(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
MA Sukkur……………..Appellant
vs
Md Zahirul Haque and another…………Respondents
Judgment
May 6th, 2014
Penal Code (XLV of 1860)
Section 420
Normal financial transaction between debtor and creditor does not come within the scope of any offence. .. …. (15)
Penal Code (XLV of 1860)
Sections 415 and 420
The allegations of bouncing of cheque simplicitor does not ipso factor constitute any offence as defined under Section 415 punishable under Section 420 of the Penal Code and, as such, framing of charge under Section 420 suffered from serious illegality.
…….. (15)
Code of Criminal Procedure (V of 1898)
Section 561A
The dispute arose out of money given to the appellant and, as such, it appears that the proceeding is an abuse of the process of the Court. …………….(13)
Syed Mahbubur Rahman, Advocate-on- Record-For the Appellant.
Firoz Shah Advocate-on-Record-For Respondent No.1.
None Represented-For the Respondent No.2.
Judgment
Syed Mahmud Hossain J : This appeal, by leave, by the appellant, arises out of the judgment and order dated 17-5-2003 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 152 of 2001 discharging the Rule.
2. The facts, leading to the filing of this criminal appeal, in brief, are that respondent No.1, Md Zahirul Haque as complainant filed Criminal Case No. 1876 of 1997 in the Court of the learned Chief Metropolitan Magistrate, Chittagong under Sections 406 and 420 of the Penal Code read with Section 138 of the Negotiable Instrument Act against the appellant. His case, in short, is that the complainant, Md Zahirul Haque, was Assistant General Manager of Bangladesh Shilpa Bank, Chittagong and that the accused-petitioner in order to establish Textile Mill took a loan of (Taka 33,44,000 + 11,000) = Taka 33,55,000 and he failed to clear the dues for which the bank started Miscellaneous Case No. 15 of 1992 on 26th January 1992 for realizing the outstanding dues from the accused appellant. Subsequently, the accused appellant was allowed facilities for reimbursement of the money in 12 quarterly installments and pursuant to such facilities given to the appellant, he issued cheques for the amounts of Taka 50,000 and Taka 3,97,875 on 25th August 1997 and the cheque of Taka 50,000 was honoured while the cheque of Taka 3,97,875 was dishonoured more than once and in the meantime, the due time for payment of the installment also expired and therefore, respondent No.1 felt constrained to file the aforesaid criminal case against the accused petitioner.
3. The case being sent for trial, the learned Metropolitan Magistrate, Chittagong framed charge against the accused appellant under Section 420 of the Penal Code.
4. The accused appellant being aggrieved unsuccessfully moved the learned Sessions
Judge against the aforesaid order of framing charge. Thereafter, he filed Criminal Miscellaneous Case No. 152 of 2001 before the High Court Division under Section 561A. of the Code of Criminal Procedure. The High Court Division after hearing the parties by the judgment and order dated 17-5-2003 discharged the Rule.
5. Feeling aggrieved by and Dissatisfied with judgment and order passed by the appellant Court Division, the appellant moved this: Division by filing Criminal Petition for Leave to Appeal No. 127 of 2003, in which, leave was granted resulting in Criminal Appeal No.26 of 2005.
6. Mr Syed Mahbubur Rahman, learned Advocate-on-Record, appearing on behalf of the appellant, submits that the learned Judges of the High Court Division failed to consider that from plain reading of the complaint, it is abundantly clear that it does not disclose any offence against the appellant and that normal financial transaction between the debtor and creditor does not come within the scope of any offence and, as such, the impugned judgment is liable to be set aside.
7. Mr Firoj Shan, learned Advocate-on-Record, appearing on behalf of respondent No. 1, on the other hand, supports the impugned judgment delivered by the High Court Division.
8. We have considered the submissions of the learned Advocates on-Record: of both the sides, perused the impugned judgment and the materials on record.
9. At the very outset we would, like to quote the solitary ground on which, leave was granted as under:
“The learned Judges of the High Court Division failed to consider that from plain reading of the complaint, it is abundantly clear that it does not disclose any offence against the petitioner and that normal financial deal between the debtor and creditor does not come within the scope of any offence and, as such, the impugned judgment and order is liable to be set aside for the ends of justice.”
10. There is no denial of the fact that the appellant took loan from Shilpa Bank and he defaulted in making payment of the loan money and for this certain facilities were given to the appellant which included payment of dues by 12th quarterly installments. Accordingly, the appellant issued 2 cheques one for Taka 50,000 and another for Taka 3,97,875. Admittedly, the cheque for Taka 3,97,875 bounced for more than once as there was no sufficient money to honour the cheque. Subsequently, the complainant lodged the complaint under Sections 406/420 read with Section 138 of the Negotiable Instrument Act.
11. Charge was framed against the appellant under Section 420 of the Penal Code.
12. Having gone through the materials on record, it appears that the dispute, if any, between the parties is of civil nature and complainant-bank already instituted Miscellaneous Case No. 15 of 1992 for realization of outstanding dues from the appellant.
13. There is no gain saying the fact that the dispute arose out of money given to the appellant and, as such, it appears that the criminal proceeding against the appellant is an abuse of the process of the Court.
14. The allegations of bouncing of cheque simplicities does not ipso facto constitute any offence as defined under Section 115 of the Penal Code punishable under Section 420 of the Penal Code and, as such, framing of charge against the appellant under Section 420 of the Penal Code offered from serious illegality.
15. Having gone through the petition of complaint, it appears that there is no ingredient
Disclosing any criminal offence not to speak of any offence punishable under Section 420 of the Penal Code. The normal financial transaction between debtor and creditor does not come within the scope of any offence.
16. In view of the findings made before, we find substance in this appeal.
Accordingly, this appeal is allowed and all further proceedings of Criminal Miscellaneous Case No. 1876 of 1997 under Section 420 of the Penal Code now pending in the Court of Chief Metropolitan Magistrate is quashed.
