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The conduct of the Commission raises serious questions

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18th-Aug-2018       
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High Court Division
(Criminal Miscellaneous Jurisdiction)
M Enayetur Rahim J
Shahidul Karim J
Judgment     I
November 8th, 2017
Salim (Md) .... Petitioner  
vs
State and another............... Opposite-Parties
Code of Criminal Procedure (V of 1898)
Sections 154 and 498
Neither the Branch nor the HOCC committee recommended for sanction of the loan to the borrower company; despite the Board of Directors sanctioned the loan and ultimately a huge amount of loan money that is public money was misappropriated by the borrower in connivance with the Board members and other officials of the Bank. But it surprising to note that none of the members including its Chairman and other members of the HOCC committee were made accused in the FIR though prima facie their involvement has been disclosed in the FIR…..(11)
Anti-Corruption Commission Rules, 2007 Rule 10
After filing of the case more than 2 (two) years have already been elapsed but the Commission has failed to complete its investigation, though a time limit has been prescribed in the Rules, 2007 for completion of investigation . . ..... (11)
Code of Criminal Procedure (v of 1898)
Sections 154 and 173
The conduct of Commission raises serious question as to its neutrality, fairness and sincerity in dealing with the Basic Bank loan scam.
Shahdeen Malik, Advocate -For the  Petitioner.
Md. Khurshid Alam Khan, Advocate-For the Opposite-party No.2 Anti-Corruption Commission.
.Judgment
M Enayetur Rahim J : On an application under Section 498 of the Code of Criminal Procedure this Rule was issued calling upon the opposite parties to show cause as to why the accused petitioner should not be enlarged on bail in Paltan Model Police Station (DMP) Case No.53 dated 23-9-2015 Corresponding to ACC GR No 621 of 2015 under Sections 409 and 109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, now pending before the Court of learned Chief Metropolitan Magistrate, Dhaka and or such other or further order or orders passed as to this Court may seem fit and proper.
2. At the instance of Anti-Corruption Commission Paltan Model Police Station Case No. 53 dated 23-9-2015 under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 has been started against 13 persons including the present petitioner.
3. In the FIR it is alleged that accused Nos.1-7 named in the FIR are the Chairman, Managing Director and Director of M/s Emerald Specialized Cold Storage limited, Jamalpur respectively; on behalf of the said company on 25-3-2013 all application was made to the Basic Bank, Shantinagar Branch for a term loan of Taka 23,00,00,000 (23 crore) and CC (Hypo) to the tune of Taka 5,00,00,000 (5 crore). The Branch Manager forwarded the said application to the present petitioner who was working as the General Manager, Industrial Credit Division (lCD) Head Office.
The present accused petitioner without declining the same forwarded the proposal to the Head office Credit Committee knowing fully well  that there was no CIB report and the company was a defaulter one. Thereafter, at the instance of co-accused Fazlus Sobhan the matter was placed before the management board of the Bank on 5-4-2012 and accordingly, the above loan was sanctioned by the Board. Thereafter, the company withdrew the sanctioned loan money Taka 47,75,000 and eventually, misappropriated the same. The accused petitioner aided accused Nos. 1-7 in misappropriating the said money.
4. The accused petitioner was arrested on 20-1-2016 and since then he is jail hajat and no report under Section 173 of the Code of Criminal Procedure has been submitted till date.
5. The accused petitioner being un-successful in obtaining bail from the Court below moved this court and obtained the present Rule.
6. Heard Mr Shaludeen Malik, the learned Advocate for the accused petitioner, perused the First Information Report and the supplementary affidavit filed by the accused petitioner and other materials placed before us.
7. Mr. Md Khurshid Alam Khan, the learned Advocate for the Anti-Corruption Commission opposes the Rule and submits that with the connivance of the accused petitioner the other accused misappropriated a huge amount of public money and thus, the prayer for bail deserves no consideration.
8. In course of hearing of the Rule a supplementary affidavit has been filed by the accused petition where in it is contended that he was a member of Head Office Credit Committee (hereinafter referred to as HOCC), which is usually comprised of 12 of 15 members.
The HOCC committee did not recommend for sanction of the loan in question rather it made various negative remarks about the loan proposal, which amongst others runs as follows:
"Branch has not provided legal opinion, genuineness certificate and certificate on valuation of exiting and proposed laterals".
9. Mentioning various negative remarks the HOCC as per Banking procedure forwarded the matter to the Board and ultimately the Board sanctioned the loan ignoring the negative findings/remarks of the HOCC.
10. Having considered the submissions of the learned Advocate for the accused petitioner that the FIR was lodged on 23-9-2015 but till date the Anti-Corruption Commission has failed to submit its report under Section 173 of the Code of Criminal Procedure though the statutory period for submitting the report has been elapsed long before and the accused petitioner was shown arrested in the case on 21-1-2016 and since then he has been languishing in jail hajat without trial and that the accused petitioner was only a Member of the HOCC out or 12-15 members, and the HOCC did not recommend for sanctioning any loan rather it forwarded the file with negative findings which per se suggests that the accused petitioner is not connected with the subsequent approval of the loan by the Board of Directors and that as per Clause 5.0 and 9.0 of the credit policy of the BASIC Bank Ltd, Head Office Credit Committee is bound to place any loan proposal before the Board of Director and thus, the HOCC placed the loan proposal to the Managing Director with negative findings and, that in the FIR it is clearly narrated that the Board sanctioned the loan though the HOCC did not recommend for the same and that most of the FIR named accused are at large within the knowledge of the investigating agency, we are inclined to enlarge the accused petitioner on bail.
11. Before parting, it is necessary to not that from the FIR it reveals that neither the branch nor the HOCC committee recommended for sanction of the loan to the borrower company; despite the Board of Directors sanctioned the loan and ultimately a huge amount of loan money that is public money was misappropriated by the borrower in connivance with the Board members and other officials of the Bank. But it surprising to note none of the Board members including its Chairman and other members of the HOCC committee were made accused in the FIR though prima facie their involvement has been disclosed in the FIR. Moreover, it appears that after filing of the case more than 2 (two) years have already been elapsed but the commission has failed to complete its investigation though a time limit has been prescribed in the Anti Corruption Rules, 2007 for completion of investigation.
12. It would not be out of place to recall that earlier on two occasions while dealing with Basic Bank loan scam cases this Division has made some observations.
13. In Criminal Revision No. 2582 of 2016 (arising out of Paltan Police Station Case No. 51 . dated 23-9-2015) ; The Chairman  Durnity Daman Commission vs Md Shajahan Ali this Division has observed:
"In view of the above assertions made in the FIR we are constrained to hold that prima facie the members of the board of directors, its Chairman and Managing director of the Bank actively aided and facilitated the other accused in misappropriating the huge amount of public money and, as such, in the interest of fair investigation and justice they should be brought to book.
Thus, we direct the Anti Corruption Commission to bring the members of the board of directors, it's Chairman and Managing Director, who approved the alleged loan despite the objection raised by the credit committee in sanctioning loan in favour of the brought to book. And also directed to complete the investigation within a period of 60 (sixty) working days from the date of receipt of this order.
14. And In Criminal Miscellaneous Case No. 10818 of 2017 (Gulshan Police Station Case No. 59 dated 23-9-2015); Sipar Ahmed vs State and another.
"However, it is deplorable to note that no tangible action has yet been launched against the then Chairman of BASIC Bank namely, Sheikh Abdul Hye Bachchus and his other companions who were responsible for looking after the affairs of the concerned bank in spite of making such direct allegation against by a Petty officer   like the accused petitioner. As such, for the sake of fair play as well as for securing ends of justice we direct the Anti-Corruption Commission take appropriate measures to bring the real culprits to book who made a profitable bank into a losing concern."
15. Despite above observations of this court, we still do find any tangible progress in the investigation of the cases regarding the loan scam of Basic Bank.
16. Thus, the conduct of Anti-Corruption Commission raises serious question as to its neutrality, fairness and sincerity in dealing with the Basic Bank loan scam.
17. With the above notes, the Rule is made absolute.
18.    Let accused Md Salim be-enlarged on bail in the above mentioned case on furnishing bail bond to the satisfaction of the Chief Metropolitan Magistrate, Dhaka.
19.    However, the Court below is at liberty to cancel the bail of the accused petitioner at any stage of the case, if. the misuses the privilege of bail.
20.    The accused petitioner is also directed to surrender his passport to the Chief Metropolitan Magistrate, Dhaka if it is not seized earlier by the investigating agency and he will not be allowed to live the country without the permission of the Court Concerned.
Communicate a copy of this judgment and order at once to the Court concerned as well as the Chairman Anti-Corruption Commission.

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