Criminal Misc. Case No. 66584 of 2022    

Present:

Mr. Justice S M Kuddus Zaman

                                        And

Mr. Justice A.K.M. Rabiul Hassan

Monir Ahmed

.... Petitioner -Versus-

The State and another

…. Opposite Parties Mr. M. Sayed Ahmed, Advocate with Mr. Rafi Ahmed, Advocate 

                 .... For the accused-petitioner Mr. Md. Abdun Nur, Advocate

        .… For the complainant opposite party No. 2. Heard and Judgment on 31.07.2024

S M Kuddus Zaman, J:

This  application  under  section  561A  of  the  Code  of Criminal Procedure, at the instance of the sole accused namely Monir Ahmed of C.R. Case No. 454 of 2022 under section 406/420/506  of  the  Penal  Code  is  for  quashment  of  above proceedings.

Facts  in  short  are  that  opposite  party  No.  2  as complainant  lodged  a  complaint  alleging  that  the  accused petitioner as the rightful owner and possessor of Monir Tower entered into an agreement with the complainant for sale of two apartments along with five car parking space of above Tower for a total price of Tk. 6,90,00,000.00 and on receipt of Tk. 3,58,75,000.00 he executed and registered a deed of Bainapatra on 25.07.2019.

In  above  Bainapatra  it  was  stated  that  above  two apartments along with car parking space ewre free from all encumbrance and the same was not sold or mortgaged to any

other person. But in fact the accused petitioner obtained a loan of Tk. 15,00,00,000.00 from Hajj Finance Ltd. on 27.07.2017 by mortgaging above property. By deliberate suppression of above material facts in above Bainapatra the accused petitioner has committed the offence of cheating punishable under section 420 of the Penal Code, 1860.

The learned Judicial Magistrate framed charge against the accused petitioner under section 420/406/506 of the Penal Code and fixed the case for recording of evidence.

Being aggrieved by and dissatisfied with the initiation of above proceedings above accused as petitioner moved to this court and obtained this rule and stay.

Mr.  M.  Sayed  Ahmed,  the  learned  Advocate  for  the petitioner  submits  that  undisputedly  the  petitioner  was  the rightful owner and possessor of the disputed property namely Monir Tower and he had every right to keep the impugned property  in  mortgage  as  well  as  transfer  of  the  same.  The petitioner  entered  into  an  agreement  for  sale  with  the complainant and on receipt of advance money he executed and registered a deed of Bainapatra. The petitioner wanted to pay off the mortgage on receipt of full consideration money from the complainant and thereafter execute and register a deed for sale.  Since  the  complainant  did  not  pay  the  remaining consideration money the petitioner instituted Title Suit No. 290 of 2021 on 14.11.2021 for cancellation of above Bainapatra. After  institution  of  above  civil  suit  by  the  petitioner  the complainant has filed this false case on 23.03.2022.

Moreover, in this case the complainant has claimed that the impugned Bainapatra has been vitiated by fraud but he has filed title Suit No. 184 of 2022 on 11.04.2022 for enforcement of above Bainapatra instead of filing a suit for recovery of advance money and compensation. The initiation of the instant proceeding is misconceived which shall not settle any dispute between the parties rather cause unnecessary sufferings to the accused petitioner which amounts to abuse of the process of the court.

On the other hand Mr. Abdun Nur, the learned Advocate for  the  opposite  party  No  2  submits  that  undisputedly  the accused petitioner mortgaged disputed property to Hajj Finance Ltd.  and  obtained  a  loan  of  taka  15(fifteen)  crore  and  by misrepresentation  and  concealment  of  above  material  facts executed and registered the impugned deed of Bainapatra for above  property  to  the  complainant  and  obtained  advance money. Had the accused disclosed above material facts as to above mortgage the complainant would not enter into above agreement for sale. By above deliberate misrepresentation and non-disclosure of material facts of mortgage of above property the accused has committed cheating as has been defined in section 415 of the Penal Code. The learned Judicial Magistrate has rightly framed charge in above case and fixed the case for recording of evidence which calls for no interference.

In support of above submissions the learned Advocate for the petitioner referred to the case laws reported in 40 DLR 301, 28 DLR (AD) 38, 49 DLR (AD) 132, 61 DLR (AD) 93, 73 DLR (2021) 598, 13 BLC (AD)(2008) 64, 62 DLR (AD) (2010) 233, 63 DLR (AD) (2011) 79 and 74 DLR (AD) (2022).

We  have  considered  the  submissions  of  the  learned Advocate of the respective parties and carefully examined all materials on record.

Undisputedly accused petitioner is the rightful owner and possessor of disputed two flats and 6(six) car parking space and he  executed  a  Bainapatra  for  sale  of  above  property  to  the complainant at a price of taka 6,90,00,000.00 and received an advance  payment  of  Tk.  3,58,75,000.00.  Above  Bainapatra deed  provided  for  three  months  time  for  payment  of  full consideration  money  by  the  complainant  and  execution  and registration of a sale deed and deliver of possession by the accused petitioner.

It trans out from above registered deed of Bainapatra that there is clear mention that above property for sale is free from all encumbrances and the same has not been mortgaged. It is not disputed that before execution and registration of above deed  of  Bainapatra  the  accused  petitioner  mortgaged  above property to Hajj Finance Ltd. by a registered deed of mortgage on 27.07.2021 and obtained a loan of taka 15(fifteen) crore. As such  there  was  a  deliberate  and  willful  suppression  and concealment of an important material fact as to mortgage of the disputed  property  at  the  time  of  execution  of  the  deed  of Bainapatra.

The  moot  question  to  be  determined  if  above  non- disclosure or suppression of above material fact as to mortgage of the above property at the time of execution of the Bainapatra constitutes cheating.

It is well settled that mortgage is creation of right in a property for securing a loan. On the other hand a sale is transfer of  the  right  of  ownership.  A  lawful  owner  has  a  right  to mortgage his property and thereafter sale the same along with mortgage  since  the  rights  created  by  above  two  classes  of transfer are not conflicting rather mutually accommodative. In 2004 by introducing Act No. XXVI of 2004 a new Section 53D has  been  introduced  in  the  Transfer  of  Property  Act,  1882 which provides that no immovable property under mortgage shall be re-mortgaged or sold without the written consent of the mortgagee and if re-mortgaged or sold without above consent the remortgage or sale shall be void.

Above Act has made it mandatory upon a mortgagor to obtain written consent of the mortgagee before execution of a deed of sale for the mortgaged property but before us is not a deed for sale rather this is a Bainapatra which does not create or transfer the right of ownership.

A deed of Bainapatra creates an obligation on the part of the executant of the Bainapatra to execute and register a deed of sale and transfer of possession. The accused petitioner had three months time for execution of a sale deed after receipt of full consideration money and during above period he could redeem above mortgage.

If  the  transaction  was  concluded  or  sale  deed  was executed and registered without redeem of above mortgage or obtaining consent of the mortgagor or disclosing above fact of mortgage of the disputed property to the complainant then it could be said that cheating has been committed.

As mentioned above before lodging of this complainant the accused petitioner instituted Title Suit No. 290 of 2021 for cancellation of above Bainapatra on the ground of non-payment of  the  remaining  consideration  money  within  the  stipulated time. The complainant has filed title suit No. 184 of 2022 on 21.04.2022 for Specific Performance of above Bainapatra. In this  case  the  complainant  has  claimed  that  the  impugned Bainapatra was vitiated by cheating or fraud. But in above civil suit the  complainant  sought  for specific  performance  of  the above contract.

As  mentioned  above  the  learned  Advocate  for  the opposite party No. 2 has referred to the case laws reported in 74DLR(AD) 2022, 73 DLR 598, 33DLR 262, 27 DLR (AD) 175, 34 DLR 287, 35 DLR 118B, 30 DLR 58, 45 DLR 578, 27 DLR (AD) 175, 48 DLR (AD) 100, 20 BLC 550 and 14 DLR 265. We have examined all above case laws but we found that the  facts  and  circumstances  of  above  cases  are  quite distinguishable from the case in hand and those case laws are not applicable in the present case.

On consideration of above facts and circumstances of the case and materials on record, we hold that mere non-disclosure of the fact of mortgage of above property or suppression of above  fact  of  mortgage  at  the  time  of  execution  of  the Bainapatra does not constitute cheating.

As  such  above  proceedings  is  a  still  born  and preposterous one which shall not meet the ends of justice but cause unnecessary sufferings and plight to the petitioner which amounts to abuse of the process of the court.

In  above  view  of  above  materials  on  record  we  find substance in the petition under section 561A of the Code of Criminal Procedure and the rule issued is liable to be made absolute.

In the result, the rule is made absolute.

The proceedings of C.R. Case No. 454 of 2022 under section 406/420/506 of the Penal Code now pending in the court of learned Metropolitan Magistrate Court No. 19, Dhaka is quashed.

Communicate the judgment and order to the concerned court, at once.

A.K.M. Rabiul Hassan, J:

I agree.

Mohammad Imam Hossain Bench officer