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Section 420 of the Penal Code

Only Cheated Person Can Set the Law in Motion

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10th-Aug-2019       
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High Court Division :
(Criminal Miscellaneous Jurisdiction)
Md Abdul Hafiz J     
Mohi Uddin Shamim J  
Iftekhar Hossain
Chowdhury……Accused
-Petitioner
 vs
State……..Opposite-Party.
Judgment
February 27th, 2019
Code of Criminal Procedure (V of 1898)
Section 561A
Since the proceeding has been initiated on the allegation of misappropriation of money by the accused-petitioner of the Company under Section 420 of the Penal Code by a police officer and not by the Company as a cheated person, the informant had no legal authority to lodge the present FIR against the accused-petitioner……………….. (15)
Code of Criminal Procedure (V of 1898) Section 561A
Sanction is not relevant in the instant case, as the law has debarred a person to lodge an FIR under Section 420 of the Penal Code who is not actually cheated. The proceeding basing on an unlawful FIR is a sheer abuse of the process of law and, as such, it is liable to be quashed………………… (16)
Code of Criminal Procedure (V of 1898)
Section 561A
It is the general principal of law that anyone can set the law in motion, but there are some exceptions of offense(s) which requires the person who has actually been cheated sustaining loss, damage or injury for the purpose of initiation of any proceeding against a person who is liable for breach of trust or cheating causing such loss, damage or injury …………………(12)
Sahibzada Muhammad Hayat Khan vs Ghulam Muhammad, 6 DLR (WP) 177 and Surendranath Saha vs State, 12 DLR 178 ref.
HS Deb Brahman. Advocate-For the Petitioner.
Md Fazlur Rahman Khan. DAG with Swapan Kumar Das. AAG with M. Masud Alam Chowdhury, AAG and Md Asaduzzaman, AAG-For the State.
Judgment
Mohi Uddin Shamim J: In this matter, at the instance of accused-petitioner Iftekhar Hossain Chowdhury, a Rule was issued in the following terms:-
"Let a Rule be issued calling upon the opposite-parties to show cause as to why the proceedings of the TR Case No. 395 of 2010 arising out of GR Case No. 911 of 2002 corresponding to Panchlaish Police Station Case No. 13 dated 16-11-2002 under Sections 408/420 of the Penal Code, now pending in the Court of learned Metropolitan Magistrate, 2nd Court, Chittagong should not be quashed and/or why such other or further order or orders as to this court may deem fit and proper, should not be passed."
2. Facts necessary for proper disposal of the Rule, in brief, are that SI Md Ayub, Panchlaish Police Station, CMP Chittagong, as per decision and sanction by the Government, lodged a first information report, on 16-11-2002, against the accused-petitioner Iftekhar Hossain Chowdhury, with Panchlaish Police Station, Chittagong under Sections 408/420 of the Penal Code alleging, inter-alia, that the accused-petitioner used to serve as Accounts Manager in a Company, namely, Ceramica Cleopetra, Abudhabi, situated in the United Arab Emirate (UAE) (shortly, the Company) for four years before February, 2002. During his aforesaid service tenure, he misappropriated 4,42,569 Dirham equivalent to BDT 70,00,000 from the Company. Subsequently, he admitted about the misappropriation of money and promised to return the misappropriated money by selling his land property situated in Bangladesh. In this connection, he engaged one Md Idris, father-in-law of his younger brother, by executing a Power of Attorney for selling his property and furnished a copy to the aforesaid Power of Attorney to the said Company. On the other hand, while Md Idris was taking preparation for selling his property, the accused-petitioner, with an ill motive of not to return the misappropriated money to the Company, fled away from the UAE, came to Bangladesh and obstructed his Attorney from selling out his property. Therefore, the aforesaid activities of the accused-petitioner undermined the prestige and dignity of Bangladesh and its citizens and thereby, he committed a punishable offence. The informant having been supplied all the relevant documents by the appropriate authority of the Government of Bangladesh relating to the offence committed by the accused-petitioner held a preliminary inquiry into the matter and finding prima-facie case against the accused-petitioner, he made GD No. 1353 dated 25-9-2002 with the Panchlaish Police Station and in connection with the aforesaid GD, he arrested the accused-petitioner under Section 54 of the Criminal Procedure Code (hereinafter referred to as the Code) and produced him before the Court of the Chief Metropolitan Magistrate, Chittagong. Whereupon, Panchlaish Police Station Case No. 13 dated 16-11-2002 corresponding to GR Case No. 911 of 2002 under Sections 408/420 of the Penal Code has been initiated in the Court of the Chief Metropolitan Magistrate, Chittagong and thereupon, the police took up investigation.
3. Initially, SI Md Ayub was entrusted with the investigation of the case and subsequently, Police Inspector Md Abdul Gafur, PPM, CID, Chittagong Zone, was entrusted with the investigation of the case. The Investigating Officer, after investigation, submitted three charge-sheets,(1) bearing No. 172 dated 30-9-2010 under Sections 408/420 of the Penal Code against the accused-petitioner Iftekhar Hossain Chowdhury, (2) bearing No. 172(Ka) dated 30-9-2010 under Section 16(2) of the Special Powers Act, 1974 against the accused-petitioner Iftekhar Hossain Chowdhury and (3) bearing No. 172(Kha) dated 30-9-2010 under Section 3(3) of the Passport Act against the accused-petitioner Iftekhar Hossain Chowdhury and his wife Mosammat Fatema Zebunnessa Chowdhury.
4. After submission of charge-sheet bearing No. 172 dated 30-9-2010 under Sections 408/420 of the Penal Code, the case was transferred to the Court of the learned Metropolitan Magistrate, 2nd Court, Chittagong and the case was registered as TR Case No. 395 of 2010 and 10-2-2011 was fixed for framing of charge against the accused-petitioner. On that date, the accused-petitioner filed an application under Section 241A of the Code before the Court of the learned Metropolitan Magistrate for discharging him from the case.
5. The learned Metropolitan Magistrate, after hearing, rejected the application filed by the accused-petitioner vide order dated 10-2-2011 and framed charge against him under Sections 408/420 of the Penal Code, wherein, the accused-petitioner pleaded not guilty and claimed to be tried.
6. Being aggrieved by the order dated 10-2-2011 passed by the learned Metropolitan Magistrate, the accused-petitioner filed Criminal Revision No. 87 of 2011 before the Court of the learned Metropolitan Sessions Judge, Chittagong. Thereafter, the learned Metropolitan Sessions Judge transferred the case to the Court of the Additional Metropolitan Sessions Judge, 5th Court, Chittagong. The learned Additional Metropolitan Sessions Judge vide order No. 16 dated 22-7-2012 was pleased to disallow the Criminal Revision and affirmed the order dated 10-2-2011 passed by the learned Metropolitan Magistrate, Chittagong.
7. Thereafter, the accused-petitioner being aggrieved by and dissatisfied with the impugned proceeding filed the instant miscellaneous application under Section 561 A of the Code and obtained the Rule.
8. Mr HS Deb Brahman, the learned Advocate for the accused-petitioner, takes us through the application, the first information report (FIR), the charge-sheet and other connected materials on record and submits that the allegation as alleged by the informant in the FIR does not fall within the ambit of Section 420 of the Penal Code inasmuch as the informant is not an aggrieved/cheated person. He next submits that the very sanction granted by the Government empowering the informant to lodge the instant FIR is irrelevant in the present case. Therefore, the FIR is out and out false through. He further submits that the impugned proceeding is beyond the territorial jurisdiction of the Metropolitan Magistrate, Chittagong inasmuch as the alleged occurrence took place in the United Arab Emirate, which is not under the territorial jurisdiction of Bangladesh. He finally submits that considering the facts and circumstances of the case, it transpires that the impugned proceeding is a sheer abuse of the process of law. Therefore, the impugned proceeding is liable to be quashed.
9. Mr Md Fazlur Rahman Khan, the learned Deputy Attorney-General appearing with Mr M Masud Alam Chowdhury, Mr Swapan Kumar Das and Mr Md Asaduzzaman, the learned Assistant Attorney-Generals on behalf of the State, contends that the accused-petitioner was employed as a servant in a Company, namely Ceramica Cleopetra, Abudhabi, United Arab Emirate. He next contends that during his service, the accused-petitioner committed breach' of trust by misappropriating huge amount of money of the Company. The very action of the accused-petitioner has degraded the relationship with a friendly country of Bangladesh. In order to legal retaliation, the Government of Bangladesh granted sanction to lodge the FIR against the accused-petitioner empowering the informant, upon which, the instant proceeding has been initiated lawfully and there is no scope to quash the proceeding exercising the inherent jurisdiction of this Court. Therefore, the Rule is liable to be discharged.
10. We have heard the learned Advocate for the petitioner and the learned Deputy Attorney-General for the State. We have also perused the application and the connected materials on record.
11. It is the definite case of the accused-petitioner that the alleged occurrence took place beyond the territorial jurisdiction of Bangladesh on an allegation of misappropriation of money of a Company. But the Company as a juristic person does not lodge any complaint against him under Section 420 of the Penal Code but the FIR has been lodged here in Bangladesh by a police officer by obtaining sanction from the Government. It is the main ground of the accused- petitioner for quashment of the instant proceeding under section 420 of the Penal Code that the very manner of lodging the FIR by a police officer of Bangladesh is not lawful. Therefore, for considering the question of quashment of the instant proceeding under Section 420 of the Penal Code, it is not necessary to enter into the merit of the case. Rather, we are to consider the legal authority of lodging of the FIR by the informant under Section 420 of the Penal Code.
12. Though it is the general principal of law that anyone can set the law in motion, but there are some exceptions of offense(s) which requires the person who has actually been cheated sustaining loss, damage or injury for the purpose of initiation of any proceeding against a person who is liable for breach of trust or cheating causing such loss, damage or injury.
13. In this connection, reference may be made in the case of Sahibzada Muhammad Hayat Khan vs Ghulam Muhammad, reported in 6 DLR (WP) 177 wherein his lordship of WPC Lahore held as under :-
"……………The perusal of the record shows that one Ghulam Muhammad brought a complaint against Sahibzada Muhammad Hayat Khan under Section 420 PPC. It was stated in the complaint that Sahibzada to deliver Rs. 400 to him and thereby had committed an offence under Section 420 PPC. The complaint further showed that the amount in question was actually paid by one Allah Ditta. The learned Additional Magistrate after recording the statement of the complainant, Ghulam Muhammad, issued process on the accused petitioner. Against this order, the petitioner applied to the ADM, who has forwarded the record to the High Court, with the recommendation that the Magistrate took a hasty action in issuing process against the accused. I may say that the grounds which prompted the learned ADM for making this reference are not cogent in the eye of law. The learned ADM should, know that once a Magistrate is satisfied that there are prima facie grounds for proceedings in the case then he can issue process on the accused. It is nowhere obligatory to make preliminary inquiry before issuing process for the attendance of the person complained against. However, I accept the reference on the short ground that the person defrauded and actually cheated has not filed a complaint. The complaint clearly connotes that the person actually cheated was Rana Khuda Bakhsh and therefore, the present complainant had no locus standi to bring a complaint against the petitioner.
In this connection reference may be made to 22 CrLJ 672, where it was observed that ''It is absurd, however, to expect a Court to take any notice of cheating except when it is put in by the person actually defrauded."
I accordingly accept the reference and set-aside the order of the Magistrate dated the 9th September 1952 and dismiss the complaint. It will however be open to the person who has been actually cheated to bring a complaint, if so advised."
14. Following the above decision, a similar view had also been taken by their lordships of the Dhaka High Court in the case of Surendranath Saha vs State reported in 12 DLR 178 holding that in a case under Section 420 of the Penal Code, where a complaint of cheating before the Court has been made not by a person defrauded but by another on his behalf, the case must fail. In that case, the complaint of cheating to several debtors of a Co-operative Central Bank by the accused was made to the Court not by the persons cheated but by the Executive Officer of the Bank. Therefore, the case against the accused failed.
 15. Since the instant proceeding has been initiated on the allegation of misappropriation of money by the accused-petitioner of the Company under Section 420 of the Penal Code by a police officer and not by the Company as a cheated person, the aforesaid decisions are equally applicable in the instant case. Therefore, the informant had no legal authority to lodge the present FIR against the accused-petitioner.
16. As regards the sanction granted by the Government empowering the informant we are of the view that the sanction is not relevant in the instant case, as the law has debarred a person to lodge an FIR under Section 420 of the Penal Code who is not actually cheated. Therefore, the instant proceeding basing on an unlawful FIR is a sheer abuse of the process of law and, as such, it is liable to be quashed.
17. In view of the discussions made in the forgoing paragraphs, vis-a-vis the law, we find merit and force in the submissions of the learned Advocate for the petitioners and we find no merit in the submission of the learned Deputy Attorney-General.
18. In such view of the matter, we find merit in the Rule. Therefore, the Rule succeeds.
19.    Accordingly, the Rule is made absolute.
20.    The impugned proceedings of the TR Case No. 395 of 2010 arising out of GR Case No. 911 of 2002 corresponding to Panchlaish Police Station Case No. 13 dated 16-11-2002 under Sections 408/420 of the Penal Code, now pending in the Court of learned Metropolitan Magistrate, 2nd Court, Chittagong is, hereby, quashed.
21. The Company may proceed against the accused-petitioner within the frame of law, if so advised.

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