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. 47667 OF 2018

Md. Jashim Uddin.........….…...Accused-petitioner 

   -Versus-

The State     ….….....Opposite party

Mr. Rezaul Karim, Advocate

.........For the accused-petitioner Mr. Md. Faruk Hossain, Advocate

…For the opposite party No. 2

Mr. Imran Ahmed Bhuiyan, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state

Heard on: 31.07.2023

Judgment on: The 8th of August, 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  proceedings  of Sessions Case No. 3876 of 2018, arising out of C.R. Case  No.  533  of  2013  under  section  138  of  the Negotiable  Instrument  Act,  1881  now  pending  in  the

Court of Joint Metropolitan Sessions Judge, 6th Court, Chattogram should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

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

That the opposite party No. 2, Janata Bank Limited as complainant filed a C.R. Case No. 533 of 2013 under section 138 of the Negotiable Instrument Act, alleging inter  alia  that  the  accused-petitioner  has  obtained  the various LTR credit facilities from the complainant bank. Subsequently, in order to adjust the aforesaid loan, the accused-petitioner issued 3 (three) impugned cheques in favour of the complainant bank which was dishonored due to insufficient funds. Hence, the instant case was filed against the accused-petitioner under section 138 of the  Negotiable  Instruments  Act,  1881  Thereafter,  the accused-petitioner appeared before the Court below and obtained the bail. Subsequently, the charge was framed against the accused petitioner under section 138 of the Act,  1881.  Being  aggrieved,  the  accused-petitioner preferred this application before this Court under section 561A of the Code of Criminal Procedure for quashing the  aforesaid  proceedings  and  obtained  the  Rule  and stay.

Mr. Rezaul Karim, the learned Advocate for the petitioner submits that the impugned cheque was given as  a  security  cheque  against  the  loan  availed  by  the accused-petitioner which does not cover the provision of section 138 of the Negotiable Instruments Act, 1881. He further contended that to recover the unpaid dues, the complainant bank has already filed an Artha Rin Suit No.  09  of  2013  before  the  Artha  Rin  Adalat  No.  1, Chittagong  which  is  now  pending  and  as  such  the initiation  of  the  impugned  criminal  proceeding  is  not maintainable.

Mr. Md. Faruk Hossain, the learned Advocate for the opposite party No. 2 submits that after complying with all legal formalities of section 138 of the Negotiable Instruments Act, 1881, the instant case was filed against the  accused-petitioner  under  section  138  of  the  Act, 1881. There is a prima facie case against the accused petitioner. The accused petitioner has no ground at all to invoke the provision of section 561A of the Code of Criminal Procedure and as such the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocates of both  sides  and  perused  the  materials  on  record thoroughly. 

The only issue for determination of this Rule is to see whether the impugned proceeding of Sessions Case No. 3876 of 2018 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  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”.   

We  have  further  noticed  that  regarding  the recovery  of  unpaid  dues,  the  complainant  bank  has already filed an Artha Rin Suit No. 09 of 2013 before the Artha Rin Adalat No. 1, Chittagong which is civil in nature. On the other hand, the impugned proceedings were  filed  under  section  138  of  the  Negotiable Instruments Act, 1881 which is criminal in nature. The nature  and  character  of  both  cases  are  completely different.

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

this 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. 

[

Khandaker Diliruzzaman, J:

I agree