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.18398 OF 2014

Md. Moinuddin

....Accused-Petitioner.

-VERSUS-

The State and another.

                                ...Opposite Parties.

No one appears   ............ For both the parties. Mr. Yesmin Begum Bithi, DAG with

Mr. Binoy Kumar Ghosh

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

..............For the State.

Heard on: 01.11.2023 and Judgment on: 02.11.2023.

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 C.R. Case No.63 of 2014 under Section 138 of the Negotiable Instrument Act,1881,  now  pending  before  the  learned  Senior  Judicial Magistrate, Court No.2, Chittagong.

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 offence.

Being  aggrieved  and  dissatisfied  with  the  impugned proceedings  the  accused  petitioner  preferred  the  instant application and obtained the present Rule on 17.04.2014.

Heard the learned Deputy Attorney General and perused

the record.

 The accused petitioner submits in the petition that no valid notice was served upon the petitioner as required under section 138(1)(b) of the Negotiable Instruments Act, 1881 in view  of  the  fact  that  admittedly  the  opposite  party  No.2 published a legal notice on 03.02.2014 in the “ Daily Khabar Patra” which is not a daily bangla national newspaper having wide  circulation  as  required  by  section  138(1A)(c)  of  the

Negotiable  Instruments  Act,  1881  and  as  such  in  absence  of

sufficient service of notice, there cannot be any offence under section 138 of the Negotiable Instruments Act, 1881 and taking cognizance into the offence and continuation of the proceeding against the petitioner is an abuse of process of the Court and as such for ends of justice the proceeding against the petitioner is liable to be quashed.

The  accused petitioner  further  submits in the petition that the cheque in question obtained by the opposite party No.2 by practicing fraud upon the petitioner and as such considering this aspect along with other grounds the proceeding is liable to be quashed.

Now, the case is pending for passing necessary order, the Court has lack of scope and jurisdiction to weigh the facts and evidence  in  this  application,  hence  the  Rule  is  liable  to  be discharged. The decision reported in 13 MLR (AD) 184 and 62 DLR (AD) 233.

We have meticulously examined the allegations made by the complainant and we find that the offence punishable under section 138 of the Negotiable Instrument Act,1881 has been clearly disclosed in the instant case against the accused. We have gone through the grounds taken in the application under section 561A of the Code of Criminal Procedure and we find that such grounds are absolutely the disputed question of facts and the same should be decided at the trial.

Since  the  ground  taken  by  the  accused  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