(From previous issue)
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 exception 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 Hoyat Khan vs Ghulam Muhammad reported in 6 DLR (WP) 177 where in 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. I. 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.
Communicate the judgment to the Trial Court concerned at once.
(Concluded)
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 exception 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 Hoyat Khan vs Ghulam Muhammad reported in 6 DLR (WP) 177 where in 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. I. 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.
Communicate the judgment to the Trial Court concerned at once.
(Concluded)
