Dishonest Intention Must Exist from the Time Money Is Obtained to Establish Cheating; Mere Failure to Repay a Loan Is Not Enough: High Court
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| Supreme Court of Bangladesh |
The observations were made in a judgment delivered by a single-judge bench of the High Court Division comprising Justice Md. Khasruzzaman in Prodip Mondal v. The State and Another, Criminal Revision No. 1317 of 2024. By its judgment dated 14 August 2025, the Court discharged the Rule issued upon the accused's application and upheld the sentence imposed by the lower courts. The full text of the judgment was published on the Supreme Court's website on 9 November 2026.
Background of the Case
According to the complaint, the complainant, Most. Momena Begum, was previously acquainted with the accused, Prodip Mondal. Taking advantage of that familiarity, the accused allegedly borrowed Tk 200,000 from her by promising to provide a profit on the amount. Accordingly, the complainant paid him Tk 100,000 on 22 August 2019 and another Tk 100,000 on 2 October 2019, bringing the total amount to Tk 200,000.
As an acknowledgment of the transaction, a written undertaking was executed on a Tk 300 non-judicial stamp paper. In the document, the accused promised to repay the money within the stipulated period. However, he allegedly failed to repay the amount even after the agreed period had expired. When the complainant subsequently demanded repayment, the accused allegedly refused and threatened her.
Following the incident, the complainant lodged a complaint under Sections 406, 420 and 506 of the Penal Code. After an investigation, the court took cognizance of the allegations against the accused and, following the proceedings, framed charges under Sections 420 and 506 of the Penal Code.
Decisions of the Trial and Appellate Courts
During the trial, the prosecution examined a total of five witnesses. Their testimonies addressed the monetary transaction, execution of the written undertaking and the accused's failure to repay the money. However, as the accused was absconding, the witnesses could not be effectively cross-examined.
Subsequently, on 4 July 2022, the Court of Senior Judicial Magistrate No. 3, Khulna, convicted the accused under Section 420 of the Penal Code. He was sentenced to two years' rigorous imprisonment and fined Tk 5,000. In default of payment of the fine, he was further directed to undergo two months' simple imprisonment.
The accused challenged the judgment by filing Criminal Appeal No. 198 of 2022. On 11 October 2023, the Special Sessions Judge and Druto Bichar Tribunal, Khulna, dismissed the appeal, thereby upholding the sentence imposed by the trial court. Subsequently, the accused filed a criminal revision before the High Court Division.
Submissions on Behalf of the Accused
Counsel for the accused argued that the dispute between the complainant and the accused essentially concerned the lending and repayment of money and was therefore a civil dispute. Mere failure to repay a loan, it was submitted, could not by itself establish the offence of cheating under Section 420 of the Penal Code. The defence further argued that the prosecution had failed to produce any evidence demonstrating that the accused had a dishonest intention at the time of receiving the money.
On the other hand, counsel for the complainant submitted that the consistent testimonies of the witnesses, together with the written undertaking, established the fact that the accused had received the money. It was also argued that the material statements of the witnesses had not been effectively challenged. Accordingly, the conviction and sentence imposed by the lower courts were justified.
Observations of the Court
The High Court observed that Section 415 of the Penal Code defines the offence of cheating, while Section 420 provides punishment for cheating and dishonestly inducing a person to deliver property. To establish an offence under Section 420, it must be demonstrated that the accused practised deception, made a fraudulent or dishonest inducement and thereby caused the victim to deliver property. Most importantly, the accused must have had a dishonest intention from the very time the inducement was made.
The Court further observed that a breach of contract or subsequent failure to repay a loan does not, by itself, constitute the offence of cheating. Whether dishonest intention existed at the inception of the transaction is the key factor in distinguishing civil liability from criminal cheating. However, as dishonest intention is a state of mind, it may be inferred from established facts, the conduct of the parties and the surrounding circumstances.
Upon examining the evidence, the Court found consistency between the complainant's testimony, the statements of the other witnesses and the written undertaking. The document executed on stamp paper was significant not merely as support for the complainant's oral testimony, but also as contemporaneous documentary evidence of the transaction and the promise to repay the money.
Regarding the failure to cross-examine the witnesses, the Court observed that the absence of cross-examination does not automatically establish every statement made by a witness as true. Nor does it relieve the prosecution of its burden to prove the charge. However, where a witness's testimony is credible, consistent and supported by documentary evidence, the failure to effectively challenge that testimony may be taken into consideration when assessing its evidentiary value.
On the distinction between civil and criminal disputes, the Court observed that the availability of a civil remedy for recovery of money does not automatically bar criminal proceedings. A single transaction may give rise to civil liability while also satisfying the necessary ingredients of a criminal offence of cheating. Therefore, a conviction cannot be set aside merely on the ground that the dispute originated from a loan transaction.
Decision of the Court
The High Court observed that the trial court had convicted the accused after considering the witnesses' testimonies, the written undertaking and the surrounding circumstances of the transaction. The appellate court had also independently examined the evidence and reached the same conclusion. The High Court found no serious legal error, misappreciation of evidence or material inconsistency in those findings that would warrant interference by the revisional court.
The Court further noted that the revisional jurisdiction of the High Court Division under Sections 435 and 439 of the Code of Criminal Procedure is primarily supervisory and corrective in nature. Where the concurrent findings of the lower courts do not disclose any apparent legal error, serious misappreciation of evidence or miscarriage of justice, the revisional court cannot interfere merely because the evidence could potentially be assessed differently.
Ultimately, the Court found the sentence of two years' rigorous imprisonment and a fine of Tk 5,000 imposed upon the accused to be lawful. Accordingly, the Rule was discharged, and the decisions of the trial and appellate courts were upheld.
Legal Takeaways
- Mere failure to repay a loan does not constitute cheating under Section 420 of the Penal Code.
- Dishonest or fraudulent intention must exist from the time the money is obtained.
- The surrounding circumstances of a transaction and subsequent conduct may be considered when determining whether dishonest intention existed at the inception.
- A written undertaking may serve as important documentary evidence supporting oral testimony.
- Failure to cross-examine a witness does not automatically establish the truth of the witness's testimony, although it may be relevant when assessing its evidentiary value.
- A single transaction may give rise to both civil liability and criminal liability where the necessary ingredients of a criminal offence are established.
Case Details: Prodip Mondal v. The State and Another; Criminal Revision No. 1317 of 2024; Judgment dated: 14 August 2025; Judge: Justice Md. Khasruzzaman; Relevant provisions: Sections 415 and 420 of the Penal Code, 1860, and Sections 435 and 439 of the Code of Criminal Procedure, 1898.
BD LAW POST / Masum
