The fact of the case:
On April 25, 2004, Md. Shamsul Alam, 1st Vice President and Manager of City Bank Limited's Pusta Branch, as informant lodged a First Information Report alleging, inter alia, that the accused petitioner along with his other partners obtained a loan amounting to Taka 3,46,67,692.15 from the informant's bank by producing necessary papers and documents in support of 65 taxicabs imported. After taking the loan amount, the petitioner in collaboration with other accused, sold out the six taxicabs by forging the relevant papers and documents, though the imported papers and documents remained with the bank. In this way, the accused petitioner and others misappropriated Taka 4,42,500 by selling six Taxi cabs, resorting to forgery.Following submission of the charge sheet, the learned Chief Metropolitan Magistrate, Dhaka, by an order dated 2-6-2005, accepted the charge sheet and took cognizance of the offenses against the accused-petitioner and others under sections 406 and 420 of the Penal Code on 9-21-2008.
Learned Advocate Ms Shathika Hossain appeared on behalf of the accused-petitioner and learned Deputy Attorney-General Mr Md Khurshedul Alam appeared on behalf of the State where Moyeenul Islam Chowdhury and Md Nazrul Islam Talukder were the justices of the the case.
Issues of the case:
Whether the First Information Report discloses a prima facie offense of cheating against the accused petitioner in the instant case or not?Decisions:
From the foregoing discussions and having regard to the facts and circumstances of the case, the judges were led to hold that the allegations that have been brought against the accused petitioner under Sections 406 and 420 of the Penal Code do not disclose any offense of cheating or criminal breach of trust against him.Justification:
On a plain reading of the First Information Report, the court notices that the accused petitioner and others took loans from the bank. It is a settled principle of law that the transaction of loan money under a loan agreement does not operate as an entrustment under Section 405 of the Penal Code. Accordingly, when there is no entrustment, there cannot be any trust. If there is no trust, there cannot be a question of criminal breach of trust.In the transaction of a loan, the loan giver does not hold any control over the loan amount, and, as such, it constitutes no breach of trust. If there is any breach of contract, the remedy is a civil suit, and no criminal case would lie against the accused petitioner for violation of the terms and conditions of the loan agreement. Entrustment is the main ingredient of the criminal offense of breach of trust. The accused must have dominion over the property or it may be entrusted to him.
Within the four corners of the First Information Report, the court did not find that the accused petitioner was entrusted with the property or that the accused petitioner held the property in a fiduciary capacity. It further transpires that the First Information Report did not contain any averment to the effect that the accused-petitioner and others promised to pay the loan amount to the informant-bank within a specific period and that the accused-petitioner and others made inducements for getting the loan money from the informant-bank.
A mere delay in payment of the loan money or refusal to pay the same does not amount to misappropriation, and the same constitutes no offense under Section 406 of the Penal Code. The breach of the terms of a contract does not mean the breach of any trust, and, as such, failure to fulfill the terms of a contract does not amount to any criminal offense.
The court suggests that to constitute an offense of criminal breach of trust, the First Information Report should have contained the following ingredients:
a) the accused
was entrusted with property or with any dominion over property;
b) the accused
dishonestly misappropriated it or converted it to her or his own use;
c) the
accused held the property in a fiduciary capacity.
Case Cited:
Abdur Rauf vs State 53 DLR 283; Dewan Obaidur Rahman vs State, 19
BLD (AD) 128; Mahbub Alam Gazi alias vs State, 8 BLT 358; Rafiqul vs Syed
Morshed Hossain, 50 DLR (AD) 163 and SB Zaman vs Dilip Kumar Saha4 BLT (AD) 231
Written by---
Asadul Islam
Department of Land Management and Law
Jagannath University, Dhaka
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