(Criminal Miscellaneous Jurisdiction)
Obaidul Hassan J
SM Kuddus Zaman J
Mujib-ud-Doula Bhuiyan
(Md). Accused-Petitioner
vs
State and another……Opposite-Parties
Judgment
December 12th, 2018
Code of Criminal procedure (V of 1898)
Section 561A
It is well settled that a criminal proceeding can be quashed even at an initial stage if from a reading of the complaint or FIR and police report no criminal offence is disclosed or if the same discloses a civil liability. (8)
Code of Criminal Procedure (V of 1898)
Section 561A
Since a plain reading of the petition of complaint does not prima-facie disclose the existence of an offence punishable under Sections 406 or 420 of the Penal Code against the accused-petitioner further continuation of the same would cause unnecessary harassment to the accused-petitioner and it would be a sheer abuse of process of the Court. . ….. (22)
Shafuillah vs State, 14 BLC 775; Khandaker Abul Bashar vs State, 63 DLR (AD) 79 and Abdur Rahim @ ANM Abdur Rahim vs Enamul Huq, 43 DLR (AD) 171 ref.
Md Abdur Razzak Advocate-the For the Petitioner.
Afroza Naznin. Advocate-For the Opposite-Party .No.l.
Judgment
SM Kuddus Zaman J : On an application under Section 561 A of the Code of Criminal Procedure, 1898 this Rule was issued calling upon the opposite parties to show cause as to why the proceeding of CR Case No.145 of 2016 under Sections 406/420/109 of the Penal Code,1860 now pending in the Court of Chief Metropolitan Magistrate, Chattogram should not be quashed and/or pass such other or further order or orders as to this Court may deem fit and proper.
2. Relevant facts, in short, are that the petitioner-opposite party as the rightful owner of the disputed property, as fully described in the schedule to the complaint, offered to sell and the complainant agreed to purchase the same at a price of Taka 70 lac. On receipt of earnest money of Taka 10 lac the accused-petitioner executed and registered a Bainapatra deed on 28-7-2013. Subsequently, the accused-petitioner received further amount of Taka 5 lac with an assurance to adjust the same with the value of the property. The complainant repeatedly asked the accused petitioner to accept remaining Taka 55 lac and execute a sale deed but on various pretexts the petitioner took time. Due to sudden increase of the value of the property the accused-petitioner was trying to sell out the same to other persons at a higher price. The accused-petitioner has transferred the disputed property to his daughter (opposite party No.2) by a registered deed of gift on 26-9-2016. At the end, the accused-petitioner denied to execute a sale deed in favour of the complainant and the existence of above transaction as well.
3. On receipt of above complaint the learned Chief Metropolitan Magistrate, Chattogram examined the complainant under Section 200 of the Code of Criminal Procedure, took cognizance of the case and issued warrant of arrest against the accused-petitioner. The accused petitioner entered appearance in the court, obtained bail and then moved to this Court with petition and obtained this Rule.
4. Mr Md Abdur Razzak, the learned Advocate representing the accused-petitioner submits that a plain reading of the complaint shows that the accused-petitioner has merely failed or refused to execute and register a kabala deed pursuant to the terms of the bainanama deed dated 28-7-2013. The petition of complaint discloses a breach of contract which is a civil liability and an appropriate remedy for the same is a suit for Specific Performance of contract. Above complaint does not disclose the commission of any criminal offence let alone the offence of criminal breach of trust or cheating. As such, the learned Magistrate has committed serious illegality in taking cognizance of the case which has caused a serious error in the decision occasioning failure of justice. As such, the impugned criminal proceeding arising out of CR Case No. 145 of 2016 is liable to be quashed.
5. In support of above submissions the learned Advocate for the petitioner has referred to the decision in the case of Shafuillah vs State, reported in 14 BLC 775 .
6. On the other hand, Ms Afroza Naznin, the learned Advocate for the opposite party No. I submits that the petitioner admits the execution and registration of the bainanama dated 28-72013 and further admits the receipt of Taka 5 lac from the complainant. The petitioner did not execute and register a sale deed in favour of the complainant pursuant to above Bainapattra nor has returned the earnest money to the complainant. But he has fraudulently transferred the self-same property in favor of his daughter. The petitioner has also denied the whole transaction with the complainant. In this regard the learned Advocate emphasized on the below statement at paragraph 5 of the complaint:
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Since the petitioner has denied the above mentioned transaction effected by a registered Bainpottra, the learned Advocate strenuously stated that, there are prima-facie existence of offences punishable under Sections 406 and 420 of the Penal Code, 1860 against the accused petitioner. As such, the instant Rule is liable to be discharged. In support of above submission the learned Advocate referred to the cases reported in 43 DLR (AD) 171 and 63 DLR (AD) 79.
7. We have considered the submissions of the learned Advocates for both sides, perused the petition of complainant and, considered other materials on record.
8. It is well settled that a criminal proceeding can be quashed even at an initial stage if from a reading of the complaint or FIR and police report no criminal offence is disclosed or if the same discloses a civil liability.
9. It is not disputed that the petitioner opposite party as the rightful owner of the disputed property entered into an agreement with the complainant to sell the same for a price of Taka 70 lac and on receipt of Taka 10 lac as earnest money he executed and registered a Bainanama on 28-7-2013. The accused-petitioner does not deny the fact of further receipt of Taka 5 lac from the complainant opposite party.
10. There is no allegation in the complaint that the title or possession of the accused petitioner in the disputed properly was problematic and the petitioner concealed the same or the petitioner had no intention to sell the disputed property but fraudulently induced the complainant to deliver Taka 15 lac.
11. It has been alleged by the learned Advocate for the opposite party that since the petitioner did not execute a sale deed pursuant to the Bainapatra above mentioned Taka 15 lac was misappropriated by the petitioner, which is punishable under Section 406 of the Penal Code, 1860.
12. Since above mentioned Taka 15 lacs money was received by the Petitioner as the partial payment of the price of his property that money belonged to the accused-petitioner. Above money was not entrusted or kept to the accused petitioner retaining the ownership of the money with the complainant. Since there was no entrustment of above money to the accused-petitioner no offence of Criminal breach of trust punishable under section 406 of the Penal Code) 860 was committed.
13. Undisputedly the accused-petitioner has subsequently transferred the disputed property to his daughter by a deed of gift on 27-4-2016.
Above act of the accused-petitioner and his subsequent denial of the whole transaction has constituted the offence of cheating as punishable under Section 420 of the Penal Code, submits the learned Advocate for the opposite Party Complainant.
14. We are unable to accept above submission of the learned Advocate in view of the facts that the accused-petitioner was the rightful owner of the property and on receipt of the earnest money he executed and registered a bainapatra deed which is a genuine document. Moreover at paragraph No. 2 of the complaint it has been stated that due to sudden increase in the value of the suit propeny the accused-petitioner did not execute a sale deed in favour of the complaint. Above facts clearly show that the opposite party petitioner did not have an initial intention to deceive the complainant.
15. If there is no initial intention to deceive then there is no offence of cheating. In this regard reference may be made to clause ‘g’ of section 415 of the penal Code which is as follows:
“(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantit: of indigo plant which he does not intent to deliver, and thereby dishonestly
induces Z to advance money upon the faith of such delivery. A cheats ; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but it liable only to a civil action for breach of contract” (emphasis added).
16. We hold that in the absence of initial deception mere non-execution of a sale deed in breach of the term of the bainapattra deed is a civil wrong and for the same proper remedy is the institution of a suit for specific performance of contract.
17. We have examined the case law referred to above by the learned Advocate for the petitioner. The accused of above case Contracted to sale his property to the complainant at a price of Taka 8 crore and on receipt of Taka 20 lac as earnest money executed a bainapattra on 9-11-1997 and subsequently in total he received Taka 2 crore. But on 28-6-2005 the accused sold the property to a third person for Taka 20 crore concealing the contract for sale of the property with the complainant.
18. In the above case it was held by the High Court Division that in the absence of initial intention to deceive no offence under Section 406 420 was committed but the accused committed a breach of contract for which remedy is a civil suit. In our view the facts and circumstances of above cited case and those of the case in hand are similar and above case law fully applies to this Case.
19. Now let us examine the above mentioned case laws referred to by the learned Advocate for the complainant opposite party No.1. In the case of Khandaker Abu! Bashar vs State, reported in 63 DLR (AD) 79 the facts are that the lease of the Government for Meghna-Gumti Bridge kept the toll money of Taka 2,85,12,500 in his possession instead of depositing the same to the Roads and Highways Department, in clear breach of the term of the lease. In the above case the Appellate Division found prima-facie existence of offences punishable under Sections 420/409 of the Penal Code.
20. In the case of Abdur Rahim @ ANM Abdur Rahim vs Enamul Huq, reported in 43 DLR (AD) 171 the accused realized a total amount of Taka 50,000 from the complainant on a promise to secure for him a highly paid job in Abu Dhabi. But later on the accused completely denied above transaction. In above case the Appellate Division found prima-facie existence of offences punishable under Sections 406/420 of the Penal Code.
21. The facts and circumstances of the cases referred to above by the learned Advocate for the opposite party No. 1 are quite different and not similar to the facts and circumstances of the case in hand, as such, we are of the view that those case laws are not applicable in the instant case.
22. Since a plain reading of the petition of complaint does not prima-facie disclose the existence of an offence punishable under Sections 406 or 420 of the Penal Code against the accused-petitioner further continuation of the same would cause unnecessary harassment to the accused-petitioner and it would be a sheer abuse of process of the Court. Therefore, the proceeding of the case is liable to be quashed to secure the ends of justice.
23. Accordingly, we find substance in the Rule for quashing the proceeding of above case and the Rule should be made absolute.
24. In the result, the Rule is made absolute.
25. The proceeding of CR Case No.145 of 2016 under sections 406/420/109 of the Penal Code, now pending in the Court of Chief Metropolitan Magistrate, Chattogram is hereby quashed.
