In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

    MR. JUSTICE MD. BASHIR ULLAH

CRIMINAL MISCELLANEOUS CASE NO. 5907 OF 2017

Md. Jahangir Alam........….…...Accused-petitioner

-Versus-

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

Mr. Md. Khalilur Rahman Bhuiyan, Advocate

.........For the accused-petitioner Mr. Faysal Hasan Arif, 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: 29.10.2023 and 09.11.2023

Judgment on: The 9th of Novemver, 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 calling upon the opposite parties to show  cause  as  to  why  the  impugned  proceeding  of Sessions Case No. 526 of 2016, arising out of C.R. Case No. 501(1) of 2015 under section 138 of the Negotiable Instrument  Act,  1881,  now  pending  in  the  Court  of learned  Joint  District  and  Sessions  Judge,  2nd  Court,

Jamalpur 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 Sessions Case No. 526 of 2016 for 6 (six) months from the date which was time to time extended by the Court.

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

That the opposite party No. 2 as complainant filed a  C.R.  Case  No.  501(1)  of  2015 against  the  accused petitioner  under  section  138  of  the  Negotiable Instrument Act, 1881 alleging inter alia that the accused- petitioner  has  obtained  a  loan  amounting  to  Tk. 10,00,000/-  (Taka  Ten  lac) from  the  complainant. Subsequently, to adjust the aforesaid loan, the accused petitioner issued the impugned cheque dated 16.02.2015 which was discharged due to insufficient of fund. Hence, the instant case was filed against the accused petitioner under  section  138  of  the  Negotiable  Instrument  Act, 1881. Thereafter, the accused petitioner appeared before the Court below 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  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.

Mr.  Md.  Khalilur  Rahman  Bhuiyan,  the  learned Advocate for the petitioner mainly submits that without complying with the provision of section 138(1) of the Negotiable Instrument Act, 1881, the instant case was filed  against  the  accused  petitioner  which  is  not sustainable  in  law.  In  support  of  his  contention  he pointed out that in the instant case, the notice was served upon the accused petitioner on 06.05.2015 which is out of time as provided under section 138 of the Negotiable Instrument  Act,  1881,  and  as  such  the  impugned proceeding is liable to be quashed.

Mr. Faysal Hasan Arif, 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 cannot be decided at this stage under 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  petitioner’s  application  along with other materials on record thoroughly.

In  the  instant  case,  the  accused-petitioner  mainly contended  that  the  notice  was  served  upon  the  accused petitioner on 06.05.2015 which was out of time as provided under  section  138(1)  of  the  Negotiable  Instrument  Act, 1881. The contention as raised by the accused petitioner is a matter of fact which cannot be decided at this stage under section 561A of the Code of Criminal Procedure.

Under the given facts and circumstances of the case and  the  reasons  as  stated  above,  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.

The trial Court is hereby directed to proceed with the case in accordance with the law.    

Communicate this judgment and order at once.

Md. Bashir Ullah, J:

I agree