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Monday, December 18, 2017 06:39:42 PM
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Refusal of claimed balance is not criminal offence

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02nd-Dec-2017       
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(From previous issue) :
 Learned Advocate for the complainant opposite party No.2 referring to the decision of this Court, the case of Khandker Fazlul Haque vs Md Aftabuddin Ahmed @ Abtabuddin, reported in 11 MLR 357 = 57 DLR 166 and the case of Golam Sarwar Hiru vs Stater, reported in 13 MLR 103 ;::; 14 BLC (AD) 26 submits that the present petition for quashing the proceeding under Section 561A is not maintainable as it filed very initial stage of the case; as because, the accused petitioner before framing of charge of the case filed the instant application under Section 561 of the Code of Criminal Procedure which is appears to be a premature one and the accused petitioner has/had every opportunity to agaate his grievances before the trial Court under Section 241A of the Code of Criminal Procedure. But without availing that forum the accused petitioner jumped upon the High Court Division under the summary jurisdiction of 561A of the Code of Criminal Procedure and stayed the complainant's case for long time. For such prolongation the car in question is going to be damaged in the police custody. He further submits that the complainant on a good faith delivered the possession and the documents of the car to the accused petitioner by putting his signatures thereon but ultimately he taking the car with him as well as the documents given kept him in hiding and did not pay the rest amount of settled value of the car. Thus, he urges that the ingredients of 420/406 of the Penal Code are very much present in the proceeding; as such, it requires no interference of this Court under Section 561A of the Code. Hence, the present rule is liable to be discharged.
8. Considered the submissions as advanced by the learned advocate of the respective parties and gone through the petition of complaint as well as the decisions referred by both the party. It is the admitted fact that the complainant after purchase of the car in question from one Abu Reja Eahia applied for its registration in favour of him and the earlier owner purchased the car by taking financial assistance from the Islami Bank Bangladesh Limited (IBBL). After payment of all the installments the IBBL authority issued a clearance latter on 28-10-2009. The complainant after his purchase of the car in question from said Abu Reja Eahia submitted the necessary Ipers to BRTA for registering the same in his own name and got a slip thereof to deliver the registration certificate as on 28-2-2014. However, it reveals from the assertion of the complainant that before delivery of registration documents infavour of complainant he proposed to sale the car in question to the present accused petitioner on 2-9-2013 and he himself delivered the necessary documents by putting his signatures thereon to the accused petitioner to scrutinize the same in BRTA office; at the same time he handed over the possession of the car to the accused petitioner by receiving a part payment of Taka 3,00,000. Those activities of the complainant appears to us that he has given the scope to the accused petitioner to scrutinize the documents in the office of BRTA and he had given the physical possession of the car infavour of the accused petitioner. Ultimately since the accused petitioner did not pay the rest amount as alleged the complainant took an initiative for issuance of search warrant. Then on his instance, in pursuance to the search warrant the car in question was recovered and taken into the custody of the Kotwali Police station, Camilla. From the above assertion of the complainant we do not find any ingredients of Sections 406/420 of the Penal Code in the whole petition of complaint to commit an offence of dishonest inducement to have the car in question by the accused petitioner and also having therein any breach of trust. The claim as was though made for nonpayment of the rest amount but ultimately at the complainant's instance the car in question has been taken into the custody of the police and now kept therein. In the meantime a Title Suit being No. 337 of 2014 was filed for settling the title of the car which is now pending between the parties before the learned Joint District Judge, 2nd Court, Narayangonj.
9. It also reveals from the record that the accused petitioner though paid Taka 3,00,000 for having the car in favour of him but while after scrutiny it was found that no registration was made in favour of the complainant by the BRTA Authority and as such, due to such complicacy as arises in the title of the car in question the petitioner could not able to get the ownership of the car; hence, no further payment was made as it appears apparently from the petition of complaint itself. It further reveals from the order-sheet of the Court below dated 12-10-2014 that a civil suit being No. 337 of 2014 is pending between the parties before the Joint District Judge, 2nd Court, Narayangonj which relates to settle the title of ownership of the car in question. It is the admitted fact that the transfer documents of the car in question has been signed by the complainant at his own initiative who handed over the same as well as the possession of the car in question to the accused petitioner by taking an amount of Taka 3,00,000 as appears from the assertion made in the petition of complaint. In such admitted facts as appears from the proceeding we find no ingredients of Sections 420/406 are present herein having there in neither any initial inducement for having the car in question nor any deception in violation of any entrustment.
10. The learned Advocate for the complainant however though raised his argument to the extent that the accused petitioner at the very initial stage without awaiting for charge hearing jumped before the High Court Division under the jurisdiction of Section 561A of the Code of Criminal Procedure for quashing the proceeding even though he has an every opportunity to agitate his grievances before the trial Court below under Section 241A of the Code of Criminal Procedure. It is by now the settled proposition of our Apex Court as reported in 36 DLR (AD) 14 as well as in 62 DLR (AD) 283 that interference even at the initial stage may be justified where the facts are so pre-posterous, even on the admitted facts no case can stands against the accused and that a further prolongation of the prosecution would amount to harassment to an innocent party and to be an abuse of the process of the Court.
11. As such, the referring decisions of the complainant opposite party i.e. the case of 13 MLR (AD) 103 = 14 BLC (AD) 26 and 11 MLR 357 = 57 DLR 166 has got no application in this particular case. But we find reliance in to the proposition enunciated by our apex Court reported in 62 DLR (AD) 283 that a litigant can move against the impugned proceeding of a case in which the facts are found by the assertion of the complainant is a pre-posterous one and no ingredients found as per the section quoted in the petition of complaint. We further finds reliance to the decision of our Appellate Division, the case of Islam Ali Mia alias Md IsIam vs Amal Chadra MondaI, reported in 45 DLR (AD) 27 where in our apex Court held-
Ultimately, the accused refused to pay the balance claimed by the complainant. This refusal to pay the balance does not constitute any criminal offence. The question of the offence of cheating does not arise as there is nothing to show that the accused had dishonestly induced the complainant to sll the fish to him on credit. As to the allegation of breach of trust, there is nothing to show that any entrustment of the fish was made to the accused, for sale of fish on credit is not "entrustment" of the fish which is to be disposed of according to the direction of the person making the entrustment.
12. In the said decision our Apex Court finally held-
"On considering the facts of this we have no hesitation to conclude that the  allegations made in the complainant petition do not reveal the commission any criminal offence."
13. It further held by our apex Court in case of Rafique (Md) Vs Syed Morshed Hossain, reported in 50 DLR (AD) 163 that refusal to the claimed balance does not constitute at criminal offence under Sections 420/406 of the Penal Code; rather, it may be a civil liability, so claimed.
14. In the present case it further reveals that 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. In such view of the facts, we are unable to accept the submissions as advanced by the complainant opposite party; rather to hold the view that the allegation and claim made in the petition of complainant is mere a civil in nature but not criminal.
15. Thus, if we allow to continue the said criminal proceeding further, it will be clear abuse of process of the Court. Hence, we find merit in the rule.
16. In the result, the rule is made absolute.
The impugned proceeding of CR Case No.1004 of 2013 (Kotwali), under Sections 420/406 of the Penal Code, now pending in the Court of Additional Chief Judicial Magistrate, Comilla is hereby quashed.
17. However, the parties concerned has an every chance to agitate their grievances in the civil suit pending between them before the competent civil Court over the selfsame matter in issue and this judgment will not create any bar to make the decision in the said suit by the civil Court concern.
Communicate the judgment and order to the Court concerned at once.
(Concluded)

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