IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION) Present

Mr. Justice Ashish Ranjan Das

And

Mr. Justice Md. Riaz Uddin Khan

Criminal Miscellaneous Case No. 8566 of 2023

IN THE MATTER OF :

An application under Section 561A of the Code of Criminal Procedure

-And-

IN THE MATTER OF : Advocate Farid Uddin Khan

...Accused- Petitioner Versus

The State and another

...Opposite Parties

Mr. Gazi Md. Mohsin, with

Mr. Gazi Rakibur Rahman

Mr. Ajgor Hossain

Mr.Sujat Miah and

Mr. Md. Mahmudul Hasan, Advocates

...For the Accused-Petitioner Mr. Mohammad Ali with

Mr. Rakib Hossain

Mr. Md. Mahbubur Rahman

Ms. Nigar Sultana, Advocates

...For the Opposite Party No.2

Ms. Fatema Rashid, A.A.G

Mr. Md. Shafiquzzaman, A.A.G. and

Mr. Md. Akber Hossain, A.A.G

...For the State

Judgment on: 19.02.2024

Md. Riaz Uddin Khan, J:

By this Rule opposite parties were asked to show cause as to why the proceedings of Sessions Case No. 10081 of 2019 arising out of C.R. Case No. 917 of 2017 under section 138 read with

section 140 of the Negotiable Instruments Act, 1881 pending in the court of Joint Metropolitan Sessions  Judge,  6th  Court,  Dhaka,  so  far  it relates to the petitioner should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and appropriate.

At the time of issuance of Rule this Court was pleased to stay all further proceedings of the Sessions Case No. 10081 of 2019, so far it relates to the petitioner, for a period of 6 months  and  the  Court  further  directed  the Sessions Judge to proceed with the case against the rest of the accused in accordance with law.

Succinct facts for disposal of the instant Rule is that on 30.07.2017 the opposite party No. 2 on behalf of the Social Islami Bank Limited, Uttara Branch lodged a petition of complaint being C.R. Case No. 917 of 2017 before the learned  Chief  Metropolitan  Magistrate,  Dhaka against the 12 (twelve) accused persons including the petitioner alleging  inter-alia that the Mission Developer Ltd on 10.04.2008 took loan from the opposite party No. 2 for the purpose of business and subsequently, for repayment of the outstanding  loan  amount,  the  accused  No.  1 company issued a cheque bearing No. 4969798 dated 08.05.2017 in favour of the opposite party No. 2 Bank  for  an  amount  of  Tk-11,75,00,000. Thereafter, the opposite party No. 2 placed the cheque  for  encashment  but  the  same  was dishonoured for insufficient fund on 08.05.2017. Subsequently, the opposite party No. 2 issued a legal notice on 24.05.2017 asking the petitioner

to make repayment of the cheque amount within 30 days  which  was  received  by  the  accused  on 29.05.2017 and 30.05.2017 hence the case.

After examining that the opposite party No. 2 under section 200 of the Code of Criminal Procedure the learned Metropolitan Magistrate, Dhaka took cognizance of offence against the accused-petitioner  and  others  under  sections 138/140 of the Negotiable Instruments Act and issued summons against them.  

Eventually, the case being ready for trial was transmitted to the Court of Metropolitan Sessions  Judge,  Dhaka,  wherein  the  case  was numbered as Sessions Case No. 10081 of 2019 and now the case is pending for trial before the Additional Metropolitan Sessions Judge, 6th Court, Dhaka and on 26.01.2023 was fixed for examination of the witnesses.

At this stage the petitioner moved this Court and obtained the Rule and the interim order as stated at the very outset.

Mr. Gazi Md. Mohsin, the learned advocate appearing for the accused-petitioner submits that though he has taken many grounds in the original petition and in the first supplementary affidavit but he does not want to press all those grounds but wants to press the only ground that the instant case is barred by limitation as the complaint was not filed within the statutory limitation  period  in  accordance  with  the mandatory provision of section 138 and 141 of the Negotiable Instruments Act. He then submits that according to the petition of complaint legal

notice was served on 24.05.2017 upon the accused- petitioner  along  with  other  accused  and  the notice was received by the accused on 29.05.2017 and 30.05.2017 but did not mention any date when the present petitioner received the notice. In the Counter affidavit the complainant stated that notice were received on behalf of Accused No.3 and 9 on 30.05.2017 while it was received by the representative of Accused No.10 on 29.05.2017 and nowhere stated that when the present petitioner who is Accused No.2 received the legal notice or at all he received any notice. In that case it would be presumed that the petitioner received the notice on 24.05.2017, on the date of service of the notice, Mr. Mohsin submits.

The learned advocate further submits that as per section 138 along with section 141 of the Negotiable Instruments Act the complainant is to serve notice upon the accused for payment giving 30 days and on failure of payment the complainant is to file the case from 1 (one) month from that date.  He  submits  that  admittedly  notice  was served on 24.05.2017 and from that date 30 days will be expired on 23.06.2017 and from that date 1 (one) month will be expired on 22.07.2017. The learned advocate submitting the calendar of 2017 showed us that 22.07.2017 was Saturday, a public holiday and the complaint has to be filed within next day i,e 23.07.2017. Since 23rd July, 2017 was the last day for filing the case but it is admitted position that the present case has been filed  on  30.07.2017  beyond  the  statutory limitation period of the Negotiable Instruments Act, 1881 hence the case is liable to be quashed, so far it relates to the petitioner.

On the other hand Mr. Mohammad Ali, the learned Advocate appearing for the opposite party No. 2 by filing counter affidavit submits that notice was received by the accused No. 3 and 9 on 30.05.2017. So, the last date of filing the petition of complaint was 28th July, 2017. As per Calendar of 2017 it is evident that the 28th July, 2017 was Friday and 29th July was Saturday and on next day of opening of Court i,e 30.07.2017 the petition  of  complaint  was  filed  within  the limitation period as per provision of section 10 of the General Clauses Act, 1897.

We have heard the submissions of the learned Advocate  for  both  the  parties,  perused  the application, supplementary affidavit and counter affidavit along with the annexures.

It emerged from the record that though the rule issuing bench of this Court directed the trial court to proceed with the case against the rest of the accused other than the petitioner in accordance with the law but the trial yet to be concluded. 

However, it appears from the petition of complaint that the complainant claimed that he has served legal notice on 24th May, 2017. He further claimed that the notice was received by the accused persons on 29 and 30th May of 2017 but did not mention when it was received by the accused petitioner. By filing counter affidavit annexing  3  (three)  postal  receipts  with acknowledgement due the complainant stated that

notice  of  Accused  No.3  was  received  by  his caretaker Monir Hossain on 30.05.2017 and notice of Accused No.9 Belal Hossain was received by his representative Mahbub Ali on 30.05.2017 while notice of Accused No.10 was received by his representative Alam on 29.05.2017. According to provision of section 138 read with section 141 of the Negotiable Instruments Act if the disputed cheque is dishonored for insufficiency of fund the  complainant  is  to  demand  in  writing  of payment within 30 days from the date of knowledge of such dishonor giving 30 days time and if the accused failed to pay the cheque amount within that period the complaint is to file within 1 (one) month. In the present case the legal notice demanding payment was served by postal service with  acknowledgement  due  on  24.05.2017.  The complainant did not claim that notice was ever received by the present petitioner. However, in that case as per provision of section 27 of the General Clauses Act, 1897 it would be deemed to be effected if it is served by post prepaying and addressing properly and it would be effected at the time at which the notice would be delivered in the ordinary course of post. So, as per the above  provision  of  law  in  computing  the limitation period in the present case, so far it relates to the petitioner, is from 24th of May, 2017 and it cannot be 30th of May, 2017. Now from 24th of May, 2017 the 30 days would expire on 23rd of June, 2017 and 1 (one) month from 23rd of June was to be expired on 22nd of July, 2017 and as it was Saturday the last date of filing would be 23rd

of July, 2017. Even if we presume that to deliver the notice in the ordinary course of post 2/3 days may be required then the last date of filing the complaint would be on 24th or 25th of July and in any way not beyond that period. Admittedly, this petition of complaint was filed on 30th of July,  2017,  beyond  the  statutory  limitation period  as  mandated  under  the  Negotiable Instruments Act, 1881.

Moreover, in the case of Nizam Uddin Mahmood Vs. Abdul Hamid Bhuiyan reported in 9 BLC (AD) 177 our Appellate Division held- “In view of the non-disclosure of the date as to receipt of notice by the accused and failure to mention any legal  cause  of  action  in  the  petition  of complaint, we are of the view that the proceeding cannot be allowed to continue and, as such, it is liable to be quashed.” It is mentionable that in this  reported  case  the  complainant  though mentioned the date of service of notice but did not mention the date of receipt of that notice by the accused which is the date of cause of action. We have already noticed that in the present case the complainant though mentioned the date of service of notice but did not mention the date of receipt of the notice by the present accused petitioner. In that view as expressed by our apex Court this proceeding so far it relates to the petitioner is also liable to be quashed.  

In view of the above and the discussions made herein before, we are of the view, that the instant case is barred by limitation so far it

relates  to  the  petitioner  for  which  we  are constrained to interfere in the proceeding.             

In the result, the Rule is made absolute so

far it relates to the petitioner.

The proceedings of Sessions Case No. 10081

of 2019 arising out of C.R. Case No. 917 of 2017

under section 138 read with Section 140 of the Negotiable Instruments Act, 1881 pending in the

court of Joint Metropolitan Sessions Judge, 6th

Court, Dhaka is hereby quashed, so far it relates

to the petitioner. The order of stay granted earlier stands vacated.

Communicate the judgment and order at once.  

Ashish Ranjan Das, J:

I agree.

Ziaul Karim Bench Officer