In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

    MR. JUSTICE MD. ATABULLAH

CRIMINAL MISCELLANEOUS CASE NO. 4535 OF 2012 Sigma Marketing Limited and others ..….Accused-petitioners

-Versus-

The State and another….….....Opposite parties None appears... .........For the accused-petitioners Mrs. Shayema Chowdhury, 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: 12.05.2024

Judgment on: The 19th of May, 2024 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused-petitioners under section 561A of the Code of Criminal Procedure calling upon the opposite parties to show cause as to why the proceedings of Metro. Sessions Case No. 8794 of 2010, arising out of C.R. Case No. 994 of 2009 under sections 138 and 140 of the Negotiable Instruments Act, 1881, now pending in the Court of 5th Additional Sessions Judge, 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, this Court was pleased to stay all further proceedings of the aforesaid proceedings of Metro. Sessions Case No. 8794 of 2010 for 6 (six) months which was time to time extended by the Court.

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

That  the  opposite  party  No.  2,  Shahjalal  Islami Bank Limited as complainant filed a C.R. Case No. 994 of 2009 against the accused-petitioners under sections 138 and 140 of the Negotiable Instruments Act, 1881 alleging  inter  alias  that  the  accused-petitioner  has obtained the various loan facilities from the complainant bank. Subsequently in order to partial adjustment of the aforesaid  loan,  the  accused-petitioners  issued  the impugned  cheque  dated  23.12.2008  amounting  to  Tk. 4,08,81,186.93/-  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 below  and  obtained  bail.  Later  on,  the  charged  was framed  against  the  accused  petitioners  under  sections 138 and 140 of the Negotiable Instrument Act, 1881 for quashing the aforesaid proceeding and obtained the Rule and stay.

No  one  appears  for  the  accused  petitioners  to support the Rule. However, the accused-petitioner has mainly  stated  in  his  application  that  the  impugned cheque was given as a security cheque as against the loan availed by the accused-petitioners 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.

Mrs. Shayema Chowdhury, the learned Advocate for the opposite party No. 2 submits that after complying with all legal formalities of section 138 of the Negotiable Instrument  Act,  1881,  the  impugned  proceeding  was initiated against the accused-petitioners under sections 138 and 140 of the Negotiable Instrument Act, 1881 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 Advocate for the opposite party No. 2 and perused the petitioner’s application along with materials on record thoroughly.

The only issue for determination of this Rule is to see whether the impugned proceeding of Metro. Sessions Case No. 8794 of 2010 is liable to be quashed.

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”. 

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

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 as early as possible in accordance with the law. 

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

Md. Atabullah, J:

I agree