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. 50606 OF 2023

Md. Salah Uddin.........…...Accused-petitioner

   -Versus-

 The State and another...........Opposite parties

 Mr. Md. Golam Rabbani, Advocate

             .....For the petitioner

 Mr. Sanjib Kumar Biswas, Advocate

      ...For the opposite party No. 2

 Heard and judgment on: The 29th of January, 2024 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused-petitioner under section 561A of the Code of Criminal  Procedure,  1898  calling  upon  the  opposite parties to show cause as to why the proceedings of Kashi C.R. Case No. 64 of 2023 under sections 406/420 of the Penal Code now pending in the Court of Chief Judicial Magistrate,  Gopalganj  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, this Court was pleased to stay all further proceedings of the aforesaid

Kashi C.R. Case No. 64 of 2023 for 6 (six) months from date.

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

That  the  opposite  party  No.  2  as  a  complainant filed a C.R. Case No. 64 of 2023 under sections 406/420 of the Penal Code against the accused-petitioner alleging inter alia that the complaint and the opposite party both are businessman. The accused-petitioner purchased 2010 guite  (N¡CV)  (packet)  of  jute  from  the  complainant opposite  party  from  04.08.2016  to  14.08.2016.  Each packet contained 50 K.G. of jute. The total price of the aforesaid goods was for Tk. 45,80,785/- (Taka Forty five lac, Eighty thousand and Seven hundred eighty five) and  out  of  said  amount,  the  accused-petitioner  paid amounting  to  Tk.  31,60,000/-.  At  present  the  total outstanding  amount  remaining  at  Tk.  14,80,785/-. Subsequently, the accused-petitioner refused to pay the aforesaid amount. Hence, the aforesaid case was filed against the accused-petitioner under sections 406/420 of the  Penal  Code.  Thereafter,  the  accused-petitioner appeared  before  the  Court  below  and  obtained  bail. Thereafter,  the  accused-petitioner  filed  an  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.

Mr. Md. Golam Rabbani, the learned Advocate for the accused-petitioner mainly submits that the allegation as contained in the petition of complaint is arising from the business transaction which is civil in nature and does not   constitute  any  criminal  offence  and  as  such  the instant Rule is liable to be made absolute.

Mr. Sanjib Kumar Biswas, the learned Advocate for the opposite party No. 2 mainly submits that there is a  prima  facie  case  against  the  accused-petitioner. Moreover,  the  charge  is  not  yet  framed  against  the accused-petitioner and as such in the instant Rule is not maintainable.

Heard the submissions of the learned Advocates of both  sides  and  perused  the  materials  on  record thoroughly.

On perusal of the petition of complaint it transpires that the accused-petitioner has categorically mentioned that the accused-petitioner has purchased 210 guite of jute from the complainant opposite party on several dates amounting  to  Tk.  45,80,785/-  (Taka  Forty  five  lac,

Eighty thousand and Seven hundred eighty five). It is also admitted fact that out of said amount the accused- petitioner has already paid amount of  Tk. 31,60,000/- (Taka Thirty one lac and Sixty thousand). At present, the total outstanding amount remains at Tk. 14,80,785/-.

So,  the  alleged  transaction  in  between  the complainant  and  the  accused-petitioner  is  clearly  and admittedly a business transaction which is civil in nature. We have further noticed that the accused-petitioner has already  made  an  part  payment  amounting  to  Tk. 31,60,000/- out of Tk. 45,80,785/-. The failure on the part  of  accused-petitioner  to  pay  the  complainant  the balance  amount  does  not  warrant  any  criminal proceeding as the obligation to pay the money is of civil nature.

Our this view gets support from the decisions as reported in 7 BLT (AD) 1999 page-227, 45 DLR (AD) 1993 page-27, 56 DLR (2000) page-169.

In the case of Ali Akkash Vs. Enayet Hossain as reported in 17 BLD (AD) (1997) page-44 wherein it was held;

“Interference  even  at  an  initial  stage  may  be justified where the facts are so preposterous that even on admitted facts no case stands against the accused.” 

So  the  contention  as  raised  by  the  learned Advocate  for  the  complainant  opposite  party  is  not acceptable.

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

As a result, the Rule is made absolute.

The  proceedings  of  C.R.  Case  No.  64  of  2023 under sections 406/420 of the Penal Code now pending in  the  Court  of  learned  Chief  Judicial  Magistrate, Gopalganj is herby set aside.

However, in order to recovery the unpaid dues, the complainant opposite party is at liberty to file a civil suit as against the accused-petitioner if so advice.

Communicate this judgment and order at once.

Md. Bashir Ullah, J:

I agree