In the Supreme Court of Bangladesh High Court Division

(Criminal Revisional Jurisdiction)

Present:

Mr. Justice Md. Khairul Alam

Criminal Revision No. 1221 of 1991.

In the matter of: Burzuk Ali and others.

.......... Accused-petitioners. -Versus-

The State and another.

.......... Opposite parties.

None appears.

..... For the petitioners. Ms. Shiuli Khanom, D.A.G along with

Mr. S.M. Emamul Musfiqur, A.A.G

Mr. Md. Humayun Karim Siddique, A.A.G

…………… For the state

Heard On: 23.10.2024 & Judgment on: 24.10.2024

This Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 31.12.1986 passed  by  the  learned  Assistant  Sessions  Judge,  Patuakhali  in Criminal Appeal No. 09 of 1985 dismissing the said appeal and thereby affirming the order of conviction dated 27.01.1985 passed by  the  learned  Munsif  and  Magistrate  1st  Class,  Mirjagonj, Patuakhali  in  C.R.  Case  No.  1497  of  1983  convicting  and

sentencing the petitioners under section 420 of the Penal Code should not be set aside and/or pass such other or further order or order as to this court may seem fit and proper.

Relevant facts for disposal of the Rule are that the present opposite party No. 1 as complainant filed a petitioner of complaint before the Court of Munsif and Magistrate 1st  Class, Mirjagonj, Patuakhali implicating the present convict petitioners and another alleging, inter alia, that the complainant, his two brothers and one sister were the owners of the case land. For want of money, they mortgaged the land to petitioner No. 1 for an amount of Taka 2000/-, but on 06.03.1983, while the deed was executed, petitioner No. 1 in collusion with others fraudulently executed and registered a kabala deed instead of a mortgage deed. Subsequently, while the complainant demanded the redemption of the case land, petitioner No.1 refused to reconvey the land and disclosed that the impugned deed was a kabala deed. On query, the complainant discovered the fraud.  Hence,  the  complainant  filed  the  petition  of  complaint implicating the petitioners and another.

Upon considering the record, the learned Magistrate was of the opinion that there were grounds for presuming that the accused persons  had  committed  the  offence,  hence  framed  the  charge against the petitioners under sections 420 and 109 of the Penal Code. To substantiate the charge, the prosecution examined as many  as  4  (four)  witnesses  who  were  cross-examined  by  the defence.  After  the  prosecution  witnesses,  the  accused  persons were  examined  under  section  342  of  the  Code  of  Criminal Procedure.  At  the  time  of  examination,  they  also  pleaded  not guilty and adduced 5 defence witnesses.

During the trial, on 17.09.1984, accused Absar Sikder, the alleged deed writer was discharged on the ground of death.

After conclusion of the trial, the learned Magistrate found the petitioners guilty under section 420 of the Penal Code and sentenced petitioner No. 1 to suffer rigorous imprisonment for 25 (twenty five) days and also to pay a fine of Tk. 2,000/- (two hundred) in default to suffer rigorous imprisonment for 10 (ten) days more and sentenced petitioners No. 2 and 3 to suffer rigorous imprisonment for 15 (fifteen) days and also to pay a fine of Tk. 100/-  (one  hundred)  each  in  default  to  suffer  rigorous imprisonment for 05 (five) days more.   

Against  the  said  judgment  and  order  of  conviction  and sentence the petitioners preferred an appeal which was heard by the  learned  Assistant  Sessions  Judge,  Patuakhali.  The  learned Assistant Sessions Judge, Patuakhali, after hearing the appeal by the judgment and order dated 27.01.1985 dismissed the appeal and thereby  affirmed  the  judgment  and  order  of  conviction  and sentence passed by the trial Court against the petitioner No. 1, but only maintained the fine of petitioners No. 2 and 3.

Being aggrieved thereby the petitioners moved before this Hon’ble Court and obtained the Rule.

No one appears to contest the Rule.

Ms. Shiuli Khanom, the learned Deputy Attorney General appearing for the state supports the impugned judgment and order and submits that as the petitioners cheated, the courts below rightly found the petitioners guilty under section 420 of

the Penal Code, and rightly awarded the sentence.

Hence,  the  question  to  be  adjudication  is  whether  the impugned judgment and order is maintainable in law or not.

P.W. 1 deposed that they executed the impugned deed on receipt  of  Taka  2,000/-  for  44  decimals  of  land  knowing  the impugned deed as a deed of mortgage, but subsequently found that accused No. 1 in collusion with others executed and registered the deed as a deed of sale. He further deposed that he filed a kabala deed dated 17.04.82 for 6 decimals of the land of the same khatian. Consideration for the said 6 decimals of land was Taka 2000/- but consideration for 44 decimals of land of impugned deed is Taka 2,000/- which proved that the accused have altered the nature of the deed by forgery. P.W. 2 is the brother of P.W. 1 and one of the executants of the impugned deed. He deposed in support of the contention of P.W.1. Kadam Gazi, P.W.3 deposed that P.W.1 mortgaged the case land. P.W.4, Sadem Ali Sikder, the brother-in-law  of  P.W.1  deposed  that  his  wife  executed  the impugned deed knowing the same as a mortgage deed. He also deposed  that  he  was  present  at  the  time  of  execution  of  the impugned deed. He further deposed that actual consideration of the  disputed  land  was  much  higher  than  Taka  2,000/-  at  that relevant time.

On the other hand, D.W. 1, Shohid Ullah deposed that the impugned deed was out and out a sale deed. Other D.Ws also support the contention of the D.W. 1.

From the evidence on record, it appears that the impugned deed is a registered sale deed in the name of the petitioner which was executed by the complainant, his two brothers, and one sister in respect of 44 decimals of land. The consideration for the sale deed was Taka 2,000/-. The sale deed was executed and registered on the same date i.e. on 06.03.82. The complainant claimed that at the time of execution and registration, the accused had altered the nature of the deed from mortgage to sale by forgery, taking the advantage of illiteracy and innocence of the complainant’s party. On the other hand, all the D.W.s claimed that the impugned deed out and out was a sale deed. The claim and counter-claim between the parties made the dispute civil, in nature, which was required to be  adjudicated  in  Civil  Court,  but  the  courts  below  failed  to consider the said aspect of the case and passed the impugned judgment and order of conviction and sentence which requires to interfere by this Court.

In view of the discussion made above and considering the facts and circumstances of the case, I find merit in this Rule.

In the result, the Rule is made absolute.

The impugned judgment and order dated 31.12.1986 passed by the learned Assistant Sessions Judge, Patuakhali in Criminal Appeal No. 09 of 1985 affirming the judgment and order dated 27.01.1985 passed by the learned Munsif and Magistrate 1st Class, Mirjagonj, Patuakhali in C.R. Case No. 1497 of 1983 is hereby set-aside.

The petitioners are acquitted from the charge and they are released from the bail bond.

Send down the L.C.R. along with a copy of this judgment to the  concerned  Courts  at  once  for  information  and  necessary action.

Kashem/B.O