In The Supreme Court of Bangladesh       High Court Division

        (Criminal Miscellaneous Jurisdiction)

Present:

          Mr. Justice Abu Taher Md. Saifur Rahman

And

          Mr. Justice S.M. Masud Hossain Dolon

Criminal Miscellaneous Case No. 43532 of 2017

Salma Chowdhury............Accused-Petitioner 

-Versus-

The State...........Opposite party

None appears........... For the accused petitioner Mr. Md. Monzurul Karim, Advocate

....For the opposite party No. 2

Mr. K.M. Masud Rumy, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

......For the state   

    Heard on: 11.03.2024 and 13.03.2024    Judgment on: The 28th of April, 2024

Abu Taher Md. Saifur Rahman, J:

This 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 Metro Sessions Case No. 1080 of 2007, arising out of C.R. Case No. 653 of  2007  under  sections  138/140  of  the  Negotiable

Instruments  Act,  1881  now  pending  in  the  Court  of Metropolitan  Joint  Sessions  Judge,  5th  Court,  Dhaka

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, the Court was pleased to stay all further proceedings of the aforesaid Metro Sessions Case No. 1080 of 2007 so far as relates to the accused petitioner.

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

That  the  complainant  opposite  party  No.  2  as  a complaint  filed  a  C.R.  Case  No.  653  of  2007, corresponding to Metro Sessions Case No. 1080 of 2007 under  sections  138/140  of  the  Negotiable  Instrument Act, 1881 against the accused petitioner alleging inter alia  that  to  adjust  the  unpaid  dues  amounting  to  Tk. 10,00,000/- (Taka Ten lac), the accused petitioner issued the impugned cheque in favour of the complainant which was dishonored due to insufficient of fund. Hence, the aforesaid case was filed against the accused petitioner under sections 138 and 140 of the Negotiable Instrument Act,  1881.  Thereafter,  the  accused  petitioner  duly appeared before the Court and obtained bail. Later on, the  charge  was  framed  against  the  accused  petitioner under  section  138  of  the  Negotiable  Instrument  Act, 1881.  Being  aggrieved,  the  accused  petitioner  has preferred this application before this Court under section 561A of the Code of Criminal Procedure for quashing the aforesaid proceeding and obtained the instant Rule and stay.

No  one  appears  for  the  accused  petitioner  to support the Rule.

The complaint opposite party No. 2 has mentioned in his petition of complaint that the complainant served a legal notice upon the accused petitioner on 28.01.2007 but did not mention when the said notice was received by the accused petitioner and as such no cause of action arises in the instant case. Hence, the instant proceeding is liable to be quashed. 

Mr. Md. Monzurul Karim, the learned Advocate for the opposite party No. 2 submits that after complying with  all  legal  formalities  under  section  138  of  the Negotiable Instrument Act, 1881, the instant case was 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.

He  further  submits  that  regarding  the  impugned proceeding,  the  accused  petitioner  earlier  filed  a Criminal Miscellaneous Case No. 13516 of 2007 under section 561A of the Code of Criminal Procedure before the  Hon’ble  High  Court  Division  which  was subsequently  discharged  vide  its  judgment  and  order dated  09.11.2015  and  produced  the  copy  of  the  said judgment before this Court. By way of suppressing the aforesaid material fact, the accused petitioner filed the instant case which 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 the Rule is to see  whether  the  impugned  proceeding  is  liable  to  be quashed.

On  perusal  of  the  judgment  and  order  dated 09.11.2015 passed in Criminal Miscellaneous Case No. 13516  of  2007  it  transpires  that  regarding  the  same impugned proceeding, the accused petitioner earlier filed a Criminal Miscellaneous Case No. 13516 of 2007 under section 561A of the Code of Criminal Procedure before the Hon’ble High Court Division which was discharged vide its judgment and order dated 09.11.2015. In the instant case, the accused petitioner did not mention the aforesaid  fact  in  his  application  which  is  serious suppression of material fact.

On  being  asked,  the  learned  Advocate  for  the accused  petitioner  finds  difficulties  in  answering  the question.

Since there is a serious suppression of facts, the Rule is liable to be discharged.

As a result, the Rule is discharged.

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

Since it is a very old case, the concerned trial Court is hereby directed to proceed with the case expeditiously in accordance with the law. 

Communicate this judgment and order at once.

[

S.M. Masud Hossain Dolon, J:

I agree