Aamir Khan says hope to cooperate with Chinese talents in film industry


China and India should definitely cooperate in making a film which blends the two cultures and strike a chord with audiences of both sides, Indian actor Aamir Khan told Xinhua in a recent interview.Wearing a pair of sports shoes and a grey T-shirt, with wide-rimmed glasses above his featured moustache ...

Entertainment »

Aparna in psychological thriller film


Entertainment Desk :National Award  winning actress  Aparna Ghosh has always been lauded for choosing experimental projects for film. Being popular in small screen, she is famous in big screen as well for her extraordinary acting and simplistic smile.The actor steeped into the media through acting in a TV drama titled ...

City »

Different organisations placed floral wreaths at the plaque of Shaheed Asad in front of the main gate of Dhaka Medical College on Saturday marking Shaheed Asad Day.


International »

Sharif`s daughter Maryam to contest in next poll


PTI, Islamabad  :Maryam Nawaz, the media-savvy daughter of ousted Pakistani prime minister Nawaz Sharif, has decided to contest in the next General Election, a prominent newspaper reported on Friday, citing a source in the ruling party. Maryam, 44, was being groomed as the second generation leader of the Pakistan Muslim ...

Editorial »

Trump is also a German un-American immigrant


A YEAR into the Trump presidency, he has set an unprecedented record of displaying the highest form of revulsion against immigrants. Having imposed an immigration and travel ban on a number of Middle Eastern countries, especially Muslims last year once more he has balked at an immigration deal that would ...

Entertainment »

After TV play, Oindrila returns to modelling


Entertainment Report :After a break returning to acting, daughter of late popular actor Bulbul Ahmed, Oindrila Ahmed has become engaged with works. She has already finished shooting of two plays and a telefilm. Yesterday she also returned to modeling. On Friday, Oindrila performed as a model in a new TV ...

Sports »

Russia`s Andrey Rublev makes a backhand return during his third round match against Bulgaria's Grigor Dimitrov at the Australian Open tennis championships in Melbourne, Australia on Friday.


.

City »

Former Adviser to the Caretaker Government Sultana Kamal inaugurating the triennial conference of Bangladesh Mahila Oikya Parishad by releasing balloons at the Jatiya Press Club on Friday.


.

International »

Threat from nukes, other weapons, gathers force: UN Chief


AP, United Nations :Russia's foreign minister warned Thursday that a failure of the Iran nuclear deal, especially as a result of action by the Trump administration, would send "an alarming message" to North Korea and impact all international agreements.Sergey Lavrov took aim at President Donald Trump at a U.N. Security ...

International »

IS poses threat to Iraq one month after `liberation`


AFP, Mosul :Barely a month after Baghdad declared victory over the Islamic State group, the jihadists could still recapture areas of Iraq, especially near the border with Syria, experts and officials say.Ali al-Bayati, a commander of the Hashed al-Shaabi paramilitary units which fought alongside Iraqi security forces in a gruelling ...

Editorial »

A city cannot be held hostage by terrorism for years


THE Tuesday's fierce clash between the followers of two rival ruling party leaders in Narayanganj has again exposed the nasty side of power politics. Both the leaders were so much arrogant that they even did not bother to lock in street fight defying the directives of the party high command. ...

Sports »

Sharapova cranks up title charge on day four


AFP, Melbourne :Maria Sharapova laid down her Australian Open title credentials on a scorching hot Melbourne day Thursday, with Caroline Garcia and fellow veteran Agnieszka Radwanksa joining her in the third round.With the temperatures heading towards an energy-sapping 39 Celsius (102 Fahrenheit) and ice-towels in use, the Russian drawcard worked ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news