IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Revision No.2141 of 2017

Mst. Rawshon Ara Khanom

......convict-petitioner -Versus-

The State and another

…... opposite-parties

Mr. Ashraf Ali Mollah, Advocate

........For the convict-petitioner Mrs. Umme Masumun Nesa, A.A.G

……..For the State

No one appears

……For the complainant-respondent No.2

Heard on 17.08.2023 and 21.08.2023 and Judgment on: 22.08.2023

Md. Kamrul Hossain Mollah.J:

This is an application under Section 439 read with section 435 of the Code of Criminal Procedure. This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 07.08.2017 passed by the learned District and Sessions Judge, Gazipur in Criminal Appeal No.171 of 2017 dismissing the appeal and thereby affirming the judgment and order of conviction and sentence dated 18.03.2015 passed by the learned Judicial Magistrate, Court No.4, Gazipur, in Complaint Registrar (C.R.) Case No.1276 of 2012 (Joydevpur) convicting the petitioner

under section 420 of the Penal Code and sentencing her to suffer rigorous imprisonment for a period of 02(two) years and also to pay a fine of Tk.5,000/- (five thousand) in default to suffer simple imprisonment for a period of 01(one) month more, should not be set- aside and or pass such other order or further order or orders as to this court may seem fit and proper.

At the time of issuance of the Rule this Court granted bail to the convict-petitioner for a period of 01(one) year.

The relevant facts necessary for disposal of the Rule are as

follows:-

The prosecution case, in short is that one Md. Abdul Hakim, son of Hurmat Ali, village: Bagerhat, Post Office: Rayed Dorga Bazar, Police Station:Kapasi, District: Gazipur being complainant filed this complaint petition before the Court of learned Chief Judicial Magistrate, Gazipur under sections 420/406/506(II) of the Penal Code, 1860 on 03.10.2012 against the convict-appellant alleging inter alia that the convict- petitioner want loan Tk.1,00,000/-to the complainant with request in present of the witnesses. According to the request of the convict-petitioner, the innocent complainant lend her loan amounting of Tk.1,00,000/- at evening about 5:00 hours on

01.02.2012 in presence of the witnesses with a condition that she will be returned the same within 06(six) months and also put her signature on two cartage papers. The convict-petitioner did not pay the said amount as condition of 06(six) months later of received money. On 20.09.2012 the complainant along with witnesses requested to the convict-petitioner to pay the said amount, but the convict-petitioner refuse the same and after failing recover the same compelled to file this petition of complaint before the learned Court. The convict-petitioner committed an offence after refuse to pay the said amount to the complainant under section 420/406/506(II) of the Penal Code and hence the case.

The learned Chief Judicial Magistrate, Gazipur upon receiving the petition of complaint examined the complainant under section 200 of the Code of Criminal Procedure took cognizance against the petitioner under section 420/406/506(II) of the Penal Code and issued summon against him. Thereafter, the case was ready for trial. The learned Judge of the trial Court framed charge against the accused-petitioner under sections 406/420 of the Penal Code, 1860, but which was not possible to read over to her due to her absence.

The prosecution adduced as many as 05(five) witnesses in support of the defence case.

After closing the prosecution witnesses by the learned trial Court, the petitioner was not examined by the trial Court under section 342 of the Code of Criminal Procedure due to her absence.

The learned Judge of the trial Court after hearing the parties and perusing the evidence on record found guilty under section 420 of the Penal Code and convicted