Appellate Division
(Criminal)
Surendra Kumar
Sinha CJ
Syed Mahmud Hossain J
Mirza Hussain Haider J
Durnity Daman Commission……..Petitioner
Vs
Mohammad Hossain and another……….Respondents
Judgment
November 13th, 2016
Money Laundering Protirodh Ain (Vof 2012)
Section 2 (d)
Bail in a money laundering case–Since the accused persons made positive statements that Destiny Group own 35,00,000 saleable trees planted on more than thousand acres of land, which may be sold at Taka 28,00,000 crore approximately, this court finds that if the proposal of the accused persons is accepted the public money will be secured. . ….. (6)
Bail in a money laundering case
The proposal made by the counsel is reasonable one the Durnity Daman Commission has no objection if the Destiny Group can deposit at this stage about taka twenty eight hundred crore or if the accuseds can deposit the sale proceeds from their own accounts. If the accused persons can collect the proposed amount, this amount will be distributed to the affected persons after verification. . ….. (8)
Bail
If the accused persons instead of selling the trees can deposit about twenty five hundred crore taka they may be enlarged on bail. If the accused want to withdraw any money from their personal accounts in order to cover the deficient amount, we direct the commercial banks with which the accused persons are maintaining accounts to honour cheque(s) if any is presented for withdrawal of the money subject to the condition that the withdrawn money would be handed over to the Chairman of the Commission. . …. (8)
Bail with directions
Jailors, Dhaka and Kashimpur Central Jail to allow the accused persons to hold meeting of the companies if necessary and to execute any document or documents, resolutions, deeds etc. as may be necessary for the purpose of selling 35 lac matured trees owned by Destiny Tree Plantation Limited. We also direct the Jail Authority to allow all sort of co-operation as may be necessary for the purpose of completing the transaction for sale of the trees and receiving sale proceeds for onward transmission to the Chairman, Durnity Daman Commission for distribution to the affected persons on the basis of list. The Special Judge shall admit the accuseds on bail to its satisfaction subject to the fulfilment of the terms. . …. (9)
Md Khurshid Alam Khan, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner. (In both the cases).
Ajmalul Hossain, Senior Advocate. instructed by Md Helal Amin, Advocate-on-Record-For Respondent Nos. I & 2 (In both the cases).
None Represented-For Respondent No.3 (In both the cases).
Judgment
Surendra Kumar Sinha CJ : This petition is directed against a judgment of the High Court Division granting bail to accused Md Hossain and Md Rafiqul Amin, Chairman and Managing Director of Destiny 2000 Limited respectively in Special Case No. 139 of 2014 pending before the Metropolitan Senior Special Judge, Dhaka.
2. There is allegation against the respondents that out of Taka 1935,53,2000 they misappropriated Taka 733,31,29,643 by way of commission in the name of Destiny 2000 Limited; Taka 270,52,42,824 from the account of Destiny Multi Purpose Co-operative Limited; Taka 68,87,49, 997 showing dividend of Diamond Builders Ltd and also Taka 174,77,50,557 showing fictions transactions. It is alleged that the Chairman and the Managing Director by resorting to deceitful means collected huge amount of money from the innocent persons promising to give then profit, dividend etc. and without investing the money the purpose for which it was collected syphoned the money in their accounts and thereby they have misappropriated huge amount of money.
3. The High Court Division enlarged the respondents on bail mainly on the reasoning that none of the investors made any complaint against the alleged misappropriation; that there is nothing on record that any amount of money was transferred by the accused persons in their accounts; that co-accused Lt. General M Harun-or-Rashid who stands on the same footing has been enlarged on bail and that there is inconsistency in the amount actually misappropriated by the accused persons in two cases.
4. Mr Khurshid Alam Khan, learned counsel for the petitioner submits that the High Court Division erred III law in exercising its discretionary power in favour of the accused persons, inasmuch as, the accused persons have syphoned the money abroad after collecting the same from more than 17 lac people and therefore, their act attracts Money Laundering Protirodh Ain, 2012. He further submits that the period of sentence of the said offence is imprisonment for twelve years and as the accused persons without utilizing the money in the projects misappropriated the same, they have committed offences punishable under the Durnity Daman Commission Ain. He adds that on consideration of the gravity of the offence the accused persons are not legally entitled to be enlarged on hail particularly when the trial of the case is in progress and that since they are influential persons, if they are enlarged, on bail at this stage, the trial of the case will be hampered.
5. Mr Ajmalul Hossain, learned counsel appearing for the accused respondents, on the other hand, submits that the High Court Division has taken into consideration the pros and cons of the matter and rightly enlarged the respondents on bail. He further submits that the confinement of an accused person in hajot should not be taken as a measure of punishment. In this connection, learned counsel has submitted that as per law even if the accused persons are found guilty, the maximum sentence of offence is seven years out of which they have already suffered four years. Mr Hossain has added that on consideration of the period in hajot, and the status of the accused, there is no legal ground to interfere with the judgment of the High Court Division. He further submits that the allegations made in the FIR and the police report even if they are taken to be true, it is evident that the accused persons have not misappropriated any money and that the money. which they have collected is secured money as will be evident from the additional paper book annexure- 14 series.
6. Since the case is at the trial stage, we are not inclined to enter into the merit of the matter. Fact remains that there are allegations against the accused respondents of misappropriation of huge amount of money. The accused respondents do not deny about the collection of such huge amount of money from the shareholders. Only dispute which has been found as per submissions of the learned counsel are that according to the prosecution, the accused persons have misappropriated the money without investing in the projects hut according to the accused respondents the money has been utilized in different projects. Mr Ajmalul Hossain submits that besides plantations the companies own both moveable and immovable property the value of which is more than the amount allegedly collected by the accused respondents. Mr Ajmalul Hossain realising the involvement of huge amount of money in the companies of Destiny Group makes an alternative submission that the respondents are ready to repay the major portion of the amount collected from the shareholders by selling the matured trees if they are permitted by this court. Since the accused persons made positive statements that Destiny Group own 35,00,000 saleable trees planted on more than thousand acres of land, which may be sold at Taka 28,00,00,00,000 crore approximately, this court finds that if the proposal of the accused persons is accepted the public money will be secured. It is stated that Destiny Group own about 670.12 acres of land the value of which would be Taka 1649.72 crore.
7. According to Ajmalul Hossain, if his alternative submission is accepted, the accused respondents would be able to collect more than 70% amount out of the alleged defalcated amount and the money may be paid to the alleged affected persons. It is on record that both the moveable and immovable property have been attached by an order of the Metropolitan Senior Special Judge and the Police Commissioner and Superintendent of Police of the respective areas have been appointed as caretakers by order dated 24-2-2013.
Accordingly, the learned Counsel submits that this order requires to be modified and the accused respondents may be permitted to sell those trees from jail. He submits that Destiny Tree Plantation Limited has planted, trees in which Destiny 2000 Ltd. owns 51% shares and, that the accused respondent No.1 is the Chairman and the accused respondent No.2 is the Managing Director of the said Company. He further submits that Dr Md Shamsul Hug Bhuiyan, MP Chandpur-4 Constituency is the Chief Executive Officer of Destiny Tree Plantation Limited, who would arrange the fund in consultation with the Accused.
8. It is submitted by Mr Ajmalul Hossain that Dr Md Shamsul Hug Bhuiyan, the CEO may be allowed to initiate the purported sale of the matured trees and after finalizing the deal.
The accused respondents be permitted to hold meeting, if necessary and finally sign the necessary papers, resolutions, deeds for effecting the sale of the trees. The proposal made by the learned counsel is reasonable one and the learned counsel for the Durnity Daman Commission has no objection if the Destiny Group can deposit at this stage about taka twenty eight hundred crore or if the accused respondents can deposit the sale proceeds from their own accounts. If the accused persons can collect the proposed amount, this amount will be distributed to the affected persons after verification. Accordingly we modify the order of the learned Metropolitan Senior Special Judge,. Dhaka dated 24-2-2013 passed in Metropolitan Special Case No. 25 of 2013 attaching the trees of Destiny Plantation Limited and allow the accused respondents to sell 35 lac matured saleable trees planted by Destiny 2000 Limited within 6 (six) weeks from the date of receipt of the judgment.
If the accused persons instead of, selling the trees can deposit about twenty’ five hundred crore taka they may be enlarged on bail. If the accused want to withdraw any money from their personal accounts in order to cover the deficient amount, we direct the commercial banks with which the accused persons are maintaining accounts to honour cheque(s) if any is presented for withdrawal of the money subject to the condition that the withdrawn money would be handed over to the Chairman of the Commission.
9. We direct the Jailors, Dhaka Central Jail and Kashempur Central Jail to allow the accused-respondents to hold meeting of the companies if necessary and to execute any document or documents, resolutions, deeds etc. as may be necessary for the purpose of selling 35 lac matured trees owned by Destiny Tree Plantation Limited. We also direct the Jail Authorities to allow Dr Md Shamsul Huq Bhuiyan, MP Chandpur-4 Constituency to meet the accused in Jail as and when necessary for consultation and obtaining necessary Signatures and instructions from them for the purpose of selling the trees. We also direct the Jail Authority to allow all sort of co-operation as may be necessary for the purpose of completing the transaction for sale of the trees and receiving sale proceeds for onward transmission to the Chairman, Durnity Daman Commission for distribution to the affected persons on the basis of list to be submitted by Dr Md, Shamsul Huq Bhuiyan, MP. The judgment of the High Court Division is modified accordingly. The Special Judge shall admit the accused respondents on bail to its satisfaction subject to the fulfillment of the above terms.
This petition is disposed or with the above modification and directions.
