IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)

Present

Mr. Justice Md. Salim

And

Mr. Justice Shahed Nuruddin

CRIMINAL MISCELLANEOUS CASE NO. 27422 OF 2016

B.M. Saifuzzaman

............Accused-Petitioner. -VERSUS-

The State and another                   . ...Opposite Parties.

No one appears

............ For both the parties.

Mr. B.M. Abdur Rafell, D.A.G. with Mr. Binoy Kumar Ghosh with

Mr. A.T.M. Aminur Rahman (Milon) and

Ms. Lily Rani Saha, AAGs ..............For the State.

Heard and Judgment on: 14.12.2023.

Shahed Nuruddin, J:

By  this  Rule,  the  accused-petitioner  by  filing  an

application  under  Section  561A  of  the  Code  of  Criminal Procedure sought for quashing of the proceedings of Sessions Case No.434 of 2015 arising out of C.R. Case No.189 of 2015 under Section 138 of the Negotiable Instrument Act,1881, now pending before the learned Additional Sessions Judge, Magura.

Material  facts  leading  to  this  Rule  are  that,  in  order  to discharge the loan liability the accused petitioner gave the cheque to the complainant which on presentation to the bank for encashment was dishonored on the ground of insufficiency of funds. Following the procedure and in compliance with statutory provisions laid down in section 138 of the Negotiable Instruments Act,1881 the complainant filed the instant case.

The learned Magistrate took cognizance of the offence and subsequently, the charge was framed by the  Additional Sessions Judge, Magura. The case is now pending for trial.

Feeling aggrieved the accused petitioner preferred the instant application and obtained the present Rule on 24.07.2016.

Heard the learned Deputy Attorney General and perused the

record.

On  exploration  of  the  materials  on  record,  it transpires  that  the  complainant  categorically  narrated the  manner  of  crime  committed  by  the  accused.  The learned Judge after considering the entire materials on record rightly framed the charge under the same section against the accused petitioner. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise in this regard reliance has been placed on the case of Abdur Rahim alias A.N.M Abdur Rahman Vs. Enamul Haq and another reported in 43 DLR (AD) 173. Moreover, we can also rely upon the cases reported in 68 DLR (AD) 298, 72 DLR  (AD)  79,  and  the  case  of  Phoenix  Finance  and Investment  Limited  (PFIL)  Vs.  Yeasmin  Ahmed  and another reported in XVIII  ADC (AD) 490.  All that is required at the stage of framing charge is to see whether the  prima-facie  case  regarding  the  commission  of  the certain offense is made out. The truth veracity and effect of evidence which prosecution proposes to adduce is not to be meticulously judged at the stage of framing charge. In the instant case, the accused stand indicted for an offense punishable under the same section. Cognizance has  been  taken  as  well  the  charge  has  been  framed against the accused petitioner under the same section. We have meticulously examined the allegations made by the complainant and we find that the offence punishable under the above offence has been clearly disclosed in the instant case against the accused. We have gone through the grounds taken in the petition of Miscellaneous Case

Therefore we hold that there are sufficient grounds for proceeding against the accused petitioner for going to trial under the same section. To that end, view, we are at one with the learned Judge of the Court below regarding the framing of the charge against the accused.

 In the light of the discussions made above and the preponderant  judicial  views  emerging  out  of  the authorities referred to above we are of the view that the impugned  proceedings  suffer  from  no  legal  infirmities which calls for no interference by this Court.

In  view  of  the  foregoing  narrative,  the  Rule  is discharged.  The  order  of  stay  granted  earlier  stands vacated.

The office is directed to communicate the judgment

at once. Md. Salim, J:

I agree

Hanif-BO