সতর্কীকরণ! কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে কেস রেফারেন্স ওয়েবসাইট কোন নিশ্চয়তা প্রদান করে না। কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
When a criminal prosecution has been withdrawn on the accused undertaking to execute a certain bond with certain terms, the bond executed will be unlawful and the person in whose favour the bond has been executed will derive no benefit from it.
যখন একটি ফৌজদারি মামলা অভিযুক্ত ব্যক্তির নির্দিষ্ট শর্তসাপেক্ষে একটি বন্ড সম্পাদনের অঙ্গীকারে প্রত্যাহার করা হয়, সেই বন্ডটি অবৈধ হবে এবং যার পক্ষে বন্ডটি সম্পাদিত হয়েছে তিনি এর থেকে কোনো উপকার পাবেন না। Probodh Chandra Barman, Managing Director, Tripura Modern Bank, Chittagong vs Messrs Abdul Rahman Abdul Goni, 12 DLR 459.
A stifling prosecution Composition even of non-compoundable offences not unlawful when the compromise was an acknowledgment of existing civil liability. যদি সমঝোতাটি বিদ্যমান দেওয়ানি দায় স্বীকারের জন্য হয়, তাহলে এমন সমঝোতার মাধ্যমে অ-সমঝোতাযোগ্য অপরাধেরও নিষ্পত্তি করা বেআইনি নয়। Akbar Ali Khan vs Elahi Baksh Bepari. 12 DLR 854.
Section 23-Scope and Application-Agreement when not hit by the section-Pre-existence of financial or civil liability- execution of mortgage bond- motive- agreement executed on the basis of a pre-existing liability on the part of the executor, whether void even when the motive for the execution of the security is to stifle a criminal prosecution pending in respect of the same liability.
Respondent's predecessor filed a Mortgage suit for realizing taka 30,000.00 stating that defendants 1-4 entered into a contract to supply him jute on receipt of an advance of Taka 27,000 but they neither supplied jute nor repaid the money and that on repeated demands, they repaid taka 2,000 and executed a mortgage bond keeping their lands in the schedule to the bond as security. Defendants 3 & 4 filed a joint written statement and denied R's allegation and contended that to evade income-tax payment R entered into a partnership business with them on an agreement that he would pay in cash taka 50,000 and arrange finance from Bank and the defendants would supply him jute. R Advanced taka 25000 but did not pay the balance. He purchased jute but as the jute's market price fell, R refused to take their jute for which they incurred loss but R, refused to share the loss and to avoid his liability started a criminal case against them and they, being afraid of arrest and jail, executed the mortgage bond in R's favour without any consideration and as such the mortgage bond was invalid being hit by section 23 of the Contract Act. The trial Court dismissed the suit. On appeal, the High Court revered the trial court's decision and held that the transaction entered into by the defendants by way of executing the mortgage bond was not unlawful or against public policy an as such the same was not hit by section 23 of the Contract Act.
The High Court's view that "an agreement on the basis of a pre- existing liability on the part of the executor is not void even though the motive for the execution of the security is to stifle the criminal prosecution pending in respect of the same liability" and that the mortgage bond in question "was not hit by section 23 of the Contract Act was affirmed by the Appellate Division. Badal Chandra Sinha & others vs Altaf Hossain Gulanda & others 2 BSCD 67.
Stifling prosecution. It is against public policy to make a trade of felony or attempt to secure benefit by stifling a prosecution or compromising an offence which is not compoundable in law and an agreement to that effect is wholly void. Lal Mia vs Abdul Gani & Ors. 5 DLR 338.
In order to determine whether the consideration of a document is prohibited by section 23 of the Contract Act it is to be seen whether the facts are that this contract came into existence when a criminal prosecution was hanging on the head of the executant or the contract was entered into for the purpose of taking away the prosecution for a non- compoundable offence from the hands of the Crown Prosecution in their own hands. Rodha Ballav Basak vs Krishna Sunadri Basak 5 DLR 114.
In cases of contract only partly beyond the competence of the promisor there is no good ground why the promisee who has paid good consideration should not be allowed to enforce that part of the promise which the promisor was competent to make. 1930 (All) 1: 122 IC 872: 1939 ALJ 45: IR 1930 (All) 328; 52 A 338 FB.
Shifting prosecution if it be an implied term of reference to arbitration of civil disputes or an ekrarnama that the criminal case already started would not be proceeded with, then the consideration of the agreement is unlawful and the award is invalid quite irrespective of the fact whether any prosecution in law had been started or not. 57 C 1302; 34 CWN 489: 51 CLJ 400; 59 MLJ 82; 1930 PC 100: 32 (Bom) LR 639.
To refrain from criminal proceedings of a compoundable offence is a valid consideration of a contract. 3 CWN 5.
An agreement to stifle a prosecution is distinguishable from the contract compounding a compoundable offence. 29 CWN 855; 42 CLJ 90; 53 C 51; agreement to drop prosecution for breach of trust in consideration of a mortgage for a portion of the embezzled money and cash, is opposed to public policy, same case. 57 B 678; 1933 (Bom) 413.
To prove that the object of an agreement was to stifle a criminal prosecution it must be shown that there was an agreement between the parties express or implies, the consideration for which was to take the administration of the law out of the hands of the Judges and to put it into the hands of private individuals. 29 CWN 1029; 46 CWN 1; 44 (Bom) LR 1.
Where there was good consideration for executing the bond sued upon, the mere fact that plaintiff on recovering the bond gave up a criminal prosecution against the defendant will not invalidate the bond. 1927 (Lah) 530; 718 rel on 94 IC 465.
Where contract is made to discharge civil liability by referring dispute to arbitration and no reference to criminal prosecution is made and the criminal prosecution is subsequently withdrawn, the contract is not void. 1929 (Lah) 564; 1926 (Cal) 519.
Where the withdrawal of the criminal case was not any part of the consideration of the bond, the contract was not illegal. 35 CWN 28; 1931 (Cal) 416; 131 IC 574; 44 CWN 304.
Where there was pre-existing civil liability on adjustment of accounts and the withdrawal of the non-compoundable criminal case was merely the motive but not the consideration, the transaction was not hit at by sections 23-35 CWN 26: 1931 (Cal) 421: 49 A 540; 1927 (Lah) 465. -a contract is not void if the motive was to drop the criminal prosecution. 1938 (Cal) 840: 43 CWN 147. -the defendant who was interested in the accused executed a bond undertaking his liability and the complainant thereupon got the complaint dismissed, the bond was not enforceable. 53 A 130; 1931 (All) 128.
Contract is hit by section 23 of the Contract Act when consideration of object of agreement is unlawful-The plaintiff had initiated three criminal proceedings of which one was under section 460 PPC against his brother the defendant, and when these proceedings were pending before the Magistrate, the said Magistrate suggested a compromise between the brothers as a result of which the defendant after 4 days executed a bainapatra in favour of the plaintiff to sell to him the suit properties and on that very date proceedings under section 406 PPC was dismissed for non-prosecution. When a suit for specific performance of contract was filed by the plaintiff it was. Held-The contract is hit by section 23. Purnendu Kumar Das vs Hiren Kumar Das, 21 DLR 918.
What considerations are lawful and what not-withdrawal of criminal proceedings-If from the evidence and circumstances it can be inferred that the consideration is referable to the withdrawal of a criminal proceeding the agreement must be held to be void under section 23 of the Contract Act. Lal Mia vs Abdul Gani 5 DLR 338.
If, however, there is a bona fide civil dispute which the parties have decided to settled and there happened to be subsidiary proceedings in a Criminal Court, it would be contrary to public policy and to justice and equity to allow any person to escape his proper legal liabilities on the mere technical ground that there was some understanding that those criminal proceedings too would not be pressed to a conclusion. Lal Mia vs Abdul Gani 5 DLR 338.
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