Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 365 of 2019

A.K. Golam Mostafa

...Convict-petitioner

          -Versus-

The State and another

...Opposite parties

Mr. Md. Sagir Hossain, Advocate

...For the convict-petitioner

Mr. Md. Emran Khan, D.A.G with

Ms. Nasrin Hena, A.A.G with

Mr. Md. Uzzal Hossain, A.A.G with

Mr. Md. Abu Saleh Apel Mahamud, A.A.G

...For the State

Heard  on  08.07.2024,  30.07.2024,  03.09.2024  and 04.09.2024

Judgment delivered on 05.09.2024

On an application filed under Section 439 read with Section 435  of  the  Code  of  Criminal  Procedure,  1898  Rule  was  issued calling  upon  the  opposite  parties  to  show  cause  as  to  why  the impugned  judgment  and  order  of  conviction  and  sentence  dated 04.05.2017 passed by the Additional Metropolitan Sessions Judge, Court No.8, Dhaka in Criminal Appeal No. 784 of 2016 arising out of C.R. Case No. 572 of 2012 allowing the appeal and convicting the  petitioner  under  Section  420  of  the  Penal  Code,  1860  and sentencing him to suffer rigorous imprisonment for 2(two) years and fine of Tk. 10,000(ten thousand), in default, to suffer imprisonment for  3(three)  months  by  setting  aside  the  judgment  and  order  of acquittal dated 05.06.2016 passed by the Metropolitan Magistrate, Court  No.  31,  Dhaka  acquitting  the  petitioner  from  the  charge framed against him under Sections 420/406/506 of the Penal Code, 1860 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

The prosecution case, in short, is that the complainant Md. Harunor Rashid is the Proprietor of NAF Consultants Firm. He was known to late Md. Badrul Alam Chowdhury who requested him to get a no objection from RAJUK regarding his land of dag Nos. 281, 282 and 283 under Samair Mouza possessed by the Badrul Alam Chowdhury.  Accordingly,  the  accused  A.K.  Golam  Mostafa  was entrusted to do the job. The accused received total Tk. 43,96,400 on 02.09.2008,  14.09.2008,  17.11.2008,  02.12.2008,  07.01.2009, 04.09.2008,  25.11.2008,  25.12.2008,  17.02.2009,  23.04.2009  and 25.04.2009 from the complainant and signed the vouchers issued by the NAF Consultants Firm. The accused did not complete the work for which he received the money. Subsequently, on demand made by  the  complainant,  he  paid  total  Tk. 1,70,000  through  S.A Paribahon,  Mohakhali  Branch  and  Tk.  58,000  through  the  bank account and Tk. 2,000 in cash but he did not pay the remaining amount  Tk.  42,26,400.  Lastly,  on  25.11.2012  the  complainant demanded the said amount to the accused but he refused to pay the said  amount.  Consequently,  the  complainant  filed  the  case  on 12.12.2012.

After  filing  the  complaint  petition,  the  complainant  was examined under Section 200 of the Code of Criminal Procedure, 1898 and the Chief Metropolitan Magistrate, Dhaka was pleased to take cognizance of the offence under Sections 420/406/506 of the Penal Code, 1860 against the accused. During the trial, charge was framed under Sections 420/406/506 of the Penal Code, 1860 against the accused and at that time of the framing charge, the convict- petitioner was absconding for which the charge framed against him could not be read over and explained to him. During the trial, the prosecution examined 2(two) witnesses to prove the charge against the  accused.  Since  the  convict-petitioner  was  absconding,  the defence did not cross-examine the prosecution witnesses.

After  concluding  the  trial,  the  Metropolitan  Magistrate, Court  No.  31,  Dhaka  by  judgment  and  order  dated  05.06.2016 acquitted the accused from the charge framed against him under

Sections 420/406/506 of the Penal Code, 1860 against which the complainant  filed  Criminal  Appeal  No.  784  of  2016  before  the Metropolitan Sessions Judge, Dhaka. The appeal was heard by the Additional Metropolitan Sessions Judge, Court No. 8, Dhaka who after hearing the appeal by judgment and order dated 04.05.2017 allowed the appeal and convicted the accused under Section 420 of the  Penal  Code,  1860  and  sentenced  him  to  suffer  rigorous imprisonment for 2(two) years and fine of Tk. 10,000, in default, to suffer imprisonment for 3(three) months against which the convict- petitioner obtained the instant Rule.

P.W. 1 Md. Harunur Rashid is the complainant. He stated that the accused was previously known to him. He is the proprietor of the consultancy firm and the accused wanted job to him. He entrusted the accused to get a no objection from the Ministry of Works and RAJUK. From 02.09.2008 to 07.01.2009 on different dates the accused received Tk. 37,62,000 from him. On 25.04.2009 he also received Tk. 6,34,400 for the above purpose but he did not do the work. Since the accused did not do the work, he demanded money  from  him  and  the  accused  repaid  Tk.  1,70,000  to  the complainant  but  he  did  not  pay  the  remaining  amount.  On 25.11.2012 the accused refused to pay the money and threatened him.  Consequently,  he  filed  the  case.  He  proved  the  complaint petition as exhibit 1 and his signature as exhibit 1/1. He proved the 14 debit vouchers as exhibit 2 series.  

P.W. 2 Md. Mamun Hossain is an employee of P.W. 1. He stated that from 2006-2013 he served in the firm of the complainant. The accused used to come to the complainant. He entrusted a job to the  accused.  The  accused  received  Tk.  44  lakh  from  the complainant.  He  did  not  do  the  work.  When  the  complainant demanded money, he refused to pay and the complainant filed the case.

Learned  Advocate  Mr.  Md.  Sagir  Hossain  appearing  on behalf  of  the  convict-petitioner  submits  that  no  document  was executed between the accused and the complainant regarding the work  to  be  done  by  the  accused  for  getting  the  no  objection certificate from the Ministry of Works and the RAJUK. P.W. 1 did not say that the accused signed the disputed money receipts and debit  vouchers  (exhibit  2  series).  The  trial  Court  on  proper assessment  and  evaluation  of  the  evidence  of  the  prosecution witnesses acquitted the accused. He further submits that unless the evidence adduced by the prosecution is found unimpeachable, the appellate Court should not interfere with the findings of acquittal. He also submits that the mere failure of the trial Court to assess the evidence  is  not  sufficient  ground  to  interfere  with  the  order  of acquittal. Therefore, he prayed to make the Rule absolute.

Learned  Deputy  Attorney  General  Mr.  Md.  Emran  Khan appearing on behalf of the State submits that the convict-petitioner received total Tk. 43,96,400 and signed the debit vouchers (exhibit 14 series) issued by the NAF Consultants Firm. Since the accused was absconding during the trial, the evidence of P.W. 1 as regards acceptance of the total Tk. 43,96,400 by the accused signing the vouchers (exhibit 2 series) remained uncontroverted by the defence and the prosecution proved the charge by adducing documentary evidence  against  the  accused  and  the  appellate  Court  below  on proper assessment and evaluation of the evidence legally passed the impugned judgment. He prayed for discharging the Rule.

I have considered the submission of the learned Advocate Mr.  Md.  Sagir  Hossain  who  appeared  on behalf  of  the  convict- petitioner and the learned Deputy Attorney General Mr. Md. Emran Khan who appeared on behalf of the State, perused the evidence, impugned judgments and orders passed by the Courts below and the records.

On perusal of the judgment and order passed by the trial Court, it appears that the trial Court acquitted the accused holding the view that no agreement was executed between the accused and the complainant as regards the work to be done by the accused and the  money  allegedly  received  by  the  accused  and  that  the prosecution failed to prove the charge against the accused beyond all reasonable doubt. The appellate Court below convicted the accused by  setting  aside  the  order  of  acquittal  holding  that  the  accused signed the debit vouchers and received Tk. 43,96,400 and that the prosecution by adducing documentary evidence proved the charge against the accused.

On perusal of the evidence of P.W. 1, it reveals that the accused  allegedly  received  Tk.  43,96,400 but  no  agreement  was executed  between  the  complainant  and  the  convict-petitioner regarding the work to be done by the accused. In the complaint petition,  it  has  been  alleged  that  the  accused  received  the  said amount from the complainant to get a no-objection certificate from the Ministry of Works and the RAJUK in respect of the land of Dag Nos. 281, 282 and 283 of Samair Mouza possessed by Badrul Alam Chowdhury. No statement is made in the complaint petition that Badrul  Alam  Chowdhury  was  the  owner  of  the  said  land.  No statement was made as to why the complainant paid said money to the accused as regards the no objection certificate to be issued by the Ministry  of  Works  and  RAJUK  in  favour  of  said  Badrul  Alam Chowdhury.  No  money  is  required  for  getting  a  no-objection certificate from the RAJUK and the Ministry of Works. The alleged transaction appears as illegal transaction.

On perusal of the evidence of P.W. 1, it further reveals that no statement is made by him that the accused received the money by signing the money receipts (exhibit 2 series). On perusal of the 14 money receipts (exhibit 2 series), it appears that the money receipt dated 02.09.2008 for payment of Tk. 4,40,000 was proved as exhibit 2(Ka), money receipt dated 02.09.2008 for payment of Tk. 4,00,000 was proved as exhibit 2(Kha), money receipts dated 14.09.2008 for payment  of  Tk.  4,00,000  was  proved  as  exhibit  2(Ga),  money receipt dated 14.09.2008 for payment of Tk. 1,00,000 was proved as exhibit 2(Gha), money receipt dated 17.11.2008 for payment of Tk. 19,00,000  was  proved  as  exhibit  2(Uma),  money  receipt  dated 02.12.2008  for  payment  of  Tk.  4,22,000  was  proved  as  exhibit 2(Cha),  money  receipt  dated  07.01.2009  for  payment  of  Tk. 1,00,000  was  proved  as  exhibit  2(Chha),  money  receipt  dated 04.09.2008 for payment of Tk. 50,000 was proved as exhibit 2(Ja), money receipt dated 04.09.2008 for payment of Tk. 50,000 was proved  as  exhibit  2(Jha),  money  receipt  dated  25.11.2008  for payment  of  Tk.  2,60,000  was  proved  as  exhibit  2(Nio),  money receipt dated 23.04.2009 for payment of Tk. 2,00,000 was proved as exhibit 2(Ta), money receipt dated 17.02.2009 for payment of Tk. 5,000 was proved as exhibit 2(Tha), money receipt dated 25.12.2008 for payment of Tk. 9,400 was proved as exhibit 2(Da) and money receipt dated 25.04.2009 for payment of Tk. 60,000 was proved as exhibit 2(3).  

On scrutiny of those exhibits, it transpires that the money receipts (exhibits 2 series) were signed by different persons and the alleged signatures of the accused on those exhibits are not identical. The alleged signatures of the accused on exhibit 2 series were not sent to the expert to ascertain the signature of the accused on those debit vouchers.

Under Section 73 of the Evidence Act, 1872, the Court is empowered to compare the admitted signature of any person. The vokalatnama signed by the accused and attested by the jail authority is available with the records. The signature of the accused on the vokalatnama  attested by the jail  authority is not identical to the alleged signatures of the accused in exhibit 2 series. Furthermore, the alleged signatures of the accused in the exhibit 2 series are also

not identical to each other. Therefore, I am of the view that the accused did not sign the money receipts (exhibit 2 series) and he did not receive Tk. 43,96,400 from the complainant.

The appellate Court shall interfere with the order of acquittal passed by the trial Court if the evidence adduced by the prosecution is found trustworthy, credible and unimpeachable. No reason has been assigned by the appellate Court below that the reason assigned by the trial Court is perverse and the material evidence has been overlooked  by  the  trial  Court  occasioning  a  failure  of  justice. Therefore,  I  am  of  the  view  that  the  appellate  Court  below committed  serious  illegally  in  convicting  the  accused  by  setting aside the order of acquittal passed by the trial Court.  

I find merit in the Rule.

In the result, the Rule is made absolute.

The  impugned  judgment  and  order  of  conviction  and sentence dated 04.05.2017 passed by the appellate Court against convict-petitioner A.K. Golam Mostafa are hereby set aside.

The  convict-petitioner  A.K.  Golam  Mostafa  is  acquitted from the charge framed against him.

However, there will be no order as to costs.

Send down the lower Court’s records at once.