In The Supreme Court of Bangladesh

  High Court Division

(Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

              MR. JUSTICE KHANDAKER DILIRUZZAMAN

CRIMINAL MISCELLANEOUS CASE NO. 10887 OF 2021

With

CRIMINAL MISCELLANEOUS CASE NO. 10937 OF 2021

With

CRIMINAL MISCELLANEOUS CASE NO. 10889 OF 2021

With

CRIMINAL MISCELLANEOUS CASE NO. 10936 OF 2021

With

CRIMINAL MISCELLANEOUS CASE NO. 10888 OF 2021

Mohammad Fazlul Quadir Chowdhury......Accused-petitioner

-Versus-

The State and another….…...........Opposite parties

Mr. B.M. Elias with

Mr. Md. Mahabubur Rahman Kishore, Advocates

   .........For the petitioner

     [In all Criminal Miscellaneous Cases] Mr. Faysal Hasan Arif, Advocate

            …For the opposite party No. 2

     [In all Criminal Miscellaneous Cases] Mr. K.M. Masud Rumy, DAG with

Mr. Mehadi Hasan (Milon), AAG with

Mr. Md. Ahsan Ullah, AAG and

Ms. Aleya Khandker, AAG

........For the state

Heard on: 10.08.2023, 08.10.2023 and 15.10.2023

Judgment on: The 17th of October, 2023 ABU TAHER MD. SAIFUR RAHMAN, J.

These Rules concern of facts akin to each other arising between the same parties and involve common questions of law

and,  as  such,  taken  up  together  for  hearing  and  are  being disposed of by this single judgment.

In Criminal Miscellaneous Case No. 10887 of 2021, the Rule was issued on an application filed by the accused–petitioner under Section 561-A of the Code of Criminal Procedure calling upon  the  opposite  parties  to  show  cause  as  to  why  the proceedings of Special Sessions Case No. 41 of 2015, arising out of C.R. Case No. 200 of 2014 (Shahbagh) under section 138 of the Negotiable Instruments Act, 1881 now pending in the Court of Special Court No. 3, Dhaka should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

At the time of issuance of this Rule, the Court was pleased to stay the further proceedings of the aforesaid Special Sessions Case No. 41 of 2015 till to disposal of this Rule. 

In Similar terms, the Rules were also issued in Criminal Miscellaneous Case Nos. 10937 of 2021, 10889 of 2021, 10936 of 2021 and 10888 of 2021 and at the time of issuance of those Rules, this Court was also pleased to stay the further proceedings of the respective Special Sessions Case Nos. 33 of 2015, 43 of 2015,  36  of  2015  and  41  of  2015  under  section  138  of  the Negotiable Instrument Act, 1881 which are now pending before the concerned Special Court No. 3, Dhaka.

For disposal of these Rules, the relevant facts may briefly be stated as follows:

In  all  aforesaid  cases,  the  opposite  party  No.  2,  as  a complainant filed the all aforesaid cases against the accused- petitioner alleging inter alia that the accused-petitioner and the complainant  opposite  party  executed  a  memorandum  of understanding  (MOU)  dated  21.10.2009  to  sale  out  the  land measuring 10 (ten) kathas plot at Dhanmondi residential area which was belong to the accused-petitioner and accordingly the accused-petitioner received the amount of  Tk. 12,75,715/- on several dates from the complainant-opposite party. Subsequently on  being  request,  the  accused-petitioner  further  received  a personal loan amounting to Tk. 10,00,00,000/- (Taka Ten crore) from the complainant opposite party. In this way, the accused- petitioner received total amount of Tk. 22,12,75,715/- from the complainant. However, subsequently the sale was not executed. Thereafter,  in  order  to  repay  the  said  amount,  the  accused- petitioner issued several cheques in favour of the complainant opposite party which was dishonored due to insufficient of fund. Accordingly,  the  complainant  opposite  party  filed  the  all aforesaid cases against the accused-petitioner under section 138 of the Negotiable Instruments Act, 1881. Later on, the accused- petitioner appeared before the Court below and obtained the bail. Thereafter, the Trial Court framed a charge against the accused- petitioner.  Being  aggrieved,  the  accused-petitioner  filed  an application before this Court under section 561A of the Code of Criminal  Procedure  for  quashing  the  proceeding  of  the  all aforesaid cases and obtained the Rule and stay.

In support of those Rules, Mr. B.M. Elias, the learned Advocate  for  the  accused-petitioner  mainly  submits  that  the accused-petitioner  has  received  the  amount  of  Tk.12,75,715/- from the complainant opposite party but not the amount of Tk. 22,00,00,000/-.  He  further  contended  that  the  complainant opposite party No. 2, forcefully obtained the 5 (five) impugned cheques from the accused-petitioner and subsequently by putting various  figure  in  those  cheques  filed  the  all  aforesaid  cases against  the  accused-petitioner  under  section  138  of  the Negotiable  Instrument  Act,  1881  and  as  such  the  impugned proceedings  against  the  accused-petitioner  is  nothing  but  an abuse of the process of the Court which is liable to be quashed for the end of justice. 

He further contended that regarding the aforesaid matters the accused-petitioner also filed a Title Suit No. 207 of 2014 before the Senior Assistant Judge, 4th Court, Dhaka against the complainant  opposite  party  for  declaration  that the impugned cheques are void along with direction to return the impugned cheques in favour of the accused-petitioner which is still pending and as the aforesaid proceeding is liable to be quashed.   

As  against  this,  Mr.  Faysal  Hasan  Arif,  the  learned Advocate for the opposite party submits that after complying with  all  legal  formalities  of  section  138  of  the  Negotiable Instruments Act, 1881 the all aforesaid cases was filed against the  accused-petitioner.  In  the  aforesaid  cases,  the  accused- petitioner have no ground at all to invoke the provision of section 561A of the Code of Criminal Procedure and as such the instant Rules are liable to be discharged.

Heard the submissions of the learned Advocates of both sides  and  perused  the  petitioner’s  applications  and  other materials on record thoroughly. 

In  the  instant  case,  the  accused-petitioner  mainly contended that the impugned cheques were obtained forcefully from  the  accused-petitioner  and  regarding  this  matter  the accused-petitioner filed a Title Suit No. 207 of 2014 challenging the impugned cheques which is still pending. The contention as raised  by  the  accused-petitioner  is  absolutely  a  matter  of evidence which not be decided at this stage under section 561A of the Code of Criminal Procedure.

Under the given facts and circumstances of the case and the reasons as stated above, we do not find any substances of these Rules.

As  a  result,  the  Rules  in  Criminal  Miscellaneous  Case Nos. 10887 of 2021, 10937 of 2021, 10889 of 2021 and 10936 of 2021 and 10888 of 2021 are discharged.

The  order  of  stay  granted  earlier  by  this  Court  in connection  with  the  Special  Sessions  Case  No.  41  of  2015, arising out of C.R. Case No. 200 of 2014, Special Sessions Case No. 33 of 2015, arising out of C.R. Case No. 202 of 2024, Special Sessions Case No. 43 of 2015, arising out of C.R. Case No. 197 of 2014, Special Sessions Case No. 36 of 2015, arising out of C.R. Case No. 201 of 2014 and Special Sessions Case No. 41 of 2015, arising out of C.R. Case No. 196 of 2014 now pending in the Court of Special Court No. 3, Dhaka are hereby stands vacated.

The concerned Trial Court below is hereby directed to proceed with the case expeditiously in accordance with the law without giving any unnecessary adjournments to either party.

Communicate this judgment and order at once.

Khandaker Diliruzzaman, J:

I agree