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. 59447 OF 2022 Md. Forkanul Islam

.…...Convict accused petitioner

   -Versus-

The State and another     ….….....Opposite parties Mr. Golam Abbas Chowdhury with

Mr. Khan Mahamudul Islam, Advocated

.........For the accused petitioner Mr. Md. Mizanur Rahman Khan, 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: 09.08.2023 and 10.08.2023

Judgment on: The 10th 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 impugned judgment and order of conviction and sentence dated 07.08.2022 passed by the learned Joint Metropolitan Sessions Judge, 5th  Court,  Chattogram  in  Sessions  Case  No.  1560  of

2020,  arising  out  of  C.R.  Case  No.  443  of  2019 convicting  the  petitioner  under  section  138  of  the Negotiable Instrument Act, 1881 and sentencing him to suffer simple imprisonment for 1 (one) year also to pay fine of Tk. 2,03,40,000/- (Taka Two crore, Three lac, and Forty thousand) only with a direction to pay the aforesaid  amount  to  the  complainant  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 enlarge the accused petitioner on ad-interim bail  for  2  (two)  months  from  the  date,  along  with  a direction to pay the 50% of the cheque amount to the complainant within the 2 (two) months from the date of release from the jail.

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

That  the  opposite  party  No.  2,  Bangladesh Commerce Bank Limited as plaintiff filed a C.R. Case No.  443  of  2019  against  the  petitioner  under  section under  section  138  of  the  Negotiable  Instrument  Act. 1881 alleging inter alia that the accused petitioner has obtained  the  loan  facilities  amounting  to  Tk. 1,60,00,000/- (Taka One crore and Sixty lac) from the complainant  bank.  Thereafter,  to  adjust  the  aforesaid loan, the petitioner issued two cheques amounting to Tk. 2,03,40,000/- which were dishonored due to insufficient of fund. Hence, the aforesaid case was filed against the accused petitioner under section 138 of the Negotiable Instrument  Act,  1881.  The  petitioner  duly  appeared before the Court below and obtained bail. Later on, the charge was framed against the petitioner under sections 138 of the Act, 1881. After conclusion of evidence, the trial Court passed the impugned judgment and order of conviction  and  sentence  dated  07.08.2022.  Being aggrieved,  the  convict  petitioner  preferred  this application before this Court under section 561A of the Code of Criminal Procedure for quashing the aforesaid judgment  and  order  of  conviction and  sentence  dated 07.08.2022 and obtained the instant Rule and stay.

Mr.  Golam  Abbas  Chowdhury,  the  learned Advocate for the petitioner mainly submits that the trial Court without applying his judicial mind and considering the fact and circumstances of the case and without giving an adequate opportunity to make compromise passed the

impugned judgment an order of conviction and sentence dated 07.08.2022 which is liable to be quashed.   

As against this, Mr. Md. Mizanur Rahman Khan, the  learned  Advocate  for  the  opposite  party  No.  2 submits  that  the  impugned  judgment  and  order  is appealable but without preferring an appeal, the convict petitioner filed this application before this Court under section 561A of the Code of Criminal Procedure which is not maintainable in the eye of law and as such the instant Rule is liable to be quashed.  

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

On  perusal  of  the  petitioner’s  application  it transpires  that  the  impugned  judgment  and  order  of conviction and sentence is appealable as per provision of the  Negotiable  Instrument  Act,  1881.  The  accused petitioner  without  preferring  an  appeal  filed  this application before this Court under section 561A of the Code of Criminal Procedure.

We have keep in mind that the jurisdiction under section 561A of the Code of Criminal Procedure is an extraordinary  nature  intended  to  be  used  only  in extraordinary  cases,  when  there  is  no  other  remedy available  and  cannot  be  utilized  when  there  is  other express remedy provided by the statue.

In the instant case, the petitioner without preferring an  appeal  filed  the  instant  application  under  section 561A of the Code of Criminal Procedure which is not maintainable.

We have further noticed that at the time issuance of the Rule, this Court was pleased to give a direction upon the petitioner to deposit 50% of the cheque amount to the complainant bank within the period of 2 (two) months. The accused petitioner did not comply the said order as directed by this Court.

Under the aforesaid facts and circumstances of the case and the reasons as stated above, we do not find any substance of this Rule.

As a result, the Rule is discharged with the cost of Tk. 50,000/- (Taka Fifty thousand) through the treasury challan under the Government revenue.

Send  down  the  lower  Court  records  (LCR)  and communicate the judgment and order at once.

Khandaker Diliruzzaman, J:

I agree