High Court Division (Criminal Miscellaneous Jurisdiction) Md Anwarul Hoque J Md Mozibur Rahman J Shajahan Chowdhury (Md) ……. … Accused-Petitioner vs State and another…….. ………….Opposite-Parties Judgment November 22nd, 2011 Code of Criminal Procedure (V of 1898) Section 164 Penal Code (XLV of 1860) Section 406 read with 420 Since it is a case of business transaction and no initial deception to pay the amount is found the same is to be considered as it case of civil nature which cannot be allowed to bring within the criminal jurisdiction causing abuse of the process of the court. . ….. (10) Md Islam vs Amal Chandra, 45 DLR (AD) 27; Syed Ali Mir vs Syed Omar Ali, 42 DLR (AD) 241; Abu Baker Siddique vs State, 18 BLD (AD) 289; MA Hannan, Advocate-For the Accused-Petitioner. Monsurul Haque Chowdhury with MG Mahmud Shaheen, Advocate-For the Opposite-Party No.2. Zahirul Hoque Zahir DAG_For the State. Judgment Md Anwarul Haque J: This Rule under section 561A of the Code of Criminal Procedure was issued on 28-4-2010 calling upon the opposite- parties to show cause as to why the Impugnea criminal proceeding of CR Case No. 1589 of 2009 punishable under sections 406/420/422/109 of the Penal code pending in the Court of Additional Chief Metropolitan Magistrate, Cognizance Court No.1, Chittagong shall not be quashed and / or such other or further order or orders passed as to this Court may seem fit and proper. 2. In short, the case of the prosecution for . the purpose of disposal of the Rule is as follows: “Complaint-opposite party No.2 is complainant whereas accused-petitioner is a proprietor of M/s Shajahan Traders, accused No.4 is his Manager. 3. It is stated in the petition that there was a long standing business relationships ‘between the complainant and the accused-petitioner and out of such relationship the accused-petitioner used to pay the amount some time in cash and some time in bearer cheque on behalf of the M/ s Shajahan Traders signed by the Manager, accused No.4 but during such transaction good number of cheques are found to have been issued as mentioned in the complaint-petition. Subsequently on failure to pay balance amount arising out of their business transaction there was an agreement affording an opportunity to pay such amount within a prescribed time but accused-petitioner did not turn up and deny to pay such amount in order to misappropriate the same and thereby accused-persons have committed the offence punishable under sections 406/420/422/109 of the Penal Code. 4. On the basis of such complaint-petition the learned Magistrate, on holding an inquiry under section 202 of the Code of Criminal Procedure, took cognizance of the offence punishable under section 406/420 of the Penal Code though 40% of dues are found to have been realized by the complainant through arbitration which has been endorsed by the trial court. However, ultimately court below has taken cognizance and issued process securing the presence of the accused-petitioner to face trial. The accused-petitioner, making his appearance obtained bail there and filed this application under section 561A of the Code of Criminal Procedure in order to quash the proceeding, as no criminal offence has been made in the complainant petition rather it stands for a business transaction which does not come within the mischief of section 406/420 of the Penal Code. If any amount is found due to the accused-petitioner the same to be realized through the civil court on proper accounting of their business transaction. 5. During the course of hearing Mr MA Hannan, the learned advocate appearing on behalf of the accused-petitioner, has drawn the attention of the court about the death of the accused-petitioner No.2; as such the case against him will stand abated leaving the petitioner No.1 to contest it. 6. The learned advocate appearing on behalf of the petitioner submits that the recital of the complaint-petition and the order of the court passed on 5-11-2009 and 17-11-2009 clearly stand for business relationship between the accused-petitioner and the complainant; as such the matter does not come within the mischief of section 406 and 420 of the Penal Code because question of breach of trust and cheating does not, at all, arise in case of failure to pay any balance amount due to the other parties. In support of his contention he has referred a decision of a case Islam Ali Mia alias Md Islam vs Amal Chandra MondaI and another reported in 45 DLR (AD) 27 and also a decision of a case Syed AU Mir and another vs Syed Omar Ali reported in 42 DLR (AD) 241 where their lordships of our Apex court have clearly made the on between the complainant and the accused for a long period and failure to pay any balance amount to complainant does not come within the mischief of section 406/420 of the Penal Code.” 7. On the other hand, Mr Monsurul Haque Chowdhury has opposed the Rule alleging inter alia that part payment of the balance amount will not go to the absolve the liability of the accused-petitioner for committing the offence punishable under sections 406/420 of the Penal Code. Mr Hoque has candidly argued that in the instant case by refusing to pay the balance amount accused-petitioner has committed the offence of criminal breach of trust and I cheating, punishable under section 406/420 of the Penal Code. In support of his contention he has referred a decision of a case Abu Baker Siddique Vs State reported in 18 BLD (AD) 289 where their lordships have made an observation that if initially intention to deceive the complainant and misappropriates the money; the same cannot be considered as a case of civil nature and therefore it is to be brought within the criminal jurisdiction to secure the punishment of the offender. 8. On such submission we have gone through the recital of the compliant-petition as well the order passed by the learned Chief Metropolitan Magistrate and found that it was absolutely a case of business transaction and I squarely come within the decision given in a case of Islam Mia vs Amal Chandra MondaI reported in 45 DLR (AD) 27 one Sayed Ali Mir vs Sayed Omar Ali reported in 42 DLR (AD) 241. 9. Having due regard to those above decision we are of opinion that the decision, referred by the learned advocate on behalf of the opposite-party has no manner of application in this case as has been made out by the opposite-party in a petition of compliant. 10. Now we are inclined to say that since it is a case of business transaction and no initial deception to pay the amount is found the same is to be considered as a case of civil nature which cannot be allowed to bring within the criminal jurisdiction causing abuse of the process of the court. 11. In the light of the above observation, we find substance in the Rule and accordingly the Rule is liable to be made absolute. 12. In the result, the Rule is made absolute. 13. Let the impugned proceeding of CR Case No.1589 of 2009 arising out of Petition Case No. 177 of 2009 punishable the Court of Additional Chief Metropolitan Magistrate, Cognizance Court No. I, Chittagong is hereby quashed. Let a copy of the judgment and order be sent to the court below at once for information and necessary action.
