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. 54543 OF 2018

Mohammad Mozaher Sowdagor.......Accused-petitioner 

-Versus-

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

None appears............... For the Accused-petitioner

Mr. Md. Faruk Hossein, 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: 02.08.2023 and 08.08.2023

Judgment on: The 22nd 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. 427 of 2017, arising out of C.R. Case No.  631  of  2016  under  sections  138  and  140  of  the Negotiable Instruments Act, 1881, now pending in the Court of Joint Metropolitan Sessions Judge, 7th Court,

Chittagong 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  the  all  further  proceedings  of  the aforesaid Sessions Case No. 427 of 2017 for 3 (three) months from the date so far as it relates to the petitioner which was time to time extended by this Court. 

For the 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. 631 of 2016 under section  138  of  the  Negotiable  Instrument  Act,  1881 against the accused-petitioner and others alleging inter alia  that  the  accused-petitioner  enjoyed  LC  revolving limited and CC facilities from the complainant bank. In order to partial adjustment of the  aforesaid loan, the accused-petitioner  issued  the  impugned  cheques dated 10.12.2015  amounting  to  Tk.  13,00,00,000/-  (Taka Thirteen crore) in favour of the complainant bank 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 appeared

before this Court and obtained bail. Subsequently, the charge was framed against the accused-petitioner under sections 138 and 140 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 Rule and stay.

No  one  appears  for  the  accused-petitioner  to support the Rule. However, the accused-petitioner has stated in his application that the allegation as stated in the  petition  of  complaint  is  of  civil  in  nature.  The complainant bank has already filed an Artha Rin Suit No. 01 of 2016 for realization the entire outstanding loan amount and as such the impugned proceeding is liable to be quashed.

Mr. Md. Faruk Hossein, 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 instant case was filed by the complainant bank 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.

Heard the submissions of the learned Advocate for the opposite party No. 2 and perused the petitioner’s application  along  with  the  materials  on  record thoroughly.

   On  perusal  of  the  petitioner’s  application  it transpires that the impugned cheque was issued by the accused-petitioner  in  favour  of  the  complainant  bank which was dishonored due to insufficient of fund.

“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.”

We  have  further  noticed  that  regarding  the recovery  of  unpaid  dues,  the  complainant  bank  has already filed an Artha Rin Suit No. 01 of 2016 before the Artha Rin Adalat No. 1, Chittagong for realization the unpaid dues amounting to Tk. 60,14,11,821.90/- which is  civil  in  nature.  On  the  other  hand,  the  impugned proceedings  was  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 a 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