Penal Code, 1860 [ Sections 401-511] Case Reference

Penal Code, 1860

Section—405 

Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted, whether will establish the fact of criminal misappropriation?  The expression ‘property’ occurring in section 405 of the Criminal Procedure Code should not be given a narrow construction. Blank forms of tickets are also property when the same are converted into tickets after sale.  Mere delay in payment of money entrusted to a person, when there was no particular obligation to pay at a certain date, does not amount to misappropriation.  Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted will not establish the fact of criminal misappropriation, if mens rea is not established. The prosecution must also establish, apart m entrustment that the accused had dishonestly misappropriated the property entrusted.  A.H.M. Siddique Vs. The State 13BLD (HCD)85  Ref: 9DLR(SC) 14; 3lCr.L.J.(1930)1198; A.I.R.( 1940)330;AIR(1976)(SC) 1966—Cited   

 

Criminal Misappropriation Audited and approved accounts-No guarantee against criminal prosecution

Even if the accounts of a company are audited and approved the same cannot exonerate persons in charge of management of the company from facing a criminal trial on allegations of misappropriation of funds of the company by falsification of accounts and concealment of documents, in the absence of any specific bar under any law. KhorshedAlam Vs. Azizur Rahman and another, 15BLD(HCD) 639

Criminal misappropriation Mere inability to pay back a sum of money entrusted, the sale proceeds of a prop- erty entrusted will not establish the fact of criminal misappropriation, if mense rea is not establish. The prosecution must establish, apart from entrustment also that the accused had dishonesty misprinted the property en- trusted-Penal Code; S.405

A.H.M. Siddique Vs. The State, 13 BLD(HCD)85

Sections 405, 415- Difference between cheating and breach of contract- In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract. Prof. Dr. Motior Rahman =VS= The State & another, [1 LM (AD) 587]

Section 405-When section 405 defines 'criminal breach of trust' speaks of a person being in any manner entrusted with the property, it does not contemplate the creation of a trust with all the techni- calities of the law of trusts. It contemplates the creation of a relationship whereby the owner of the property makes it over to another person to be retained by him until certain contingency arises or to be disposed by him on the happening of a certain event. State vs Md Abul Hossain, 64 DLR (AD) 39

Sections 405/406-In cases of criminal breach of trust, the failure to account for the property or money proved to have been entrusted with the accused or giving false account as its use is generally considered to be a strong circumstance against the accused. State vs Md Abul Hossain, 64 DLR (AD) 39

Sections 405/406/420-Transaction of loan money under a loan agreement do not operate as an entrustment under section 405 of the Code. When there is no entrust- ment, there cannot be any trust. If there is no trust, there cannot be a question of criminal breach of trust. In the transaction of loan, the loan giver does not hold any control of the loan amount and, as such, it constitutes no breach of trust. If there is any breach of contract, the remedy is in the civil suit. Sadiul Alam vs State, 64 DLR 146

Section 405 and 409-The word 'entrustment' is not necessarily a term of law and may have different implications in different context. Once entrustment is proved, it is for the accused to explain as to how he dealt with money. If explanation is not acceptable, the offence under section 409 stands proved. Mostafa Kamal vs State, 66 DLR 534 

Sections 406 and 420-Impugned proceeding, filed under sections 420/406, is pending before the trial Court and no order of conviction has yet been recorded. Therefore, section 403 of the Code of Criminal Procedure is not applicable. On the other hand, section of General Clauses Act is not applicable in the facts and circumstances present case, in as much as, section 26 bars punishment twice for committing the same offence, but it does not bar prosecution or conviction for committing the same offence. Nurul Islam vs State, 69 DLR 308

Sections 406 and 420-The offence committed under sections 420 and 406 are totally different from one committed under section 138(1) of the Negotiable Instru- ments Act, 1881, while the ingredients as, well as, the reliefs and punishments provided for, under two laws are different. Section 138(2) provides for imposing fine and to pay fine, to the extent of face value of the dishonoured cheque, to the 'payee'/ complainant. Section 138B provides for depositing not less than 50% of the dishonoured cheque in the trial court, for preferring appeal against conviction under section 138 of the Negotiable Instruments Act, 1881. There is no such provision under section 420 or 406 of the Penal Code. Besides, joinder of offence committed under section 138(1) of the Negotiable Instruments Act is not permitted with one committed under the Penal Code. Nurul Islam vs State, 69 DLR 308

Sections 406/420—  Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding.  Rafique (Md) vs Syed Morshed Hossain and another 50 DLR (AD) 163 

Section 406/420

The writ petition was filed seeking analogous hearing of C.R. Case No. 437 of 2007 under sections 406/420 of the Penal Code Pending before the Metro- politan Magistrate, Dhaka and C.R. Case no. 63 of 2007 allegedly arising out of same incident pending before the Judicial Magistrate, Rajbari. The High Court Division summarily rejected the writ petition on the ground that the mat- ter cannot be dealt in the writ jurisdic- tion. Md. Abdul Beset Nannu vs. Judicial District Magistrate (Μ.Μ Ruhul Amin CJ) (Civil) 7 ADC 178

Sections 406/407 and 408- Value of statement of who was not examined in the case as a witness in accordance with law- The Appellate Division observed that the High Court Division set aside concurrent findings of fact by placing reliance on the statement of a witnesses, who was not examined in the case as a witness in accordance with law, in disregard and derogation of the evidence on record and as a result, there has been a grave failure of justice. .....Md. Abdul Awal =VS= Md. Abdul Barek & another, [1 LM (AD) 492]

Sections 406/420- It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant. Sree Gopal Chandra Barman =VS= Md. Nasirul Hoque, [1 LM (AD) 495]

Sections—406 and 420 

The question of offence of cheating, whether arises when there is nothing to show that any entrustment of property was made to the accused?  The question of offence of the cheating does not arise (in the instant case) as there is nothing to show that the accused has dishonestly induced the complainant to sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit according to the direction of the person making the entrustment.  Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28   

 

Sections—406/420 

There is no specific promise for payment by any specific date and as such the High Court Division did not find any existence of initial intention for deception on the part of the accused petitioner. What happened between them was in due course of normal and regular business transaction for which no criminal action lies. At best the informant may go for civil action against the accused petitioner.  Mohiuddin Md Abdul Kader Vs The State and another, 20 BLD (HCD) 499  Ref: 18BLD(AD)289; 49DLR(AD)180—Not applicable   

 

Sections—406/420 

The allegations made in the petition of complaint it clearly shows that the petitioner had initial intention to deceive the complainant and thereby misappropriated the money. So, it cannot be said that it is a case of civil nature. The petition of complaint undoubtedly discloses criminal offence against the accused-petitioner. The Appellate Division held that the High Court Division rightly refused the prayer for quashing the proceeding.  Abu Baker Siddique Vs. The State & anr, 18BLD (AD)289    

Sections—406/420 

Dishonouring of the cheque itself does not constitute the offence of cheating.  As regards the argument that the accused- petitioner issued a cheque knowing fully well that he had no money in the account and that conduct amongst to cheating we are of the view that dishonouring of the cheque itself does not constitute the offence of cheating.  Md Motaleb Hossain Vs The State and another, 20BLD(HCD)573  Ref: Md. Asaduzzaman Vs. Salamatullah, 1 9BLD( 1999) (HCD)46 1—relied.    

 Penal Code, 1860 

Section 406 and 420- Charge of misappropriation and cheating when does not lie- 

 

Code of Criminal Procedure, 1898 

Section 561A- Quashment of proceedings disclosing no offence for preventing abuse of the process of the Court.  The members of the partnership or Managing Director of Private Limited Company are the trustees of the money held in their control for running the business. No charge of misappropriation and cheating under section 406 and 420 of the Penal Code lie against them. Remedy lies in suit for accounts to be filed in appropriate forum. Therefore the, apex court quashed the proceedings.  Anarul Islam (Md.) and others Vs. The State and another ii MLR (2006) (AD) 198.    

 

Penal Code, 1860 

Section 406 and 420- Appropriation of loan money does not constitute offence of criminal misappropriation. 

 

Transfer of Property Act, 1882 

Section 66 – Disposal of mortgaged property on imminent danger of destruction.  Title of money taken on loan passes to the loanee and as such appropriation thereof does not constitute offence punishable under section 406 and 420 of the Penal Code. Moreover the loanee is entitled under section 66 of the Transfer of Property Act, 1882 to dispose of the mortgaged property under danger of being perished.  Mahbub Alam Khan (Md.) Vs. The State 14 MLR (2009) (HC) 197.    

 

Penal Code, 1860 

Section 406 and 420-  Prevention of Corruption Act, 1947  Section 5(2) – Restriction on transfer of imported duty free vehicle by M.P. is three years. The transfer made after the expiry of the period of restriction for three years, the transfer of the vehicle imported duty free by a member of the Parliament does not constitute offence punishable under section 406, 420, 109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. The proceedings being abuse of the process of the court the learned judges of the High Court Division quashed the same.  Showkat Ail (Mohd.) Vs. National Board of Revenue, represented by its Chairman and others 14 MLR (2009) (HC) 224.    

 

Penal Code, 1860 

Section 406, 420, 467, 468, 476, 121A and 109- Proceeding drawn on allegations of criminal misappropriation and cheating.  When a money suit has been instituted for realisation of money due on account of supply of certain goods, the subsequent criminal proceedings over the self same matter is held by the learned judges of the High Court Division not competent as being one aimed at harassing the party accused therein and as such quashed the same.  Mark Parco and others Vs. State and another 13 MLR (2008) (HC) 350.    

 

Penal Code, 1860 

Sections 406, 409, 467, 468 and 471- Allegations of forgery can be decided at the time of trial.  As the allegations of forgery can be decided at the time of trial and as the charge in the instant case has not yet been framed, the proceedings cannot be quashed at this stage. Since the alleged document was not used as evidence in any judicial proceedings before any court, section 195(1) Cr.P.C does not stand as a bar against the present proceedings.  Khizir Haider and others Vs. The State 13 MLR (2008) (AD) 157.    

 

Penal Code 1860 

Sections 406 and 420- No offence is constituted when there is no entrustment and element of deception.  Issuance of post dated cheque for payment of part of unpaid money arising out of contractual agreement and the dishonour of the cheque do not constitute offence punishable under section 406 and 420 of the Penal Code. The proceedings initiated thereon being abuse of the process of the court are quashed.  Baby Masum and Abdul Kader Vs. State 14 MLR (2009) (HC) 458.    

 

Penal Code, 1860 

Section 406 and 420- Trial of case when the offence attract both the special law and general law. 

 

Emigration Ordinance, 1982 

Section 23- offence of receiving money on the pretext of providing foreign employment – The offence under section 23 of the Emigration Ordinance is triable by special court consisting of the chairman labour court. Such special court cannot try offence under other law. In the instant case the ingredients of both the offence under Penal Code and special law are present. The learned judges of the High Court Division held that the proceedings either in the special court or in the ordinary court are maintainable.  Phulbanu alias Phul (Mst.) Vs. The State 15 MLR (2010) (HC) 332.    

Section—406/420 

The alleged transaction in between the complainant and the appellant is clearly and admittedly a business transaction. The appellant had already paid a part of the money under the contract to the complainant. The failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature. The High Court Division were not justified in refusing to quash the proceeding in question although the transaction in question between the parties is clearly of a civil nature.  Dewan Obaidur Rahman Vs. The State and anr, 19BLD (AD)128  Ref: 45DLR (AD) 27—relied upon   

Section 406

The two trucks belonging to the plain- tiffs were seized by the police in con- nection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pend- ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count. Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J)(Civil) 2ADC 938

Section 406

The two trucks belonging to the plain- tiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pend- ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count......(11). Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J) (Civil) 2ADC 938

Section 406, 467, 468, 471, 109

That the accused persons in collusion with each other through forgery created records in the name of a false and non- existent firm. Shabbir Ahmed Chowdhury vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 832

Penal Code, 1860 

Sections 408, 409, 420- Offence of misappropriation when not committed by a public servant – not triable by Special Judge. 

Prevention of Corruption Act, 1947 

Section 5(2)- Headmaster of a private High School being not a public servant, section 5(2) is not attracted In the instant case the accused petitioner who is a Headmaster of a private High School is not a public servant within the meaning of section 21 of the Penal Code. So the offences complained of are not triable by the Special Judge. The learned judges of the High Court Division having found the impugned proceedings abuse of the process of the court and corum non-judice quashed the same.  Aminul Islam Khandaker (Md.) Vs. The State 14 MLR (2009) (HC) 421. 

 

Section 408-The petition of com- plaint containing specific allegation against an employee of the Grameen Bank under section 408 of the Code should not be thrown away for legal defect giving opportunity to the offender to go scot-free. The Magistrate shall send the petition of complaint to the Commission in accordance with procedure laid down under Rules 13(3) of the Bidhimala to deal with in accordance with law. Shanik Chandra Barmon vs State, 66 DLR114

Section 409-In respect of trial of offences punishable under section 409 of the Code and section 5(2) of the Act under the Criminal Law Amendment Act, the accused-Ambassador may be tried for all such offences irrespective of dates of commission of the same. ATM Nazimullah Chowdhury vs State, 65 DLR 500

Section 409-Trial and conviction of an accused both under section 409 of the Penal Code and under section 5(2) of the Prevention of Corruption Act are legally justified; but he cannot be punished twice under the provisions of those two enactments. ATM Nazimullah Chowdhury vs State, 65 DLR 500

Section 409-Principle of vicarious liability cannot be imported in a charge for offence of criminal breach of trust. Mostafa Kamal vs State, 66 DLR 534

Section 409-The hard earned money of the people spent from the public exchequer cannot be misused at the whims and sweet wills of the accused-petitioner and others for their illegal gains and benefits. Yunus (Md) vs State, 67 DLR 97

Section 409-The accused-petitioner is an agent of the Roads and High Ways, since prima-facie, he has committed criminal breach of trust in respect of the property as described in the work order in the way of his business as an agent in misappropriating the public money and in not handing over the bhaban to the authority by constructing the same in time as per work order. Yunus (Md) vs State, 67 DLR 97

Section 409-Proceeding initiated against the accused-petitioner under section 409 of the Code is maintainable even in the absence of any public servant. Yunus (Md) vs State, 67 DLR 97

Section 409-Criminal breach of trust by agent-Any contractor is appointed by any department of the Government for construction of any building, the contractor is termed as an agent of the concerned department of the Government. Receiving the work order for construction of a bhaban by the contractor as an agent from any department of the Government is also an entrustment with property. Once the contactor as agent receives the work order for construction of a building, he is under obligation to hand over the same to the authority by constructing the same as per work order. Yunus (Md) vs State, 67 DLR 97

Sections 409 

Sadharan Bima Corporation Karmachari Probidhanmala, 1992, Sections 41(Ka)

No oral evidence was recorded by the Inquiry Officer to prove the allegations brought against the respondent No.1, eventually no question of cross- exam- ination of the prosecution witnesses by the writ petitioner-respondent No.1 has arisen at all. Thus, the inquiry proceed- ing in the case in hand has not been held in compliance with the provisions laid down in Probidhan 42 of Probidhanmala, 1992. In the aforesaid backdrop the impugned dismissal order of the respondent No.1 backed by flawed departmental proceeding cannot be sustainable in the eye of law......(18)

Sadharan Bima Corporation vs. Md. Rafiqul Islam (Obaidul Hassan J) (Civil) 20 ADC 45

Section 409-The prosecution has been able to prove that such wrongful loss has been caused by the convict petitioner by misusing his power and authority as the Ambassador and head of Mission. All the allegations have been proved by all the Pws who corroborated each other in every detail. None of the PWs were cross examined because of the abscondence of the convict petitioner. Be that as it may, all the allegations brought against the convict petitioner for which charge were framed having been proved by the PWs and corroborated by each other, the High Court Division found him guilty of all the charges, except the allegation of renting a new residence for the Ambassador. Finding and decision of the High Court Division in convicting the convict upon modifying and reducing the sentence and fine imposed by the trial Court calls for no interference. ATM Nazimullah Chowdhury vs State represented by the Deputy Commissioner, 69 DLR (AD) 344

Section 409-Admittedly the accused petitioner was the then Prime Minister of the People's Republic of Bangladesh who accorded approval as the head of the final authority to issue work-order in favour of CMC consortium, the third lowest among the three bidders, inspite of recommenda- tion of the Chairman, Petro Bangla for re- tender which according to the respondents has caused huge loss and damage to the Public Exchequer as the same constitute criminal breach of trust. Begum Khaleda Zia vs State, 70 DLR (AD) 99

Sections 409/109-Whether the accused have committed any offence within the meaning of section 409/109 of the Penal Code read with section 5(2) of Act II of 1947 or not are to be decided after recording evidence by the trial Court. Anti- Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242

Penal Code, 1860 

Section 409, 468 and 477A- Offence of misappropriation and falsification of account. 

 

Prevention of Corruption Act, 1947 

Section 5(2) – Criminal misconduct- Subsequent deposit- of the money in question does not create ground for acquittal.  Admittedly the convict-petitioner misappropriated the money he collected from the Rajshahi City Corporation shops and on the proof of the charges he was convicted and sentenced to various term. But subsequently he deposited the money in question. The High Court Division did not interfere with the sentence even though the amount of money misappropriated was deposited. The apex court held the High Court Division was perfectly justified in dismissing the appeal.  Sirajul Islam (Md.) Vs. The State 13 MLR (2008) (AD) 118.    

 

Sections 409/420/467/468/471- Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541]

Sections 409/109- Re-calling the P.Ws for cross examination- In our view this observation of the learned Judges of the High Court Division is uncalled for and not contemplated by settled principles of criminal justice. Any individual accused person is liable to answer the charges brought against him and the prosecution is bound to prove the charges levelled against each individual accused beyond reasonable doubt, and hence, no individual can be compelled nor can it be suggested to any accused that he should adopt the cross- examination made on behalf of another accused. Accordingly, the following words-"Re-calling our earlier observation, however, we think that justice will meet to its end if the accused-petitioner exercises option, if thinks so, to adopt the cross-examination on behalf of the other accused- petitioners, Rahman. specially of Tareq are hereby expunged. However, for the reasons stated and in view of the discussion above we do not find any illegality in rejecting the accused petitioner's application for re-calling the witnesses already examined and cross- examined. ..... Begum Khaleda Zia =VS= The State, [4 LM (AD) 353]

The Penal Code read with section 5(2) of Act II of 1947 

sections-409/ 467/468/471/472/190

Allegation that they prepared fictitious bills by creating advice with forged sig- natures and thereby misappropriated huge amount. Shahadat Hossain Mina vs. Governor, Bangladesh Bank (Md. Tafazzul Islam J) (Civil) 6 ADC

Section 409- The provisions of Section 222(2) read with Section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas Section 6 (1B) provides that any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the Code of Criminal Procedure.

Since Section 409 of the Penal Code read with Section 5(2) of Prevention of Corruption Act come within the schedule of Criminal Law Amendment Act, the offences are liable to be tried as per the provisions of the Criminal Law Amendment Act, which being special law will prevail over the general law, i.e. the Code of Criminal Procedure. ... The State =VS= Ibrahim Ali(Md.), [10 LM (AD) 385]

Section 409- The accused has paid back all the money which he is alleged to have defalcated. That again cannot be a ground for acquittal, if it is found from evidence that he in fact committed the offence. Upon conviction, it is the discretion of the Court to award punishment in accordance with law and taking into consideration all the facts and circumstances of the case, including any mitigating circumstances. To that extent the period of sentence may be more or less depending on the facts of the case and the circumstances of the accused. ... The State =VS= Ibrahim Ali(Md.), [10 LM (AD) 385]

Sections 409/408/467/468/471/109/420- We are of the view that it cannot be said that there exists no prima facie case against the respondent No.1. Without exhausting the trial stage, no decision can be taken regarding the allegations brought against him in the charge sheet under Sections 409/408/467/468/471/109/420 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, Section 13 of the Money Laundering Protirodh Ain, 2002, Section 4(2) of the Money Laundering Protirodh Ain, 2009 and Section 4(2)(3) of the Money Laundering Protirodh Ain, 2012. The petition is disposed of. The judgment of the High Court Division is set aside. The order of the Mahanagar Senior Special Judge so far as it relates to the present respondent No.1 is also set aside.... Durnity Daman Commission =VS= Ezbahul Bar Chowdhury, [10 LM (AD) 500]

The Penal Code (XLV of 1860)

Section 409.

Misappropriation of 8 metric tons of wheat as has not been established beyond reasonable doubt consequently the appellant is entitled to the benefit thereof. Abdul Jalil Sarder vs The Stat (Md Ruhul Amin J)(Criminal) IADC 9 

Section 409, 477A, 109

The Janata Bank Employees Service Regulation, 1995 Rule 28 (1), 49.The Fundamental Rule 29. Reducing the petitioner from the post of Senior Officer to the post of Principal Officer without arrear salary and other attending benefits was illegal and directed the Bank to reinstate the petitioner in his original post with arrear salaries etc. Janata Bank, ors. vs Mr. Khalilur Rahman (Amirul Kabir Chowdhury J) (Civil) 3ADC 81

Sections 409/109

in collusion with each other for illegal gain misappropriated Tk. 11.80,615/-by - false billing against consultancy service and thereby committed an offence punish- able under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947.

Section 561A of the Code of Criminal Procedure praying for quashing the pro- ceeding and the High Court Division by the impugned judgment and order made the Rule absolute.

That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in mak- ing payment against running bills.

We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we con- sider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. The State, represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram (M.M. Ruhul Amin  J) (Criminal) 4ADC 264

Section 409

The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dis- missal of the respondent No.2 was not legal. Pubali Bank Ltd. vs Chairman, First Labour Court, (Md. Ruhul Amin J) (Civil) 2ADC 12

Confiscation of property

In section 409 of the Penal Code there is no provision for confiscation of the property. But the Appellate Division refused to consider this prayer of the petitioner at this stage. as this point was not specifically raised before the High Court Division and no ground was taken before the Court. Bibhuti Bushan Talukder Vs. The State, 17BLD (AD)168

The ingredients of section 409 of the Code are misappropriation to commit criminal breach of trust in respect of property over which he had dominion as public servant. The appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties and as such the appellant is entitled to acquittal as of right. A.K.M. Mohiuddin Vs. The State, 20 BLD(HCD)172

Penal Code, 1860 

Section 409- Ingredients constituting the offence must be present. 

 

Prevention of Corruption Act, 1947 

Section 5(2)- Irregularities committed by public servants in course of discharge of their duties do not constitute offence of criminal misconduct. 

 

Code of Criminal Procedure, 1898 

Section 417- Unless the order of acquittal suffers from non- consideration of material evidence on record or perversity no interference is warranted.  

Section 234(1) and 222(1) – Charge framed in violation of the mandatory provision of law- defect is not curable under section 537 Cr.P.C.  In order to constitute offence of misappropriation under section 409 of the Penal Code and criminal misconduct under section 5(2) of the Act II of 1947 there must be entrustment of the property and misappropriation thereof. When the fundamental characteristics of the offence complained of are not present, no offence is committed.  Fariduddin Ahmed (Md.) Vs. Ataharuddin and another 13 MLR (2008)  (HC) 786.   

 

 

Section 409/109

In collusion with each other for illegal gain misappropriated Tk. 11.80.615/-by false billing against consultancy service and thereby committed an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947.

Section 561A of the Code of Criminal Procedure praying for quashing the proceeding and the High Court Division by the impugned judgment and order made the Rule absolute.

That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills.

We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. The State. represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram (M.M. Ruhul Amin J) (Criminal) 4ADC 264

Penal Code, 1860 

Section 409 – No offence is constituted unless the ingredients are found present.  Where there are evidence on record that the shortage of wheat in the godown concerned could be caused by leakage of rain water, attack of insects, rates, etc. the convict-appellant cannot be held liable for the shortage and convicted and sentenced for the said shortage of wheat which in the facts and circumstances does not constitute offence of criminal misappropriation punishable under section 409 of the Penal Code. The learned judge of the High Court Division therefore set-aside the conviction and sentence as being one not established and proved by convincing and reliable evidence beyond shadow of all reasonable doubt.  Zahiduzzaman (Md.) Vs. The State 11 MLR (2006) (HC) 144.    

Section 409—  The accused having withdrawn money of the account holder PW2 upon a previous understanding between them, the trial Court misdirected itself in assessing evidence in the case in its true perspective and thereby wrongly convicted him.  AKM Mohiuddin vs State 50 DLR 447.

Section—409 

Awarding sentence of fine along with sentence of imprisonment for life, whether can be said to be illegal.  Awarding sentence of fine alongwith imprisonment for life cannot is not illegal in view of the said provisions of section 409 of the Penal Code.  A.M.A. Wazedul Islam Vs. The State 13BLD (HCD)296   

Section 409 – Transfer of duty-free imported vehicle does not constitute punishable offence.  The petitioner a member of the Parliament and not being a public servant who imported the duty-free vehicle is the owner thereof. When he transferred the vehicle as alleged in violation of the conditions of the SRO No. 266 dated 22.8.2005 he incurred the liability of the payment of customs duties and penalties which he already paid as adjudicated by the customs authority. The allegations do not constitute offence under section 409 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. The learned judges quashed the impugned proceedings as being one abuse of the process of the court.  Shahidul Islam (Mohd.) @ Mufti Shahidul Islam Vs. National Board of Revenue,  represented by its Chairman and others 13 MLR (2008) (HC) 441.     Penal Code, 1860 

Section 409

The Rule was issued calling upon the opposite parties to show cause as to why the proceeding in Special Tribunal Case No. 9 of 1991 (in fact Special Case No.9 of 1991) under section 409 of the Penal Code read with section 5(2) Act II of 1947 pending before Special Judge. Rajshahi Division (wrongly written as Special Tribunal Judge by the High Court Division) should not be quashed. Md. Khalequl Islam vs. The State (M.M. Ruhul Amin J) (Criminal) 4ADC 805

Section 409/109/471/472

Petitioner and others, who are the officers and employees of the Bangladesh Bank. Khulna Branch, in collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advice withdrew Tk. 7.25.400/- on 2.8.1992 from the said Bangladesh Bank Enamul Hoque Mollah vs. The State as represented by the Deputy Commissione (Md. Tafazzul Islam J) (Criminal)4ADC 972

 

 Section 409/109/472

In collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advices. Mirza Saifuddin Hasan vs. The State (Md. Tafazzul Islam J) (Criminal) 4ADC 977

Section 409/420/109

Discharging the Rules and common questions of law being involved in all these petitions, the same are disposed of by this judgment. Abdul Huque vs. The State (MD. Tafazzul Islam J) (Criminal) 4ADC 1004

 Section—409 

The word “banker” used is section 409 of the Penal Code, whether has been used in the technical sense of the Banking Companies Act.  Held: The word “Banker”occurring in section 409 of the Penal Code has not been used in the technical sense of the Banking Companies Act but it signifies any person who discharges any of the functions of the customary business of banking. The word also includes a firm or company that carries on such business.  Mustafizur Rahman Vs. The State and others, 13BLD(HCD)287  Ref: 1960 Cr. L.J. 188; 44 DLR(AD) 192; 23DLR(SC)4 1—Cited   

 

Section—409 

Mere delay in payment entrusted to a person, whether misappropriation?  Mere delay in payment of money entrusted to a person, when there was no particular obligaton to pay at a certain date, does not amount to misappropriation.  A.H.M. Siddique Vs. The State, 13BLD (HCD)85   

 

Section—409 

In section 409 of the Penal Code there is no provision for confiscation of property. Yet the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was not specifically raised before the High Court Division.  Bibhuti Bushan Talukder Vs The State, 17BLD(AD) 168   

Section—409 

Mere retention of money by the accused for some time without actual use for which it was meant or mere delay in disbursement of money due from him, if properly explained, does not constitute an offence under section 409 of the Penal Code.  A.K.M. Hafizuddin Vs. The State, 15 BLD(HCD)234   

Section—409 

The ingredients of section 409 of the Code are misappropriation to commit criminal breach of trust in respect of property over which he had dominion as public servant. The appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties and as such the appellant is entitled to acquittal as of right.  A.K.M. Mohiuddin Vs The State, 20 BLD(HCD)172   

 

Section—411 

Dishonestly retaining or receiving stolen property  

In order to sustain a conviction under section 411 of the Code the prosecution must prove affirmatively by reliable evidence that the accused had exclusive possession and effective control or domain over the stolen property or he received or retained the same knowing or having reason to believe it to be a stolen property.  Md. Afsar Ali Pramanik Vs The State, 20BLD(HCD)356    

Section 415 The legislature intended to criminalize only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted involuntary and inefficient transfers, under section 415 of Penal Code. Sahabuddin Alam (Md) vs State, 74 DLR 170.

Section 415-The mere inability of the petitioner to return the loan amount can not give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts of the complaint and materials on record are taken on their face value, no such dishonest representation or inducement could be found or inferred. Sahabuddin Alam (Md) vs State, 74 DLR 170.

Section 415 Since the complaints in the cases have not been filed by the person alleged to have been cheated it must be found that the complainant has no locus standi to make a complaint. Shahidul Islam (Md) vs State, 73 DLR 120.

Section 415 "Property", meaning of Procuring certificate to get admission in a college-Not a 'property'-No harm to reputation is caused by attesting such certificate. Rana Muhammad Fazal Khan vs State 14 DLR (SC) 235;(1962) PLD (DC) 397.

Section 415-"Property' does not depend upon its possessing a money or market value and still it may have a value for its owner. It may still be capable of being owned, possessed or transferred and, therefore, capable of creating property or legal rights in its owner, possessor, holder or transferor. Rana Md Fazal Khan va State 14 DLR (SC) 235.

Section 415 "Cheating" The word 'person' occurring in section 415 includes Government-Government property in possession of Government servant is deemed to be in possession of Government. Muhammad Rashid vs State 12 DLR (SC) 207.

Section 415-Initial intention to cheat must be proved-In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return something in lieu thereof which the latter had no intention to give. The intial intention to deceive, therefore, must be established in order to justify a conviction for cheating. Prithiraj Bacha vs State 10 DLR 325.

Section 415-Intent to cheat must be proved to have existed at the time when the offences were committed. Subsequent conduct is no valid criterion.

Where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed and where the party is said to be aggrieved has an alternative remedy in the civil Court, the matter should not be allowed to be fought in the criminal courts. Abdul Awal Chowdhury vs Md Waliullah 12 DLR 520; 1961 PLD (Dac) 53.

Section 415-No cheating without deception; no deception without misrepresen- tation. M Sharif Asghar vs State 11 DLR (WP) 90: 1959 PLD (Lah) 238.

Section 415-Cheating under section 415 is not a prerequisite to a conviction under section 419. Md Shafiullah vs State 19 DLR 255

Section 415 When a person promises to pay price of goods and on his undertaking to pay the goods were delivered to him afterwards he fails to pay price thereof No case of cheating will lie. Md Anwar Ali vs State & Md Nezamuddin 30 DLR 327.

Section 415-In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return or to give something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established to justify conviction for cheating. Intention to cheat is to be gathered from surrounding circumstances. Nasiruddin Mahmud vs Momtazuddin Ahmed 36 DLR (AD) 14.

Section 415-Ingredients must be established in an offence of cheating. Shaik Obaidul Huq vs State 38 DLR 105.

Section 415-A post-dated cheque in payment for goods received, if dishonoured. creates only a civil liability. Shaik Obaidul Huq vs State 38 DLR 105.

Section 415-The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180.

Section 415-If there is allegation that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not so made, it may be inferred that there was initial intention of deception. Asaduzzaman (Md) vs Md Salamat ullah, 52 DLR 530

Section 415-It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating and the intention is to be gathered from the surrounding circumstances. Md Arifur Rahman va Santosh Kumar Sadhu, 1994 BLD (AD) 78

Section 415 Simple dishonouring of a cheque itself is not an ingredient of cheating- To constitute an offence of cheating as described in section 415 of the Penal Code, there must be a specific allegation that the accused had initial intention in deceiving the complainant. It is also true that such intention can be gathered from the facts and circumstances because such intention normally is concealed in the mind and is not expressed. If there is allegations that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not made within the specific time, it may be inferred that there was initial intention of deception. Md Asaduzzaman Salamatullah 1999 BLD 461. Md

Section 415-(a) There cannot be any criminal case simply because the petitioner failed to deliver the contracted goods within the stipulated period and thereafter refused to refund to the opposite party No.1 moneys advanced for purchase of goods by way of import. There is no allegation that the complainant retained control over her moneys paid to the accused petitioner by way of any stipulation so as to bring the acused petitioner and the complainant within the ambit of a fiduciary relationship. There being no entrustment there cannot be any offence under section 406, Penal Code. 

(b) In the present case essential ingredients of entrustment and cheating are missing. However, in a proper case a breach of contract may also amount to cheating or criminal breach of trust punishable under the Penal Code. Dispute being of civil nature petitioner may be liable for breach of contract. Abdur Rahim vs Begum A Morshed 3 BCR 15.

Section 415 Prosecution for cheating Plea of Civil liability-The sum and substance of the complaint's case is that the accused realised a total sum of Taka 50,000 from the complainant on a promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of his application under section 561A CrPC was that the liability, if any, was of a civil nature for which no prosecution would lie. Since according to the petition of complainant the accused totally denied receipt of any sum from the complainant, the question of Civil liability does not arise. Abdur Rahim vs Enamul Huy, 43 DLR (AD) 173: 1992 BLD (AD) 130.

Sections 415 & 420-False representation with a view to cheat need not be addressed to specific individual. It may be addressed to the public in general. MFN Rewail vs State 8 DLR 569.

Sections 415 & 420-By false representation the accused induced the revenue authority to have his name mutated in respect of certain property whereas that property belonged to somebody else. The offence being detected the accused was tried for cheating under section 420 Pakistan Penal Code. On appeal it was contend that the State being the complainant and as the State was not the person who was cheated, the charge under section 420 as against the accused did not lie.

Held: The conviction is valid in law. The revenue authority was the agent of the Government which granted protection to the right of the subject. Md Shafi vs State 18 DLR (WP) 151.

Sections 415 & 420-Cheating-The initial intention to deceive must be established to justify a conviction for cheating. Intention of cheating shall have to be gathered from the facts of the case and its surrounding circumstances. Where there is no fraudulent intention of the accused from the beginning. there can be no question of cheating. In the absence of mens rea, mere breach of contract cannot constitute cheating. Inability to fulfil a promise or contract does not amount to cheating. Mahbubul Alam Gazi alias Mahbub Alam vs State and another 5 BLC 380

Sections 415 & 420 Cheating-Whether issuance of post-dated cheque constitutes an offence of cheating-The issuance of post- dated cheque means a promise for future payment and if future payment is defaulted on account of subsequent dispute that does not constitute any offence of cheating while there is nothing to show that the accused had any initial intention to cheat or deceive the other party- In order to constitute cheating there must be fraudulent and dishonest inducement for delivery of property-All important question to be determined is whether the intention not to pay was there when the promise was made- The subsequent failure to keep the promise to pay does not constitute cheating. Sheikh Ohadul Haque vs Rezaur Rahman Khan 1987 BLD 23.

Sections 415 & 420-Distinction between cheating and breach of contract-In order to constitute cheating it must be established that

one is made to part with his property on the promise of another or to give something in lieu thereof which the latter had no intention to give with a view to deceiving at the outset-The averments in the petition of complaint that the accused turned down the request for execution and registration of the sale deed on receipt of the balance of the consideration in pursuance of an agreement for sale clearly show that no criminal offence was made out-At best it may be treated as a breach of contract entailing civil liability-The distinction between the breach of contract and cheating depends upon the intention of the accused at the time of the alleged inducement, which may be judged by his subsequent acts-In the instant case facts show complete absence of dishonest intention on the part of the accused at the time when the agreement was executed between the parties- Prolongation of the proceeding in the criminal Court amounts to an abuse of the process of the Court and is therefore liable to be quashed. Shahjahan vs Atiqur Rahman 1987 BLD 164.

Section 415-The word "person" in section 415, Penal Code should be held to cover "Government", unless some considerations inherent in the context of the section militate against this view. Nasim vs State 57 DLR 546.

Sections 415 and 420-The complainant may initiate a criminal proceeding against them under section 420 of the Penal Code, if he is so advised. Besides, the door of the Civil Court is always open to the complainant to recover the loan amount by filing a money suit against the party concerned. Shahnaj Begum Munni va State 63 DLR 279.

Section 415-In order to constitute an offence under section 415 of the Code the deception by the accused is must and such

deception must be also from the initial stage of the transaction but in the instant case since the accused made a payment of Taka 38,820 to complainant in two installments, so, it is difficult for us to hold that the accused had an initial intention to deceive the complainant rather there appears part payment in the transaction. The allegations of the complainant are accepted in its entirety the same do not constitute any offence under sections 420 and 406 of the Code. Khandaker Nazrul Islam Khokan vs Mustaba Kuli Khan 19 BLC 211

Sections 415 and 420 The convict- petitioner in order to deceive the informant induced him to deliver the amount and consequently such an act of misappropriation is cleary an act of cheating as defined under section 145 of the Penal Code. Mofizuddin vs State 20 BLC 550

Sections 415 and 420-From the first information report it appears that the petitioner submitted an application for allotment of a plot at Banani from RAJUK. With the application he annexed an affidavit wherein he declared that he had no plot within the area of RAJUK,

a pre-requisite condition, though he had land

and building in his own name and in the name

of his wife and thus he had initial intention of deception as contemplated in section 415 of the Penal Code to get the allotment of the plot in question at Banani. This, being a disputed question of fact needs to be decided by the trial Court on the basis of evidence and the petitioner will get the chance to controvert those at the time of trial. As it appears, in the meantime 5(five) prosecution witnesses have already been examined and cross-examined & thus at this stage there is no scope for quash- ment of the impugned proceeding: Advocate

Ruliul Quddus Talukder Dulu vs State 14 BLC 633.

Sections 415 and 420-The allegations made in the first information report and also from the charge sheet it appears that the informant's grievance is for non execution and registration of sale deed for the case land in his favour. The allegations so disclosed is for non- compliance of the agreement for sale of the case land which is a civil liability as provided in Illustration(g) of section 415 of the Penal Code for which no criminal case lies but appropriate forum is a civil suit in the civil Coun. Shafiullah Chowdhury vs State 14 BLC 774

Sections 415 and 420-The ingredients of cheating are deception of one person by another person and fraudulently or dishonestly inducing the person so deceived any property. It is therefore, evident that the allegation against the accused petitioners does not clearly falls under section 420 of the Penal Code and that the Magistrate had not rightly taken cognizance of the offence against the accused petitioners under section 420 of the Penal Code and there is foundation to allow this application under section 56JA of the Code of Criminal Proce- dure. Kamrul Hasan vs State 16 BLC 473.

Sections 415 and 420-Facts disclosed in the case also make out a case under section 138 of the Negotiable Instruments Act. In such a case, it is all too open to the complainant to proceed under any of the two Penal Code laws available to him. Learned Magistrate duly applied his judicial mind into the facts and circumstances of the case and the materials on record and rightly framed charge against the accused-petitioners under section 420 of the

Penal Code which does not suffer from any illegality or legal infirmity occasioning failure of justice and as such the proceeding is not liable to be quashed. Aminur Rahman (Md) vs State 8 BLC 518.

Sections 415 and 420-The allegations of bouncing of cheque simplicitor does not ipso facto constitute any offence as defined under section 415 punishable under section 420 of the Penal Code and, as such, framing of charge under section 420 suffered from serious illegality. MA Sukkur vs Md Zahirul Haque, 23 BLC (AD) 148.

Sections 415(1) and 420-Whenever a loan is taken by one from another on a representation to repay the same dishonestly induces the person to lend the money having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Ruhul Amin Howlader (Md) va Mahmuda Akter Mita, 70 DLR 56.

Sections 415 and 420-The offence of "cheating" under section 420 of the Penal Code is defined in section 415 of the Penal Code. There are two ingredients namely, deceit that is dishonest or fraudulent misrepresentation to a person, inducing of a person thereby to deliver property. Fraudulent or dishonest intention is of paramount importance for constituting the offence. The question is whether it is a civil liability or criminal offence depends upon facts, whether the complainant in parting with the loan money acted on the representation of the accused and in belief of the truth thereon and the next question will be whether he had a dishonest intention. Sahabuddin Alam (Md) vs State, 74 DLR 170.

Section—415 

Simple dishonouring of a cheque itself is not cheating 

To constitute an offence of cheating as described in section 415 of the Penal Code, there must be a specific allegation that the accused had initial intention to deceive the complainant. It is also true that such intention can be gathered from the facts and circumstances of a because such intention normally is concealed in the mind and is not expressed. If there are allegations that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not made within the specific time, it may be inferred that there was initial intention of deception.  Md Asaduzzaman Vs Md Salamatullah, 19 BLD (HCD) 461  Ref: 46 DLR (AD) 180; 30 DLR 327; 27 DLR (AD) 175; 1954 Crl.L.J. (SC) 1806; 10 BLD (AD) 168: 42 DLR (AD) 240—Cited   

Section 415—  The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances.  Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. 

Section—415 

It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating. The intention is to be gathered from the surrounding circumstances.  Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78    

Sections 415(f) and 420-Whenever a loan is taken by one from another on a representation to repay the same dishonestly induces the person to lend the money having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Ruhul Amin Howlader (Md) vs Mahmuda Akter Mita, 70 DLR 56

Section 420-When a cheque is issued for payment of any amount of money, drawer of the cheque is under obligation to honour the same or arrange payment. If it does not arrange payment of the cheque money and the cheque is dishonoured, such an act may constitute an offence of cheating punishable under section 420 of the Code. Abul Khair Chandu vs State, 65 DLR 230

Section 420-Whenever any transaction of money has taken place without any written instrument the same requires to be proved by very cogent and mitid evidence. In the whole proceeding I find no tangible evidence that Dino Bondhu Sarker delivered the money to the accused petitioner. Both the Courts below without considering the material evidence on record found the accused guilty under section 420 of the Code. Abdul Aziz vs State, 67 DLR 398

 Penal Code, 1860 

Section 420 and 406 – Failure to execute and register sale deed pursuant to an agreement to sell property constitutes civil liability.  Failure to execute sale deed pursuant to an agreement to sell land constitutes civil liability for which remedy lies in the civil court. Such allegation does not constitute offence punishable under section 420 and 406 of the Penal Code. The learned judges of the High Court Division held the instant proceedings abuse of the process of the court and as such quashed the same.  Shafiullah Chowdhury and others Vs. The State 14 MLR (2009) (HC) 490. 

Penal Code, 1860 

Section 420 – Money obtained by inducement and practice of fraud constitutes the offence of cheating. Enhancement of sentence without issue of rule is illegal.  Accused appellant took money from the complainant by inducement on the assurance of sending him to America and subsequently he did not send him to America and misappropriated the money and refused to return the money. Such an act on the part of the accused appellant constituted offence of cheating punishable under section 420 of the Penal Code. The appellate court enhanced the sentence without issuing any rule which the Appellate Division held as illegal and set-aside the enhanced portion of sentence and upheld the conviction and sentence awarded by the trial court.  Mokbul Hossain Howlader Vs. The State 13 MLR (2008) (AD) 181.    

Section 420, 448, 506, 56

It has already been settled that exercise of its inherent jurisdiction under section 561A of the Code by the High Court Division can be exercised if it appears that a legal bar against institution or continuance of the proceeding is apparently visible the complaint, or even if accepted in their entirety, do not constitute any offence and if there is no legal evidence. Selim A Khan vs Md. Harun Malik (Amirul Kabir Chowdhury J) (Criminal) 3ADC 587

Section 420

We are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law. Zafar Ahmed Chowdhury and oth- ers -vs- The state (Syed J.R. Mudassir Husain CJ) (Criminal) 3ADC 751

Penal Code, 1860 

Section 420 – To constitute an offence under this section the necessary ingredients must be established Dispute being of civil nature the remedy lies in the civil court.  In order to secure conviction the charge must be proved by reliable evidence beyond all reasonable doubt. Unless the constituent ingredients are fully established the allegations do not attract section 420 of the Penal Code.  Alhaj Abul Kashem Vs. The State 11 MLR (2006) (HC) 73.   

Sections 420/409/467/468/471/466

The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged cannot be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax. The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitate the importers to release imported goods without paying any tax. The Solicitor repre- sented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir HusainCJ) (Criminal)4ADC 177

Section 420,409, 471

Job on the basis of false certificate of B.Com (Pass) Examination of Tularam Government College, Narayangonj and thus practised fraud upon the Government in obtaining the job. The State vs. Md. Humayun Hafiz (Md. Ruhul Amin J) (Criminal)4ADC 705

Section—420 

To sustain a charge of cheating, the prosecution must prove the initial intention of the accused to deceive.  Abdul Karim Vs Shamsul Alam and another, 14 BLD (HCD) 167  Ref: 42 DLR (AD) 31; 27 DLR (AD)175; 36 DLR (AD) 14—Cited   

 Section 420—  Where a prima facie case of criminal offence has been clearly made out, the High Court Division in a proceeding under section 561A CrPC has little scope to scrutinize the truth or otherwise of any document or other evidence, which may be used as a defence in a criminal proceeding.  Kamrul Islam (Md) vs Atikuzzaman 49 DLR 258. 

Section 420—  The first information report having made out an allegation that the informant was persuaded by the petitioner to part with his money through a clever device and was ultimately threatened with murder for demanding repayment of the money, the initial intention to deceive appears on the face of the First Information Report.  Nurul Islam vs State and another 49 DLR 464 

 The penal Code

Sections 420/409/467/468/471/466

The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged cannot be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax.

The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facili- tate the importers to release imported goods without paying any tax. The Solicitor represented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 177

Section 420—  An offence under section 138 of the Negotiable Instruments Act is for dishonour of a cheque simpliciter for insufficiency of fund, etc. whereas an offence under section 420 of the Penal Code for cheating is a distinct offence. The rule of law about the peremptory application of the special law in place of the general law for trial of an offence hardly applies when the offences are distinct under the two laws.  Nurul Islam vs State and another 49 DLR 464 

Section 420—  Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act.  State vs Md Iqbal Hossain and others 48 DLR (AD) 100. 

Sections 420 & 406—  From reading of section 48 of the Act we do not find that institution of this case under Penal Code is barred under section 48 of the Act by an explicit provision of this Act.  Salahuddin (Md) and others vs State 51 DLR 299 

Section—420 

Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend money having no intention to repay, whether it will be an offence of cheating punishable under section 420 B.P.C. Intention of a person, whether can only be gathered from his conduct?  Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend the money, having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code.  Intention of a person can only be gathered from his conduct at the time of the occurrence and the surrounding circumstances.  Md. Shafiuddin Khan Vs. The State & another, 13BLD(HCD)362  Ref: 13 CWN, 728; 10 DLR 325, 26 DLR 146; 27 DLR (AD) 175; 7 BLD 164—Cited   

 

Section 420-Normal financial transaction berween debtor and creditor does not come within the scope of any offence. MA Sukkur vs Md Zahirul Haque, 23 BLC (AD) 148.

Section 420-The conviction of the petitioner under section 420 of the Penal Code for cheating does not debar the man cheated from filing a civil suit for specific performance of contract or for return of the money taken by the petitioner by practising deception. Abdul Awal vs Waliullah 12 DLR 520: PLID 1961 (Duc) 53: PLR 1961 (Dac) 187.

Section 420-In order to bring home the charge under section 20 it is necessary for the prosecution to prove beyond all reasonable doubts that the representation made by the accused was known to him to be false and that acting on that false representation the complainant parted with his money.

In dealing with an offence under section 420, it is necessary for a court of law to find whether the person making the representation had the knowledge that the statement made by him was false.

In a case under section 420, a court is not concerned with a correct interpretation of a statute but with existence or otherwise of a bona fide belief whether there was a reasonable ground for the accused to think that he was entitled to act in the way he did in the particular case. AM Serajul Huq vs State 14 DLR 265.

Section 420-Complaint by a person who is not himself cheated is valid in law-It is true

 that the success of a prosecution launched for cheating somebody to a large extent depends, in view of the ingredients of the offence of cheating, upon the examination of the person cheated. Jagadish Chandra Roy vs Joynarayun Biswas 14 DLR 198.

Section 420-Where a complaint of cheating before the Court has been made not by the person defrauded but by another on his behalf, the case must fail. Surendra Nath Saha vs State 12 DLR 178.

Section 420-Before a person could be convicted for cheating or for conspiracy to cheat on the basis of a speculative or improbable scheme issued to the public, it must be established that the promoters of the scheme themselves did not believe in the working of the scheme and that they had themselves not faith in it. Zahid Hasan vs State 16 DLR 23.

Section 420-Accused was convicted and sentenced under section 420 CPC. On appeal, both the parties filed a joint petition for compromise before the Appellate Judge who directed that the compromise be effectd in part only,

Held: If the Appellate Court permitted the case to be compromised, then under section 345, clause (6). CrPC he had no alternative but to acquit the accused and set aside the conviction and sentence.

If he was refusing to allow the case to be compromised, then he had no alternative but to hear the appeal on its merits and he had no right

to say that the compromise was permitted in part merely by reducing the sentence of imprisonment to the period already served. Sahar Ali va Samed Ali 6 DLR-28

Section 420-Where a complaint under section 420 was preferred by a person not actually cheated.

Held: The complainant had no locus standi to make a complaint. Md Hayat Khan vs Ghulam Md 6 DLR (WP) 177.

Section 420-Joint trial of one S with other accused who were public servants under section 120B. PPC read with section 5(2) of the Prevention of Corruption Act-Illegal. Sayeed Hai vs State 20 DLR (WP) 20.

Section 420-Money realised for work done on contract but done imperfectly and with materials other than those argeed to, by presenting a voucher certified by two union council members which voucher not signed by the accused but someone else in his (accused) name does not make out case of cheating under section 420. Lutfor Rahman vs State 25 DLR (SC) 101.

Section 420 Complaint under section 420-Need not necessarily be filed by cheated person alone. Muhammad Ehsan va State 20 DLR (WP) 132.

Section 420-To establish the offence of cheating it must be shown that the criminal intent to cheat exists from the very beginning- Its subsequent exhibition is not a test of cheating. Meser Ali vs State 26 DLR 146.

Section 420-In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return or to give something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established to justify conviction for cheating. It is to be mentioned, however, that intention to cheat is to be gathered from surrounding circumstances. A dishonest concealment of facts is a deception within the meaning of section 415 of the Penal Code. Such a deception is an ingredient of cheating. Akamuddin Ahmed vs State 27 DLR (AD) 175

Section 420-An inducement to wrongly deliver, by false representation or by false pretence, need not be always by word of mouth. It can be inferred from all the circumstances attending the obtaining of the property. What is required is a dishonest intention which again can be gathered from the act or series of acts, even distinct and unconnected but committed with the one aim in view, that is, to cheat Kazi Mozaharul Haq va State 33 DLR 262

Section 420-Where any breach of contract is an offence and amounts to cheating. punishable under the Penal Code. Kazi Mozaharul Haq va State 33 DER 262

Section 420-A induces B by false representation to deliver some property to C- Offence of cheating is complete even though A does not gain anything. Kazi Mozaharul Haq va Siate 33 DLR 262

Section 420-Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain and others 48 DLR (AD) 100.

Section 420-To constitute an offence under section 420 Penal Code, there must be allegation of deception at the initial stage of the transaction. Habib (Md) and another vs State represented by the Deputy Commissioner 52 DLR 105.

Section 420-None of the witnesses has deposed that the appellant induced PW 2 to execute kabala or to deliver the property to him. The prosecution has not led any evidence to prove the ingredient of the offence punishable under section 420 of the Penal Code when the trial Court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held that the appellant was guilty of the offence under section 420 of the Penal Code. Mohasin Ali (Md) @ Mohsin vs State 5 BLC (AD) 167.

Section 420-The alleged transaction between the complainant and the appellant is clearly and admittedly a business transaction when the appellant had already paid a part of the money under the contract to the complainant, then the failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature and hence the complaint case is quashed. Dewan Obaidur Rahman vs State and another 4 BLC (AD) 167.

Section 420-Business transaction - between the parties for long time-Money claimed has fallen due in course of long business transaction which cannot be the foundation of a proceeding for cheating and breach of trust in Criminal Court. Liability in course of business transaction is of civil nature. The impugned proceeding is misconceived. Criminal proceeding not maintainable as civil liability cannot constitute any basis of any Criminal Proceedings-It is essentially of civil nature-To hold otherwise would be to ignore the realities of business transactions and to encourage civil claims to be brought into criminal courts under some contrivance for the purpose of repayment of alleged dues. Syed Ali Mir vs. Syed Omar Ali 10 BCR (AD) 287.

Sections 420 and 406-The alleged transaction between the parties are purely business transaction. The liability arising out of the loan transaction under a loan agreement is a civil liability, the remedy of which necessarily got to be settled and sorted out in the civil court. Further prolongation of the prosecution would amount to unnecessary harassment to the accused-petitioner, that is, abuse of the process of the court. Sahabuddin Alam (Md) vs State, 74 DLR 170.

Sections—420 

Dishonouring of the cheque itself cannot be considered as an ingredient of the offence of cheating unless there is evidence to show that after issuing it he has done something more to defraud the payee. Even such a cheque issued with the knowledge that he has not such amount in the Bank account at the moment it will not amount to cheating if he has intention to deposit the money before the cheque is presented for encashment. Mere dishonouring of the cheques itself is not an ingredient of cheating.  Mohiuddin Md Abdul Kader Vs The State and another, 20 BLD (HCD) 499  19 BLD (HCD) 46 1—relied   

 

Sections—441/447 

Criminal trespass 

It provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.  In the instant case the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction. So the ingredients of section 441/447 of the Penal Code have been well-established.  Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD) 260   

Sections 447 & 379—  When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft.  When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted.  Motaleb Sardar (Md) and others vs State and another 51 DLR 278. 

Section—447 

Criminal trespass  

In view of the fact that theft of the case crop by the accused by the cutting and taking away of the same out of the possession of the complainant and damaging some crops in the course of the same transaction necessarily involves their entry into the case land and the accused are punished for the said offences, a separate conviction under section 447 of the Penal Code is wholly unwarranted. Moreover, in the absence of any finding by the trial Court on the intention or the object of the illegal trespass of the accused, conviction of the accused under sections 447 or 448 of the Penal Code is not maintainable in law.  Md. Motaleb Sardar and others Vs. The State and another, 19 BLD (HCD) 407 

Section 448/326/307/34, 561A

Whether the High Court Division have committed an error of law resulting in mis- carriage of justice in not holding that the proceeding so far as the appellant is con- cerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed and the proceeding being false, concocted, continuation of such pro- ceeding is abuse of the process of the Court and the Appellant standing on the same footing of co-accused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding against her ought to have been quashed. Mrs. Novara Schute alias ors. vs The State (Mainur Reza Chowdhury J) (Criminal) 247  

Section 463—  To find one guilty of forgery there must be an original document first. In the absence of the original one, it cannot be said that the resolution by the Bar Association dated in question is a forged resolution.  SA Alim vs Dr Md Golam Nabi and another 48 DLR 98. 

Section 463-The proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is a prima facie case for going for trial. In view of the such facts the grounds taken in revision are not the correct exposition of law. Thus the Rule having no merit fails. Akhtaruzzaman Akhtar Shah vs State 64 DLR 442

Sections 463 & 464—  Ante-dating of a document with any of the intentions such as causing damage or injury to a person by way of depriving him of his right already acquired by a kabala constitutes forgery.  Amatutnnessa transferred her entire interest to the appellant by the kabala executed and registered by herself of 18-7-75 (Ext. l) and was thereafter left with nothing for subsequent transfer to anybody, but she executed the subsequent kabala (Ext.4) in favour of her brother accused Syeduzzaman conveying the same land by ante-dating the kabala showing that it had been executed earlier than the appellant’s kabala. Execution of the subsequent kabala shows her intention to deprive the appellant of his right already acquired by his kabala which was found to be genuine. “Forgery” means making of a false document with certain intentions, such as to cause damage or injury to a person, to support any claim or title, to commit fraud.  Amjad Molla vs Syeduzzaman Molla and others 46 DLR (AD) 17. 

Section 464—  Unless there is an element of fraud or intention to cause damage or injury to the public or any person the document or part thereof cannot be called as forged document.  Mere signing of the petitioner in another’s name who did not give authority to sign without any intention to cause damage or injury to the public or any person and actually causing no injury or damage does not come within the definition of forgery.  Abul Kashem Bhuiyan vs State 50 DLR 631 

Section 465, 467

Suit seeking declaration that the execu- tion and registration of the deed of heba-bil-ewaz Md. Serajul Islam alias Tuku vs. Most. Shahid Khatun (Md. Tafazzul Islam J) (Civil) 6 ADC 942

Section 467—  To secure a conviction for forgery in this case it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused.  Showkat Hossain Akanda Chowdhury vs State 50 DLR (AD) 128 

Sections 468, 471

Accused petitioner by fraudulent means showed said Marium Bibi being alive and created the 'Heba' Deed on 5-1-1977 in his favour and claimed his ownership of the case land. Abdur Rahman Nazim vs Abdul Rahman Nazim (Syed J. R. Mudassir Husain J) (Criminal) 3ADC 249

Section 471—  For the offence under section 471 of the Penal Code an accused can be punished as provided in section 465 of the Penal Code up to 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law.  Abul Hossain Mollah alias Abu Mollah vs State 50 DLR (AD) 96 

Section 471—  The High Court Division is palpably wrong in holding that when an accused is convicted and sentenced under section 466 he cannot again be convicted and sentenced under section 471 of the Penal Code. In the present case it has been proved that the recall order was used by Nurun Nahar Begum in getting Khijiruddin released from the Thana. The accused-petitioner was certainly an abettor in so far as section 471 of the Penal Code is concerned.  Azizul Hoque (Md) vs State 51 DLR (AD) 216 

Section—471 

For the offence under section 471 of the Penal Code an accused can be punished, as provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law.  Abul Hossain Mollah alias Abu Mollah Vs The State, 17 BLD (AD)170   

 

Section 489C, 395, 397

In the FIR there was no allegation that accused had tried in any way to counter- feit or perform any part of the process of counterfeiting or sell or buy or make or perform any part of the process of making or intended to use the counterfeit currency-notes, and the mere possession of counterfeit currency-notes not being made punishable under Section 25A of  the Special Powers Act. In law in view of the settled principle of law, that summary disposal of a case, be that in revisional jurisdiction or in other jurisdiction, without hearing the other side is not legally sustainable and appre ciable. The State vs. Nur Husain alias Hiron (Md. Ruhul Amin J) (Criminal) 4ADC 85

Section—493 

A mere promise of marriage made by the accused to a woman or to her guardian intending never to fulfil his promise does not warrant a conclusion that a false belief was caused in her mind that she was the lawfully married wife of the accused.  Makhan alias Putu Vs. The State, 14 BLD (HCD)122  Ref: 34 DLR 366—Cited   

Section 493—  The prosecution is required to prove that some form of marriage or an apology for conducting a marriage took place and as a result of which the woman had a belief in her mind that she was the lawfully married wife of the accused.  In the facts and circumstances of the case and the evidence on record, it is difficult to comprehend how such a grown up woman with sufficient worldly knowledge would bonafide believe that she was the legally married wife of accused Hanif on his mere promise to marry her in the future and on such fond belief she surrendered herself to the carnal desire of the accused petitioner, which eventually led to her conception.  Hanif Sheikh (Md) vs Asia Begum 51 DLR 129 

Section 493- A mere promise of marriage made by the accused to a woman intending never to fulfil his promise does not lead to a conclusion that a false belief was caused to her mind that she was the lawfully married wife of the accused-Penal Code, S. 493 Makhan alias Putu Vs The State, 14BLD(HCD)122 Ref: 34 DLR 366-Cited

Section 494—  Marrying again during lifetime of wife—framing of charge under this section was wrong because the Muslim Family Laws Ordinance or any other law does not render second marriage, during the subsistence of the earlier marriage, void. A person can be charged under section 494 Penal Code only when such marriage is void. In is apparent that the Magistrate committed error of law in framing charge under section 494 of the Penal Code instead of under section 6(5) of the Muslim Family Laws Ordinance, 1961. No doubt the accused petitioner pleaded guilty and the conviction is based upon that plea only. But the guilty pleading of an accused person cannot cure the inherent defect in the charge or in the conviction.  Masud Ahmed vs Khushnehara Begum and another 46 DLR 664. 

Section 498-Since sanctity of a matrimonial tie is to be preserved, persons dealing or behaving in a manner with a married woman which tends to severe such a tie run a great risk which, to a great extent is akin to dealing with a minor or insane person. Enticing a woman to desert her husband's refuge, or taking her away by persuation or otherwise by a man, knowing the woman to have been another's wife is patently an infringement of matrimonial right of that husband, an manifestly a crime punishable under section 498 of the Penal Code, no matter whether the woman was a consenting party or not. Sabita Rani Mondal vs Amal Krishna Mistry, 68 DLR 247

Section—499 

Eighth Exception 

Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by 8th exception of section 499 of the Penal Code.  Md. Abdun Noor and others Vs The State and another, 18 BLD (HCD) 624   

 

Section—499 

Ninth Exception—Defamation 

Bringing anything which is unjust or improper to the notice of the public at large is certainly for the public good. In the instant case, since the alleged offending imputation was made at a press conference by a person who has not been made an accused in the case and the matter was earlier published in other newspapers and the present publication was made in good faith, the offending publication per see satisfies the requirement of Ninth Exception to section 499 of the Penal Code and as such further continuation of the impugned proceeding amounts tà an abuse of the process of the Court and the same is quashed.  Syed Mohammad Afzal Hossain Vs. S.M. Selim Idris, 15 BLD (HCD) 362  Ref. 19 DLR (SC) 198—Cited    

Section  499,  8th Exception—  Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by exception.  Abdur Noor and others vs State and another 50 DLR 456 

Section—499/500 

Imputations, if made by a lawyer iii the discharge of his or her professional duty on the character of any person in good faith, whether will constitute any offence of defamation—A lawyer while acting under the instructions of his or her client, whether is entitled to special protection?  Imputation, if any, made by a lawyer, in the discharge of his or her professional duty, on the character of any person, in good faith and for protection of the interest of the person making it or of any other person or for the public good will not constitute any offence of defamation.  A lawyer, while acting under the instructions of his or her client and proceeding professionally, has a qualified privilege; while acting as such, the lawyer does not, if not otherwise implicated, come within the ambit of defamation unless and until there is an express malice on his or her part; and mere knowledge in such cases cannot be equated with express malice or malice in fact. The privilege enjoyed by the lawyer is only a qualified privilege and he will not come within the bounds of the offence of defamation unless and until there is an “express malice” or malice in fact on his or her part.  An Advocate is entitled to special protection, when is called in question in respect of defamatory statements made by him or her in course of his or her duties as an Advocate. The Court ought to presume that he or she acted in good faith upon instructions of the clients and ought to require the party to prove the express malice.  Mrs. Sigma Huda @ Sigma Huda Vs.Ishfaque Samad. 13BLD(HCD)152.  Ref: (1976) 78 Born. L.R.234; A.I.R.1927 Cal. 823; A.I.R. 1932 Bom. 49O—Cited.  

Section 500—  Had the complainant sent a rejoinder to the petitioner and the same was not published then it could be said that the petitioner did not act in good faith and for public good.  Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. 

Section 500—  Further prolongation of the case against the accused, for publishing the alleged report which has not even been claimed to be entirely baseless in the petition of complaint will be an abuse of the process of the court.  Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176.    

Section—500 

To constitute defamation, the offending words spoken must contain imputation concerning a person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such a person. Explanation 4 of section 499 of Penal Code provides that no imputation harms a person’s reputation unless that imputation lowers the moral or intellectual character of that person in the estimation of others.  A.K.M. Enamul Haque Vs. Md. Mizanur Rahman and others, 14 BLD (HCD) 201