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. 39018 OF 2017

Khondokar Foyjur Rahman..….…...Petitioner 

-Versus-

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

 None appears.........For the petitioner

 Mr. Md. Abul Kalam Azad, Advocate

....…For the opposite party No. 2 Mr. Md. Ahsan Ullah, AAG with

 Mr. Mehadi Hasan (Milon), AAG and

 Ms. Aleya Khandker, AAG

........For the state

Heard on: 31.07.2023 and 08.10.2023

Judgment on: The 11th of October, 2023 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused-petitioner under section 561A of the Code of Criminal  Procedure,  1898  calling  upon  the  opposite parties  to  show  cause  as  to  why  the  proceeding  of Sessions Case No. 1256 of 2017, arising out of C.R. Case  No.  1545  of  2016  under  section  138  of  the Negotiable  Instrument  Act,  1881  now  pending  in  the Court of Metropolitan Sessions Judge, Sylhet, should not

be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, this Court was pleased  to  stay  the  all  further  proceedings  of  the aforesaid Sessions Case No. 1256 of 2017 for  6 (six) months from date which was time to time extended by this Court.

For disposal of this Rule, the relevant facts may briefly be stated as follows:

That the opposite party No. 2, National Bank of Pakistan, Sylhet Branch as complainant filed a C.R. Case No. 1545 of 2016 alleging inter alia that the accused- petitioner has obtained the various loan facilities from the  complainant  bank  amounting  to  Tk.  50,00,000/- (Taka  Fifty  lac)  vide  its  sanctioned  letter  dated 08.08.2011. Subsequently, in order to repay the said loan amount,  the  accused-petitioner  issued  a  cheque amounting to Tk. 70,08,668/- (Taka Seventy lac, Eight thousand  and  Six  hundred  sixty  eight)  which  was dishonored due to insufficient of fund. Hence, the instant case  was  filed  against  the  accused-petitioner. Subsequently,  the  charge  was  framed  against  the accused-petitioner under section 138 of the Negotiable Instrument  Act,  1881.  Being  aggrieved,  the  accused- petitioner filed this application before this Court under section 561-A of the Code of Criminal Procedure for quashing  the  proceedings  of  the  aforesaid  case  and obtained the Rule and stay.

None appears for the petitioner to support the Rule. The  petitioner  has  stated  in  his  application  that  the impugned cheque was given as a security cheque at the time of obtaining the loan which does not covered the provision of section 138 of the Negotiable Instrument Act, 1881 and as such the instant case is liable to be quashed.

As against this, Mr. Md. Abul Kalam Azad, the learned Advocate for the opposite party No. 2 submits that the contention as raised by the accused-petitioner is a matter of fact which needs to be decided at the time of trial  and  accordingly  the  instant  Rule  is  liable  to  be discharged.

Heard the submissions of the learned Advocate for the opposite party No. 2 and perused the materials on record thoroughly.

The only issue for determination of this Rule is to see whether the proceeding of Sessions Case No. 1256 of 2017  under  section  138  of  the  Negotiable  Instrument Act, 1881 is liable to be quashed.

In the instant case, the accused-petitioner mainly contended  that  the  impugned  cheque  was  given  as security cheque which does not covered the provision of section  138  of  the  Negotiable  Instrument  Act,  1881. However, this issue 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 observed 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. When the legislature has not made any difference between a post dated cheque issued as security for the repayment of the loan  availed  by  the  loanee,  here  the petitioners, as argued by Mr. Chowdhury and cheque issued for encashment currently, we do  not  see  any  scope  of  making  any  such difference.”   

In such view of the aforesaid observation as made by the Hon’ble Appellate Division we do not find any substance of this Rule.

As a result, the Rule is discharged.

Since it is a very old case, the trial Court is hereby directed to proceed with the case expeditiously without giving any unnecessary adjournment to the either party.

The order of stay granted earlier by this Court is hereby stand vacated.

Communicate this judgment and order at once.

Khandaker Diliruzzaman, J:

I agree