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. 55057 of 2019

 Rafiqul Islam.................Accused- petitioner

-Versus-

      The State and another........... Opposite Parties

      None appears..............For the accused-petitioner

Mr. Md. Jalal Uddin, Advocate

… For the opposite party No. 2

Heard on: 22.01.2024 and 24.01.2024 Judgment on: 30.01.2024

Abu Taher Md. Saifur Rahman, J

This Rule was issued on an application filed by the accused-petitioner under Section 561-A of the Code of Criminal  Procedure,  1898  calling  upon  the  opposite parties  to  show  cause  as  to  why  the  proceeding  of Sessions Case No. 609 of 2015, arising out of C. R. No. 160  of  2015  under  Section  138  of  the  Negotiable

Instruments Act, 1881, now pending in the Court of Joint Sessions Judge, 2nd Curt, Brahmanbaria 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  proceeding  of  the aforesaid Sessions Case No. 609 of 2015 for a period of  3 (three) months from date which was time to time extended by this Court.

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

That  the  opposite  party  No.  2,  one  Nasima Akter as complainant filed C.R Case No. 160 of 2015 alleging inter alia that in order to purchase the land the  complainant  gave  money  amounting  to  Tk. 24,00,000/- (Taka twenty four lac) to the accused petitioner  on  condition  that  he  will  purchased  the land within 90 (Ninety) days for the complainant but failed. Thereafter, the accused-petitioner pay back the said money to the complainant through the impugned cheque dated 14.06.2015 which was dishonoured due to insufficient of fund. Hence, the instant case was filed against the accused-petitioner. 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.  After conclusion  of  evidence,  the  date  was  fixed  for judgment  and  at  this  stage,  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.

No  one  appears  for  the  accused-petitioner  to press the Rule. However, the accused-petitioner has stated in his application that the accused-petitioner did not issue any cheque in favour of the complainant and as such the impugned proceeding is liable to be quashed.

Mr. Md. Jalal Uddin, 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  against  the  accused-petitioner.  In  the  instant case the accused-petitioner has no ground at all to invoke the provision of section 561A of the Code of Criminal Procedure and accordingly the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocate for the opposite party and perused the petitioner’s application  along  with  other  materials  on  record thoroughly.

On  perusal  of  the  Court  order  No.  47  dated 03.09.2019 passed by the trial Court (Annexure-‘F’) it  transpires  that  after  conclusion  of  evidence,  the date was fixed on 03.10.2019 for argument and at this stage,  the  accused-petitioner  preferred  this application before this Court under section 561A of the  Code  of  Criminal  Procedure  for  quashing  the proceeding.

When there is a prima facie case for going trial and  further  the  trial  of  the  case  has  already  been concluded and the case is pending for argument and at  this  stage  the  application  for  quashing  the proceeding  under  section  561A  of  the  Code  of Criminal Procedure is not maintainable.

Our this view gets support from the decision in the case of Golam Mahamood and another reported in 19 BLT (AD), page-239.

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 Court below  is  hereby  directed  to  dispose  of  the  case expeditiously in accordance with law.

 Communicate this Judgment and order at once.

Md. Bashir Ullah, J.

I agree