UTTARA UNIVERSITY

ANSWERING SHORT QUESTIONS

ON
MERCANTILE LAW PART- I
COURSE CODE: LLB-801
Topics: 1. Explain the term ‘Insurance’ with reference to its classification. Is it
gambling?
2. Describe the basic nature and principles of insurance.
3. Enumerate the liabilities of common carrier and railway authority under law.
4. What is dishonor of negotiable instruments? Narrate the procedure for claiming remedy
for dishonour of cheque.

Submitted to
Mohammad Badruzzaman
Assistant Professor & Co-ordinator
Department of Law
Uttara University

Submitted by
Md. Arif Hossain
LL.B.(Hons) 8th Semester
Batch:43(B) Summer,20
ID: 2181261064
Uttara University
 Submission date : 04-07-2020
Question No -(a)

a) Differentiate between kidnappings and Abduction.

Answer:

Though, laws prohibit abduction and kidnapping, but there are many kidnapping and
abduction cases have come up in Bangladesh. People have continued to take advantage of the
tender age of minors to kidnap them and exploit and force them to perform horrendous acts.
Such offences are an attack on the liberty and freedom of citizens and must be prevented.
There is difference between kidnap & abduction –
 Section 359 of the Penal Code states the two types of kidnapping. Section 360 defines
kidnapping from Bangladesh, Section 361 defines kidnapping from lawful
guardianship whereas the definition of abduction is given in Section 362 of the Penal
Code, 1860.

 Kidnapping is committed only in respect of a minor under 14 years of age if a male,

and under 16 years if a female, or a person of unsound mind, on the other hand,
abduction is committed in respect of a person of an age.

 In kidnapping, the person is taken away or enticed. The means of doing these is
irrelevant to constitute the crime, but in abduction. force, deceit or compulsion is
used to take a person from a place.

 In kidnapping the person kidnapped is removed out of lawful guardianship. A child

without a guardian cannot be kidnapped whereas Abduction has reference exclusively
to the person abducted.

 In kidnapping. the minor or the person of unsound mind is simply taken away or
enticed to go with the kidnapper. The means use may be innocent but in abduction
force, compulsion, or deceitful means are used.
  Kidnapping is not a continuing offence whereas Abduction is a continuing offence
because it does not end when a person is moved from a particular place, rather
continues with every movement from one place to the other.

 ln kidnapping. consent of the person taken or enticed is immaterial: in abduction,

consent of the person removed, if freely and voluntarily given, condones abduction.

 In kidnapping. the intent of the offender is wholly irrelevant; in abduction, it is all an

important factor. Abduction must be with certain intent.

 Kidnapping from guardianship is a substantive offence under the Code; but abduction
is an auxiliary act, not punishable by itself, but made criminal only when it is done
with one or other of the intents specified in sections 364 to 369.

Question No -(b)

b) Is it true that every wrongful confinement is one kind of wrongful restraint? Justify
your answer.

Answer :

Under the Constitution of Bangladesh, in Articles 33 and 36, every person throughout the
territory of Bangladesh is conferred with the right to freedom of movement and is
guaranteed personal liberty. In furtherance of this objective set up by the Constitution, the
Penal Code lays down penal sanctions in case a person violates the freedom of movement or
personal liberty of another. This is done so as to safeguard an individual’s right to liberty
against deprivation by another individual or groups other than State (as fundamental rights
only place an obligation on the state).

Section 339 and 340 of Penal Code define Wrongful Restraint and Wrongful Confinement
respectively. The Penal Code, 1860 makes wrongful restraint and wrongful confinement
punishable under Section 339 to 348. Wrongful confinement is one kind of wrongful
restraint; in light of question the answer is given below:

 Wrongful confinement is a form of wrongful restraint. It is keeping a man within

limits out of which he wishes to go and has a right to go while wrongful restraint is
keeping a man out of a place where he wishes to be, and has a right to go.

 In wrongful confinement a person is restrained from proceeding in all directions

beyond a certain area within which he is confined, but in wrongful restraint he is
restrained from proceeding in some particular direction, though free to proceed
elsewhere. In other words, there is full restraint in the former, but only partial
restraint in the latter. That is to say, the difference between them is only the
distinction between obstruction on all sides and obstruction in one direction only.

 Wrongful confinement is a more serious offence than wrongful restraint inasmuch as

it prescribes punishment with imprisonment, simple or rigorous, extending to one
year or fine up to Taka 1000, or both, while wrongful restraint is punishable with
simple imprisonment up to one month, or with fine up to Taka 500 or with both.

An easy way to understand this is that wrongful Restraint is essentially a restraint in a line,
this means that it involves all sorts of restraint that happen in a path or road or any sort of
movement in a straight line. Here the person has the option to go back or left or right as he is
just restrained from going forward. This is punishable because here a person has a right to
move on such path and other person has restricted such movement.

Example- When Alia was walking down the school corridor, Varun stopped her by standing
in her way and wrongfully restrained her. Further, if Varun would have merely told Alia
that if she would go down the corridor, then a bucket full of paint would fall on her and
because of this Alia did not go down the corridor, then also Varun has wrongfully restrained
her.

On the other hand, wrongful confinement is in a Circle, this means that it involves all sorts
of restraints that happen in a circumscribed limit such as restriction from leaving a room or
building or a park etc.

Examples- When General Dyer entered the Jallianwala Bagh and blocked every exit for the
people to escape, he wrongfully confined the people or when Krishna’s mother Yashoda tied
him to a trunk, here she in a way completely restricted his movements and thereby
wrongfully confined him.

However, in both wrongful restrain and wrongful confinement the punishment may be
changed in case of doing in different way. So finally we can say – “Every wrongful
confinement is one kind of wrongful restraint”

Question No -(c)

c) Differentiate between Robbery and Dacoity.

Answer:
The terms robbery and dacoity are very similar to each other and they are often used
interchangeably on a daily basis. But the legal implication of these two terms is different.
The penal code has defined these terms very clearly. It has identified these as distinct crimes.
Section 390 of the Penal Code has defined robbery and section 391 defined dacoity. In light
of question the answer is given below-

 The essence of the difference between the two lies only in the number of persons
involved in the offence.

 Robbery can be committed by one culprit, whereas in dacoity there must be five or
more.

 Dacoity is an aggravated and more serious form of robbery.

 There is no consent in both, but in dacoity it is obtained wrongfully as in extortion.

 Section 390 of the Penal Code has defined robbery and section 391 defined
dacoity.

Question No -(d)

d) Differentiate between Theft and Extortion.

Answer:
The legal implication of Theft and Extortion is different. The penal code has defined these
terms very clearly. It has identified these as distinct crimes. Section 378 to 382 of the Penal
Code has defined Theft and section 383 to 389 defined Extortion. In light of question the
answer is given below-

 In theft the property is taken without the owner's consent; in extortion the consent is
obtained by putting a person in fear of any injury to him or any other.

 Theft can only be committed of moveable property extortion may be committed of

immoveable property as well.

 In theft the thief takes the property without the Owner's consent: in extortion the
person intimidated is induced to deliver the property. Hence the element of delivery
does not exist in theft as in extortion.

 In theft there 1s no element of 1orce: in extortion there is-the element of force, for
property is obtained by putting a person in fear of injury to that person or to any
other.

 Section 378 to 382 of the Penal Code has defined Theft and section 383 to 389 defined
Extortion