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. 1243 of 2021

Rakibur Rahman.............Accused-Petitioner 

-Versus-

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

Mr. Saqeb Mahbub, Advocate

 ....For the accused-petitioner

[In all Criminal Miscellaneous Cases]

Mr. Tushar Kanti Das, Advocate

     …For the opposite party No. 2

[In all Criminal Miscellaneous Cases}

Mr. Imran Ahmed Bhuiyan, DAG with Mr. Mehadi Hasan (Milon), AAG and Ms. Aleya Khandker, AAG

......For the state   

Heard on: 09.08.2023 and 13.08.2023

Judgment on: The 23rd of August, 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, are taken up together for hearing and are being disposed of by this single judgment.

In Criminal Miscellaneous Case No. 1243 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  impugned  proceedings  of  the  Metropolitan Sessions Case No. 8160 of 2017, arising out of C.R. Case No. 1172 of 2016 under sections 138/140 of the Negotiable Instruments Act, 1881 now pending in the Court of 2nd Joint Metropolitan Sessions Judge Court, Chattogram should not be  quashed  and/or  such  other  or  further  order  or  orders passed to this Court may seem fit and proper.

At the time of issuance of the Rule, the Court was pleased  to  stay  all  further  proceedings  of  the  aforesaid Metropolitan Sessions Case No. 8160 of 2017 for 6 (six) months from the date, which was subsequently extended till to disposal of the Rule. 

In  Similar  terms,  the  Rules  were  also  issued  in Criminal Miscellaneous Case Nos. 1244 of 2021 and 1247 of  2021  challenging  the  proceeding  of  the  Metropolitan Sessions Case No. 6969 of 2017, arising out of C.R. Case No. 1116 of 2016 and Metropolitan Sessions Case No. 8158 of  2017,  arising  out  of  C.R.  Case  No.  1170  of  2016 respectively under sections 138 and 140 of the Negotiable Instrument Act, 1881.

At the time of issuing of those Rules, the Court was pleased  to  stay  all  further  proceedings  of  the  aforesaid Metropolitan Sessions Case Nos. 6969 of 2017 and 8158 of 2017 for 6 (six) months which was subsequently extended till to disposal of the aforesaid Rules.

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

That the opposite party No. 2, National Bank Limited as complainant filed all aforesaid criminal cases against the accused-petitioner alleging inter alia that the accused No. 1 Mostafa Paper Complex Limited has obtained the various loan facilities from the complainant bank. Subsequently, in order to repay the aforesaid loan, the accused-petitioner as Managing  Director  of  the  said  company  issued  several cheques on several dates in favour of the complainant bank which  was  dishonored  due  to  insufficient  of  funds. Accordingly, the complainant bank filed all aforesaid cases against the accused-petitioner under sections 138 and 140 of the  Negotiable  Instruments  Act,  1881.  Thereafter,  the accused  petitioner  appeared  before  the  Court  below  and obtained bail. Later on, the charge was framed against the accused petitioner. Being aggrieved, the accused-petitioner preferred  this  application  before  this Court  under  section 561A of the Code of Criminal Procedure for quashing the proceeding of all aforesaid cases and obtained the Rule and stay.

In support of the aforesaid Rules, Mr. Saqeb Mahbub, the  learned  Advocate  for  the  accused-petitioner  mainly submits that the impugned cheques were given as a security cheques which does not cover the provision of section 138 of the Negotiable Instrument Act, 1881, and as such the impugned proceeding is  liable  to  be quashed.  He  further contended that during the pendency of the aforesaid cases, the accused-petitioner filed an applications dated 08.11.2020 to the complainant bank under the BRPD Circular Nos. 4 and  13  along  with  the  deposited  the  amount  of  Tk.  2% (equivalent to Tk. 3,64,68,000/-) of the principal amount for rescheduling the loans as availed by the accused-petitioner which  are  still  pending  and  as  such  the  impugned proceedings are liable to be quashed.

He also submits that though the accused-petitioner was a Managing Director of the company but the then Chairman of the said company was Mr. Taisir Rahman who holds the executive power of the company and as such the accused- petitioner  is  not  liable  for  the  offence  committed  by  the company and as such the aforesaid proceedings are liable to be quashed.

 Mr. Tushar Kanti Das, the learned Advocate for the opposite party No. 2 appeared before this Court but did not submit any counter affidavit which is very unfortunate and undesirable.  However,  he  verbally  submits  that  after complying with all legal formalities of section 138 of the Negotiable Instruments Act, 1881, all the aforesaid cases were filed against the accused-petitioner, and as such the accused-petitioner  has  no  ground  at  all  to  invoke  the provision  of  section  561A  of  the  Code  of  Criminal Procedure.

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

It is admitted fact that the accused-petitioner was a Managing Director of the company named Mostafa Paper Complex Limited (accused No. 1) who obtained the various loan facilities from the complainant bank-opposite party No. 2. It is also admitted fact that the impugned cheques were issued by the company in favour of the complainant bank which was dishonored due to insufficient of fund.

In the instant case, the accused-petitioner mainly contended  that  the  impugned  cheque  was  given  as  a security cheque which does not cover the provision of section  138  of  the  Negotiable  Instrument  Act,  1881. However,  this  issue  has  already  been  settled  by  the Hon’ble  Appellate  Division,  in  the  case  of  Majed Hossain and others as reported in 17 BLC (AD) 177 wherein it was held that-

“A reading of Sub-section (1) of section 138 of the Act, 1881 shows that an offence under the  section  shall  be  deemed  to  have  been committed, the moment a cheque drawn by a person on an account maintained by him with a  banker  for  payment  of  any  amount  of money  to  another  person  from  out  of  that account is returned by the bank unpaid on any of  the  grounds  mentioned  therein.  Sub- section (1) of section 138 has not made any qualification of the cheque so returned unpaid either  post  dated  given  as  a  security  for repayment of the loan availed by a loanee as alleged by the accused or any other cheque

issued  by  the  drawer  for  encashment currently”.   

So far the issue of application for rescheduling of the loan is concerned, we are of the view that the Court has nothing to do about the application of rescheduling of  the  loan  filed  by  the  accused-petitioner  which  is completely depend upon the complainant bank. So, the contention  as  raised  by  the  learned  Advocate  for  the accused-petitioner is not acceptable.

In such view of the aforesaid legal position, we do not find any substances of these Rules.

As a result, the Rules in Criminal Miscellaneous Case Nos. 1243 of 2021, 1244 of 2021 and 1247 of 2021 are discharged.

The order of stay granted earlier by this Court in connection with Metropolitan Sessions Case No. 8160 of 2017,  arising  out  of  C.R.  Case  No.  1172  of  2016, Metropolitan Sessions Case No. 6969 of 2017, arising out of C.R. Case No. 1116 of 2016 and Metropolitan Sessions Case No. 8158 of 2017, arising out of C.R. Case No. 1170 of 2016 now pending in the Court of 2nd Joint Metropolitan Sessions Judge Court, Chattogram 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