In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

              MR. JUSTICE KHANDAKER DILIRUZZAMAN

CRIMINAL MISCELLANEOUS CASE NO. 41831 OF 2022

Md. Kamal Hossain ….…...Accused-petitioner 

-Versus-

The State and another     ….….....Opposite parties Mr. Muhammad Harunur Rashid, Advocate

.....For the petitioner

Mr. Md. Anisur Rahman (Raihan), Advocate

…For the opposite party No.2

Heard on: 01.08.2023

Judgment on: The 2nd August, 2023 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused-petitioner under section 561A of the Code of Criminal  Procedure,  1898  calling  upon  the  opposite parties  to  show  cause  as  to  why  the  proceedings  of Sessions Case No. 331 of 2020, arising out of C.R. Case No. 329 of 2020 under section 138 of the Negotiable Instruments Act, 1881 now pending in the Court of Joint Sessions Judge, Court No.3, Patuakhali 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 the Rule, this Court was pleased to stay all further proceedings of the aforesaid Sessions Case No. 331 of 2020 for 6 (six) months which was time to time extended by this Court.

For disposal of this Rule, the relevant facts may briefly be stated as follows: 

That the opposite party No. 2 as complainant filed a  C.R.  Case  No.  329  of  2020  against  the  accused- petitioner  under  section  138  of  the  Negotiable Instruments  Act,  1881  alleging  inter  alia  that  the accused-petitioner was a manager of his brick field, who sold out his bricks to the respective purchasers but did not  deposit  the  said  money  to  his  office.  On  being demand,  the  accused-petitioner  issued  the  impugned cheque dated 18.02.2020 in favour of the complainant amounting  to  Tk.  1,05,00,000/-  (Taka  One  crore  and Five lac) which was dishonored due to insufficient of fund. Accordingly, the complainant filed the aforesaid C.R. Case against the accused-petitioner under section 138 of the Negotiable Instruments Act, 1881. Thereafter, the accused-petitioner appeared before the Court below and  obtained  bail.  Thereafter,  the  said  case  was transferred before the Joint Sessions Judge, Court No. 3,

Patuakhali for disposal which was registered as Sessions Case No. 331 of 2020. Thereafter, the charge was framed against the accused-petitioner under section 138 of the Negotiable Instrument Act, 1881. Being aggrieved, the accused-petitioner  filed  an  application  under  section 561A  of  the  Code  of  Criminal  Procedure  before  this Court for quashing the proceedings of the aforesaid case and obtained the Rule and stay.

Mr.  Muhammad  Harunur  Rashid,  the  learned Advocate for the accused-petitioner mainly submits that the complainant opposite party No. 2 has obtained the impugned cheque forcefully from the accused-petitioner. Regarding the said matter, the accused-petitioner filed a C.R.  Case  No.  220  of  2020  against  the  complainant opposite party under sections 323 /384 /386/ 362/ 406/ 420/  506(II)  of  the  Penal  Code,  1860  which  is  still pending. Since, the complainant-opposite party No. 2 did not provided any consideration against the said cheque and as such the cheque in question cannot be treated as Negotiable Instrument under the Negotiable Instrument Act.  Hence,  the  impugned  proceeding  is  liable  to  be quashed.

As against this, Mr. Md. Anisur Rahman (Raihan), the  learned  Advocate  for  the  opposite  party  No.  2 submits that after complying with all legal formalities under  section  138  of  the  Negotiable  Instrument  Act, 1881,  the  opposite  party  No.  2  filed  the  instant  case against the accused-petitioner. In the instant case, the accused-petitioner  has  no ground  at  all  in  invoke  the provision  of  section  561A  of  the  Code  of  Criminal Procedure and as such the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocates of both sides and perused the petitioner’s application along with other materials on record thoroughly. 

In the instant case, the accused-petitioner mainly contended that the opposite party No. 2 has obtained the impugned cheque forcefully from the accused-petitioner and as such it is not a valid cheque and regarding this matter, the accused-petitioner also filed a C.R. Case No. 220  of  2020  against  the  complainant-opposite  party under sections 323/384/386/362/406/420/506(II) of the Penal Code, 1860 which is still pending.

The  contention  as  raised  by  the  petitioner  is absolutely a matter of evidence which cannot be decided at this stage under section 561A of the Code of Criminal Procedure.

Under the given facts and circumstances, we do not find any substances of this Rule.

As a result, the Rule is discharged.

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

Communicate  this  judgment  and  order  to  the concerned Court below at once.

Khandaker Diliruzzaman, J:

I agree