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. 29445 OF 2013

Muzibul Haider Chowdhury ............Accused-Petitioner.

-VERSUS-

The State and another. ...Opposite Parties.

None appears      ............ For the petitioner. Mr.Md. Nasir Shikder, Advocate

......... For the Opposite Party No.2. Mr. B.M. Abdur Rafell, DAG with

Mr. Binoy Kumar Ghosh

Mr. A.T.M Aminur Rahman, A.A.Gs.

..............For the State. Heard and Judgment on: 13.12.2023.

SHAHED NURUDDIN,J:

By  this  Rule,  the  accused-petitioner  by  filing  an

application  under  Section  561A  of  the  Code  of  Criminal Procedure sought for quashing the proceedings of Sessions Case No.2972 of 2012 arising out of C.R. Case No.464 of 2012 under Section 138 of the Negotiable Instrument Act,1881, now pending before the learned Metropolitan Additional Sessions Judge, 1st Court, Chattogram.

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 insufficiency of funds. 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 offense and subsequently,  the  charge  was  framed  by  the  Metropolitan Additional Sessions Judge, 1st Court, Chattogram. The case is now pending for trial.

Being  aggrieved  and  dissatisfied  with  the  impugned proceedings  the  accused  petitioner  preferred  the  instant application and obtained the present Rule on 14.07.2013.

Despite the matter appears in the cause list for hearing, no one  appears  on  behalf  of  the  petitioner  to  press  the  rule. However, in presence of Mr.  Md. Nasir Shikder, the learned Counsel appearing for the opposite party No.2 and the learned Deputy Attorney General, we are inclined to dispose of the rule on merit.

Mr. Md. Nasir Shikder, the learned Counsel appearing for the opposite party No.2 by filing a counter affidavit submits that the petitioner admitted that he issued the  cheque  in  question voluntarily in favour of the opposite party No.2 in presence of local elite parsons. The petitioner shall get ample opportunity in the concern trial court to prove his case through a proper trial in which the concern trial Court weigh both parties evidence in support of their cases. Now, the case is fixed for examination of witness and the Hon’ble Court has lack of scope and jurisdiction to weigh the facts and evidence in this application, hence the Rule is liable to be discharged. In support of his contention he referred the decision reported in 13 MLR (AD) 184 and 62 DLR (AD) 233.

Heard the learned Advocate for the opposite parties 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.  All that is required at the stage of framing charge is to see whether the  prima-facie  case  regarding  the  commission  of  the certain offense is made out. The truth veracity and effect of evidence which prosecution proposes to adduce is not to be meticulously judged at the stage of framing charge. 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

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.

 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