Gian Franco Tacchinardi VS State and another (2008)

The fact of the case:

The Managing director of an export-oriented garments industry, the complainant opposite party no 2 Majedur Rahman lodged a complaint petition before the chief metropolitan court against three foreigners and stated that they have been selling their product to Messr Oscon Textile Limited since 1985. Since 1985 for 12 years they haven’t had any transaction problems. But this time having a discrepancy in the document, the bank refused to pay some part of the money. For non-payment of money, it was alleged that the accused made an amicable settlement for payment, but it appears to be a false settlement.

Issue of the case:

1) Whether the accused petitioner will be liable or not?

2) Are section 420, 406 & 109 of the Penal 1860 be applicable?

Decision:

The decision of the high court division is in favor of the accused petitioner.

Justification:

The accused Petitioner’s advocate Mr Md Badruddoza said that the entire petition's allegation is based on preposterous fact. The non-payment of dues in the part of the letter of credit by a foreign buyer being an admitted business transaction can not be treated as a commission of offense under section 406/420 of the Penal Code. They did not misappropriate any property under 406 of the Penal Code. The opponent Advocate was unable to show reasonable ground as a defense.

The alleged transaction between the complainant and the appellant is clearly and admittedly a business transaction. The applicant had already a part of the money under the contract of 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 allegation under the contract is of a civil nature. This case was a waste of valuable time in court.

Case Cited: 

Korea Exchange Bank, Seoul, Korea vs Gemini Garments Limited and Others, 56 DLR 392

Written by---
Mahmudul Hasan
Department of Land Management and Law
Jagannath University, Dhaka

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