High Court Division · Criminal Miscellaneous Jurisdiction
Ismail Hossain v The State and another
Criminal Misc 33272/2010 · Decided 13 August 2026
The complainant alleged that, under an agreement of 20.07.2006, the accused received polyester and cotton fabrics through 162 challans and supplied finished goods against most of them but retained about 1,795 kg of polyester and 3,397 kg of cotton fabrics. In the complaint case before the Chief Judicial Magistrate, Narayanganj, the Magistrate rejected his application for discharge and framed charges under sections 406 and 420 of the Penal Code, and he obtained a Rule under section 561A to quash the proceedings. No one appeared for him at the hearing. The High Court Division held that cheating requires dishonest inducement at the inception of the transaction and criminal breach of trust requires entrustment and dishonest misappropriation. As the accused had substantially performed the contract and the allegation related only to incomplete performance, the ingredients of the offences were not disclosed even on the complaint taken at face value. Continuing the proceedings would be an abuse of process, so the Rule was made absolute and the proceedings were quashed.
- Q1
Whether a complaint alleging that the accused retained part of the fabrics supplied to him under an agreement, after delivering finished goods against most of them, disclosed offences under sections 406 and 420 of the Penal Code.
- Q2
Whether continuation of the proceedings amounted to an abuse of the process of the Court warranting quashing under section 561A.
- The inherent power under section 561A is to be exercised sparingly, but may be exercised where, even accepting the allegations in the complaint in their entirety, no offence is disclosed.
- An offence under section 420 of the Penal Code requires deception and dishonest or fraudulent inducement at the inception of the transaction; a mere breach of contract without such intention does not ordinarily give rise to criminal liability.
- Where a substantial part of a contractual obligation has been performed, the later failure to perform the remainder ordinarily gives rise to civil liability and does not constitute cheating.
- An offence under section 406 requires entrustment and dishonest misappropriation or conversion; failure to perform part of a commercial obligation does not by itself make the dispute criminal.
- As the allegation related only to incomplete performance of a contract, continuation of the proceedings was an abuse of the process of the Court and the proceedings were quashed.
even if the allegations made in the petition of complaint are accepted in their entirety, the essential ingredients of the offences under sections 406 and 420 of the Penal Code are not disclosed.
In the court’s own words.
Criminal Misc 33272/2010, as published by the Supreme Court of Bangladesh. 7 pages, with paragraph numbers for citing.
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
Present:
Mr. Justice Md. Khairul Alam
and
Mr. Justice Md. Rafizul Islam
Criminal Miscellaneous Case No. 33272 of 2010
Ismail Hossain
………Accused-petitioner
-Versus-
The State and another.
………. Opposite parties
No one appears
……. For the petitioner
Md. Masudul Alam Doha, DAG
……… For the opposite parties.
Heard & Judgment on: 13.08.2026.
Md. Khairul Alam, J:
1By filing an application under section 561A of the Code of Criminal Procedure, 1898 (hereinafter referred to as “the Code”), the accused-petitioner obtained the instant Rule, calling upon the opposite parties to show cause as to why the proceedings in Complaint Case No. 04 of 2008, under sections 406/420 of the Penal Code, now pending before the Court of Chief Judicial Magistrate, Narayanganj, should not be quashed.
The relevant facts for disposal of the Rule, as
2disclosed from the record, are that opposite party No. 2, as complainant, filed a petition of complaint before the learned Chief Judicial Magistrate, Narayanganj, implicating the present petitioner as an accused, alleging, inter alia, that on 20.07.2006, the complainant and the accused entered into an agreement. Pursuant to the said agreement, between 20.07.2006 and 04.09.2007, the accused, through 162 challans of different dates, received a total quantity of 124,426 kg of polyester fabrics and 130,113 kg of cotton fabrics. Against the said fabrics, the accused supplied finished goods weighing 122,630.86 kg of polyester fabrics and 126,715.13 kg of cotton fabrics, thereby retaining in his possession the remaining 1,795.14 kg of polyester fabrics and 3,397.87 kg of cotton fabrics. Hence, the petition of complaint, which was registered as Complaint Case No. 04 of 2008.
Upon receipt of the petition of complaint, the learned
3Magistrate examined the complainant under section 200 of the Code, took cognizance of the alleged offences and issued process against the accused. The accused F:\Kashem, BO (Crl. MIsc. Division)\Criminal Judgment\Criminal Misc Case No. 33272 of 2010 (406-420-561A absolute).doc
thereafter obtained bail. On 26.09.2010, the learned Magistrate rejected the application filed by the accused under section 241A of the Code of Criminal Procedure for his discharge and framed charge against the accusedpetitioner under sections 406 and 420 of the Penal Code.
At this stage, challenging the initiation and
4continuation of the criminal proceedings, the petitioner moved this Court and obtained the Rule, along with an order staying further proceedings.
No one appeared on behalf of the petitioner to press
5the Rule.
The contention of the petitioner, as reflected in the
6petition, is that even if the allegations made in the petition of complaint are accepted in their entirety and at their face value, the essential ingredients of the offences under sections 406 and 420 of the Penal Code are not disclosed.
Mr. Md. Masudul Alam Doha, learned Deputy
7Attorney-General, appearing for the State, opposed the Rule and submitted that the petition of complaint discloses a prima facie case and that the allegations relating to F:\Kashem, BO (Crl. MIsc. Division)\Criminal Judgment\Criminal Misc Case No. 33272 of 2010 (406-420-561A absolute).doc
dishonest inducement and breach of trust are matters to be determined upon evidence at the trial.
We have considered the submissions of the learned
8Deputy Attorney-General, examined the petition of complaint and other materials on record.
It is well settled that the inherent power of this Court
9under section 561A of the Code is an extraordinary power, which is to be exercised sparingly and with circumspection, principally to secure the ends of justice or to prevent abuse of the process of the Court. Such power may, however, be exercised where, even accepting the allegations made in the complaint in their entirety, no offence is disclosed against the accused.
For an offence under section 420 of the Penal Code,
10there must be deception and dishonest or fraudulent inducement at the inception of the transaction. A mere breach of contractual obligation, in the absence of dishonest or fraudulent intention at the inception of the transaction, does not ordinarily give rise to criminal liability. Where a substantial part of the contractual obligation has been performed, the subsequent failure or refusal to F:\Kashem, BO (Crl. MIsc. Division)\Criminal Judgment\Criminal Misc Case No. 33272 of 2010 (406-420-561A absolute).doc
perform the remaining part of the obligation, by itself, ordinarily constitutes a breach of contract giving rise to a civil liability and does not constitute the offence of cheating under sections 415/420 of the Penal Code.
In the case of Sayed Ali Mir and another vs. Syed
11Omar Ali and another, reported in 10 BLD (AD) 168, the Appellate Division held that a dispute arising out of a business transaction, in the absence of the necessary ingredients of a criminal offence, constitutes a civil liability and cannot be converted into a criminal proceeding.
In the case of Mahfez Mondal vs. Harunar Rasid,
12reported in 32 DLR (HD) 247, this Division held that mere failure to fulfil a contractual obligation does not, by itself, constitute a criminal offence.
For an offence under section 406 of the Penal Code,
13the foundational ingredients of entrustment and dishonest misappropriation or conversion thereof must be disclosed. The mere fact that, after entering into a commercial transaction, one party fails to perform a part of the obligation does not, without the requisite criminal intent F:\Kashem, BO (Crl. MIsc. Division)\Criminal Judgment\Criminal Misc Case No. 33272 of 2010 (406-420-561A absolute).doc
and other essential ingredients, transform the dispute into a criminal offence.
In the case at hand, it appears that the accused had
14received substantial quantities of fabrics over a considerable period pursuant to the agreement and had supplied finished goods against the major portion thereof. After performing the substantial part of the contractual obligation, the accused failed to supply the finished goods of the remaining quantities of fabrics. Thus, the allegation relates to incomplete performance of a contract.
Having regard to the facts and circumstances of the
15case and the principles of law discussed above, we are of the view that, even if the allegations made in the petition of complaint are accepted in their entirety, the essential ingredients of the offences under sections 406 and 420 of the Penal Code are not disclosed. Therefore, continuation of the criminal proceedings against the accused-petitioner would amount to an abuse of the process of the Court.
Accordingly, the Rule is made absolute.
The proceedings in Complaint Case No. 04 of 2008,
16under sections 406/420 of the Penal Code, now pending F:\Kashem, BO (Crl. MIsc. Division)\Criminal Judgment\Criminal Misc Case No. 33272 of 2010 (406-420-561A absolute).doc
before the Court of the learned Chief Judicial Magistrate, Narayanganj, are hereby quashed.
Let a copy of this judgment be sent to the learned
17Court concerned forthwith.
Md. Rafizul Islam, J.
I agree.
18Kashem, B.O F:\Kashem, BO (Crl. MIsc. Division)\Criminal Judgment\Criminal Misc Case No. 33272 of 2010 (406-420-561A absolute).doc
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