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. 29380 of 2018

[

With

Criminal Miscellaneous Case No. 7279 of 2021

With

Criminal Miscellaneous Case No. 12351 of 2021

Md. Mizanur Rahman..........Accused-Petitioner 

-Versus-

The State and another.............Opposite parties Mr. Rezaul Karim, 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: 31.07.2023 and 08.08.2023

Judgment on: The 8th 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.  29380  of 2018, 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 Sessions Case No. 1317 of 2016, arising out of C.R. Case  No.  2047  of  2013  under  section  138  of  the Negotiable Instruments Act, 1881 now pending in the Court of Joint Metropolitan Sessions Judge, 5th Court, Chittagong 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 Sessions Case No. 1317 of 2016 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.  7279  of  2021  and 12351  of  2021  challenging  the  proceeding  of  the Sessions Case No. 5284 of 2017, arising out of C.R. Case No. 1025 of 2016 and Sessions Case No. 4121 of 2017,  arising  out  of  C.R.  Case  No.  913  of  2016 respectively  under  section  138  of  the  Negotiable Instrument Act, 1881.

At the time of issuance of those Rules, the Court was  pleased  to  stay  all  further  proceedings  of  the aforesaid Sessions Case Nos. 5284 of 2017 and 4121 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 C.R. Case Nos. 2047 of 2013, 1025 of 2016 and 913 of 2016 respectively against the  accused  petitioner  under  sections  138/140  of  the Negotiable Instrument Act, 1881 alleging inter alia that the accused petitioner obtained the various loan facilities from the complainant bank. Subsequently, to adjust the partial loan amount, the accused-petitioner issued several cheques on several dates in favour of the complainant bank which were 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 these applications before this Court under section 561A of the Code of Criminal Procedure for quashing the proceeding of all aforesaid cases and obtained the instant Rule and stay.

In  support  of  the  aforesaid  Rules,  Mr.  Rezaul Karim, 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  are  liable  to  be quashed.

He further contended that to recover the unpaid dues amounting to Tk. 131,25,67,558/-, the complainant bank  also  filed  an  Artha  Rin  Suit  No.  251  of  2013 against the accused petitioner in the Court of Artha Rin Adalat No. 1, Chittagong and as such the initiation of the aforesaid criminal 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 unexpected 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 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  materials  on  record thoroughly. 

In  all  the  aforesaid  cases,  the  accused-petitioner mainly contended that the impugned cheques were 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”.   

In  view  of  the  aforesaid  observations,  we  are unable to accept the contention as raised by the learned Advocate  for  the  petitioner  so  far  as  relates  to  the security cheque is concerned.

We  have  further  noticed  that  regarding  the recovery of unpaid dues, the complainant bank also filed an Artha Rin Suit No 251 of 2013 against the accused petitioner which is civil in nature. On the other hand, the impugned proceedings were filed under section 138 of the Negotiable Instruments Act, 1881 which are criminal in nature.

In the case of Amir Ali Mostofa Vs. Shah Md. Nurul Alam as reported in 74 DLR (AD) (2022) page-79 wherein the Hon’ble Appellate Division was held that-

“Only because of the subject matter of the criminal

case and civil litigation being the same, it will not be a

bar for continuation of the criminal proceedings, rather

the criminal case will run in its own way.”

In the case of Khandoker Mahtabuddin Ahmed Vs. the State as reported in 49 DLR (AD) 132 wherein it was held that-

“Both  the  civil  and  criminal  case  may  run

simultaneously in respect of criminal offense as well

as for recovery of the amount misappropriated.”

Regarding  the  aforesaid  issue,  numerous  decisions have been passed by our Apex Court. 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. 29380 of 2018, 7279 of 2021 and 12351 of 2021 are discharged.

The  order  of  stay  granted  earlier  by  this  Court  in Sessions Case No. 1317 of 2016, arising out of C.R. Case No. 2047 of 2013, Sessions Case No. 5284 of 2017, arising out of C.R. Case No. 1025 of 2016 and Sessions Case No. 4121 of 2017, arising out of C.R. Case No. 913 of 2016 are hereby stand vacated.

The  concerned  trial  Courts  are  hereby  directed  to proceed all the aforesaid cases expeditiously in accordance with the law. 

Communicate this judgment and order at once to the concerned Court below. 

 [

Khandaker Diliruzzaman, J:

I agree