In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

    MR. JUSTICE MD. BASHIR ULLAH

CRIMINAL MISCELLANEOUS CASE NO. 21150 OF 2021

        Most. Moslema alias Most. Moslema Khatun and another .…...Accused petitioners

-Versus-

The State….….....Opposite party

Ms. Salina Akter, Advocate

.........For the accused petitioners None appears...................For the opposite party

Heard on: 13.11.2023 and 22.11.2023

Judgment on: The 21st of January, 2024 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused  petitioners  under  section  561A  of  the  Code  of Criminal  Procedure  calling  upon  the  opposite  parties  to show cause as to why the proceedings of C.R. Case No. 129(C) of 2017 (Tanore) filed by the complainant- opposite party No. 2 under sections 406/420/109 of the Penal Code now  pending  in  the  Court  of  Senior  Judicial  Magistrate, Rajshahi should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, the Court was pleased to stay all further proceedings of the aforesaid case for 6 (six) months from the date which was time to time extended by the Court. 

For disposal of the Rule, the relevant facts may briefly be stated as follows:

That the opposite party No. 2 as complainant filed a C.R. Case No. 129 (C) of 2017 (Tanore) against the accused petitioner under sections 406/420/109 of the Penal Code alleging inter alia that the scheduled land is belongs to the accused petitioners and to purchase the said land, the complainant executed an unregistered bainapatra (h¡ue¡fœ) with the accused petitioner at the consideration of  Tk. 35,00,000/- (Taka Thirty-five lac) and out of said amount, the accused petitioners received the money amounting to Tk. 6,00,000/- (Taka Six lac) from the complainant. After receiving the said money, the accused petitioners gave an undertaking to the effect that they will execute the registration of the said land within 15.04.2017. However, subsequently, they refused to make the registration of said land and also refused to pay back the money to the complainant. Hence, the aforesaid case was filed against the accused petitioners under sections 420/406 of the Penal Code. Thereafter, the accused petitioners appeared before this Court below and obtained the bail. Later on, at the time

of  the  framing  charge,  the  accused  petitioners  filed  an application before the trial Court under section 241A of the Code of Criminal Procedure for discharging them from the aforesaid  case  which  was  allowed  vide  its  order  dated 17.07.2018. As against the said order, the complainant filed a Criminal Revision No. 137 of 2018 before the Divisional Special Bench, Rajshahi which was allowed and thereby set aside the order dated 17.07.2018 passed by the trial Court. Being  aggrieved,  the  accused  petitioners  preferred  this application before this Court under section 561A of the Code of Criminal Procedure for quashing the proceeding of the aforesaid case and obtained the instant Rule and stay.

Ms.  Salina  Akter,  the  learned  Advocate  for  the accused petitioners submits that the nature of the allegation as  mentioned  in  the  petition  of  the  complaint  is  civil  in nature which does not constitute any criminal offence, and as such the instant Rule is liable to be quashed.

None appears for the opposite part to oppose the Rule.

Heard the submissions of the learned Advocate for the accused  petitioners  and  perused  the  materials  on  record thoroughly.

On perusal of the petition of complaint, it transpires that  admittedly  the  scheduled  land  was  belongs  to  the accused petitioners. We have further noticed that to purchase the  said  land,  the  complainant  executed  an  unregistered bainapatra with the accused petitioners under certain terms and  conditions,  and  subsequently,  the  accused  petitioners refused to make the registration of the said land. The nature of the allegation as mentioned in the petition of complaint arose from the contractual agreement which is civil in nature and does not constitute any criminal offence. 

 Under the given facts and circumstances of the case and the reasons as stated above, we find substance in the contention  of  the  learned  Advocate  for  the  accused petitioners.

As a result, the Rule is made absolute.

The proceedings of C.R. Case No. 129(C) of 2017 (Tanore) under sections 406/420/109 of the Penal Code now pending in the Court of Senior Judicial Magistrate, Rajshahi is hereby quashed.

Communicate this judgment and order at once.

Md. Bashir Ullah, J:

I agree