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. 11249 OF 2021

Md. Abdus Sattar Mia

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

The State and another ...Opposite Parties.

None appears

............ For the petitioner. Mr. Md. Taufiqul Islam, Advocate

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

Mr. B.M. Abdur Rafell, DAG with

Mr. Binoy Kumar Ghosh, A.A.G.

Mr. A.T.M. Aminur Rahman (Milon), AAG Ms. Lily Rani Saha, AAG

..............For the State. Heard and Judgment on: 31.01.2024.

SHAHED NURUDDIN, J:

By this Rule, the accused-petitioner by filing an

application  under  Section  561A  of  the  Code  of Criminal Procedure sought to quash the proceedings of  Metropolitan  Sessions  Case  No.7771  of  2019 arising out of C.R. Case No.360 of 2019 under Section 138  of  the  Negotiable  Instruments  Act,1881,  now pending  before  the  learned  Additional  Metropolitan Sessions Judge, 6th  Court, Dhaka.

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  payment  stopped  by drawer. 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 and subsequently, the charge was framed by the  Additional  Metropolitan  Sessions  Judge,  6th Court, Dhaka. The case is now pending for trial. 

Feeling  aggrieved  the  accused  petitioner preferred  the  instant  application  and  obtained  the present Rule on 28.02.2021.

Heard the learned Advocates and the learned Deputy Attorney General 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. The learned Judge after considering the entire materials on record rightly framed the charge under the same section  against  the  accused  petitioner.  Moreso,  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. In the instant case, the accused stand indicted for an offense punishable under the same section. Cognizance has been taken as  well  the  charge  has  been  framed  against  the accused petitioner under the same section. 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 petition of the miscellaneous case are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong  precedent by which the course of justice  instead  of  being  advanced  readily  is  stifled inasmuch as the grounds advanced before us are not correct or legal exposition of law.

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. 

Since  the  ground  taken  by  the  petitioner  is disputed question of fact and all the submissions are settled principle by the Hon’ble Appellate Division.

 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