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Serial No. Issue Year Name of the Parties/Case No and Citation Key Word(s) Short Ratio
1. 4 2015 Md. Mahbub Alam Vs. The State

4 SCOB [2015] HCD 1
561A of the Code of Criminal Procedure; Inherent power
The allegations as made in the first information report do not disclose any offence against the petitioner. Interference of this Court in exercise of its inherent power under section 561A of the Code of Criminal Procedure before framing charge is justified only when this Court finds, as in the present case, that the allegations as made in the first information report or charge sheet do not constitute the offence alleged against the accused or that on admitted facts no case can stand against the accused.
2. 4 2015 Karnaphuli Industries Ltd Vs The Commissioner of Taxes State

4 SCOB [2015] HCD 4
Income Tax Ordinance 1984, Section 83(2); Audi Alterm Partem
The DCT concern did not comply the provision of section 83(2) before opining that the claimed expenditure has not been adequately evidenced by the assessee applicant. Therefore it appears that the disallowance of expenditure has not only violated the provision of section 83(2) of the Income Tax Ordinance 1984, but also violated the time honored maxim Audi Alterm Partem which obliged a adjudicator to allow adequate opportunity of being head or to submit adequate representation. Accordingly this court finds merit in these seven Income Tax Reference Applications.
3. 4 2015 Shamsur Rahman Vs. Zhang Yu & ors State

4 SCOB [2015] HCD 12
Company Act, 1994, Section 20 & 87(2); EGM; Relationship between the Articles and the law
It is also found that attempts at the EGM held on 20.11.2013 to introduce changes in Article 14, thereby, facilitating the induction of the Respondent No.3 as a director, were equally unwarranted in law and irregular in form. Notably further, this EGM was held upon notice on 10.11.2013 to adopt a special resolution, thereby, falling far short of the statutory twenty-one days notice requirement mandated under Section 87(2) of the Act. That in turn exposes the Company to violation of Section 20 of the Act that authorizes alteration of the Articles by special resolution but only by necessary adherence to the notice period requirement of Section 87(2).
4. 4 2015 Alvi Spinning Mills Ltd & ors Vs. Bangladesh & ors State

4 SCOB [2015] HCD 23
Letter of Credits; contract of sale; case of fraud
The decisions referred to above consistently spelt out that when an irrecoverable Letter of Credit issued / opened and confirmed by the bank such a bank is left with no option but to respect its obligation under the letter of credit and pay if the draft and documents are found to be in order and terms and conditions of such L/C satisfied.
5. 4 2015 Gazi A.K.M. Fazlul Haque & ors Vs. Privatization Commission & ors State

4 SCOB [2015] HCD 42
Article 102 of the Constitution; Privatization Commission (Officers and Employees) Service Regulations, 2002; right to be considered for promotion; Selection Committee; deputation
Only seniority is not the sole yardstick for promotion of any officer of the Commission to the next higher post. Along with his seniority, merit of the officer shall be taken into consideration for promotion to the next higher post by the Selection Committee/DPC. In case of promotion of a Deputy Director to the post of Director of the Commission, he must have completed a minimum of 5(five) years service and his service record must be satisfactory and free from any blemish or stain. If no Deputy Director having the requisite service length and satisfactory service record is available for promotion, only in that event, the post of Director of the Commission may be filled up by deputation.
6. 4 2015 Md. Shajahan Bhuiyan & ors Vs. Md. Nurul Alam & ors State

4 SCOB [2015] HCD 52
State Acquisition and Tenancy Act 1950, Section 86; diluvion; lawful right to lease out
Section 86 of the Act, 1950 clearly provides that a land that has diluvated before the of P.O No. 135 of 1972 (i.e. after April 1956) or that will diluvate in future shall vest in the Government. It follows that irrespective of what ever title or right was acquired by Oli Ullah from the D.S. recorded tenant Zinnat Ali by virtue of the unregistered patta dated 28.1.1931 (Exhibit-ka) and the three rent receipts for the years 1341 to 1362 D.S (Exhibit-Ga-series) it had extinguished as a result of diluvion that took place some time before 1965 i.e. before the Diara Map. It follows that the Government has acquired lawful right to lease out the land that was earlier recorded as D.S. plot No.1657 and 1658.
7. 4 2015 State & ors Vs. Md. Saiful Islam & ors State

4 SCOB [2015] HCD 61
Code of Criminal Procedure, 1898 Section 103; Madak Drabbya Niontran Ain, 1990, Section 36 and 37; search and seizure
Strict non-compliance of section 103 of the Code in order to search and seizure of madak articles either from a person or any place will not render the case unbelievable.
8. 4 2015 BSRM Steels Ltd. & ors. Vs NBR & ors. State

4 SCOB [2015] HCD 80
Income Tax Ordinance, 1984, Section 53 and 82C; Advance payment of income tax; final discharge of tax liability; deduction of tax
According to sub-section (3) of the said Section 53, the importers are given credit for such advance payment of income tax during their assessment of tax in the concerned assessment year. Not only that, according to Section 82C as quoted above, such deduction shall even be deemed to be the final discharge of tax liability of an assessee-importer from that source. Therefore, since the source in the present case in respect of the petitioners is the source of importation of scrap vessels by the ship breaking industries, or sometimes by the petitioners themselves, and there is no dispute that at the time of importation of the scrap vessels AIT were deducted in view of the provisions under Section 53, the said deduction of tax shall be deemed to be the final discharge of liability from that source in view of Clause (g) sub-section (2) of Section 82C of the said Ordinance.
9. 4 2015 Md. Selim Mollah Vs. Bangladesh & ors State

4 SCOB [2015] HCD 86
Druto Bichar Ain, 2002, Section 6; public interest; objective satisfaction
Alongside the five categories of cases, the Government in the public interest can transfer any pending case at any stage of trial to Druto Bichar Tribunal. A question may still arise as to when this particular provision of law gives authority on the Government to transfer any pending criminal case at any stage of trial to any Druto Bichar Tribunal, why five categories of cases relating to the offence of murder, rape, firearms, explosive substances and drug are required to be specifically mentioned. Here the necessity of objective satisfaction on the part of the Government arises as to which cases other than the cases of those five categories are to be transferred in what public interest, and without any objective satisfaction recorded to that effect transfer of any other case to the Tribunal constituted under the Ain is not permissible. The concerned officials of the Ministry of Home Affairs must be careful and expressive in sending any case other than the cases of five categories specifically mentioned in section 6 of the Ain.
10. 4 2015 BBC Vs. Registrar, DPDTM & ors State

4 SCOB [2015] HCD 89
Trade Marks Act, 2009, Section 24 & 30; priority of use of trade mark; action for passing off
Section 30 of the Trade Marks Act, 2009 provides that priority of use of this mark gets paramount consideration compared to registration.

The right created in favour of a registered proprietor of a trade mark is not an absolute right and is subservient to other provisions of the Act. In other words, registration of a trade mark does not provide a defence to the proceedings for passing of as under section 24 of the Act, 2009. A prior user of trade mark can maintain an action for passing off against any subsequent user of an identical trade mark including a registered user thereof.
11. 4 2015 Md. Forhad Hossain Sheikh Vs. The State State

4 SCOB [2015] HCD 102
Circumstantial Evidence; Burden of proof in wife killing case;
Commission of crime can also be proved by circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false tutored and biased witnesses but it is very much difficult to procure circumstantial evidence.
12. 4 2015 Kazi Mazharul Islam Vs. Bangladesh & ors State

4 SCOB [2015] HCD 115
Article 36 of the Constitution of Bangladesh;
If the government is allowed to restrict a person from going abroad at its discretion, then Article 36 of the Constitution will become nugatory. This Court being the guardian of the Constitution cannot condone such practice.
13. 4 2015 Kazi Md. Salamatullah & ors Vs. Bangladesh & ors State

4 SCOB [2015] HCD 117
Court-conduct of the learned Advocates; norms and etiquettes of the legal profession
Court is well empowered to oversee the professional performance and also to regulate the Court-conduct of the learned Advocates and, in an appropriate case, impose costs upon a learned Advocate for finding his conduct to be unbefitting with the norms and etiquettes of the legal profession. Accordingly, instead of referring this incident to the Bar Council towards drawing up proceedings against the learned Advocate for the petitioners, we are taking a lenient view by warning him with an expectation that this kind of incident shall never be repeated by him in future.
14. 4 2015 Syed Aynul Akhter Vs. Sanjit Kumar Bhowmik & ors State

4 SCOB [2015] HCD 127
Evidence Act, 1872, Section 91 and 92; Code of Civil Procedure, 1908, Order XIV Rule 1; Oral evidence; Documentary evidence; Issue not taken up earlier
We are surprised that the Courts below did not take these rent receipts into any consideration at all and which are relevant documentary evidences. Instead, as is obvious from their findings, the Courts below have erroneously and unlawfully relied upon oral evidences bypassing the documentary evidences and which they are barred from doing under the law. Section 91 and 92 of the Evidence Act expressly bar the reliance upon oral evidences where documentary evidences are there on record.
15. 4 2015 State & ors Vs. Rafiqul Islam & ors State

4 SCOB [2015] HCD 139
Penal Code, 1860, Section 302; Last seen together theory; Retraction of confession
According to the prosecution, in the morning of 05.06.2008 all accused persons with the victim Mamun alive were last seen together at the Gate of Rafiques house no. Ka-109/4, Kureel Bishwaroad and at that time P.W.3 i.e. the Darwan himself saw them coming out together from that house. After they were last seen together, the dead body of the victim was found at an open place of Bholanathpur by the Esapur River on 07.06.2008. In such a situation it is the burden of the accused persons to prove and explain as to how the victim had been taken and done to death there.
16. 4 2015 Shuvash Chandra Das Vs. Customs, Excise & VAT App. Tribunal & ors State

4 SCOB [2015] HCD 171
VAT Act, 1991, Section 37 & 55; Determining amount of evaded VAT; Opportunity of hearing
A notice under section 37 of the VAT Act cannot be issued without first determining the amount of evaded VAT if any. In doing so the authority have to issue notice under section 55(1) of the VAT Act 1991, claiming the evaded VAT and after giving an opportunity of hearing to the party concern, determine the amount of evaded VAT, under section 55(3) of the VAT Act 1991. After such determination of evaded VAT if the defaulter fails to repay the evaded VAT, only then, can proceed under section 37 along with other provisions of the VAT Act.
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