May 23, 2013 | 02:35 PM (BD Time)
23 May, 2013 Thursday
Inherent power of the HC shall remain unaffected
M. M. Ruhul Amin-C.J.
Md. Tafazzul Islam-J.
Md. Abdul Matin-J.
Md. Abdul Aziz-J.
CRIMINAL PETITION FOR LEAVE
TO APPEAL NO.267 of 2007
(From the judgment and order dated 25.03.2007 passed by the High Court Division in Criminal Miscellaneous Case No. 4427 of 2001.)
Md. Nurul Hoque Sarkar @ Nurul Huq ………..Petitioner.
The State and others ………….Respondents.
For the Petitioner : Mr. Muhammad Nazrul Islain, Senior Advocate instructed by Mr. Nurul Islam Bhuiya, Advocate-on-Record.
Respondent : Not represented.
Judgment: March 15, 2009 Code of Criminal Procedure, 1898-
Section 561A- Saving of inherent power of High Court Division-
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect any order under this Code, or to prevent abuse of process of any court or otherwise to secure the ends of justice.
Whether or not the petitioner is connected with the offence call be ascertained only on evidence and therefore the petition under Section 561A of the Code of Criminal Procedure is misconceived (Para 7)
MD. ABDUL MATIN-J: This petition
for leave to appeal is directed against the judgment and order dated 25.03.2007 passed by the High Court Division in Criminal Miscellaneous No.4427 of 2001 discharging the Rule arising out of proceedings in Complaint Case being C.R Case No.16 of 2000 relating to petition No.137 dated 1.03.1994 under Sections -406/409/420/465/467/471 of the Penal Code now pending before the court of the learned Magistrate, First Class, Jessore.
2. The facts as set out in the memo of Criminal Miscellaneous Case No.4427 of 2001, inter-alia, are that one Md. Habibur Rahman, A.G.M. of Janata Bank (opposite party No.2) ("complainant") filed a petition of complaint on 31.03.1994 before the court of the learned Magistrate, Jessore under Section 406/409/ 420/ 465/ 467 / 471 of the Penal Code read with Section 5(2) of Act II of 1947 against 17 accused persons including the petitioner. According to the said petition of complaint the complainant is a bank with branches situated in different countries providing various financial services including lending money. On the other hand accused Nos.1 to 7 (of the complaint) are owners of their respective business and accused No. 8 to 17 are officers of C & F agent and Customs Division. On the basis of an application by accused Ramzan Ali and on the basis of a guarantee by the present petitioner No.1 Nurul Huq the complainant-bank, had opened the following L/Cs for importing thread from India:
L/C No. Date Amount
J/B/N/104/90 25.03.1990 $53,900/
J / B / N /105/90- $53, 890/-
J/B/N/106/90- $52,146/- J/B/N/l07/90 - $49,896/24
J/B/N/108/90 - $40,100/-
J/B/N/129 29.03.1990 $32, 550-
3. The exporters of the said L/Cs were M/S. Shushuma Commercial (Pvt.) Ltd., L/83, East Annanagar, Madras. B.C. group Industries (Pvt.) Ltd. Five chat Street, Calcutta. Promisir Export (Pvt.) Ltd., 32 Jamunalal Bazar Street, Calcutta. Orient Export (Pvt.) Ltd. Kemak Street, Calcutta. Azim Gazi House, Calcutta. The said thread entered into Bangladesh through Benapol Check Post on several dated. Similarly the complainant bank opened various L/Cs for importing cotton yarn from India in favour of other accused on their respective applications wherein the petitioners were guarantors. The sad imported cotton yarn was under the custody of accused No. 17 (now the petitioners) at Benapole Ware House under the Chalna Port. The exporters sent all the shipping documents i.e. the Bill of Lading, Invoice etc. to the concerned branch of the complainant bank. The accused were not entitled to take delivery of the goods without endorsement from the bank in favour of accused Nos.2, 3, 5 and 6 (of the complaint), Original Invoice and without the payment clearance certificate from the Tan Bazar Branch of Janata Bank.
The exporters kept on sending the shipping document as per the terms of the L/C to the Tan Bazar Branch of Janata Bank and the said bank kept on informing accused Nos.1 to 7 (of the complaint) of the receipt of the shipping documents and also requested the said accused persons to collect the original. shipping documents after clearing the dues of the bank. But the accused persons delayed in collecting the shipping documents by making various excuses.
Accused No.5 (present petitioner No.1) by his letter dated 12.02.1991 informed the bank that the said goods were under the custody of Benapol Customs and were being looked after by his nominated person. As per the application of accused No. 5 (present petitioner No.1) the complainant bank (Tan Bazar Branch) issued 4 documents (Loan against Imported Merchandise or LIM) on 05.11.1990 and 19.12.1990. The' Narayangonj Tan Bazar Branch endorsed the said 4 shipping documents and sent the same to the C & F cell of M.K. Road Branch of Janata Bank, Jessore.
The complainant bank learned from its authorized C & F agent MIS Alauddin accused Nos. 7 to 9 (of the complaint) had already taken away the said goods from the warehouse.
Accordingly to the decision taken by the bank, the area Chief of the M. K. Road Branch, Jessore of the said Janata Bank was given the responsibility to supervise and control the inter country commercial work through the Benapol check post.
One Shaukat Osman, the Manager of the said M.K. Road Branch of Janata Bank, Jessore started to investigate into the matter on 24.11.1991. After inquiry he found that accused Nos.1 to 4 and 5 to 7 and C & F Agent No. 8-10 and customs authority Nos.11-17 (of the complaint) in connivance with each other and others made various false documents and used those to take away the said goods without the knowledge of the bank and thus the accused persons misappropriated the said goods causing financial loss of Tk.3,97,58,140 - (excluding interest). Hence the case. On the same day i.e. on 31.03.1994 the learned Magistrate, Second Class, Jessore Md. Shakhawat Hossain took cognizance under Section 200 of the Code of Criminal Procedure and passed an order for investigation and necessary action by the District Anti-Corruption Officer (DACO.)
4. The petitioner moved the High Court Division under Section 561A of the Code of Criminal Procedure and by the impugned judgment and order the High Court Division discharged the Rule.
5. As against the order of the High Court Division the petitioner has filed this petition for leave to appeal.
6. Heard the learned Counsel and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
7. It appears that the petition of complaint disclosed prima facie case. The High Court Division further held that whether or not the petitioner is connected with the offence can be ascertained only on evidence and therefore the petition under Section 561A of the Code of Criminal Procedure is misconceived. The High Court Division discharged the Rule on correct principle of law and we find no illegality in the judgment and order passed by the High Court Division and accordingly the petition is dismissed.
Art and Culture
Focus on Chittagong
Fashion & Beauty
Food and Drink
Law and Justice
New Nation Supplement
Editor: Mostafa Kamal Majumder, Adviser Editor: A.M. Mufazzal, Printed and Published by Mainul Hosein from the New Nation Printing Press, 1.R.K Mission Road, Dhaka-1203 Phones: New Nation PABX: 7122654, 7114514, 7122655, Fax: 880-2-7122650, 9512775 email: firstname.lastname@example.org, email@example.com for advertisement, firstname.lastname@example.org