Present

Mr. Justice Md. Rezaul Hasan

And

Mrs. Justice Fahmida Quader. Criminal Misc. Case No. 5474 of 2024. Md. Khalis Miah.

.............Accused Petitioner. -Versus-

The State and another.

                    ………. Opposite-Parties.

Mr. Humayun Kabir Bulbul with Mr. Mahbub Shafique with

Mr. Md. Nizam Khan, Advocates.

  …..For the petitioner.

Mrs. Yesmin Begum Bithi, D.A.G. with

Mr. Md. Mujibur Rahman, A.A.G.

Mr.  Md.  Shahabuddin  Ahammad  Tipu, A.A.G. with

 ... For the O.P. No. 1.

Mr. ZainulAbedin with

Mr. Md. Anisur Rahman with

Mr. Md. Towhidul Islam, Advocates. ……..for the O.P. No. 2.

Heard on 16.05.2024, 28.05.2024 and Judgment on 29.05.2024.

Md. Rezaul Hasan, J.

On  an  application  under  section  561A  of  the  Code  of

Criminal Procedure, 1898, this Rule was issued calling upon the opposite parties to show cause as to why the impugned proceedings of Sessions Case No. 855 of 2023, arising out of C.R. Case No. 113 of 2022 (Osmaninagar) under  section  138  of  the  Negotiable  Instruments  Act, 1881, pending in the court of Joint Sessions Judge, 3rd Court,  Sylhet,  should  not  be quashed  and/or  pass  such other or further order or orders as to this Court may seem fit and proper.

2. The  present opposite  party  No.  2,  the attorney  of  Md. Kaptan Miah, as complainant, filed C.R. Case No. 113 of 2022, before the Senior Judicial Magistrate, Cognizance Court No. 1, Sylhet, against the accused-petitioner under section 138 of the Negotiable Instruments Act, 1881, since the chaque No. PCD/A No. 6155817 dated 01.02.2022 for Tk. 57,60,365/ drawn on Prime Bank Limited in favour of the opposite party No. 2 in order to repay the debt owed by the accused-petitioner. It has also been alleged that, the said cheque was placed for encashment on 01.02.2022 and the same was dishonoured on 03.02.2022 with a remark “account closed”. Thereafter, the said cheque was again placed for encashment on 07.03.2022, as requested by the accused-petitioner, but it was again dishonoured with the remark “account closed”. Then, the opposite party No. 2 had issued a demand notice on 20.03.2022, giving 30 days time to repay the amount in question as mentioned in the cheque, but the accused-petitioner did not pay the same.

The  complainant  has  complied  with  the  formalities,  as stated, and has filed this case.

3. The Senior Judicial Magistrate, Cognizance Court No. 1, Sylhet, has dismissed the case with an observation that the complainant had no authority to file the case, vide its order dated 24.05.2022.
4. Against the said order dated 24.05.2022, the complainant- opposite party No. 2, filed Criminal Revision No. 162 of 2022,  before  the  Sessions  Judge,  Sylhet,  which  was allowed, vide its 22.06.2022 by the Senior Sessions Judge, Sylhet.
5. Pursuant to the order of the revisional court, the Senior Judicial Magistrate, took cognizance of the offence and the case, being ready for hearing trial, was transmitted to the Court of Sessions, for trial, where it has been renumbered as Sessions Case No. 807 of 2023 and was sent to the Joint Sessions Judge, 3rd Court, Sylhet, for trial.
6. The case was fixed on 16.10.2023 for framing of charge and,  on  that  day,  the  accused-petitioner  filed  an application under section 265C of the Code of Criminal Procedure  to  discharge  him  and,  after  hearing  his application, the same was rejected and the trial court has framed charge against the accused-petitioner under section 138  of  the  Negotiable  Instruments  Act,  1881,  vide  the order dated 16.10.2023.

7. Being aggrieved by and dissatisfied with the said order dated 16.10.2023 of the trial court, the accused-petitioner filed this application under section 561A of the Code of Criminal Procedure and obtained the Rule.
8. Learned  Advocate  Mr.  Mahbub  Shafique  appeared  on behalf of the accused-petitioner. His main contention is that, as per provision of clause (a) of section 141 of the Act, the Magistrate was not authorized to take cognizance of the offence in this case, since the complaint petition was not filed by the payee or the holder in due course, but by Md. Jamil Ahmed, who is his attorney i.e. the attorney is neither the ‘payee’, nor the holder in due course, so he had no locus-standi to file the case. He next submits that, this being a special law, there was no scope of any deviation as has  been  done  in  this  case.  Therefore,  the  proceeding initiated against this accused-petitioner is unlawful. His next contention is that, no notice was not served by the revisionl court in Criminal Revision No. 162 of 2022 upon the  accused-petitioner  and  the  judgment  was  passed  in absentia and, therefore, the judgment and order passed by the  revisional  court  is  not  a  lawful  judgment  and  the proceedings based on such order is liable to be quashed. In support of his contention, he has relied upon the decision reported in 2017 BLD (AD) 37 between Md. Nur Hussain Vs. Md. Alamgir Alam and another decision reported in 13 BLC (HCD)(2008) 932 between Ruhul Amin Vs. Md. Mofizur Rahman. He concludes that, this Rule has merit and the same may kindly be made absolute by quashing the impugned proceedings.

9. Learned Senior Advocate Mr. Zainal Abedin, on the other hand, submits that, this case under section 138 of the Act can  be  filed  by  the  attorney  of  the  beneficiary  of  the cheque and the same has been filed in accordance with law. He next submits that, the cognizance was taken by the Magistrate and that is quite legal and valid as has been held by the Appellate Division in a case reported in 56 DLR (AD)(2004) 16, between Hasibul Bashar Vs. Gulzar Rahman.  He  proceeds  on  that,  the  decision  of  the Appellate Division was relied upon by the High Court Division in another case reported in 56 DLR 205 wherein it has been held that, the petition filed by the attorney of

the  payee  was  valid  and  in  the  later  cited  case  had appeared  as  lawyer  for  the  payee  of  the  cheque (O.P.No.1). Therefore, the learned Advocate submits that, this is simply dilatory tactics and this petition has been filed only to prolong the disposal of this matter. As regards the  judgment  of  the  revisional  court,  he  submits  that, notice  was  served  on  the  accused-opposite  party  No.2. Besides, he has not been prejudiced in any manner. He concludes that, this Rule has no merit and the same may kindly be discharged.     

10. We have heard the learned Advocates for both the parties, perused the application under section 561A of the Code of Criminal  Procedure  along  with  the  documents  annexed thereto and consulted with the provision of law and the decisions referred to by the learned Advocates.
11. Clause (a) of section 141 reads as follows:-

“141. Cognizance of offences- Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898)-

1.      no  Court  shall  take  cognizance  of  any  offence punishable  under  section  138  except  upon  a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque:

2.     …………….
3.      ………………………..

(emphasis added).

12. There  is  nothing  in  clause  (a)  of  section  141  of  the

Negotiable Instruments Act, 1881, requiring that, the ‘payee’ or the ‘holder in due course’ should file the case personally. Hence, clearly, there is no bar in filing a case through attorney and this position of law has been set at rest by the Apex Court in the case cited hereinabove.

13. Hence, the interpretation of clause (a) of section 141 of the N.I. Act, 1881, as placed by the learned Advocate for the petitioner that the petition must be filed by the ‘payee’ or by the ‘holder in due course’, is clearly misleading and does not fit to the language of clause (a) of section 141 of the Negotiable Instrument Act, 1881.
14. Having read the decision reported in 27 BLD (AD) 37, cited  on  behalf  of  the  petitioner,  we  find  that,  the complainant was neither the payee, nor the ‘holder in due course’, nor he was the attorney of any of them. Therefore, this  decision  is  not  applicable  to  the  facts  and circumstances of the instant case, where it is not disputed

that  the  attorney  has  been  constituted,  appointed  and nominated by the payee of the cheque.

15. As  regards  the  next  point,  however,  we  are  respectful agreement with the decision reported in 13 BLC 2008, but we are of the view that, the petitioner has not at all been prejudiced by the judgment and order of the revisional court in as much as he has got every opportunity to raise all issues before us. Moreover, the judgment and order of the revisional court is perfectly valid in the light of the judgment and decision passed in 56 BLR(AD)(20024)16, therefore, the objection raised would change nothing.
16. Furthermore, the learned Advocate for the opposite party No.2,  points  out  that,  the  notice  of  the  revisional application was duly served upon the accused-petitioner.
17. It  has  also  to  be  mentioned  here  that,  the  established cannon  of  the  interpretation  of  the  statute  is  that,  the statute should be interpreted in a manner that must not frustrate  the  object  of  a  remedial  legislation  like  the Negotiable Instruments Act, 1881.
18. Having  considered  the  submissions  and  the  decisions referred to above, we do not find any merit in this Rule and the same is liable to be discharged.

O R D E R

In the result the Rule is discharged.

The order of stay granted earlier by this Court is hereby vacated.

The trial court is directed to proceed with the trial from where it was stayed and to dispose of the case on merit. Communicate this order at once.

Fahmida Quader.J.

          I agree.

Jashim:B.O.