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. 8571 OF 2023

Sardar Tofazzal Hossain Liakat...…Accused petitioner 

-Versus-

The State and others….….....Opposite parties

Mr. Md. Golam Rabbani, Advocate

........For the accused petitioner Mr. Syed Khalequzzaman with

Mr. Mohsin Jamader, Advocates

…For the opposite party No. 2

Mr. K.M. Masud Rumy, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state

Heard on: 23.11.2023

Judgment on: The 28th of November, 2023 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  calling  upon  the  opposite  parties  to show  cause  as  to  why  the  judgment  and  order  dated 31.05.2022  passed by  the  learned Senior Sessions  Judge, Dhaka in Criminal Revision No. 196 of 2021, arising out of C.R.  Case  No.  139  of  2020  (Ashulia)  disallowing  the revision  and  thereby  affirming  the  charge  framing  order

dated  11.10.2021  passed  by  the  learned  Senior  Judicial Magistrate, 2nd Court, Dhaka in C.R. Case No. 139 of 2020

(Ashulia) under  sections  406/420/506  of the  Penal  Code, 1860  now  pending  before  the  learned  Senior  Judicial Magistrate, 2nd Court, Dhaka should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

At the time of issuance of the Rule, the Court was pleased to stay the proceeding of the aforesaid C.R. case for 3  (three)  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. 139 of 2020 against the accused petitioner under sections 406/420/506 of the Penal Code alleging inter alia that the complainant is a businessman and used to sale the imported dyes and chemical in the open market. The accused petitioner often purchases dyes and chemicals from the complainant on balance and cash through bill challans. Up  to  30.11.2019,  the  total  unpaid  dues  remains  at  Tk. 1,97,67,089.60/- to the complainant which was recorded in their  accounts  book.  The  complainant  requested  several times to the accused petitioner to adjust the aforesaid unpaid dues  but  the  petitioner  did  not  take  any  positive  step regarding  the  said  matter.  Hence,  the  aforesaid  case  was filed  against  the  accused  petitioner  under  sections 420/406/506  of  the  Penal  Code.  Thereafter,  the  accused petitioner  duly  appeared  before  the  Court  below  and obtained bail.

Later  on,  at  the  time  of  the  framing  charge,  the accused petitioner filed an application under section 241A of the Code of Criminal Procedure for discharging him from the aforesaid case which was rejected vide its order dated 11.10.2021. As against the said order, the accused petitioner preferred a Criminal Revision No. 196 of 2021 before the learned Sessions Judge, Dhaka which was also rejected vide its  judgment  and  order  dated  31.05.2022  and  thereby affirming the order of framing charge against the accused petitioner  passed  by  the  Senior  Judicial  Magistrate,  2nd Court,  Dhaka  in  C.R.  Case  No.  139  of  2020.  Being aggrieved,  the  accused  petitioner  has  preferred  this application before this Court under section 561A of the Code of Criminal Procedure for quashing the aforesaid impugned judgment and order dated 31.05.2022 passed in Criminal Revision No. 196 of 2021 and obtained the instant Rule and stay.

Mr. Md. Golam Rabbani, the learned Advocate for the accused  petitioner  mainly  submits  that  the  nature  of  the allegation as mentioned in the petition of complaint is purely civil  in  nature  which  does  not  constitute  any  criminal offence,  and  as  such  the  impugned  order  is  liable  to  be quashed.

As against this, Mr. Syed Khalequzzaman, the learned Advocate for the opposite party No. 2 submits that there is a specific allegation against the accused petitioner and as such the accused petitioner has no ground to invoke the provision of  section  561A  of  the  Code  of  Criminal  Procedure  and hence the instant Rule is liable to be discharged.

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 alleged transaction in between the complainant and the accused petitioner is clearly and admittedly a business transaction. The failure on the part of the accused petitioner to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation to pay the money is of civil nature.

Our  this  view  gets  support  from  the  decision  as reported in 7 BLT (AD) 1999, page 227, 45 DLR (AD) 1993, page 27 and 56 DLR 2000, page 169 but both the Court below failed to appreciate the aforesaid legal aspects as involved in the instant case and thereby committed an error of law which is liable to be quashed.

Under the given facts and circumstances of the case and the reasons as stated above, we find substances of this Rule.

As a result, the Rule is made absolute.

The proceeding of C.R. Case No.139 of 2020 under sections 406/420/506 of the Penal Code, 1860 now pending in the Court of learned Senior Judicial Magistrate, 2nd Court, Dhaka is hereby quashed.

However, the petitioner is at liberty to file a civil suit for  the  realization  the  alleged  unpaid  dues  along  with compensation if so advice.

Communicate this judgment and order at once

Md. Bashir Ullah, J:

I agree