IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)

Present

Mr. Justice Md. Salim

And

Mr. Justice Shahed Nuruddin

CRIMINAL MISCELLANEOUS CASE NO.25773 OF 2022

Most. Hasna Begum

............Accused-Petitioner. -VERSUS-

The State                                            . ...Opposite Party.

No one appears

............ For both the parties.

Mr. B.M. Abdur Rafell, D.A.G. with Mr. Binoy Kumar Ghosh with

Mr. A.T.M. Aminur Rahman (Milon) and

Ms. Lily Rani Saha, AAGs ..............For the State.

Heard and Judgment on: 23.11.2023.

Shahed Nuruddin, J:

By this Rule, the accused-petitioner by filing an application

under Section 561A of the Code of Criminal Procedure sought for quashing of the proceedings of Sessions Case No.244 of 2021 arising out of C.R. Case No.42 of 2020 under Section 138 of the Negotiable Instrument Act,1881, now pending before the learned Joint District and Sessions Judge, 1st Court, Tangail.

Material facts leading to this Rule are that, in order to discharge  the  loan  liability  the  accused  petitioner  gave  the cheque to the complainant which on presentation to the bank for encashment was dishonored on the ground of insufficiency of funds. Following the procedure and in compliance with statutory provisions  laid  down  in  section  138  of  the  Negotiable Instruments Act,1881 the complainant filed the instant case.

The learned Magistrate took cognizance of the offense and subsequently, the charge was framed by the Joint District and Sessions Judge, 1st Court, Tangail. The case is now pending for trial.

Feeling  aggrieved  the  accused  petitioner  preferred  the instant application and obtained the present Rule on 28.04.2022.

Heard  the  learned  Advocates  and  the  learned  Deputy Attorney General and perused the record.

On exploration of the materials on record, it transpires that the  complainant  categorically  narrated  the  manner  of  crime committed by the accused. The learned Judge after considering the entire materials on record rightly framed the charge under the same section against the accused petitioner. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise in this regard reliance  has  been  placed  on  the  case  of  Abdur  Rahim  alias A.N.M Abdur Rahman Vs. Enamul Haq and another reported in 43 DLR (AD) 173. Moreover, we can also rely upon the cases reported in 68 DLR (AD) 298, 72 DLR (AD) 79, and the case of Phoenix Finance and Investment Limited (PFIL) Vs. Yeasmin Ahmed and another reported in XVIII ADC (AD) 490. In the instant case, the accused stand indicted for an offense punishable under the same section. Cognizance has been taken as well the charge has been framed against the accused petitioner under the same section. We have meticulously examined the allegations made by the complainant and we find that the offence punishable under the above offence has been clearly disclosed in the instant case against the accused. We have gone through the grounds taken in the petition of Miscellaneous Case and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The plea of the petitioner is nothing but the defense plea. Be that as it may, the proposition of law is now well settled that based on a defense plea or materials, the criminal proceedings should not be stifled before trial; when there is a prima facie case for going for trial. In view of such

It is also notable whether the respondent of the company at the relevant time was a director or not and whether a person was in charge and was responsible for the conduct of the business of the company at the relevant point of time is a disputed question of fact. So the burden of proof lies upon the accused person as per provision so enumerated in section 102 of the Evidence Act, 1872.

Therefore we hold that there are sufficient grounds for proceeding against the accused petitioner for going to trial under the same section. To that end, view, we are at one with the learned Judge of the Court below regarding the framing of the charge against the accused.

 In  the  light  of  the  discussions  made  above  and  the preponderant  judicial  views  emerging  out  of  the  authorities referred  to  above  we  are  of  the  view  that  the  impugned proceedings suffer from no legal infirmities which calls for no interference by this Court.

In view of the foregoing narrative, the Rule is discharged. 

The office is directed to communicate the judgment at once.

MD. SALIM, J:

I agree

Bo/Hanif