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. 42266 OF 2023

Ahmed Nabi Chowdhury

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

The State and another. ...Opposite Parties.

None appears      ............ For the petitioner.

Mr. Fariha Zaman, Advocate

......... For the Opposite Party No.2.

Mr. B.M. Abdur Rafell, DAG with Mr. Binoy Kumar Ghosh

Mr. A.T.M Aminur Rahman, A.A.Gs.

..............For the State .

Heard and Judgment on: 30.11.2023.

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 the proceedings of Metropolitan Sessions  Case  No.9751  of  2019  arising  out  of  C.R.  Case No.181of 2019 under Section 138 of the Negotiable Instrument Act,1881, now pending before the learned  Joint Metropolitan Sessions Judge, 5th  Court, Chattogram.

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  offence against  the  accused  petitioner  under  section  138  of  the Negotiable Instruments Act,1881. The case is pending for charge hearing.

Being  aggrieved  and  dissatisfied  with  the  impugned proceedings  the  accused  petitioner  preferred  the  instant application and obtained the present Rule on 07.06.2023.

Despite the matter appears in the cause list for hearing, no one  appears  on  behalf  of  the  petitioner  to  press  the  rule. However, in presence of Mr. Fariha Zaman, the learned Counsel appearing for the opposite party No.2 and the learned Deputy Attorney General, we are inclined to dispose of the rule on merit.

Mr. Fariha Zaman, the learned Counsel appearing for the opposite party No.2 by filing a counter affidavit submits that the petitioner  admitted  that  he  issued  the  cheque  in  question voluntarily in favour of the opposite party No.2 in presence of local elite parsons. The petitioner shall get ample opportunity in the concern trial court to prove his case through a proper trial in which the concern trial Court weigh both parties evidence in support  of  their  cases.  Now,  the  case  is  pending  for  charge hearing and at this stage prior framing charge, the Hon’ble Court has lack of scope and jurisdiction to weigh the facts and evidence in this application, hence the Rule is liable to be discharged. 

Heard the learned Advocate for the opposite parties 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.  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. All that is required at the stage of framing charge is to see whether the prima-facie case regarding the commission of the certain offense is made out. The truth veracity and effect of evidence which prosecution proposes to adduce is not to be meticulously judged at the stage of framing charge. In the instant case, the accused stand indicted for  an  offense  punishable  under  the  same  section. Cognizance has been taken as well the hearing of charge is  pending  against  the  accused  petitioner.  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 facts, the grounds taken in the

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  order  of  stay  granted  earlier  stands vacated.

The office is directed to communicate the judgment

at once.

MD. SALIM ,J

I agree

Hanif/BO