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. 44911 of 2022

IN THE MATTER OF:

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

-And-

IN THE MATTER OF : Rohima Begum

...Accused-Petitioner Versus

The State and another

...Opposite Parties

Mr. Syed Mohammad Raihan Uddin with Mr. Syfullah Al-Muzahid, Advocate

...For the Petitioner Mr. Mustafa Emam Hasan, Advocate

…For the opposite party No. 2 Mr. S.M. Asraful Hoque, D.A.G with

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 28.04.2024

Md. Riaz Uddin Khan, J:

Upon an application filed under section 561A of the Code of Criminal Procedure the opposite parties were asked to show cause as to why the Sessions Case No. 135 of 2021 arising out of Complaint Register Case No. 180 of 2020 filed under section 138 of the Negotiable Instruments Act, 1881, now pending in the 1st Court of Joint

Sessions  Judge,  Dhaka  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 Rule further proceeding of the instant Case was stayed.

Brief facts for disposal of this case are that the complainant opposite party filed the instant case under section 138 of the Negotiable Instruments Act bringing allegation that there was a good relation between the father of the complainant and the son of the accused. The son of the accused took loan of 2(two) lac Saudi Riyal from the father of the complainant. In order to pay back with interest, the accused gave a cheque being Cheque No. MSS 6266222 of Tk- 7000,000/- (Seventy Lac) to the complainant. The complainant deposited the cheque for encashment which  was  dishonored  on  the  ground  of “insufficient fund and positive pay instruction require”. Thereafter the complainant issued legal notice upon the accused for repayment of the cheque amount which she did not comply, for which the complainant filed the instant petition of complaint with an explanation for filing the same beyond the statutory period.

In course of time charge was framed under section 138 of the Negotiable Instruments Act by the Joint Sessions Judge, 1st Court, Dhaka and the matter was fixed for examination of witnesses. At this  stage  the  accused-petitioner  moved  this

court and obtained the rule and order of stay as stated above.

The learned Advocate Mr. Syfullah Al Muzahid appearing for the accused-petitioner at the very outset submits that as per the decision of our Appellate Division reported in 72 DLR (AD) 204, in the case of Falzlul Haque (Md) Sardar and others-vs-Grameen Phone Limited and others, the instant case filed beyond the statutory period deemed to be condoned, for which he has no case on the point of limitation earlier taken in this petition. He then submits that admittedly no consideration was passed between the accused- petitioner and the complainant-opposite party, because according to the petition of complaint there was a good relationship between the father of the complainant and the son of the accused and son of the accused took loan of 2 (two) lac Saudi Riyal from the father of the complainant. Since no consideration has been passed between the complainant and the accused, this case under section 138 of the Negotiable Instruments Act is not maintainable. In support of his contention, he cited the decision reported in 63 DLR 279 in the case of Shahnaj Begum Munni Vs. State and another.

Per contra, the learned Advocate Mr. Mustafa Emam Hasan submitting a counter affidavit on behalf of the complainant opposite party No. 2 submits that the accused-petitioner issued the cheque as per instruction of his son who took the loan and whether any consideration was passed to the accused petitioner is to be decided by the trial court after taking evidence. He further submits that the learned advocate who drafted the petition of complaint could not clearly stated that the loan money actually handed over to the accused for which the accused issued the cheque and due to wrong drafting of the lawyer the litigant should not be suffered.

We have heard the learned Advocates of both the parties, perused the application along with the annexure and documents available before us.

It appears from the petition of complaint that the complainant claimed due to good relation between father of the complainant and son of the accused, the son of the accused took loan of 2 (two) lac Saudi Riyal from the father of the complainant. Clearly no consideration was passed by the complainant to the accused. According to section 43 of the Negotiable Instruments Act a negotiable  instrument  made,  drawn,  accepted, indorsed or transferred without consideration, or for  a  consideration  which  fails,  creates  no obligation of payment between the parties to the transaction.  But  if  any  such  party  has transferred  the  instrument  with  or  without indorsement to a holder for consideration, such holder and every subsequent holder deriving title from him, may recover the amount due on such

instrument from the transferor for consideration or any prior party thereto. In the present case, since no consideration was passed between the accused and the complainant, we do not find any ingredients of offence under section 138 of the Negotiable Instruments Act. The mother cannot be punished or liable for any offence or transaction of her son. There may be element of cheating and the complainant or his father can also realize the amount by taking recourse of Civil Court but in any way, the instant case filed under section 138 of the Negotiable Instruments Act is not maintainable.  This  view  is  supported  by  the decision reported in 63 DLR 279 wherein the High Court Division held- “The accused-petitioner had never any debt or liability to discharge. It is the husband of the accused-petitioner who had the debt or liability to discharge. The liability or debt of husband of the accused-petitioner cannot be  thrust  on  the  shoulder  of  the  accused- petitioner. Given this scenario, if the accused- petitioner  is  made  liable  for  the  debt  or liability of her husband, that will go against the spirit of the mandate of section 138(1) of the Act.” In that view the petitioner succeeds. 

Resultantly the Rule is made absolute.

The proceeding of the Sessions Case No. 135 of 2021 arising out of Complaint Register Case No. 180 of 2020 filed under section 138 of the Negotiable Instruments Act, 1881, now pending in

the 1st Court of Joint Sessions Judge, Dhaka is hereby quashed.

Communicate the judgment and order at once.

Ashish Ranjan Das, J:

I agree.  

Ziaul Karim Bench Officer