1
In the Supreme Court of Bangladesh
High Court Division
(Criminal Revisional Jurisdiction)
Bench:
Mr. Justice Muhammad Abdul Hafiz
and
Mr. Justice Md. Ruhul Quddus
Crriminal Revision No.823 of 2012
with
Criminal Revision No. 826 of 2012
In the matter of :
Applications under sections 439 and 435 of the Code of Criminal Procedure;
And
In the matter of :
Md. Shafayet Hossain Rana, son of late Md. Motiur Rahman, Sabbir Tower (5th Floor), 3/4, Purana Paltan, Police Station-Paltan, District-Dhaka.
...Petitioner in both the revisions
-Versus-
... Opposite parties in both the revisions
Mr. Md. Abdul Quadir Talukder, Advocate
... for the petitioner
Mr. A. S. M. Fazle Rabbi Khan, Assistant Attorney General
... for opposite party 1
Judgment on 21.01.2014
Md. Ruhul Quddus, J:
These two Rules between the same parties involving common questions of facts and law have been heard together and are being disposed of by one judgment.
The Rule in Criminal Revision No. 823 of 2012 was issued challenging order No. 22 dated 29.04.2012 of the Special Sessions Court No.1, Dhaka passed in Special Session Case No. 08 of 2010 arising out of C.R. Case No. 5515 of 2008 under section 138 of the Negotiable Instrument Act, 1881 discharging opposite party 2 Md. Syed Rejaul Karim Salim on an application under section 265C of the Code of Criminal Procedure, while Rule in the latter was issued challenging order No. 25 dated 29.04.2012 of the same Court passed in Special Case No. 223 of 2009 arising out of C.R. Case No. 5516 of 2008 discharging the opposite party 2.
The petitioner had filed both the complaint cases on the allegations, inter alia, that opposite party 2 had given him two cheques both dated 11.02.2008 one being No. SSD14872 for an amount of taka seventy lac fifty-two thousand two hundred twenty-six (70,52,226/-) only and another being No.SSD 14871 dated 11.2.2008 for an amount of taka twenty lac (20,00,000/-) only to be drawn on his account No.1503100286445001 maintained with BRAC Bank Ltd. The petitioner placed the cheques for encashment through his bank H.S.B.C. Bank Ltd. but both the cheques were dishonoured on 15.07.2008 with remark “insufficient fund”. Thereafter, the complainant-petitioner served two statutory legal notices both dated 14.08.2008 upon the opposite party 2 informing him about the dishonour of the two cheques and demanding payment of the amount. Getting no result, he was constrained to file the complaint cases against opposite party 2 under section 138 of the Negotiable Instrument Act in the Court of Chief Metropolitan Magistrate, Dhaka.
The Chief Metropolitan Magistrate, Dhaka on examining the complainant issued process upon the opposite party 2, who voluntarily surrendered before the Chief Metropolitan Magistrate and obtained bail on furnishing an undertaking that he would pay the entire amount by installments. The cases being ready for trial were sent to the Metropolitan Sessions Judge, Dhaka, wherefrom those were sent to the Special Sessions Court No. 3 and thereafter to Special Sessions Court No.1 for disposal.
Meanwhile the opposite party 2 instituted Title Suit No. 07 of 2010 against the petitioner as sole defendant before the Third Court of Joint District Judge, Dhaka for declarations inter alia, that there was transaction of taka sixty-seven lac only between the parties, out of which taka fifty lac was already paid by the plaintiff to the defendant and taka seventeen lac only was due with some other declarations. In paragraphs 12, 13 and 14 of the plaint in the suit opposite party 2 referred to the facts relating to issuance of the two cheques in question.
Opposite party 2 also filed two separate applications in the complaint cases for staying the proceedings on the ground of pendency of the said title suit and being rejected further attempted to stay the proceedings by filing applications on the ground of moving in the High Court Division. Thereafter, he filed applications under section 265C of the Code of Criminal Procedure for his discharge from both the cases taking the plea that during the state of emergency in 2007, he was compelled to issue the cheques under illegal pressure of one Major Afzal, for which he had already instituted a title suit and that since on the self same cheques, a civil suit was pending, he (opposite party 2) cannot be prosecuted simultaneously in the present cases of criminal nature. The learned Special Judge by the impugned orders allowed the applications and discharged opposite party 2 from the cases without any discussion on the point raised in the application for discharge, but on a different ground that the cheques were account payee cheques which according to section 123A of the Negotiable Instrument Act did not fall within the definition of Negotiable Instrument Act and that apparently the cheques were issued by managing director of a company, but the complainant did not indict the other directors of the company and therefore, the instant cases could not proceed against the managing director as sole opposite party.
Mr. Md. Abdul Quadir Talukder, learned Advocate appearing for the complainant-petitioner in the both the cases submits that it has already been settled that a proceeding under section 138 of the Negotiable Instrument Act is maintainable even in the event of dishonoring a crossed cheque. He further submits that the accused-opposite party issued the cheques in favour of the petitioner. He made the previous transaction with the complainant in personal capacity, even he instituted the title suit in his name as an individual and also signed an agreement with the petitioner in personal capacity. There is no scope to take the plea at this stage that the cheques were issued by a company and without indicting all the directors, the cases are not maintainable. In support of his submission Mr. Quadir refers to the cases of Mohammad Ali vs. State and another, 64 DLR 426 and Arif-uz-Zaman vs. State, 17 BLC(AD) 167.
The copies of the Rules were served upon the opposite party 2, who appeared through his learned Advocate Mr. Md. Showkat Ullah Khan by filing a power on 14.01.2013 against entry No. 2523. We kept it pending in the list for several days as a part heard matter just to accommodate the learned Advocate for opposite party 2, but he did not feel to appear. However Mr. A. S. M. Fazle Rabbi Khan, learned Assistant Attorney General appears for the Opposite Party-State and submits that when a prima facie case under section 138 of the Negotiable Instrument Act is made out i.e. a cheque is bounced, statutory legal notice is served and the case is filed within time, there is a very little scope of quashment of the case.
We have gone through the documents and the decisions cited. In the case of Mohammad Ali vs. State and another, 64 DLR 426 under similar facts and circumstances Md. Anwarul Haque, J as his lordship then was observed:
“since the ‘Account payee cheque’ mentioned in the complaint-petition has not lost it’s character as negotiable instrument, the same can be easily brought within the mischief of ‘any cheque’ mentioned in section 138(1) of the Negotiable Instruments Act because cheque includes ‘account payee cheque’ also.”
In the case of Arif-uz-Zaman (Md) vs. State, 17 BLC (AD) 167 his lordship Md. Abdul Wahhab Miah, J speaking on behalf of the Court observed:
“From a mere reading of sub-section (1) of section 138 of the Act it is apparent that the legislature has consciously used the word any ‘cheque’ drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account. Legislature very well knew about section 123A of the Act. Had it been the intention of the legislature to exclude a crossed cheque “account payee” as used in clause (a) of sub-section (2) of section 123A from the mischief of sections 138 and 141 of the Act, 1881, then they would have definitely mentioned cheque other than ‘crossed cheque’. It appears to us that the moment a cheque is dishonoured, either a bearer or crossed cheque “account payee”, for any reason whatsoever including the alleged dissimilarity of the signature of the drawer on the cheque as found by the High Court Division while interpreting the meaning of the abbreviation “etc” used in the heading of section 138, the offence under the section shall be complete and in that case the payee shall have the liberty to file a petition of complaint before the competent Magistrate against the drawer of the cheque, of course, by complying with the proviso to sub-section (1) of section 138. And in the instant case admittedly those requirements were clearly complied with before filing the case. The legislative mandate as used in clause (a) of sub-section (2) of section 123A of the Act, 1881 that when a cheque is crossed “account payee” shall cease to be negotiable means it cannot be negotiated or encashed with any other person except the person in whose favour the same was issued. To make it clearer, a crossed cheque “account payee” must be enchased through the account of the holder in whose favour it was issued. So, by no means, a crossed cheque “account payee” loses its character as a negotiable one within the meaning of section 138 of the Act, 1881 moreover, section 13 of Act, 1881 which has defined “Negotiable instrument” has not made any distinction between crossed cheque “account payee” or cheque of other kind such as ‘bearer cheque’ as we ordinarily mean. Thus, we find that section 123A of the Act, in no way, creates any bar in proceeding with a case under section 138 of the Act, 1881.”
It appears from the supplementary affidavits (affirmed on 12.01.2014) that the opposite party 2 instituted Title Suit No.07 of 2010 by his name in individual capacity although the description “Managing Director, Gomoti Housing Limited” has been given as his principal identity. The same name and description in same manner have been used in the complaint cases filed by the petitioner. Opposite party 2 executed the powers filed by Mr. Showkat Ullah Khan in the instant criminal revisions simply by putting his name in individual capacity. For the sake of argument, even if the cheques were issued on behalf of the company, the drawer of the cheques being the managing director sitting at the helm of the affairs of the company cannot escape the liability. Moreover, he did not take any such ground in his application under section 265C and did not make any reply after service of the notices on him in individual capacity. Under the facts and circumstances of the present cases, we do not think that the drawer of the cheques can be discharged without facing trial.
In view of the decisions cited and the discussions made above we find substance in the Rules.
Accordingly, both the Rules are made absolute. The order No.22 dated 29.04.2012 passed by the Special Sessions Judge, Court No.1, Dhaka in Special Sessions Case No.8 of 2010 (arising out of C.R. Case No. 5515 of 2008) and the order No. 25 dated 29.04.2012 passed by the Special Sessions Judge, Court No.1, Dhaka in Special Sessions Case No.223 of 2009 (arising out of C.R. Case No. 5516 of 2008) are set aside. The trial court is directed to proceed with trial of both the cases in accordance with law and to dispose of the same expeditiously.
Send down the lower Courts’ records and communicate the judgment.
Muhammad Abdul Hafiz, J:
I agree.