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. 6863 OF 2023

Alhaj Mohammad Yeaheya

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

The State and another        ...Opposite Parties.

None appears      ............ For the petitioner. Mr. Md. Sameer Sattar with

Mr. Mahbub Hasan, Advocates

......... For the Opposite Party No.2. Mr. B.M. Abdur Rafell, DAG with

Mr. Binoy Kumar Ghosh

Mr. A.T.M Aminur Rahman, A.A.Gs.

..............For the State. Heard and Judgment on: 16.05.2024.

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 the proceedings of Sessions Case No.700 of 2014 arising out of C.R. Case No.1043 of 2013 under Section 138 of the Negotiable Instrument Act,1881, now pending before the learned Joint Metropolitan Sessions Judge, 1st Court, Chattogram.

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. The learned Additional Metropolitan Sessions Judge, 5th Court, Chottogram framed charge against the accused-petitioner. The case is now pending for trial.

Being  aggrieved  and  dissatisfied  with  the  impugned proceedings  the  accused  petitioner  preferred  the  instant application and obtained the present Rule on 22.01.2023.

Despite the matter appears in the cause list for hearing, no one appears on behalf of the accused petitioner to press the rule. However, in presence of Mr. Md. Sameer Sattar, the learned Counsel appearing for the opposite party No.2 and the learned Deputy Attorney General, we are inclined to dispose of the rule on merit.

Mr. Md. Sameer Sattar, the learned Counsel appearing for the opposite party No.2 by filing a counter affidavit submits that the petitioner admitted that he issued the  cheque  in  question voluntarily in favour of the opposite party No.2 in presence of local elite parsons. The petitioner shall get ample opportunity in the concern trial court to prove his case through a proper trial in which the concern trial Court weigh both parties evidence in support of their cases. In support of his contention he referred the decision reported in 13 MLR (AD) 184 and 62 DLR (AD) 233.

Heard the learned Advocate for the opposite parties 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. 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.   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 and  we  find  that  such  grounds  are  absolutely  the disputed  question  of  facts  and  the  same  should  be decided at trial. The plea of the petitioner is nothing but the defense plea. Be that as it may, the proposition of law is  now  well  settled  that  based  on  a  defense  plea  or materials, the criminal proceedings should not be stifled before trial; when there is a prima facie case for going for trial. In view of such facts, the grounds taken in the petition of the miscellaneous case are not the correct exposition of law. Moreso interruption of the course of Justice  will  set  up  a  wrong  precedent  by  which  the course of justice instead of being advanced readily is stifled inasmuch as the grounds advanced before us are not correct or legal exposition of law.

 Therefore we hold that there are sufficient grounds for proceeding against the accused petitioner for going to trial under the same section.  

 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