Criminal Misc. Case No. 66584 of 2022

Present:

Mr. Justice S M Kuddus Zaman

And

Mr. Justice A.K.M. Rabiul Hassan

Monir Ahmed

.... Petitioner -Versus-

The State and another

…. Opposite Parties Mr. M. Sayed Ahmed, Advocate with Mr. Rafi Ahmed, Advocate

.... For the accused-petitioner Mr. Md. Abdun Nur, Advocate

.… For the complainant opposite party No. 2. Heard and Judgment on 31.07.2024

S M Kuddus Zaman, J:

This application under section 561A of the Code of Criminal Procedure, at the instance of the sole accused namely Monir Ahmed of C.R. Case No. 454 of 2022 under section 406/420/506 of the Penal Code is for quashment of above proceedings.

Facts in short are that opposite party No. 2 as complainant lodged a complaint alleging that the accused petitioner as the rightful owner and possessor of Monir Tower entered into an agreement with the complainant for sale of two apartments along with five car parking space of above Tower for a total price of Tk. 6,90,00,000.00 and on receipt of Tk. 3,58,75,000.00 he executed and registered a deed of Bainapatra on 25.07.2019.

In above Bainapatra it was stated that above two apartments along with car parking space ewre free from all encumbrance and the same was not sold or mortgaged to any

other person. But in fact the accused petitioner obtained a loan of Tk. 15,00,00,000.00 from Hajj Finance Ltd. on 27.07.2017 by mortgaging above property. By deliberate suppression of above material facts in above Bainapatra the accused petitioner has committed the offence of cheating punishable under section 420 of the Penal Code, 1860.

The learned Judicial Magistrate framed charge against the accused petitioner under section 420/406/506 of the Penal Code and fixed the case for recording of evidence.

Being aggrieved by and dissatisfied with the initiation of above proceedings above accused as petitioner moved to this court and obtained this rule and stay.

Mr. M. Sayed Ahmed, the learned Advocate for the petitioner submits that undisputedly the petitioner was the rightful owner and possessor of the disputed property namely Monir Tower and he had every right to keep the impugned property in mortgage as well as transfer of the same. The petitioner entered into an agreement for sale with the complainant and on receipt of advance money he executed and registered a deed of Bainapatra. The petitioner wanted to pay off the mortgage on receipt of full consideration money from the complainant and thereafter execute and register a deed for sale. Since the complainant did not pay the remaining consideration money the petitioner instituted Title Suit No. 290 of 2021 on 14.11.2021 for cancellation of above Bainapatra. After institution of above civil suit by the petitioner the complainant has filed this false case on 23.03.2022.

Moreover, in this case the complainant has claimed that the impugned Bainapatra has been vitiated by fraud but he has filed title Suit No. 184 of 2022 on 11.04.2022 for enforcement of above Bainapatra instead of filing a suit for recovery of advance money and compensation. The initiation of the instant proceeding is misconceived which shall not settle any dispute between the parties rather cause unnecessary sufferings to the accused petitioner which amounts to abuse of the process of the court.

On the other hand Mr. Abdun Nur, the learned Advocate for the opposite party No 2 submits that undisputedly the accused petitioner mortgaged disputed property to Hajj Finance Ltd. and obtained a loan of taka 15(fifteen) crore and by misrepresentation and concealment of above material facts executed and registered the impugned deed of Bainapatra for above property to the complainant and obtained advance money. Had the accused disclosed above material facts as to above mortgage the complainant would not enter into above agreement for sale. By above deliberate misrepresentatio